IPCS (IPCS)

“when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues.”(116)

Where the multiple actions are contemporaneously filed, however, this Court evaluates a motion to stay “‘under the traditional forum non conveniens framework without regard to a McWane-type preference of one action over the other.’”(117) The “doctrine of forum non conveniens permits a court to decline to hear a case despite having jurisdiction over the subject matter and the parties when there is a similar action pending elsewhere and when considerations of convenience, expense, and the interests of justice dictate that litigation in the forum selected by the plaintiff would be unduly inconvenient, expensive or otherwise inappropriate.”(118) The doctrine is only employed at the court’s discretion.(119)

In a forum non conveniens analysis, the factors courts consider are:

(1) the applicability of Delaware law, (2) the relative ease of access to proof, (3) the availability of compulsory process for witnesses, (4) the pendency or non-pendency of a similar action or actions in another jurisdiction, (5) the possibility of

(116)      McWane, 263 A.2d at 283.

(117)      Rapaport v. Litig. Trust of MDIP Inc., 2005 WL 3277911, at *2 (Del. Ch. Nov. 23, 2005) (citing WOLFE & PITTENGER § 5-1 [a] and HFTP Invs., L.L.C. v. ARIAD Pharms., Inc., 752 A.2d 115, 122 (Del. Ch. 1999)); In re Bear Stearns Cos. S’holder Litig., 2008 Del. Ch. LEXIS 46, at *16 (Apr. 9, 2008); see also Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964).

(118)      Aveta, 942 A.2d at 607-08 (quoting Chrysler First Bus. Credit, 669 A.2d at 108 and Sumner Sports, Inc. v. Remington Arms Co., 1993 WL 67202, at *7 (Del. Ch. Mar. 4, 1993)) (internal punctuation omitted).

(119)      See, e.g., Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 37 (Del. 1991).

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a need to view the premises, and (6) all other practical considerations that would make the trial easy, expeditious, and inexpensive.(120)

“Delaware courts consistently uphold a plaintiff’s choice of forum except in rare cases.”(121) Thus, motions to stay litigation on grounds of forum non conveniens are rarely granted.(122)

Here, because the Current Delaware Action and the Current Illinois Action were filed in the same general time frame, only three business days apart, I view them as contemporaneous filings.(123) In fact, the parties themselves generally characterize the

(120)       Ryan, 918 A.2d at 351 (citing In re Chambers Dev. Co. S’holders Litig., 1993 WL 179335, at *2 (Del. Ch. May 20, 1993)).

(121)       Taylor v. LSI Logic Corp., 689 A.2d 1196, 1198 (Del. 1997) (citing Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P’ship, 669 A.2d 104, 105 (Del. 1995)).

(122)       Bear Stearns, 2008 Del. Ch. LEXIS 46, at *16 (citing Berger v. Intelident Solutions, Inc., 906 A.2d 134, 135 (Del. 2006)). To succeed on a motion to stay litigation such as this on grounds of forum non conveniens, there is some debate as to whether a defendant must show “overwhelming hardship and inconvenience” or merely demonstrate that the relevant factors preponderate in his favor. See Brandin v. Deason, 941 A.2d 1020, 1024 n. 13 (Del. Ch. 2007) (comparing HFTP, 752 A.2d at 121 (preponderance test), with Ryan, 918 A.2d at 351 (overwhelming hardship test), cases which involved a motion to stay a direct claim and a derivative claim, respectively); see also Aveta, Inc. v. Delgado, 942 A.2d 603, 608 n.12 (Del. Ch. 2008); Bear Stearns, 2008 Del. Ch. LEXIS 46, at *16 n.22. In the circumstances of this case, I find Defendants have not satisfied either test, and therefore need not resolve the debate.

(123)       This Court treats as simultaneous, complaints filed within the same general time frame. In re Chambers Dev. Co., 1993 WL 179335, at *7.

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actions as contemporaneous. Therefore, the forum non conveniens framework is more pertinent than the McWane doctrine.(124)