Supreme Court of Delaware, 2018

Aranda v. Philip Morris U.S. Inc.

Supreme Court of Delaware · Decided March 22, 2018 · Vaughn

183 A.3d 1245 (Atlantic Reporter, Third Series)

Counsel

Ian Connor Bifferato, Esquire, Richard S. Gebelein, Esquire and Thomas F. Driscoll III, Esquire, The Bifferato Firm, Wilmington, Delaware; Charles S. Siegel, Esquire (argued), Waters & Kraus, LLP, Dallas, Texas; Steven J. Phillips, Esquire, Phillips & Paolicelli, LLP, New York, New York and the Thornton Law Firm, Boston, Massachusetts for the Plaintiffs Below, Appellants., P. Clarkson Collins, Jr., Esquire and David J. Soldo, Esquire, Morris James LLP, Wilmington, Delaware; Patrick W. Dennis, Esquire (argued), Perlette Michèle Jura, Esquire, Gibson, Dunn & Crutcher LLP, Los Angeles, California; Miguel A. Estrada, Esquire and Amir C. Tayrani, Esquire, Gibson, Dunn & Crutcher LLP, Washington, D.C. for the Defendant Below, Appellee Philip Morris USA Inc., Donald E. Reid, Esquire, Morris Nichols Arsht & Tunnell LLP, Wilmington, Delaware; Matthew S. Hellman, Esquire (argued), Jenner & Block LLP, Washington, D.C.; Elizabeth A. Coleman, Esquire and Casey T. Grabenstein, Esquire, Jenner & Block LLP, Chicago, Illinois for Defendant Below, Appellee Philip Morris Global Brands, Inc., SEITZ, Justice, for the Majority:, According to the allegations of the complaint, the plaintiffs are adult and minor Argentinean citizens.1 The defendants, Philip Morris USA Inc. ("PM USA") and Philip Morris Global Brands, Inc. ("PM Global"), own Massalin Particulares, S.A., a tobacco production company. In 1984, Massalin created a brokerage company, Tabacos Nortes, to purchase tobacco from small, family-owned farms in Misiones, Argentina. The plaintiffs own and live on these farms, raising livestock and growing produce for their own consumption adjacent to the tobacco plants. Tabacos Nortes requires the farmers to purchase and use herbicides and pesticides, which it sells to the farmers on credit. Monsanto Company developed, marketed, and supplied a herbicide, called "Roundup," which, according to the complaint, contains chemical ingredients and toxins capable of causing "genetic, teratogenic, and/or developmental injury to humans."2 The plaintiffs mixed chemicals like Roundup and sprayed the tobacco crops by hand with chemicals from containers on their backs. As alleged in the complaint, the defendants knew that the plaintiffs' personal crops, livestock, and water would be contaminated with the herbicides and pesticides. The plaintiffs further allege that the defendants never recommended protective measures, but knew the plaintiffs lacked protective equipment and the knowledge required for safe use of the chemicals., *1248The plaintiffs claim the defendants "willfully and recklessly ignored knowledge ... of the health hazards" of the herbicides and pesticides and "exhibited reckless disregard for the health and well-being" of the plaintiffs.3 The plaintiffs also alleged that PM USA and PM Global, in particular, "controlled and managed the tobacco production enterprise of Massalin Particulares and Tabacos Nortes to ensure that the tobacco produced in Argentina was sufficient for its American products."4, As for the plaintiffs' requested conditions to dismissal, the court found the requests untimely because they should have been raised in their original motion and not in a Rule 59 motion for reargument.9 The court also held that, even if plaintiffs had properly raised their request, those conditions were "not logically implicated in an analysis focusing on a moving defendant's overwhelming hardship."10, First, some context. The Latin words "forum non conveniens " mean "forum not agreeing."13 Over time, the expression became associated with "convenience," meaning the defendant's inconvenience of litigating the dispute in the plaintiff's chosen forum.14 Forum non conveniens was the solution to a practical problem recognized early on by U.S. and foreign courts. With the liberalization of jurisdiction and venue requirements, plaintiffs began to file suits in courts that had little or no connection to the filing forum. Instead, they had a close connection to other jurisdictions whose courts were better suited to resolve the disputes.15 Lacking a mechanism to transfer a dispute to another jurisdiction, the United States Supreme Court recognized forum non conveniens , which allowed *1250courts to exercise their discretion to stay or dismiss a case in favor of a more convenient forum for resolving the dispute.16, Congress displaced the federal courts' application of forum non conveniens domestically by enacting 28 U.S.C. § 1404(a). Federal courts could now transfer cases between districts "for the convenience of the parties and witnesses" and "in the interests of justice."17 But, transnational cases in the federal courts involving foreign plaintiffs and foreign disputes remain subject to forum non conveniens analysis.18 And state courts were free for the most part to adopt their own procedures for addressing cross-jurisdictional domestic and foreign disputes.19, In Gramercy , we summarized the different procedural postures of forum non conveniens disputes-a first-filed Delaware case with no case pending elsewhere (the Cryo-Maid test); a second-filed Delaware case with another first-filed case pending elsewhere (the McWane test); and a hybrid recently addressed by our Court in Gramercy -a later-filed Delaware case after another jurisdiction had dismissed a first-filed case for forum non conveniens . All these scenarios call upon the courts to apply, in one form or another, the same forum non conveniens factors. What *1251changes is the strength of the presumptions applied. As explained in Gramercy :, This appeal presents the first variation, where the case is filed in Delaware with no competing case in another jurisdiction. We noted in Gramercy the factors to be applied under Cryo-Maid to evaluate a forum non conveniens motion: (1) the relative ease of access to proof; (2) the availability of a compulsory process for witnesses; (3) the possibility to view the premises, if appropriate; (4) all other practical problems that would make the trial easy, expeditious, and inexpensive; (5) whether the controversy is dependent upon Delaware law, which the courts of this State should decide rather than those of another jurisdiction; and (6) the pendency or non-pendency of a similar action in another jurisdiction.24, Although we are in the minority on the issue, we are not alone in our concern over the court's use of limited judicial resources by litigants who, along with their disputes, have no meaningful contact with the forum state. In Islamic Republic of Iran v. Pahlavi ,33 the New York Court of Appeals held that an available alternative forum was "a pertinent factor" that the court is required to consider, but it was not a precondition to dismissal.34 Requiring an alternative forum, the court explained, "would place an undue burden on New York courts forcing them to accept foreign-based actions unrelated to this State merely because a more appropriate forum is unwilling or unable to accept jurisdiction."35 The court noted that any "infirmity *1254in plaintiff's legal system" should not be used to "impose disadvantage on the defendant or judicial system of this state."36 It therefore affirmed the dismissal for forum non conveniens , concluding that taxpayers "should not be compelled to assume the heavy financial burden attributable to the cost of administering the litigation contemplated when their interest in the suit and the connection of its subject matter to the State of New York is so ephemeral."37

Opinion of the Court

VAUGHN, Justice, concurring:

I agree that our cases have not directly addressed whether an alternative forum must be available before dismissing a case for forum non conveniens . My own view of why this is so is that under the overwhelming hardship test motions to dismiss for forum non conveniens have seldom been granted. In Kolber v. Holyoke Shares, Inc. , then Justice Herrmann wrote that dismissal would occur only in "the rare case" where the factors "balance overwhelmingly in favor of the defendant."43 Ison v. E.I. DuPont de Nemours & Co. , in my opinion, sent a strong message to the trial judges that forum non conveniens motions were not favored and should generally be denied.44 It was not until Martinez v. E.I. DuPont de Nemours and Co. that this Court clarified the overwhelming hardship test by stating that it was "not intended to be preclusive."45 When a motion to dismiss for forum non conveniens is denied because of failure to show overwhelming hardship, there is little or no reason to determine whether an alternative forum is available. I do not think that cases where the motion was denied for failure to show overwhelming hardship provide any helpful *1256guidance on the question of a need for an alternative, available forum.

I would join the great weight of authority that holds that in order to grant a motion to dismiss for forum non conveniens , a threshold step is to determine whether an adequate, alternative forum exists.46 I do not think that the availability of an alternative forum should simply be a factor to be considered among other factors. In this case, however, I concur in the Court's judgment. I agree with the Majority's discussion of international comity and preemptive jurisdiction. Where factors such as preemptive jurisdiction may affect consideration of an alternative available *1257forum, as may be the case here, a different rule may be appropriate. In addition, I am not sympathetic to a request that a defendant be required to waive objection to jurisdiction in another forum. As the Majority points out, the Superior Court noted within its analysis that it considered Argentina an available alternative forum. I am not inclined to disturb that finding in this case.

213 A.2d 444, 447 (Del. 1965).

729 A.2d 832 (Del. 1999).

86 A.3d 1102, 1105 (Del. 2014).

The "action will not be dismissed unless a suitable alternative forum is available to the plaintiff.... [T]he suit will be entertained, no matter how inappropriate the forum may be, if the defendant cannot be subjected to jurisdiction in other states. The same will be true if the plaintiff's cause of action would elsewhere be barred by the statute of limitations, unless the court is willing to accept the defendant's stipulation that he will not raise this defense in the second state." Restatement (Second) of Conflict of Laws § 84 cmt. c (1971); "At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum." Piper Aircraft Co. v. Reyno , 454 U.S. 235, 254 n.22, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) ; "To prevail on a forum non conveniens argument, the defendant must demonstrate ... that there is an available and adequate alternative forum to hear the case." Callies v. United Heritage Prop. & Cas. Ins. Co. , 2014 WL 1048846, at *10 (Ariz. Ct. App. Mar. 18, 2014) ; "The lynchpin of any order granting a motion based on forum non conveniens is a determination that a suitable alternative forum exists." Investors Equity Life Holding Co. v. Schmidt , 233 Cal.App.4th 1363, 1368, 183 Cal.Rptr.3d 219 (2015) ; "First, the court should determine whether an adequate alternative forum exists that possesses jurisdiction over the whole case." Durkin v. Intevac, Inc. , 258 Conn. 454, 782 A.2d 103, 112 (2001) ; "An essential predicate to invocation of the [forum non conveniens] doctrine is the availability of an alternate forum." Mobley v. S. Ry. Co. , 418 A.2d 1044, 1047 (D.C. 1980) ; "As a prerequisite, the court must establish whether an adequate alternative forum exists which possesses jurisdiction over the whole case." Cortez v. Palace Resorts, Inc. , 123 So.3d 1085, 1091 (Fla. 2013) (citations and quotation marks omitted); "Before weighing the relevant factors, we must first decide how much deference to give to plaintiffs' choice of forum and second, we must decide whether the alternate forum is both available and adequate." Gramercy Emerging Mkts. Fund v. Allied Irish Banks, P.L.C. , 2014 WL 3735919, at *4 (Ill. App. Ct. July 28, 2014) (citations omitted); "[A] judge may decline to hear a case, if there is an alternative forum in which justice may be had." Gianocostas v. Interface Grp.-Mass., Inc. , 450 Mass. 715, 881 N.E.2d 134, 140 (2008) ; "[T]he forum non conveniens doctrine 'presupposes that there is at least one forum other than the forum chosen where the plaintiff may bring his cause of action[.]' " Nithyananda Meditation Acad. v. Rao , 2015 WL 1396465, at *3 (Mich. Ct. App. Mar. 26, 2015) (citation omitted); "The first step in a forum non conveniens analysis is for the district court to establish the existence of an available and adequate alternative forum." Paulownia Plantations de Pan. Corp. v. Rajamannan , 793 N.W.2d 128, 133 (Minn. 2009) (citations omitted); "At the outset, a court determines whether there is an adequate alternative forum to adjudicate the parties' dispute." Varo v. Owens-Ill., Inc. , 400 N.J.Super. 508, 948 A.2d 673, 680 (2008) ; "[A] district court must determine 'whether an adequate alternative forum exists.' " Provincial Gov't of Marinduque v. Placer Dome, Inc. , 350 P.3d 392, 396 (Nev. 2015) (citations omitted); "[E]stablishing the adequacy of the proposed alternative forum is a threshold requirement." Espinoza v. Evergreen Helicopters, Inc. , 359 Or. 63, 376 P.3d 960, 984 (2016) ; "[N]o action will be dismissed unless an alternative forum is available to the plaintiff." Beatrice Foods Co. v. Proctor & Schwartz, Inc. , 309 Pa.Super. 351, 455 A.2d 646, 650 (1982) ; "If there is an adequate alternative forum, then the court must analyze and weigh" additional factors. Diversified Striping Sys., Inc. v. Kraus , 341 P.3d 932, 934 (Utah Ct. App. 2014) ; "In deciding whether to dismiss for forum non conveniens, the trial court must first determine whether an adequate alternative forum exists." Acharya v. Microsoft Corp. , 189 Wash.App. 243, 354 P.3d 908, 915 (2015) (citation omitted).

Case-law data current through December 31, 2025. Source: CourtListener bulk data.