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Ison v. E.I. Dupont De Nemours and Company5/25/1999
laintiff if dismissal forces a brand new action in an alternate forum.
In Piper Aircraft, the United States Supreme Court applied FNC to dismiss a cause of action where the plaintiffs had already instituted a similar cause of action in the United Kingdom. But the Court did not decide Piper Aircraft on the basis of prior pending actions. Instead, it looked to the existence and viability of an alternative forum, not the existence and viability of a prior filed action. By not focusing on the existence of a prior filed action, Piper Aircraft at least implicitly prevents plaintiffs from abstaining from filing an action in their home jurisdiction just so they can argue that no prior filed action existed and that dismissal under FNC is precluded.
The trial court must look at the cost and prejudice that would result from a dismissal in a case where no other actions are pending. For example, the trial court should consider how far discovery has commenced and whether this process would have to begin anew in the alternate forum. If the trial court did this sort of analysis in this case, it is not clear from its brief opinion. A trial court must analyze the effect of the non-pendency of similar actions involving the same parties in alternate jurisdictions in light of the burden on the defendant to show overwhelming hardship.
The sixth Cryo-Maid factor is "all other practical problems." Two stand out in this case. First, as the trial court noted, DuPont claims that there are possible third-party defendants not subject to impleader in any action in Delaware. Second, DuPont has agreed to waive any jurisdictional or statutes of limitation defenses that it might possess in the alternate fora.
The alleged third-party defendants are I.C.I. and the employers of the mothers of the New Zealand plaintiffs. DuPont argues that any judgment against it in a Delaware court would do nothing to protect it against future litigation based on the same claims against these third-party defendants. For example, if the United Kingdom plaintiffs chose to sue I.C.I. in England, I.C.I. could implead DuPont and DuPont could be held liable again for the same injuries. Due to similar concerns, courts in other jurisdictions in certain factual settings have found substantial prejudice based on the fact that a defendant could not implead potential third-party defendants.
Although this factor initially appears to weigh in favor of DuPont, it did not present any evidence that this factor is more than illusory. As the plaintiffs noted, DuPont never acted to implead any third-party defendant, and we are not persuaded that any inability to do so would be an overwhelming hardship. In response to a question at oral argument in this Court about whether the distribution contracts DuPont signed with these potential third-party defendants included an indemnification clause that would render this issue moot, counsel for DuPont answered that he did not know. Considering the state of the record on this issue, we cannot say that DuPont has proven that the inability to implead potential third-party defendants is a factor that would lead us to find that it is likely to suffer overwhelming hardship.
The second important practical problem is one that has been avoided through DuPont's willingness to waive any jurisdictional or statutes of limitation defenses that it might possess in the alternate fora. This removes any doubt that the plaintiffs would be able to assert their claims in their home countries. Of course, this factor relates to the convenience of the plaintiffs, not to the inconvenience of the defendant. Thus, it balances in favor of DuPont, but is not probative of the overwhelming hardship
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