        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RODNEY W. SANDS,                              )
                                              )
                       Plaintiff,             )
                                              )
       v.                                     )    C.A. No. N17C-06-249 ALR
                                              )
UNION PACIFIC RAILROAD                        )
COMPANY,                                      )
                                              )
                       Defendant.             )
----------------------------------------------
RICHARD B. HUNT,                               )
                                               )
                       Plaintiff,              )
                                               )
        v.                                     )   C.A. No. N17C-07-069 ALR
                                               )
UNION PACIFIC RAILROAD                         )
COMPANY,                                       )
                                               )
                       Defendant.              )
----------------------------------------------

                               MEMORANDUM OPINION

                  Submitted: October 10, 2017 and November 6, 2017
                             Decided: November 20, 2017

        Upon Defendant’s Motions to Dismiss for Forum Non Conveniens
                                  DENIED

Eileen M. McGivney, Esq., Marc J. Bern & Partners LLP, Attorney for Plaintiffs

Maria R. Granaudo Gesty, Esq., Burns White LLC, Wilmington, Delaware, Anne
Marie O’Brien, Esq. and Daniel J. Hassing, Lamson, Dugan & Murray, LLP,
Omaha, Nebraska, Attorneys for Defendant

Rocanelli, J.
      Union Pacific Railroad Company (“Defendant”) has moved to dismiss two

separate liability actions filed by two non-Delaware residents (collectively,

“Plaintiffs”) on the basis of forum non conveniens.          Each Plaintiff opposes

Defendant’s motion.      The parties’ submissions on this issue present identical

arguments and decisional precedent. This is the Court’s decision on Defendant’s

motions to dismiss these actions for forum non conveniens.

                        Factual and Procedural Background

      Defendant is a railroad company incorporated in Delaware with its

headquarters and principal place of business in Omaha, Nebraska. Defendant

operates locomotives, railroad cars, and repair facilities throughout several states,

but does not directly operate in Delaware.

      Plaintiff Rodney Sands (“Sands”) was employed with Defendant as a

trackman from 2001-2002 and as a conductor from 2002-2015. Sands is a resident

of Yukon, Oklahoma. On June 21, 2017, Sands filed a complaint against Defendant

alleging that he was exposed to various toxic substances and carcinogens during the

course of his employment with Defendant as a result of Defendant’s negligence.

Sands further alleged that the exposure contributed to his development of

tonsil/throat cancer.

      Plaintiff Richard Hunt (“Hunt”) was employed with Defendant from 1978 to

2014 as a machinist at Defendant’s Roseville, California facility. Hunt is a resident

                                         1
of Roseville, California. On July 10, 2017, Hunt filed a similar complaint against

Defendant alleging that he was exposed to various toxic substances and carcinogens

during the course of his employment with Defendant as a result of Defendant’s

negligence. Hunt further alleged that the exposure contributed to his development

of chronic lymphocytic leukemia/Non-Hodgkin’s lymphoma.

        This is the Court’s decision on Defendant’s two motions to dismiss on

grounds of forum non conveniens.1

                                      Legal Standard

      A motion to dismiss for forum non conveniens is addressed to the sound

discretion of the trial court.2 In order to prevail on a motion to dismiss for forum

non conveniens, the moving defendant must demonstrate that it will face

“overwhelming hardship” if litigation proceeds in Delaware.3 Where, as here,



1
   Defendant moved to dismiss the Sands complaint and the Hunt complaint on
grounds of forum non conveniens or, in the alternative, moved to dismiss for failure
to state a claim or for a more definite statement. In response, Sands filed an amended
complaint, and Defendant concedes that the only outstanding issue with respect to
its motion in the Sands case is the motion to dismiss on grounds of forum non
conveniens. However, with respect to its motion in the Hunt case, Defendant’s
motion to dismiss for failure to state a claim or for a more definite statement is still
pending in addition to its motion to dismiss on grounds of forum non conveniens.
The Court has addressed Defendant’s motion to dismiss for failure to state a claim
or for a more definite statement with respect to the Hunt complaint in a separate
order.
2
  Martinez v. E.I. DuPont de Nemours and Co., Inc., 86 A.3d 1102, 1104 (Del. 2014).
3
  Id. (citing Ison v. E.I. DuPont de Nemours & Co., Inc., 729 A.2d 832, 835 (Del.
1999)).
                                             2
alternative forums exist but Plaintiffs have not filed an action in another jurisdiction,

this Court’s analysis is guided by the framework originally set forth by the Delaware

Supreme Court in General Foods Corp. v. Cryo-Maid, Inc.4 The Court must assess

(1) the relative ease of access to proof; (2) the availability of compulsory process for

witnesses; (3) the possibility of the view of the premises; (4) whether the controversy

is dependent upon application of Delaware law; (5) the pendency or nonpendency

of similar actions in another jurisdiction; and (6) all other practical problems that

would make trial of the case easy, expeditious and inexpensive.5 Plaintiffs’ choice

of forum is entitled to respect unless Defendant demonstrates that litigating in

Delaware is “inappropriate and inconsistent with the administration of justice.”6

                                      Discussion

      Defendant argues that dismissal on grounds of forum non conveniens is

appropriate because the only connection these cases have to Delaware is that

Defendant is incorporated in Delaware. However, Delaware courts “are accustomed

to deciding controversies in which the parties are non-residents of Delaware and

where none of the events occurred in Delaware” such that “these factors alone are


4
  Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964), overruled
on other grounds by Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, 261
A.2d 520 (Del. 1969)).
5
  Martinez, 86 A.3d at 1104 (citing Taylor v. LSI Logic Corp., 689 A.2d 1196, 1198-
99 (Del. 1997)).
6
  Pipal Tech Ventures Private Ltd. v. MoEnange, Inc., 2015 WL 9257869, at *5 (Del.
Ch. Dec. 17, 2015) (citing Martinez, 86 A.3d at 1112).
                                         3
not sufficient to warrant interference with the plaintiff’s choice of forum.”7 Further,

the Delaware Supreme Court has reiterated that the “overwhelming hardship”

standard still applies even where, as here, “the only connection to the Delaware

forum [is] the domiciliary status of the business entity.”8          Therefore, upon

consideration of the Cryo-Maid factors in this case, the Court finds that Defendant

has not made a particularized showing that the burden of litigating in Delaware in

either case will result in overwhelming hardship.

      First, with respect to the ease of access to proof, Defendant argues that the

location of witnesses and evidence outside of Delaware weighs heavily in favor of

dismissal. However, Delaware courts have attributed less significance to the “access

to proof” factor under the Cryo-Maid analysis in the context of corporate and

commercial disputes involving larger, more sophisticated entities.9 Additionally,

even if Plaintiffs’ medical records are physically located outside Delaware, it should




7
  Taylor, 689 A.2d at 1200.
8
  Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 268 (Del. 2001).
9
  See, e.g., 1 Oak Private Equity Venture Capital Ltd. v. Twitter, Inc., 2015 WL
7776758, at *8 (Del. Super. Nov. 20, 2015); Hamilton Partners, L.P. v. Englard, 11
A.3d 1180, 1213-14 (Del. Ch. 2010); LeCroy Corp. v. Hallberg, 2009 WL 3233149,
at *8 (Del. Ch. Oct. 7, 2009); see also Chemtura Corp. v. Certain Underwriters at
Lloyd’s, 2015 WL 5340475, at *5 (Del. Super. Aug. 26, 2015) (citing In re Asbestos
Litig., 929 A.2d 373, 384 (Del. Super. 2006)) (“Where litigants are entities with
substantial resources, the burden created by witnesses and evidence located outside
Delaware is ‘substantially attenuated.’”).
                                           4
not be difficult given modern technology to obtain them electronically. 10 Similarly,

“modern methods of transportation lessen the Court’s concern about the travel of

witnesses” who live and work outside of Delaware.11 Furthermore, the reality of

these cases is that out-of-state discovery will be necessary regardless of the forum.12

Therefore, this factor does not weigh in favor of dismissal.

      Second, with respect to the availability of compulsory process for witnesses,

it may be true that this Court does not have the power to compel the testimony of

witnesses located in other states. However, Defendant did not cite with particularity

specific witnesses who will be less inclined to cooperate in this forum in either

case.13 Additionally, while there is a preference for live testimony over a videotaped

deposition, that “preference is not determinative of whether Defendant will suffer

overwhelming hardship given Delaware’s broad discovery procedures.”14

Therefore, this factor does not weigh in favor of dismissal.

      Third, with respect to the possibility of viewing the premises, the parties

dispute whether it would be useful to view the premises in these cases. With respect



10
   See Barrera v. Monsanto Company, 2016 WL 4938876, at *6 (Del. Super. Sep.
13, 2016) (citing Rapoport v. Litig. Trust of MDIP, Inc., 2005 WL 5755438, at *5)
(Del. Ch. Nov. 23, 2005).
11
   Rapoport, 2005 WL 5755438, at *5.
12
   See Barrera, 2016 WL 4938876, at *6.
13
   See id.
14
   Id. (citing Mozeik v. Seramone & Sons Home Improvements, Inc., 2015 WL
1912724, at *3 (Apr. 28, 2015)).
                                          5
to Sands, Defendant argues that it may want to show the jury various tunnels that

Sands passed through and some buildings in which Sands worked and their

ventilation. Similarly, with respect to Hunt, Defendant argues that the buildings in

which Hunt worked and their ventilation are relevant to his case.           However,

Defendant fails to describe these sites with particularity, and has not demonstrated

that the jury would need to physically see these sites in person to understand the

relevant arguments. Therefore, Defendant has not established that it would face

overwhelming hardship with respect to this factor.

      Fourth, with respect to whether Delaware law applies, these actions arise

under the Federal Employers Liability Act (“FELA”), which is federal law.15

However, FELA is specifically designed to allow state courts as well as federal

courts to apply the law.16 FELA provides that the “jurisdiction of the courts of the

United States under this chapter shall be concurrent with that of the courts of the

several States.”17 In addition, Delaware courts are regularly asked to interpret and

apply the law of other jurisdictions.18 Therefore, Defendant has not demonstrated

that the fact that federal law applies will cause it to suffer overwhelming hardship.




15
   45 U.S.C. §§ 51 et seq.
16
   45 U.S.C. § 56.
17
   45 U.S.C. § 56.
18
   See Taylor, 689 A.2d at 1200; Conley v. GlaxoSmithKline, LLC, 2016 WL
4764932, at *2 (Del. Super. Sep. 12, 2016); Barrera, 2016 WL 4938876, at *7.
                                        6
      Fifth, with respect to the pendency of similar actions, neither Sands nor Hunt

have similar claims pending in any other jurisdiction. The Delaware Supreme Court

has held that “judicial discretion is to be exercised sparingly where, as here, there is

no prior action pending elsewhere.”19 In addition, where there are no prior actions

pending, the Court must consider the “possible cost and delay to the plaintiff if

dismissal forces a brand new action in an alternate forum.” 20 Therefore, this factor

weighs against dismissal.

      Lastly, the Court may, but is not required to, address the public interest by

“weigh[ing] the efficient administration of justice and analogous considerations.”21

Defendant argues that because the only connection to Delaware in these cases is that

Defendant is incorporated here, it would be in the public interest to dismiss so that

Delaware’s citizens and judiciary do not have to provide a forum for a claim having

little connection to Delaware. However, Delaware has an interest in regulating the

conduct of entities incorporated under the laws of Delaware.22 In addition, it is not

this Court’s duty to select the best or most convenient forum available. 23 Rather,


19
   Taylor, 689 A.2d at 1199.
20
   Ison v. E.I. DuPont de Nemours and Co., Inc., 729 A.2d 832, 845 (Del. 1999); see
also Barrera, 2016 WL 4938876, at *8.
21
   Martinez, 86 A.3d at 1112-13.
22
   See Candlewood Timber Grp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 1000
(Del. 2004)
23
   See id. at 999; Pipal Tech Ventures Private Ltd., 2015 WL 9257869, at *10 (Del.
Ch. Dec. 17, 2015); 1 Oak Private Equity Venture Capital Ltd., 2015 WL 7776758,
at *8.
                                          7
Plaintiffs’ choice of forum must be respected unless Defendant presents unique

circumstances that create the overwhelming hardship required for a forum non

conveniens dismissal under Delaware law.24 No unique circumstances are presented

in these cases.

                                     Conclusion

      The forum non conveniens standard is stringent, but not preclusive.25 This

Court finds that the application of the Cryo-Maid factors does not favor dismissal in

either case. Defendant does not meet the “appropriately high burden”26 required to

deprive Plaintiffs of their chosen forum. Accordingly, Defendant’s motions to

dismiss for forum non conveniens must be denied.

      NOW, THEREFORE, this 20th day of November, 2017, Defendant’s

Motions to Dismiss for Forum Non Conveniens are hereby DENIED.

      IT IS SO ORDERED.

                                        Andrea L. Rocanelli
                                        ___________________________________
                                        The Honorable Andrea L. Rocanelli




24
   Martinez, 86 A.3d at 1106.
25
   Id. at 1105 (citing Ison, 729 A.2d at 843).
26
   Id.
                                           8
