      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                IN AND FOR NEW CASTLE COUNTY


BRADLEY and CELESTE                          )
MOZEIK,                                      )
                 Plaintiffs,                 )
                                             )
v.                                           )   C.A. N14C-11-099 PRW
                                             )
SERAMONE & SONS HOME                         )
IMPROVEMENTS, INC.,                          )
        a Delaware Corporation,              )
JOE SERAMONE, JR., and                       )
TRUBUILT CONSTRUCTION CO.,                   )
        a Maryland Corporation,              )
                   Defendants.               )



                           Submitted: April 27, 2015
                            Decided: April 28, 2015

                 MEMORANDUM OPINION AND ORDER

        Upon Defendant’s, Trubuilt Construction Co., Motion to Dismiss
                          the Plaintiffs’ Complaint,
                                  DENIED.

Victor F. Battaglia, Esquire, Biggs and Battaglia, Wilmington, Delaware, Attorney
for Plaintiffs.

R. Karl Hill, Esquire, Seitz, Van Ogtrop & Green, P.A., Wilmington, Delaware,
Attorney for Defendant.




WALLACE, J.


                                       -1-
    I.       INTRODUCTION

          Before the Court is Defendant Trubuilt Construction Company’s

(“Trubuilt”) motion to dismiss. Plaintiffs Bradley and Celeste Mozeik (together

the “Mozeiks”) live in Earleville, Maryland. The Mozeiks hired Seramone & Sons

Home Improvement (“Seramone”) to complete renovations on their home, and

Seramone hired Trubuilt to complete some of the construction. The Mozeiks now

allege that the work Seramone and Trubuilt completed on their home was

substandard and not done in a workmanlike manner. 1         As the Mozeiks have

selected an appropriate forum for their action, the Court DENIES Trubuilt’s

motion to dismiss.

    II.      FACTUAL BACKGROUND

          Mr. and Mrs. Mozeik hired Seramone, a company incorporated and based in

Wilmington, Delaware, to complete renovations on their home in Earleville,

Maryland in March 2014. Wilmington is approximately 35 miles from Plaintiffs’

home in Cecil County, Maryland.         These renovations included: a two-story

addition containing two bathrooms (one newly constructed, the other an existing

bathroom to be gutted and reconstructed); installation of heating, ventilation, and

air-conditioning (HVAC); installation of a new roof on the addition; replacement



1
          See Compl. at ¶¶ 11-12.


                                         -2-
of a cantilever deck; filling in a well; adding a closet to the living room; plumbing

for a washer and dryer; and construction of a screened porch.2

      Without consulting the Mozeiks, Seramone retained Trubuilt, a Maryland

corporation headquartered in Rising Sun, Maryland, to complete parts of the

renovation.      The Mozeiks claim Trubuilt acted as an undisclosed agent of

Seramone at all times. Trubuilt’s headquarters in Maryland is approximately 39

miles from Wilmington.

      Seramone assured the Mozeiks that at least one bathroom would be usable in

June 2014. The Mozeiks claim that after almost ten weeks, there was little or no

progress completed on the renovation. 3        In early July, the bathroom was not

completed, and the Mozeiks denied Seramone additional time to complete the

renovations. 4

      As a result of Seramone and Trubuilt’s work, the Mozeiks claim they

incurred at least six building violations from Cecil County’s Department of Permits

and Inspections.5        They claim it cost approximately $100,000 to fix the

Defendants’ work. 6 The Mozeiks also allege Seramone and Trubuilt forged their

2
      See id. at ¶ 5.
3
      See id. at ¶ 11.
4
      See id. at ¶ 10.
5
      See id. at ¶ 11.
6
      See id. at ¶ 14.


                                         -3-
signatures on an application for a building permit, which is currently under

investigation by the Maryland Home Improvement Commission, the Maryland

Department of Labor Licensing and Regulation, and the Maryland Attorney

General. 7 They have brought claims for Breach of Contract, Breach of the Implied

Warranty of Good Quality and Worksmanship, and Negligent Construction against

Seramone and Trubuilt.

     III.   STANDARD OF REVIEW

        Unless a defendant can demonstrate a significant burden, a plaintiff’s choice

of forum “should rarely be disturbed.” 8 A motion to dismiss based on forum non

conveniens is “addressed to the trial court’s sound discretion.” 9 This Court’s

discretion is guided by the now-familiar Cryo-Maid factors:

                (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 the application of Delaware law which
                the courts of the State more properly should decide than
                those of another jurisdiction; (5) the pendency or non-
                pendency of a similar action or actions in another
                jurisdiction; and (6) all other practical problems that
                would make the trial of the case easy, expeditious, and
                inexpensive. 10
7
        See id. at ¶ 16.
8
       Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P’ship, 669 A.2d 104, 107 (Del.
1995) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
9
        Martinez v. E.I. Dupont De Nemours & Co., 86 A.3d 1102, 1104 (Del. 2014).
10
        Id. (citing Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964); Taylor
v. LSI Logic Corp., 689 A.2d 1196, 1198-99 (Del. 1997)).

                                             -4-
No plaintiff’s forum choice should be disturbed unless – in the “rare case”11 – the

complaining defendant can demonstrate through the Cryo-Maid factors

“overwhelming hardship.” 12 “It is not enough that all of the Cryo-Maid factors

may favor the defendant.”13 The Court must balance the plaintiff’s forum choice

against the impact of that choice on the defendant to consider whether an action

should be dismissed for overwhelming hardship and inconvenience.14 A defendant

must therefore meet a “high burden” – one that the Delaware Supreme Court has

described as “stringent . . . [but] not preclusive” – in satisfying the overwhelming

hardship standard. 15

     IV.   PARTIES’ CONTENTIONS

       Trubuilt argues that the Mozeiks’ Complaint should be dismissed on the

grounds of forum non conveniens. 16 Because the Mozeiks and Trubuilt are both


11
       Martinez, 86 A.3d at 1104 (quoting Chrysler, 669 A.2d at 105) (internal quotations
omitted).
12
        Id. (“[T]o prevail under the forum non conveniens doctrine, a defendant must meet the
high burden of showing that the traditional forum non conveniens factors weigh so heavily that
the defendant will face overwhelming hardship if the lawsuit proceeds in Delaware.”).
13
       Chrysler, 669 A.2d at 105.
14
       See id. at 107
15
       Martinez, 86 A.3d at 1104-06.
16
       See Def.’s Mot. to Dismiss at 1.




                                             -5-
Maryland residents and the property is located in Maryland, Trubuilt says

Maryland is the proper venue. Trubuilt suggests it would be easier to litigate in

Maryland because witnesses, documents, and the property are there. Further,

Trubuilt claims the action should be dismissed in Delaware because Maryland law

will apply to the action and practical considerations weigh in favor of dismissal.

          According to the Mozeiks, Delaware is a proper venue for their suit. And,

they say, Trubuilt here has not demonstrated the required overwhelming hardship

for dismissal.17

     V.      DISCUSSION

          Considering the Cryo-Maid factors, the Court finds that Trubuilt has not

demonstrated such overwhelming hardship to warrant dismissal on the grounds of

forum non conveniens.

          A. The Relative Ease of Access to Proof

          To demonstrate that it would be very difficult to produce evidence in

Delaware, a defendant must show a prodigious number of witnesses or an

unmanageable volume of documents and records. 18 Trubuilt believes because it

would be “easier” to obtain proof in Maryland, the Complaint should be dismissed.

17
          See Plfs.’ Resp. to Def.’s Mot. to Dismiss ¶ 2.
18
      Reedy v. Moore, 1986 WL 15423, at *2 (Del. Super. Ct. Dec. 11, 1986) (citing Kolber v.
Holyoke Shares, Inc., 213 A.2d 444, 446 (Del. 1965)).




                                                  -6-
But Trubuilt has not demonstrated it would need to shuttle numerous witnesses or

unmanageable paperwork across state lines.                      Because Trubuilt has not

particularized the hardship it claims it will face, this factor does not here provide

much weight in favor of dismissal.19

       B. The Availability of Compulsory Process for Witnesses

       Trubuilt claims that it will not be able to enforce subpoenas for testimony

from members of the Maryland Home Improvement Commission, the Maryland

Department of Labor, Licensing and Regulation, the Maryland Attorney General’s

office, and Cecil County’s Department of Permits and Inspections. While live

testimony is preferable, witnesses may also be deposed under Delaware’s broad

discovery procedures. 20 If a party were somehow unable to compel a witness’s

attendance, deposition testimony by video recording is available. 21 While it seems

unlikely that the majority of either party’s witnesses would be unable to make the

35-mile trip, if necessary, their depositions may be taken and used as evidence.

This factor does not overwhelmingly demonstrate dismissal is warranted.


19
       See United States Marine Lines v. Domingo, 269 A.2d 223, 225 (Del. 1970) (“The
defendant may not prevail on this ground because it failed to particularize sufficiently the
hardship it claims in this connection.”).
20
       See Kolber, 213 A.2d at 446 (“The advantages of ‘live testimony’, as contrasted with
depositions, are unquestionable; but litigants are constantly obliged to resort to depositions under
our broad discovery procedures, even where the facts are in hot dispute. . .”).
21
      Reedy, 1986 WL 15423, at *2 (“Even though the amount of travel involved does not
seem overwhelming, these witnesses could be deposed on videotape. . .”).


                                                -7-
       C. The Possibility of the View of the Premises

       Trubuilt argues that taking a jury to view the Plaintiffs’ property is cost-

prohibitive. There is nothing presented here that suggests that the jury needs to

travel to the Mozeiks’ home to decide the case. Juries usually, in cases like this,

consider photographs, videos, and other evidence instead of traveling to the situs of

an alleged tort or contract dispute.22 A live jury view of the premises, in fact,

would be highly unusual. But even if the jury were required to visit the Plaintiffs’

property, a distance of 35 miles is not far enough weigh in favor of dismissal.23

       D. Application of Delaware Law

       Maryland law certainly applies in this case. But, the fact that Maryland law

will apply “should not deter this Court from proceeding to decide the case on the

merits,” as courts in Delaware regularly consider the laws of other states. 24 As this




22
       See id. at *2.
23
       See Chrysler, 669 A.2d at 1007 (stating that taking jury between Philadelphia and
Wilmington, less than 30 miles, “barely rises to the level of an inconvenience” and is thus not a
hardship); Kolber, 213 A.2d at 446 (finding that distance between New York City and
Wilmington, approximately 120 miles, was not an undue hardship).
24
        Weisberg v. Hensley, 278 A.2d 334, 337-38 (Del. Ch. 1971) (denying motion to dismiss
based on forum non conveniens). See also Reedy, 1986 WL 15423, at *1 (stating Delaware can
interpret Maryland law).


                                              -8-
case also does not appear to include unsettled areas of law, 25 this factor does not

weigh heavily toward dismissal.

        E. Pendency of a Similar Action in Another Jurisdiction

        Without citing any authority, Trubuilt argues that because Maryland

agencies are investigating the Mozeiks’ related regulatory, administrative or

criminal complaints, those investigations should be considered similar actions.

The Mozeiks counter that because the Maryland investigations are not capable of

doing complete justice for the parties on the same issues, those investigations are

of no moment here.26            While the current pendency of another “action” is an

important factor, 27 even the potential to actually file a similar suit in another

jurisdiction does necessarily counsel towards dismissal. 28 As a dismissal here




25
        See Martinez, 86 A.3d at 1110 (upholding dismissal under forum non conveniens where
“the plaintiff in the case is a citizen of a foreign state whose law is at issue . . . the injury in the
case occurred in that foreign state, and the case turns on unsettled issues of foreign law”).
26
        See Cnty. of York Emps. Ret. Plan v. Merrill Lynch, 2008 WL 4824053, at *2 (Del. Ch.
Oct. 28, 2008) (quoting McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263
A.2d 281, 284 (Del. 1970)) (stating court may stay an action “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”).
27
       See United States Marine Lines v. Domingo, 269 A.2d 223, 226 (Del. 1970) (“The
absence of such other pending action is an important, if not a controlling, consideration.”).
28
        See Reedy v. Moore, 1986 WL 15423, at *2 (Del. Super. Ct. Dec. 11, 1986) (“As to factor
five, pendency or nonpendency of a similar action in another jurisdiction, defendant Crabtree
merely states that plaintiffs could easily file the case in Maryland. This is not overwhelming, so
his burden as to factor five is not satisfied.”).


                                                  -9-
would require the Mozeiks to start an entirely new case against Trubuilt in

Maryland, the consequent delay and expense do not weigh in favor of dismissal. 29

       F. Practical Considerations

       Trubuilt lastly claims that because Maryland’s public interest is implicated

and Trubuilt is a small company with limited financial resources, this case would

be better resolved in Maryland.         Where appropriate, a court may “weigh the

efficient administration of justice and analogous considerations,” such as

extraordinary and cumbersome expenses. 30 In this case, both Trubuilt and the

Mozeiks are located about an hour’s drive from Wilmington. Trubuilt will not

incur cumbersome expenses litigating here.               As Seramone is a Delaware

corporation, and Trubuilt’s liability may be predicated on Seramone’s, Delaware’s

public interest is also implicated. Accordingly, the final factor does not weigh in

favor of dismissal.

     VI.   CONCLUSION

       “[I]n deciding forum non conveniens motions to dismiss, Delaware trial

judges must decide whether the defendants have shown that the forum non

conveniens factors weigh so overwhelmingly in their favor that dismissal of the


29
        Parvin v. Kaufmann, 236 A.2d 425, 427 (Del. 1967) (“[A] dismissal necessarily would
force the plaintiff to start anew. The consequent delay and expense weigh heavily against the
defendants. . .”).
30
       Martinez, 86 A.3d at 1113.


                                            -10-
Delaware litigation is required to avoid undue hardship and inconvenience to

them.” 31 Trubuilt has not. In turn, Trubuilt has failed to show that this is one of

the rare cases that warrants dismissal on forum non conveniens grounds.          Its

Motion to Dismiss the Mozeiks’ Complaint is therefore DENIED.

                                IT IS SO ORDERED.


                                /s/ Paul R. Wallace
                                PAUL R. WALLACE, JUDGE



Original to Prothonotary
cc: All counsel via File & Serve




31
      Id. at 1106.


                                       -11-
