IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ANTONIO EMILIO HUPAN, et al.,

Plaintiffs,

v. C.A. No. NlZC-02-171 VLM

)
)
)
)
)
)
ALLIANCE ONE INTERNATIONAL )
INC., PHILIP MORRIS USA INC., and )
PHILIP MORRIS GLOBAL BRANDS )
INC., et al. , )

)
Defendants. )

MEMORANDUM OPINION AND ORDER

Submitted: May 10, 2016
Decided: August 25, 2016

Upon Consideration ofPlaintijj"s ’ Motionfor Clarijication,
Or Alternatively Reargument, DENIED.

lan C. Bifferato, Esquire, Bifferato LLC, Wilmington, Delaware; Charles S. Siegel,
Esquire, Waters Kraus & Paul, Dallas, Texas; and Steven J. Phillips, Esquire,
Phillips & Paolicelli LLP, New York City, New York. Attorneys the Plaintz'ffv.

David J. Soldo, Esquire, and P. Clarkson Collins, Jr., Esquire, Morris Jarnes LLP,
Wilmington, Delaware; Patrick W. Dennis, Esquire, and Perlette Michele Jura,
Esquire, Gibson Dunn & Crutcher LLP, Los Angeles, California; Donald E. Reid,
Esquire, Morris Nichols Arsht & Tunnell LLP, Wilmington, Delaware; and
Elizabeth A. Coleman, Esquire, and Casey T. Grabenstein, Esquire, Jenner Block
LLP, Chicago, Illinois. Attorneys for Defendants, Philz`p Morris USA, lnc., and
Philip Morrz's Global Brands, Inc.

MEDINILLA, J.

INTRODUCTION

This is one of six cases wherein 406 Argentine nationals made a collective
strategic decision to file their respective toxic tort claims in Delaware for injuries
that allegedly occurred 5,000 miles away.l As to this case, on November 30, 2015,
this Court issued its Opinion and dismissed Defendants Philip Morris USA Inc.
and Philip Morris Global Brands Inc. (“PM Defendants”) under the doctrine of
forum non conveniens (“FNC”). Plaintiffs, twenty-three of the Argentine
nationals, move pursuant to Superior Court Civil Rule 59(e) for clarification or
reargument of this ruling. After consideration of the parties’ briefings and their
respective oral arguments, Plaintiffs’ Motion for Clarification, or Alternatively
Reargument, as to the Court’s November 30, 2015, Forurn N0n Conveniens
Ruling, is DENIED.

FACTUAL2 AND PROCEDURAL HISTORY

Plaintiffs are a group of twenty-three Argentine tobacco farmers (“parent

Plaintiffs”) and their children (“children Plaintiffs”). This case arises out of birth

defects suffered by the children Plaintiffs as a result of the parent Plaintiffs’

l The other pending matters are Aranda v. Alliance One Int’l, Inc., et al., No. N13C-()3-068
VLM; Biglia v. Allz'ance One Inl"l, Inc., et al., No. l4C_Ol-O21 VLM; Chalanuk v. Alliance One
Int’l, Inc., et al., No. N12C-04_O42 VLM; Da Silva v. Alliance One Int’l, Inc., et al., No. NlZC-
10-236 VLM; and Tabora'a v. Alliance One Int’l, Inc., et al., No. N13C-08_092 VLM. The
parties have stayed these matters pending the outcome of this case.

2 This decision does not reiterate the factual background since it was more fully discussed in this
Court’s previous Opinion. See Hupan v. Alliance One Int’l, Inc., 2015 WL 7776659, at *1~*2

(Del. Super. Nov. 30, 2015).

alleged excessive use of and exposure to dangerous chemicals during the
cultivation of tobacco in the Misiones Province of Argentina.

Plaintiffs filed their Complaint in this matter on February l4, 2012. The
Court initially entertained extensive briefing from the parties concerning choice of
law issues from February 2013 to August 2013.3 The parties agreed to address the
remaining choice of law disputes Within their respective submissions on
Defendants’ motions to dismiss.4 On April 29, 2014, PM Defendants each
separately moved for dismissal under the principles of FNC and under Superior
Court Civil Rules lZ(b)(l) and lZ(b)(6). Plaintiffs opposed PM Defendants’ FNC
motions to dismiss in a single brief filed on October l3, 2014, but filed separate
briefs in opposition to PM Defendants’ and Defendant Monsanto Company’s
various Rule lZ(b) motions. PM Def`endants separately replied on January 13,
2015.

On April 20, 2015, counsel for Defendant Philip Morris Global Brands Inc.

filed a letter With the Court, purportedly on behalf of all Defendants, citing Bell

3 After briefing, the parties generally agreed to the application of Argentine law as to all the
issues, except as to the issues of Plaintiffs’ negligence claims and punitive damages, Which

remained in dispute.

4 On April 4, 2014, this Court entered an Order pursuant to a joint stipulation that the parties
Would submit briefs addressing issues under Rule 12 as Well as forum non conveniens (“FNC”),
and that a hearing would be held on September 4, 2014. By joint stipulation, the parties agreed
to extend the deadlines for briefing, and a hearing Was scheduled for May 4, 2015.

Helicopter Textron, lnc. v. Arteaga 5 in support of dismissal based on FNC. C)ral
arguments were heard on May 4, 2015. Following that hearing, this Court

requested clarification as to whether Defendant Monsanto Company had also

6

joined the FNC motions to dismiss. After confirming that Defendant Monsanto

Company did not seek dismissal on FNC grounds, this Court entertained further

briefing on PM Defendants’ FNC motions.

On November 30, 2015, this Court determined that PM Defendants had

satisfied their burden under General Fooa's Corp. v. Cryo-Maid, Inc.,7 by

5 ll3 A.3d 1045, 1050-52 (Del. 2015) (applying “most significant relationship” test to find laws
of Mexico applied to action by Mexican plaintiffs on behalf of Mexican citizens who died in
helicopter crash in Mexico and sued Delaware manufacturer of helicopter component part;
“[w]hen plaintiffs choose not to sue in the place where they were injured or where they live, or
even in the jurisdiction whose law they contend applies, but instead in a jurisdiction with no
connection to the litigation, our trial courts should be extremely cautious not to intrude on the
legitimate interests of other sovereign states.”).

6 Defendant Monsanto Company separately moved for dismissal under Superior Court Civil
Rules lZ(b)(6) and 9(b). This Court ultimately granted Defendant Monsanto Company’s motion
to dismiss under Rule 9(b) with leave to Plaintiffs to amend the Complaint to comply with the
specificity requirements of notice pleading

7 Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964). In Taylor v. LSI Logic Corp.,
the Delaware Supreme Court provided the following summary of the Cryo-Maid factors:
(l) 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 this State more properly should decide than those of another
jurisdiction;
(5) the pendency or nonpendency 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
689 A.Zd 1196, 1198-99 (Del. 1997) (denying motion to dismiss on FNC grounds in action by
Canadian shareholder of Canadian subsidiary challenging American parent corporation's plan to

demonstrating that they would suffer “overwhelming hardship” if forced to litigate
the above-captioned matter in Delaware, and dismissed PM Defendants.8

On December 7, 2015, Plaintiffs timely filed the instant Motion for
Clarification, or Alternatively Reargument, as to the Court’s November 30, 2015,
Forum Non Conveniens Ruling. On December 14, 2015, PM Defendants filed
their joint opposition to the instant motion. This Court permitted both parties to
submit further briefing: Plaintiffs filed a reply in support of their motion on
January 25, 2016, and PM Defendants filed a joint sur-reply in opposition to
Plaintiff`s’ motion on February 4, 2016. Plaintiffs also submitted a letter on
January 22, 2016, providing additional authority in support of their position.9

On April 28, 2016, PM Defendants submitted publicly available materials

related to the Delaware Supreme Court’s decision in Martinez v. E.I. DuPont de

 

acquire public minority interest of Canadian subsidiary, where moving defendant failed to allege
hardship it would face in Delaware with particularity and had not identified witnesses it planned
to call at trial; trial court erred by merely finding Canada was a “more appropriate forum,” where
true test is “overwhelming hardship”).

8 Because the forum non conveniens issue was dispositive, the Court’s previous Opinion did not
address PM Defendants’ respective arguments concerning dismissal under Rules lZ(b)(l) and
12(b)(6). Hupan, 2015 WL 7776659, at *l(). See also supra note 6 (discussing the resolution of
Defendant Monsanto Company’s separate motion to dismiss).

9 In a somewhat complex procedural twist, Plaintiffs’ complaint against Defendant Monsanto
Company has been amended twice since PM Defendants were dismissed. Plaintiffs’ First
Amended Complaint was filed on January 29, 2016. On February 12, 2016, PM Defendants
jointly moved to strike, or in the alternative dismiss, Plaintiffs’ First Amended Complaint,
arguing that it incorrectly included PM Defendants despite their dismissal on November 30,
2015. Plaintiffs were permitted to file a Second Amended Complaint, Which they filed on
February 23, 2016, removing PM Defendants from the captions and removing allegations and
averments concerning PM Defendants; consequently, PM Defendants withdrew their Motion to
Strike the First Amended Complaint on February 29, 2016.

Nemours & Co. (“Martinez II”);‘O specifically, the appellate briefs submitted and
excerpts from the transcript of the oral arguments made before the Supreme Court
in that case.ll Also on April 28, 2016, Defendant Philip Morris USA Inc.
separately wrote to this Court noting the Delaware Supreme Court’s recent
decision in Genuine Parts C0. v. Cepec,12 which abrogated Sternberg v. O’Neil’s13
broad interpretation of Delaware’s corporate registration statutes and their effect
on personal jurisdiction under Delaware law.14 On May 5, 2016, Plaintiffs
submitted a letter in response to PM Defendants’ submission regarding Martinez 11

and Genuine Parts. Oral arguments were heard on May 10, 2016.

10 86 A.3d 1102 (Del. 2014), as revised (Mar. 4, 2014) [hereinafter Martinez II] (granting motion
to dismiss on FNC grounds after finding defendant would suffer overwhelming hardship where
foreign asbestos plaintiff was just one of thirty-two cases against defendant as parent company of
Argentine subsidiary; Argentine plaintiffs alleged workplace injuries and treatment occurred in
Argentina, case involved novel and unsettled issues of Argentine law, most or all of evidence
was located in Argentina and only connection to Delaware was defendant’s incorporation in

Delaware).

ll The cited portions of the transcript reference questions posed and comments made by Chief
Justice Strine, who was Chancellor at the time and heard Martinez 11 while sitting by designation
pursuant to Article IV, § 12 of the Delaware Constitution and Supreme Court Rules 2 and 4.

12 137 A.3d 123 (Del. 2016) (holding that foreign corporation's compliance with statutory
requirements concerning registration of foreign corporation doing business in Delaware does not
constitute implied consent to general jurisdiction over corporation in Delaware).

13 Szerrberg v. O'Neil, 550 A.zd 1105 (Del. 1988), abrogated by Geme'ne Perrs, 137 A.3d 123,
as recognized by Magna Powertrain De Mexico S.A. De C. V. v. Momem‘ive Performance
Materials USA LLC, 2016 WL 3574652 (E.D. Mich. June 16, 2016).

14 Defendant Philip Morris USA Inc. thus reserved this jurisdictional defense in the event that
this Court decided to grant Plaintiffs’ instant motion. Because this Court finds that Plaintiffs’
motion under Rule 59(e) must be denied, this Memorandum Opinion and Order does not address
whether Defendant Philip Morris USA Inc. would otherwise be subject to this Court’s
jurisdiction

CONTENTIONS OF THE PARTIES

For purposes of the instant motion, Plaintiffs do not seek reargument of this
Court’s underlying decision to grant PM Defendants motions to dismiss on the
basis of FNC,15 nor do they, at least for now, challenge this Court’s previous
finding that PM Defendants Would suffer overwhelming hardship if forced to
litigate this matter in Delaware.16 HoWever, Plaintiffs seek two distinct legal
remedies in this Rule 59 motion.

First, Plaintiffs seek clarification17 as to Whether a DelaWare court ruling on
a FNC motion must first address, as a threshold matter, Whether there is an
“adequate alternate forum” With jurisdiction over the moving defendants and no
statute of limitations bar before applying the Cryo-Maz`d factors. Notably, a
threshold inquiry into the existence of an adequate alternate forum is the first part

of the FNC analysis employed by federal courts.18 Plaintiffs argue that this Court

15 Pls.’ Mot. Clarification, or Alternatively, Rearg. at l; Oral Arg. Tr. at 9:11-13.

16 Oral Arg. Tr. at 56:23-57:8. For purposes beyond resolution of their instant motion, Plaintiffs
do, however, reserve future rights to contest this Court’s previous ruling Id. at 57:5-6.

‘7 See Bryam v. Way, 2012 WL 4086167, at *5 (Del. super. sept 14, 2012) (“In essence,
Defendants are seeking to assert material fact disputes or oversights that should have been raised
during the summary judgment stage. Such an attempt falls squarely under the purview of
Superior Court Rule 59(e). Moreover, to the extent Defendants' motion seeks to clarify the
Court's prior orders, such clarification is also most appropriately addressed under Rule 59(e).”
(footnotes omitted)).

18 Piper Az'rcraft C0. v. Reyno, 454 U.S. 235, 241 n.6, 254 & n.22 (1981) (articulating federal
FNC standard and granting motion to dismiss in Wrongful death action against American
manufacturers in action arising out of plane crash in Scotland). See also infra notes 35, 39.

overlooked controlling precedent or legal principles, and/or misapprehended the
law such as Would change its underlying decision, by not addressing this
“threshold requirement” before applying the Cryo-Maz'd factors and dismissing PM
Defendants on FNC grounds.19

Second, Plaintiffs request that this Court impose four conditions on its FNC
dismissal of PM Defendants. Specifically, Plaintiffs move this Court to (l) order
PM Defendants to Waive any and all defenses they may possess in Argentina
relating to jurisdiction, statutes of limitations, or laches; (2) require PM Defendants
to stipulate that they Will satisfy any judgment rendered by an Argentine court;
(3) afford Plaintiffs a reasonable period of time to conduct merits discovery in the
United States as to PM Defendants in order to adequately present their claims in
Argentina; and (4) allow Plaintiffs to reinstate their claims in this Court if
Argentine courts refuse to entertain Plaintiffs’ claims due to lack of jurisdiction, a
statute of limitations bar, or any other unknown reason unrelated to the merits of
Plaintiffs’ claims.zo

Naturally, PM Defendants oppose. They maintain that this Court conducted

the proper FNC analysis in accordance DelaWare precedent PM Defendants

19 Pls.’ Mot. Clarification, or Alternatively, Rearg. at 1-2; Pls.’ Reply Supp. Mot. at l.

20 During oral arguments, there Was some discussion as to Whether Plaintiffs Were Withdrawing
their requested condition concerning the ability to reinstate their claims in this Court should the
courts in Argentina refuse to hear this case for any non-merits based reason. See Oral Arg. Tr. at
2925-31:21. Out of an abundance of caution, this Court addresses Plaintiff’ s request in this

decision.

further argue that Plaintiffs improperly raise new arguments in the form of onerous
conditions to their already-ordered FNC dismissal, Which is not permissible under
Rule 59(e). PM Defendants argue that the requested conditions additionally fail on
the merits because the conditions are rooted in a federal FNC analysis that has not
been adopted by the Delaware Supreme Court.

Having considered the respective briefing, supplemental submissions and
oral arguments, the matter is ripe for review.

STANDARD OF REVIEW

Pursuant to Superior Court Civil Rule 59(e), a motion for reargument
permits the Court to reconsider “its findings of fact, conclusions of lavv, or
judgment.”z] “Delaware law places a heavy burden on a [party] seeking relief
pursuant to Rule 59.”22 To prevail on a motion for reargument, the movant must
demonstrate that “the Court has overlooked a controlling precedent or legal

principles, or the Court has misapprehended the law or facts such as Would have

’>23

changed the outcome of the underlying decision. Further, “[a] motion for

21 Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969). See also Ba'. of Managers of the
Delaware Criminal Justz`ce lnfo. Sys. v. Gannetl Co., 2003 WL 1579170, at *l (Del. Super. Jan.
17, 2003), aff’d in part sub nom. Gannett Co. v. Bd. of Managers of the Delaware Criminal
Justice Info. Sys., 840 A.2d 1232 (Del. 2003); Cummings v. Jimmy’s Grille, 2000 WL l2l l 167,
at *2 (Del. Super. Aug. 9, 2000).

22 Koslyshyn v. Comm ’rs of Bellefom‘e, 2007 WL 1241875, at *l (Del. Super. Apr. 27, 2007).

23 Ba'. of Managers of the Delaware Criminal Justice lnfo. Sys., 2003 WL 1579170, at * l.

. . . . 24 . . .
reargument 1s not a device for raising new arguments,” nor is 1t “1ntended to

rehash the arguments already decided by the court.”25 The moving party has the

burden of demonstrating “newly discovered evidence, a change of law, or manifest

. . . 2
injustlce.” 6

ANALYSIS

1. Plaintij]”s’ Arguments Were Already Considered by T his Court and Otherwise
Fail on the Merits

Forum non conveniens is a common law, judicially created doctrine; it
allows courts to exert some control over a foreign plaintiffs access to a forum in
the United States.27 Jurisdictions are free to‘employ the doctrine or disregard it,
and if they choose to employ it, they are further free to adopt the federal “adequate
alternate forum” standard or create their own.28 Plaintiffs assert that Delaware’s

FNC jurisprudence includes this federal FNC consideration, which this Court

overlooked or otherwise misapprehended

24 [d_
25 Kennea'y v. Invacare Corp., 2006 WL 488590, at *l (Del. Super. Jan. 3l, 2006).

26 E.I. du Pont de Nemours & Co. v. Aa'miral Ins. Co., 7ll A.2d 45, 55 (Del. Super. 1995) on
reconsideration 1996 WL 769627 (Del. Super. Dec. 24, 1996). See also Brenner v. Vill. Green,
Inc., 2000 WL 972649, at *l (Del. Super. May 23, 2000), aff'd, 763 A.2d 90 (Del. 2000).

27 See Ison v. E.I. DuPont de Nemours & Co., Inc., 729 A.2d 832, 840 (Del. 1999) (“State courts
traditionally have formed their own FNC laws. Absent federal statutory law preempting state
FNC standards, many states have deviated from the standard set in Piper Aircraft, which tends

significantly to disfavor foreign plaintiffs.” (footnote omitted)).

ZSId

Plaintiffs argue that the Delaware Supreme Court explicitly followed the
federal FNC standard, and rely on Ison v. E.I. DuPont de Nemours and C0. in
support of their position.29 Plaintiffs, however, concede that aside from their read
of Ison, no other Delaware Supreme Court case mentions a supposed requirement
of an “adequate alternate forum” wherein a moving defendant is amenable to suit.30
Plaintiffs instead argue that the threshold requirement is “so basic, is so ingrained
in the federal jurisprudence, in the jurisprudence of every other state and in
Delaware jurisprudence simply by virtue of having been taken for granted.’m

They argue that although our Supreme Court has not expressly mandated this

29 729 A.2d 832.

30 Plaintiffs also rely on non-Supreme Court cases from this jurisdiction as support for their
position. See Abrahamsen v. ConocoPhillips Co., 2014 WL 2884870 (Del. Super. May 30,
2014) (granting motion to dismiss on FNC grounds after finding defendants would suffer
overwhelming hardship, where cases involved 123 Norwegian plaintiffs alleging workplace
injuries and treatment occurring in Norway, most or all of evidence was located in Norway, there
were no means to obtain compulsory process for unwilling witnesses residing in Norway and
case was complicated by fact that Norway was civil law jurisdiction without readily available
precedent); Pipal Tech Ventures Private Ltd. v. MoEngage, Inc., 2015 WL 9257869 (Del. Ch.
Dec. 17, 2015) (denying motion to dismiss on FNC grounds where computer application
developed in India by employees of corporation headquartered and incorporated in India was
stolen in India but subsequently placed in possession of defendant, a Delaware corporation,
which then marketed the application in United States and abroad; despite defendant’s waiver of
defenses to India’s jurisdiction, alleged acts of defendant_holding, marketing and monetizing
purloined asset_occurred in Delaware and along with other factors justified denial of FNC
motion).

Abmhamsen makes a passing reference to the FNC doctrine as presupposing “at least two
forums in which the defendant is amenable to process.” 2014 WL 2884870, at *2. However, the
briefing in Abrahamsen occurred prior to Martinez 11 and both parties in Abrahamsen argued that
Norway was an adequate alternate forum. Ia’. Pipal does not mention an “adequate alternate
forum” at any point; it merely observed that courts may weigh a moving defendant’s amenability
in another jurisdiction as one consideration among others relating to whether another case is
pending in a different forum under the fifth Cryo-Maia' factor. See 2015 WL 9257869, at *9.

3' oral Arg. Tr. at 10:18-22.

10

requirement, Delaware cases decided after lson, such as Mar-Land Ina’ustrial
Contractors, Inc. v. Carribecm Petroleum Refining L.P.32 and Candlewood Timber
Group, LLC v. Pan American Energy, LLC,33 as well as the Cryo-Maia' factors

themselves, implicitly assume that this threshold inquiry exists.

This Court recognizes that the Cryo-Maid factors34 employed in Delaware
mirror somewhat the “private and public interest factors” considered in the federal
FNC analysis.35 However, Plaintiff reargues that even before the six enumerated
Cryo-maid factors can be considered, the Delaware FNC analysis requires the
court to first focus on the defendant (his amenability to process in another forum
and the plaintijjf(the adequacy of his remedy). Only after the Court looks to these

two very distinct defendant and plaintiff considerations, Plaintiff argues, can it

33 777 A.2d 774 (Del. 2001).
33 859 A.2d 989(De1. 2004).

34 See supra note 7 (outlining Cryo-Maia' factors).

35 “The factors pertaining to the private interests of the litigants included the ‘relative ease of
access to sources of proof; availability of compulsory process for attendance of unwilling, and
the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view
would be appropriate to the action; and all other practical problems that make trial of a case easy,
expeditious and inexpensive.”’ Piper Aircraft, 454 U.S. at 260 n.6 (quoting Gulf Ol`l Corp. v.
Gilbert, 330 U.S. 501, 508 (1947)). “The public factors bearing on the question included the
administrative difficulties flowing from court congestion; the ‘local interest in having localized
controversies decided at home’; the interest in having the trial of a diversity case in a forum that
is at home with the law that must govern the action; the avoidance of unnecessary problems in
conflict of laws, or in the application of foreign law; and the unfairness of burdening citizens in
an unrelated forum with jury duty.” Id. (quoting Gl`lbert, 330 U.S., at 509).

ll

begin to consider whether this forum presents an overwhelming hardship upon the
defendant. Plaintiffs’ argument fails for a number of reasons.

To begin, this Court disagrees with Plaintiffs’ reading of the lson decision.
Ison is quickly distinguished from the instant case, as it involved foreign plaintiffs
injured in foreign English-speaking countries who alleged injuries that resulted
from exposure to the defendant’s fungicide; importantly, most of the evidence was
located in Delaware, the defendant’s place of incorporation and principal place of
business.36 Moreover, the fungicide at issue in that case was also researched and
developed in Delaware.37 With this factual background, the Court appropriately
denied dismissal on FNC grounds.38

Plaintiffs rely on portions of the Ison decision that cite to and quote Piper
Aircraft C0. v. Reyno, wherein the United States Supreme Court set out the federal
FNC standard.39 The carefully selected portions of Ison upon which Plaintiffs rely

neither states nor implies that the Delaware Supreme Court was choosing to

36 729 A.2d at 834_35, 843, 847.

37 ld. at 836, 843, 847.

38 Ia'. at 835 (holding trial courts cannot rest analysis on conclusion that “there is a better forum”
and finding defendant’s contacts with Delaware essentially negated any claim of hardship).

39 454 U.S. at 241 n.6, 254 & n.22. The lson Court provided the following summary of the
federal FNC standard: “First, the defendant must be amenable to process in the alternate forum.
Second, the remedy offered by the alternate forum must not be ‘clearly inadequate or
unsatisfactory.’ Third, if these prongs are satisfied, the trial court must balance certain private
and public interest factors to determine whether dismissal is appropriate.” lson, 729 A.2d at 839

(footnotes omitted).

12

“explicitly follow” the federal FNC standard in Delaware FNC analyses. Rather, a
complete reading of Ison demonstrates that the description of the federal FNC
standard was provided by the lson Court to explain, in part, how the FNC standard

employed in Delaware is different from the federal standard.40

Beyond lson, Plaintiffs’ assertion that Mar-Land and Candlewooa’ implicitly
conducted a threshold inquiry into the existence of an adequate alternate forum
where litigation can continue is similarly unavailing Mar-Land states and implies
nothing about whether those parties addressed or had otherwise acknowledged that
there was an adequate alternate forum, and certainly nothing regarding a threshold

requirement of an adequate alternate forum in Delaware’s FNC analysis41 Rather,

as the Delaware Supreme Court expressly recognized in Mar-Land,

Our jurisprudence makes clear that, on a motion to
dismiss for forum non conveniens, whether an alternative
forum would be more convenient for the litigation, or
perhaps a better location, is irrelevant. In determining
whether to grant or deny a motion to dismiss on forum

40 Notably, the Ison Court’s iteration of the federal FNC standard appears in a section titled
“Forum Non Convem'ens in Other Jurisdictions.” Ison, 729 A.2d at 838-42. That section
follows the “Delaware Forum Non Convem'ens Jurisprudence” section, which articulates the
“overwhelming hardship” standard as analyzed through the Cryo-Maia' factors. Id. at 837-38.
In its examination of three different states as examples of the “various approaches taken by
individual state courts considering Piper Aircraft,” the Court explained that “Connecticut has
acknowledged the Pz'per Aircraft standard, but is closely aligned with Delaware jurisprudence,”
thus confirming that Delaware jurisprudence diverges from the federal standard articulated in

PiperAircraj’l‘. Id. at 840.

41 777 A.2d at 779 (denying motion to dismiss on FNC grounds where defendant failed to allege
hardship it would face in Delaware with particularity and had not otherwise detailed grounds of
any potential defenses it planned to assert; trial court erred by applying balancing test to find
Puerto Rico was “a better forum,” where true test is “overwhelming hardship”).

13

non conveniens grounds, the trial court is not permitted
to compare Delaware, the plaintiff’s chosen forum,
With an alternate forum and decide Which is the more
appropriate location for the dispute to proceed.
Rather, the trial court must focus on whether the
defendant has demonstrated with particularity, through
the C)j)o~.Maid factors, that litigating in Delaware would
result in an overwhelming hardship to it.42

Candlewood also says nothing about a threshold inquiry into the existence of

3

an adequate alternate forum,4 Furthermore, this Court’s previous FNC analysis

was controlled by the more recent holding in Martinez II, where our Supreme
Court reaffirmed, clarified and provided guidance regarding Delaware’s FNC
jurisprudence44 ln stark contrast to the passing mention made by the trial court in

Martinez v. E.I. DuPont De Nemours & CO. (“Martinez 1”),45 the DelaWare

42 Id. (emphasis added) (citations omitted).

43 See 859 A.2d at 998_10()4 (denying motion to dismiss on FNC grounds in action by property
owner against oil and gas producer for damage caused by drilling operations on owner's property
located in Argentina, where defendant failed to allege hardship it would face in Delaware with
particularity and had at other times entered into contracts with forum selection clauses requiring
it to litigate in the United States, even if no clause was alleged in the instant action; trial court
erred by balancing parties’ interests rather than focusing on whether moving defendant had
demonstrated it would suffer overwhelming hardship if forced to litigate in Delaware). lndeed,
the Candlewood Court was not presented with that issue; the defendant in that case had filed an
original action in the Supreme Court of Argentina against the plaintiffs seeking a declaration that
“the parties’ dispute was subject to the original jurisdiction” of Argentine courts. Id. at 992

(emphasis added).

44 86 A.3d at1104_06, 1111_13.

45 82 A.3d 1, 29 (Del. Super. 2012) [hereinafter Martinez I] (“As an initial inquiry in a forum non
conveniens analysis, the Court is required to determine whether Argentine courts are capable of

providing an adequate alternate forum.”), afj'd, 86 A.3d 1102 (Del. 2014), as revised (Mar. 4,
2014). However, the trial court also stated that “[c]omparison of the forum chosen by the
Plaintiff with an alternative jurisdiction in order to determine which is more appropriate, is not

14

Supreme Court did not include any reference to an “adequate alternate forum”
requirement in its various reiterations of Delaware’s FNC standard in Martinez 11 :

Delaware's jurisprudence in forum non conveniens cases
is well established. Where there is no issue of prior
pendency of the same action in another jurisdiction, our
analysis is guided by what are known as the “Cryo-Maid”
factors[.]

Accordingly, to 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.

To summarize, although the overwhelming hardship
standard is stringent, it is not preclusive. Accordingly, in
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
Delaware litigation is required to avoid undue hardship
and inconvenience to them.46

A comprehensive review of case law leading up to Martinez ll does not

demonstrate that the lower courts were required to find the existence of an

permitted and is considered irrelevant to the analysis. The sole basis for deciding a motion to
dismiss on forum non conveniens grounds is whether the Cryo-Maid factors indicate that
defendant will suffer overwhelming hardship and inconvenience if forced to litigate in
Delaware.” Id. at 28 (footnote omitted) (citing Mar-Land, 777 A.Zd at 779).

46 Martinez II, 86 A.3d at 1104, 1106. The Delaware Supreme Court’S efforts to distance
Delaware’s FNC analysis from that employed in federal courts is further evidenced by the clear
reference to how a particular consideration would be evaluated “[u]nder federal jurisprudence,”
again reinforcing our Supreme Court’s recognition that Delaware’s FNC test differs from the

federal FNC test. Id. at 1107 n.30.

15

adequate alternate forum as a prerequisite in Delaware to dismissal on FNC
grounds. In Martinez II, our Supreme Court noted that while a Delaware trial court
may evaluate “public interest” factors when considering a motion based on FNC, it
expressly declined to adopt a mandate that would require this Court to address
public interest factors in its FNC analysis.47

After Martz'nez Il, Delaware’s FNC analysis, and the absence of an
“adequate alternate forum” requirement, was aptly summarized in VTB Bank v.
Navitron Projects Corp.48 ln VTB Bank, our Court of Chancery was confronted
with assertions nearly identical to Plaintiffs’ argument here: that Delaware’s FNC
analysis begins with a threshold inquiry as to whether an adequate alternate forum
is available.49 The Court of Chancery undertook a review of Delaware precedent
and found no language in our Supreme Court cases “importing this additional
element into the siX, well recognized eryo-Maid factors.”50

Delaware’s FNC standard is concerned with the overwhelming hardship

facing the defendant if forced to litigate in this forum; that inquiry does not

47 Id. at 1112-13 & 1113 n.46 (citing Piper Aircraft as “comra” authority to that point).

48 2014 wL 1691250 (Dol. ch. Api. 28, 2014) (donyiog motion to dismiss on FNC grounds
where relief sought was for appointment of receiver and Delaware provided unique expertise in
equitable remedies). VTB Bank was decided by Vice Chancellor Noble, who heard Martinez 11
while sitting by designation pursuant to Article IV, § 12 of the Delaware Constitution and
Supreme Court Rules 2 and 4.

49 Id. at *7 n.os.

50 Id.

16

logically implicate consideration of whether that defendant is also amenable to suit
in a different jurisdiction. As explained by the lson Court, whether a moving
defendant possessed jurisdictional or statute of limitations defenses in another
jurisdiction “relates to the convenience of the plaintiffs, not to the inconvenience of
the defendant,” and as such, is “not probative of the overwhelming hardship

issue.”51 This is because “the overarching factor that a trial court must consider in

an FNC analysis is substantial hardship to the defendant.”52

Just as in lson, this Court addressed jurisdictional and statute of limitations
issues within the sixth Cryo-Maid factor but not as a threshold consideration or
prerequisite to FNC dismissal.53 This Court was also guided by IMZ

Merchandl`sing & Manufacturing, Inc. v. Tirex Corp.,$4 where the Court of

Chancery analyzed jurisdictional issues within the “other practical considerations”

5' 729 A.2d or 846.

521d

53 Id. at 845-46. While the Ison Court did acknowledge the defendant’s willingness to waive
such defenses in the alternate forum, it did not hold that this was a requirement in order to
prevail on an FNC motion; the Court ultimately found that this waiver was not probative_i,e. , it
was irrelevant_on the issue of whether defendants face overwhelming hardship if forced to

litigate in Delaware. Ia'. at 846.

54 2000 WL 1664168 (Doi. Ch. Nov. 2, 2000) (graiiiing motion io dismiss on FNC grounds after
finding defendants would suffer overwhelming hardship, where corporations were headquartered
in Canada, all relevant negotiations and contractual performance took place in Canada, most or
all of evidence was located in Canada, and majority of claims were governed by Canadian law
and involved difficult questions concerning boundaries between tort and contract law and

available remedies).

l7

relevant to the sixth Cryo-Maid factor.55 This Court did the same here.

ln accordance with those cases, this Court provided some discussion in its
previous Opinion, albeit brief, as to whether Argentine courts would entertain
Plaintiffs’ claims before it dismissed PM Defendants on FNC grounds.56 The
discussion was not undertaken as a separate inquiry independent from this Court’s
determination of whether PM Defendants had demonstrated “overwhelming

hardship” under the Cyro-Maid factors, but was considered as part of Cryo-Maid’s

sixth factor concerning “other practical problems.”57

Since this argument has been considered, Plaintiffs cannot obtain relief
under Rule 59. The arguments are re-styled to reiterate previous positions. They
have not demonstrated a change in the law, newly discovered evidence or manifest
injustice that would otherwise cause this Court to reconsider its decision. By
relying on Delaware Supreme Court precedent-none of which instructs Delaware

courts to engage in an adequate alternate forum inquiry prior to applying the Cr'yo-

55 Id. at *11.
55 Hupan, 2015 WL 7776659, at *8_*9.

57 Id. at *9. The idea that Argentina would provide a forum for this matter was also alluded to by
this Court in its discussion of the fifth Cryo-Maia' factor, the “pendency or nonpendency of a
similar action or actions.” Ia’. at *8 (“[L]ike in Martinez 1, it has been established in this case
that Argentina has a Civil Code system that include elements of liability and damages. The
parties have acknowledged as much since they have agreed as to the appropriate substantive law
to be applied in this case.”). This is similar to how the issue was addressed in Pz'pal, which
approved of the consideration of a moving defendant’S amenability to another forum’s
jurisdiction as one issue among many that may be considered under the fifth Cryo-Maid factor.
See supra note 30. ln Candlewooa', whether the dispute was subject to the exclusive jurisdiction
of Argentine courts was likewise analyzed within the fifth Cryo-Maid factor. See supra note 43.

18

Maz'a’ factors_no controlling precedent or legal principles Were overlooked, nor
did this Court misapprehend the law such as Would change its underlying decision
to dismiss PM Defendants on FNC grounds.

2. Plaintiffs ’ Request for Conditions Improperly Raise New Arguments in a
Rule 59 Motion

Plaintiffs ask that this Court impose four conditions upon its already-ordered
FNC dismissal of PM Defendants. To the extent Plaintiffs attempt to argue that

these conditions Were somehow subsumed in their opposition to dismissal on FNC

8

grounds, this Court finds such argument to be unavailing.5 Conversely, to the

extent these conditions Were not previously raised, a Rule 59(e) motion is not the
appropriate vehicle to raise them for the first time,59 Where these conditions could
have been raised and argued_-in the alternative_during the proceedings leading
up to the FNC dismissal of PM Defendants.

Where 406 foreign Plaintiffs file tort claims in this jurisdiction, they should
have reasonably anticipated that all Defendants Would present an arsenal of
defenses. ln this Rule 59 motion, however, Plaintiffs move this Court to compel
PM Defendants to relinquish them. Speciflcally, Plaintiffs asks for PM Defendants
58 Emphasizing their reliance on the federal FNC requirement and cases applying that standard,
Which often impose conditions, Plaintiffs suggest that they impliedly argued for these now-
requested conditions in the previous proceedings When they argued that DelaWare has a threshold

requirement of an adequate alternate forum. This argument must be rejected, as Plaintiffs had
every opportunity to argue in the alternative during the previous proceedings

59 Bd. ofManagers of the DelaWare Criminal Justice lnfo. Sys., 2003 WL 1579170, at * l.

19

to be required to “stipulate” to certain conditions;60 one of them being to compel
PM Defendants to Waive all statute of limitations defenses. Plaintiffs further ask
that PM Defendants be ordered to Waive jurisdictional defenses they may have in
Argentina. The request is improper on a Rule 59 motion.

Defendant Philip Morris USA Inc. has reserved the defense of lack of
personal jurisdiction in light of the recent Genuine Parts C0. v. Cepec decision.
PM Defendants also have pending motions to dismiss under Rules lZ(b)(l) and
lZ(b)(6) that Were not considered in light of the FNC ruling. Stipulations are
generally borne of the parties’ agreement on matters that are not disputed in order
to simplify or make litigation more efficient It seems illogical to order a party to
voluntarily submit to What is obviously disputed.

Perhaps the most troubling of Plaintiffs’ proposed conditions is the one that
seeks permission to reinstate their claims in Delaware if Argentine courts refuse to
hear this matter for any non-merits based reason.61 Plaintiffs argue that one of the
considerations in favor of dismissal Was so that novel issues of Argentine law

could be addressed by the Argentine courts. They claim that this consideration

60 See Oral Arg. Tr. at 7:4, 18:8, 29:4, 31:23-32:1; Pls.’ Mot. Clariflcation, or Altematively,
Rearg. at 6.

61 Again, the record is not clear as to Whether Plaintiffs withdrew this condition at oral
arguments. See supra note 20. This Court therefore addresses this condition out of an
abundance of caution.

20

“Won’t ever happen” if PM Defendants “don’t show up” in Argentine courts.62

To accept Plaintiffs’ request Would effectively serve to invalidate the Cryo-
Maia' analysis Whenever a foreign court decided, for Whatever reason, not to hear
the matter. Plaintiffs’ request for reinstatement in DelaWare should Argentina
decline to hear their case ignores_and asks this Court to vitiate-the prior finding
that PM Defendants Would suffer overwhelming hardship if forced to litigate here.
The request further fails as it derives from Plaintiffs’ assertion that DelaWare law
implicitly adopted the federal FNC threshold inquiry standard of an adequate
alternate forum. In other Words, to compel PM Defendants to return to DelaWare is
a roundabout Way of making their FNC dismissal contingent upon their ability to
meet the additional burden of demonstrating that an adequate forum exists
elsewhere. As previously discussed, this Court’s interpretation of FNC analysis
does not require this contingency.

Plaintiffs do not provide DelaWare authority that Would permit this Court to
impose such onerous conditions63 Plaintiffs offer federal cases that have required
such conditions, but such imposition makes more sense in jurisdictions that also
require an adequate alternate forum before dismissing on FNC grounds. Here, this

Court is hard-pressed to understand the logical connection of such conditions to

62 oral Arg. Tr. at 13:14_23.

63 Id. ar 20;23_21:15.

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FNC dismissals in a jurisdiction like Delaware, which focuses on a moving
defendant;s overwhelming hardship if forced to litigate here.64 Such a standard
does not implicate a plaintiff’s ability to litigate elsewhere, and thus cannot
reasonably provide a basis to impose the conditions that Plaintiffs request through
their Rule 59(e) motion.

This Court declines to impose the proposed conditions on PM Defendants.
Not only are these conditions not logically implicated in an analysis focusing on a
moving defendant’s overwhelming hardship in this jurisdiction, but the conditions
are requested after Plaintiffs had an opportunity to be heard on these issues during
this Court’s consideration of the underlying FNC motions. To the extent these
conditions were impliedly argued for in the prior proceedings, they are
inappropriately rehashed in Plaintiffs’ instant motion. Furthermore, to the extent
these conditions were not more expressly raised by Plaintiffs during the previous
proceedings, Plaintiffs cannot now raise them for the first time in a Rule 59(e)

motion without demonstrating newly discovered evidence, a change in the law or

manifest injustice.

64 lt is for the same reason that these conditions are not “modest” as Plaintiffs suggest, or at least
would not be modest if imposed in this case. See Oral Arg. Tr. at 21:16-17. Whether these
conditions are otherwise “modest” when imposed pursuant to a federal system that considers the
existence of an adequate alternate forum within its FNC analysis is an issue this Court need not
address, except to say that it certainly does not consider these conditions to be “modest” here, in
light of the timing of Plaintiffs’ request, the absence of precedent from our Supreme Court
endorsing the imposition of such conditions, and Delaware’s focus on whether the moving
defendant would suffer overwhelming hardship if forced to litigate in this forum.

22

Plaintiffs made their strategic choice to litigate in Delaware. This Court
sympathizes With the Argentine Plaintiffs Who Wish to have their day in court but,
as outlined in this Court’s previous Opinion, their forum selection presents a
plethora of practical problems. Without reiterating What Was fully discussed in the
Opinion, Plaintiffs chose to sue in a place that has no connection to Where they
Were allegedly injured. Their home is Argentina and any presumption that their
choice of forum should be respected Was not as strong because of this fact-they
are foreign nationals.65 The Court Weighed and balanced the looming and
burdening challenges created by their forum selection under eryo-Maz`d and found
in favor of PM Defendants. Beyond language, it reviewed other legal, medical,
geographical, geological, social and cultural barriers that Would have to be faced if

this matter remained in Delaware.

Mostly, this Court gave great Weight to the novelty and importance of the
Argentine legal issues presented in this case. This Court finds that it is a
presumptuous intrusion upon Argentina to decide unsettled issues of her foreign
tort laW. Delaware has no local interest to Warrant such intrusion, especially Where
Defendant Philip Morris Global Brands Inc.’s single strand of incorporation to

Delaware has no rational connection to Plaintiffs’ causes of action, and Defendant

Philip Morris USA Inc. is not even incorporated in this State.

65 Martinez II, 86 A.3d at 1108, llll. See also lson, 729 A.2d at 835.

23

CONCLUSION
This Court finds that Plaintiffs fail to meet their burden under Rule 59(e).
Specitically, Plaintiffs fail to demonstrate that this Court overlooked controlling
precedent or legal principles before dismissing PM Defendants on the basis of
forum non conveniens. Moreover, this Court did not misapprehend the law or facts
such as Would change the underlying outcome of its decision to dismiss PM
Defendants. For the reasons stated, Plaintiffs’ Motion for Clariflcation, or

Alternatively Reargument, as to the Court’s November 30, 2015, Forum Non

Conveniens Ruling, is DENIED.

IT IS SO ORDERED.

    
 

Judge Vivi

oc: Prothonotary
cc: All Counsel On Record (via File & Serve)

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