IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
CARMELLE PETIT, Individually and as )
Administrator of the Estate of JEAN )
PIERRE PETIT; MARQUIS PETIT; )
JULIEN PETIT; and JANIQUE BAIRD, )
)
Plaintiff, )
) C.A. No.: N23C-04-095 FJJ
v. )
)
TRI-STATE WHOLESALE FLOORING, )
LLCO; CROWN PRODUCTS, INC.; and )
MARK ALAN AKKERMAN, )
)
Defendants. )
Submitted: June 15, 2023
Decided: June 22, 2023
OPINION AND ORDER
On Defendants’ Motion to Dismiss Plaintiffs’ Complaint
DENIED
Andrew C. Dalton, Esquire, Dalton & Associates, Wilmington, Delaware,
Attorneys for Plaintiff.
Elizabeth A. Sloan, Esquire and Fred G. DeRitis, Esquire, Ballard Spahr, LLP,
Wilmington, Delaware, Attorneys for Defendant.
Jones, J.
On June 9, 2022 Jean Pierre Petit (“Petit”), a Canadian resident, was operating
a bicycle southbound on Interstate 29 in Deuel County, South Dakota. Mark Alan
Akkerman (“Akkerman”), a resident of Brandon, South Dakota, was also traveling
southbound on Interstate 29 operating a 2015 semi-truck. Akkerman and Petit
collided, and Petit died as a result of the injuries sustained in the collision.
Carmelle Petit is the spouse of Petit. Marquis Petit, Julien Petit and Janique
Baird are the children of Petit. They are all residents of Manitoba, Canada.
Tri-State Wholesale Flooring, LLCO, (“Tri-state”) and Crown Products, Inc.
(“Crown”) are Delaware corporate entities. Tri-State is headquartered in Sioux Falls,
South Dakota. Tri-State provides retail flooring products in Montana, Wyoming,
North Dakota, South Dakota, Nebraska, Minnesota and Iowa. Crown is
headquartered in Minneapolis, Minnesota. Crown makes flooring products with
locations and employees in Missouri, North Dakota, South Dakota, Nebraska,
Minnesota, Iowa, Wisconsin, Colorado, Montana, Michigan, Ohio, Kansas, Illinois,
Kentucky and Indiana.
Carmelle Petit, individually and as the Administrator of her husband’s estate
has filed this personal injury and wrongful death action on behalf of her husband’s
estate, herself and Petit’s children. The original complaint alleged that, at the time
of the accident, Akkerman was in the course and scope of his employment with Tri-
State and/or Crown and as such these corporate entities were vicariously liable to
the plaintiffs due to Akkerman’s actions. The complaint also included direct claims
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against Tri-state and Crown for the negligent hiring and/or training of Akkerman.
There were also direct claims against Akkerman for his own actions in operating the
truck.
On May 16, 2023 the instant Motion to Dismiss was filed. The Motion moved
to dismiss the claims against Akkerman due to a lack of personal jurisdiction and to
dismiss all claims against all defendants on the basis of forum non conveniens. On
May 19, 2023 the claims against Akkerman were voluntarily dismissed by plaintiffs.
On that same day an Amended Complaint was filed against Tristate and Crown
repeating all of the same claims against Tristate and Crown that were in the original
complaint.
The instant motion invokes Superior Court Civil Rule 12(b)(3) and the
doctrine of forum conveniens. Because defendants have not shown that they would
face overwhelming hardship if forced to defend this particular action in Delaware,
its motion to dismiss is DENIED.
II. STANDARD OF REVIEW
“A motion raising forum non conveniens is a request that a court possessing
both personal and subject matter jurisdiction over an action nevertheless decline to
hear it.”1 A motion to dismiss relying on the doctrine of forum non conveniens is
granted only in the rare case where undue, overwhelming hardship and
1
GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 234 A.3d 1186, 1193 (Del. 2020) (“GXP Cap. I”), aff’d, 253 A.3d
93, 97 (Del. 2021) (citing Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P’ship., 669 A.2d 104, 106 (Del.
1995)).
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inconvenience truly is visited on the protesting defendant hailed here.2 Indeed,
Delaware courts are “hesitant to grant [relief] based on forum non conveniens, and
the doctrine is not a vehicle by which the Court should determine [merely] which
forum would be most convenient for the parties.”3 Whether to grant relief via forum
non conveniens is left to the trial courts’ discretion.4 And when deciding a motion
to dismiss invoking forum non conveniens, the Court applies the well-worn Cryo-
Maid factors.5 Those are:
(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, if appropriate; (4) all other practical problems that would
make the trial of the case easy, expeditious and inexpensive; (5)
whether or not 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; and (6) the pendency or
nonpendency of a similar action in another jurisdiction.6
When the Delaware action is the only-filed the Court applies the
overwhelming hardship standard.7 That is, the Court “must focus on whether the
defendant has demonstrated with particularity, . . . that litigating in Delaware would
result in an overwhelming hardship.”8
2
Candlewood Timber Gp., LLC v. Pan. Am. Energy, LLC, 859 A.2d 989, 998 (Del. 2004); Mar-Land Indus.
Contractors, Inc. v. Caribbean Petro. Ref., L.P., 777 A.2d 774, 778 (Del. 2001).
3
In re Citigroup, Inc. S’holder Deriv. Litig., 964 A.2d 106, 117 (Del. Ch. 2009) (citing Taylor v. LSI Logic Corp.,
689 A.2d 1196, 1199 (Del. 1997)); see Taylor, 689 A.2d at 1199 (“An action may not be dismissed upon bare
allegations of inconvenience without a particularized showing of the hardships relied upon.”).
4
GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 97 (Del. 2021) (“GXP Cap. II”).
5
Gramercy Emerging Mkts. Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1036-37 (Del. 2017) (citing Gen.
Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. Ch. 1964)).
6
Id. at 1036-37 (cleaned up).
7
Id. at 1037 (citation omitted).
8
Mar-Land Indus. Contractors, Inc., 777 A.2d at 779.
4
Tristate and Crown contend that if they are required to litigate this action in
Delaware, they will suffer overwhelming hardship. To these defendants this is a
personal injury action where the accident occurred in South Dakota, all of the
evidence is in South Dakota and the law to be applied is South Dakota law - the fact
that the parties are Delaware businesses shouldn’t be determinative.
Plaintiff maintains that litigating in Delaware will not be an overwhelming
hardship and that this Court should respect plaintiffs’ choice of forum.
IV. DISCUSSION
The Delaware action is the only action filed in this dispute; so the Court here
applies the overwhelming hardship standard to determine whether dismissal is
warranted.9 This standard “is not intended to be preclusive,” but “is intended as a
stringent standard that holds defendants who seek to deprive a plaintiff of [its]
chosen forum to an appropriately high burden.”10 Accordingly, the Court must
determine whether defendants “ha[ve] shown that the forum non conveniens factors
weigh so overwhelmingly in [its] favor that dismissal of the Delaware litigation is
required to avoid undue hardship and inconvenience to [it].”11 As now explained,
Tri-state and Crown have not done so here.
9
See generally GXP Cap. I, 234 A.3d at 1194 (“When the Delaware case is the first action filed, relief via forum
non conveniens is available only in the face of ‘overwhelming hardship’ from Delaware litigation.” (citation omitted)).
10
Martinez v. E.I. DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1105 (Del. 2014) (“Martinez II”) (citations
omitted).
11
Id. at 1106.
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A. THE RELATIVE EASE OF ACCESS TO PROOF
The first forum non factor is “the relative ease of access to proof.”12 Defendants
must “make a particularized showing that witnesses, documents, or other evidence
necessary to defend the allegations contained in the complaint cannot be brought to
or otherwise produced in Delaware.”13 Defendants argue that the witnesses,
documents, and evidence are all located in South Dakota. Defendants point to
Plaintiffs’ Answers to Form 30 Interrogatories as proof of this fact. This Court’s
review of the Plaintiffs’ Answers to Form 30 Interrogatories leads it to conclude that
any lay witnesses to the accident and the investigating police officers are located in
South Dakota. However, it is not clear whether any of the witnesses were actual
eyewitnesses. While it is clear that the investigating police officer and Mr.
Akkerman will need to be deposed they can easily be issued out of state subpoenas
to testify in South Dakota. And at least as to Akkermann there seems little question
that the defendants would produce him live for trial in Delaware if they choose to do
so. As for potential medical witnesses 14 of the 15 treating physicians are located
in South Dakota. However, given this Courts experience it seems highly likely that
only a few of them, and probably only one, would be called as trial witnesses.
Additionally, treating medical witnesses typically do not actually appear in person
at trial. As for the negligent hiring and training claim any such witnesses would not
12
Id. at 1104 (citing Cryo-Maid, 198 A.2d at 684).
13
Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refining, L.P., 777 A.2d 774 (Del. Supr. 2001).
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be Delaware based. As for lay damage witnesses it would appear that such witnesses
are probably from Canada as that is where the plaintiff lived. This factor slightly
favors the defendants.
B. THE AVAILABILITY OF COMPULSORY PROCESS FOR WITNESSES
The second consideration is tied closely to the first Cryo-Maid factor.14 Here,
the Court must evaluate whether “another forum would provide a substantial
improvement as to the number of witnesses who would be subject to compulsory
process.”15 While in some circumstances important, this factor is not dispositive.16
Defendants maintain that this factor weighs heavily in its favor because this
Court would be unable to compel South Dakota residents to testify at trial. None of
the witnesses listed in Form 30 live in Delaware. Defendants are correct that this
Court could not compel these witnesses to come to Delaware to testify. However,
the number of South Dakota witnesses that are likely to testify at trial is probably
limited to two or three and one of them would be Akkermann who will undoubtedly
be produced by defendants if they so choose. This factor slightly favors the
defendants.
C. THE POSSIBILITY OF A VIEW OF THE PREMISES
The third factor is a possibility of a view of the premises.17 The premise is the
accident site, which is located on Interstate 29 in Deuel County, South Dakota. Most
14
Barrera v. Monsanto Co., 2016 WL 4938876, at *6 (Del. Super. Ct. Sept. 13, 2016).
15
Mt. Hawley Ins. Co. v. Jenny Craig, Inc., 668 A.2d 763, 769 (Del. Super. Ct. 1995) (citation omitted).
16
Focus Fin. P’rs, LLC v. Holsopple, 250 A.3d 939, 974 (Del. Ch. 2020).
17
Gramercy Emerging Mkts. Fund, 173 A.3d at 1036-37 (citing Cryo-Maid, 198 A.2d at 684).
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often, this factor holds “little to no weight”18 “[e]ven in a case where there was a
relevant ‘premises’ that the fact-finder might want to ‘view.’”19 A live view of
premises in this day and age of google maps and similar tools continues to hold little
weight. In this case it does not favor dismissal.
D. THE APPLICABILITY OF DELAWARE LAW
The fourth factor centers on “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.”20 In Martinez v. E.I. DuPont de Nemours
and Co., Inc., the Delaware Supreme Court explained:
If, as our jurisprudence holds, significant weight should be accorded
the neutral principle that important and novel issues of Delaware law
are best decided by Delaware courts, then it logically follows that our
courts must acknowledge that important and novel issues of other
sovereigns are best determined by their courts where practicable.21
The parties agree that South Dakota law governs this action.”22 This Court is
fully equipped to (and often does) interpret and apply foreign law in tort cases. In
this case this factor adds little, if any, weight to the dismissal side.
E. THE PENDENCY OR NONPENDENCY OF A SIMILAR ACTION OR ACTIONS IN
ANOTHER JURISDICTION
The parties agree there are no similar pending actions in any other
18
Hall v. Maritek Corp., 170 A.3d 149, 162 (Del. Super. Ct. 2017) (citation omitted).
19
Hamilton P’rs, L.P. v. Englard, 11 A.3d 1180, 1212 n.17 (Del. Ch. 2010) (citation omitted).
20
Martinez II, 86 A.3d at 1104, 1109 (citing Cryo-Maid, 198 A.2d at 684).
21
Id. at 1109-10 (internal citations omitted).
22
Pls’ Resp. at 10; Defs’ Motion to Dismiss at 15.
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jurisdiction.23 “The absence of another pending litigation weighs significantly
against granting a forum non conveniens motion.”24 This factor, while not
dispositive, is significant and is only overcome “in the most compelling
circumstances.”25 Without another suit pending in another jurisdiction plaintiffs
would essentially be forced “to start anew” if a dismissal were granted.26 But having
to start anew where the applicable South Dakota statute of limitations is not yet run
and an Answer hasn’t been filed causes little hardship to the plaintiff.
So this factor favors litigation of this matter in Delaware.
F. OTHER PRACTICAL CONSIDERATIONS.
The final factor examines “all other practical problems that would make the
trial of the case easy, expeditious and inexpensive.”27 Tri-State and Crown repeat
Delaware’s more jurisdictional hook for entity Defendants certainty is insufficient
to allow the litigation to proceed here.”28, 29
Plaintiffs maintain that in order for Defendants to meet their burden they must
demonstrate that the hardship is substantial and overwhelming and not merely more
convenient.30
When the Cryo-Maid factors are considered they only slightly favor the grant
23
Def.s’ Mot. to Dismiss at 11 n.3; Pl.s’ Answering Br. at 7.
24
Berger, 906 A.2d at 137 (citing cases).
25
Id.
26
Parvin v. Kaufmann, 236 A.2d 425, 427 (Del. 1967).
27
Martinez II, 86 A.3d at 1104 (citing Taylor, 689 A.2d at 1198-99).
28
Defs’ Motion to Dismiss at 18.
29
citing Defs’ Mot. to Dismiss at 21-22 (noting “the majority of material witnesses live within a short distance of
the Guilford County, North Carolina courthouse,” which is located only fourteen miles from the Property).
30
Pls’ Resp. at 9 (Ryan v. Gifford, 918 A.2d 341, 351 (Del. Ch. 2007); Berger, 906 A.2d.
9
of dismissal. Given the standard that dismissal should occur only in rare cases and
only where an overwhelming hardship has been shown, this Court is not persuaded
that overwhelming hardship has been shown to the point where the plaintiffs’ choice
of forum should be disturbed. For these reasons Defendants’ Motion to Dismiss is
DENIED.
V. CONCLUSION
For the above stated reasons Defendants’ Motion to Dismiss is DENIED.
Plaintiffs’ Motion to Permit Discovery on Facts Relevant to Choice of Law is
DENIED as Moot.
IT IS SO ORDERED.
Francis J. Jones, Jr.
Francis J. Jones, Jr., Judge
/jb
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