Hardship Supports Stay of Case Based on Forum Non Conveniens
In Aveta, Inc. v. Colon, 2008 WL 151859 (Del. Ch., Jan. 15, 2008), read opinion here, the Chancery Court found the facts of this case to exhibit the rarest of jurisdictional "birds" (my word). Namely, based on overwhelming hardship and forum non conveniens factors, the court stayed a Delaware action, in favor of a later filed proceeding in Puerto Rico, despite a forum selection clause selecting Delaware. The court noted that it is rare that a defendant can defeat a plaintiff's choice of forum and rarer still to do so in light of a contractual forum selection clause. Among the compelling facts that supported the court's opinion were the following: the key witnesses and key players in the matter were in Puerto Rico and English was a second language for most of them--thus, likely requiring translators "all around" for depositions and for introducing documentary evidence. In addition, the controlling law was the law of Puerto Rico and serious public policy issues that were of great concern to Puerto Rico were implicated by the issue of first impression (for that jurisdiction) that was involved: the enforceability of a non-compete agreement with a doctor and his patients pursuant to the law of Puerto Rico as well as the fact that the doctor did not read the document which was in English--not his first language. The court observed that Delaware "has no interest in this dispute."
