In Rhodes v. SilkRoad Equity, LLC, (Del. Ch., Jan. 17, 2007), read opinion here, the Chancery Court addressed a curious procedural issue. The plaintiff moved to dismiss one of the counts of the Verified Amended Complaint, for slander, in light of filing the same claim in a later action in North Carolina. The court observed that the exact rule applicable was not quite clear, but that Chancery Court Rule 41(a)(2) and 15(a) helped to inform the court’s discretion.
The unusual nature of this motion was that the plaintiff sought to continue with the action, but wanted to dismiss one of its claims–a motion opposed by the defendant. Rule 41(a)(2) on its face applies to the voluntary dismissal of an action–as opposed to a single claim within an action. Rather, partial dismissal of an action should be treated as an amendment under Rule 15(a).
In sum, the court acknowledged the general rule that "litigation should be confined to the forum in which it is first commenced", and reasoned also that there was a significant risk of inconsistent results in light of the counterclaim in Delaware, if the issue was decided in North Carolina, and the absence of any justification to split the case into two separate fora.