A recent Delaware Supreme Court decision should be required reading for anyone involved with a forum non conveniens case in Delaware. Aranda v. Philip Morris USA Inc., Del. Supr., No. 525, 2016 (March 27, 2018), provides an overview of the Delaware law on forum non conveniens and clarified that even if it is a minority view among the 50 states, Delaware only requires that the trial court “consider” whether an alternative forum is available as part of its analysis, but the trial court is not required to find that an alternative forum is available before making its determination whether to dismiss a case based on forum non conveniens. The court reviewed the three general categories of forum non conveniens cases. The first type of case under that general category is referred to as:
(1) a first-filed Delaware case with no case pending elsewhere (the Cryo-Maid test);
(2) a second-filed Delaware case with another first-filed case pending elsewhere (the McWane test); and,
(3) a hybrid recently addressed by the Delaware Supreme Court in Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033 (Del. 2017), which involves a later-filed Delaware case pursued after another jurisdiction had dismissed the first-filed case based on forum non conveniens. All three of the foregoing types of cases require some application of the forum non conveniens factors. The difference is the presumptions applied in each category to the applicable factors. See Slip op. at 11-12.
The court was aware of the competing arguments, and the majority of other states who approached the issue differently. The court also addressed the public policy issue involved.
In sum, Delaware’s high court was satisfied that the trial court did consider the availability of an alternative forum before dismissing the case on forum non conveniens grounds, but it concluded that whether an alternative forum was available is not a deciding factor. Rather the trial court is only required to consider it as one of many factors.