Kennedy v. Barboza
N15C-12-077 VLM
| Del. Super. Ct. | Oct 26, 2016Background
- Kennedy received multi-stage dental treatment from Dr. Maria Barboza in Pennsylvania in 2012; disagreement arose over financing and payment, and treatment was left incomplete in October 2012.
- Portfolio Recovery Associates (assignee of GE Capital) sued Kennedy in Delaware Court of Common Pleas in Sept. 2014 for default on the financing; Kennedy impleaded Barboza and her practice as third-party defendants in Oct. 2014 asserting restitution/contract/tort claims.
- Kennedy filed a writ of summons in Pennsylvania on March 5, 2014 (statutory method to commence an action there), and later filed a malpractice/fraud complaint in Pennsylvania court in March 2016 alleging claims arising from the same treatment period.
- Defendants moved to dismiss the Delaware action under the McWane doctrine (and alternatively forum non conveniens), arguing the Pennsylvania action was first-filed and that duplicative litigation should be confined to the first forum.
- The Superior Court applied the three-part McWane test, found the Pennsylvania action was first-filed, that the claims arise from a common nucleus of operative facts and involve the same parties, and that the Pennsylvania court can provide prompt and complete justice.
- Court granted defendants’ motion and dismissed the Delaware action without prejudice to proceed in Pennsylvania.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a prior Pennsylvania action existed when the Delaware action was filed | Kennedy argued the Pennsylvania writ did not amount to a commenced action that should displace Delaware | Defendants argued the March 5, 2014 writ commenced the Pennsylvania action, making Delaware second-in-time | Court held the Pennsylvania writ commenced the action under Pa. R. Civ. P. 1007, so Pennsylvania was first-filed |
| Whether the Pennsylvania and Delaware claims are the same or functionally identical | Kennedy contended the Pennsylvania case sounds in professional negligence while Delaware claims are conversion/unjust enrichment, so they are different | Defendants argued both arise from the same treatment and financing dispute — a common nucleus of operative facts | Court held claims are functionally identical and involve the same parties; McWane applies |
| Whether the first-filed Pennsylvania court can provide prompt and complete justice | Kennedy suggested defendants must prove Pennsylvania law adequately covers Delaware claims | Defendants argued Pennsylvania is a court of general jurisdiction in the county where conduct occurred and can adjudicate the claims | Court held Pennsylvania court is capable of delivering prompt and complete justice; no requirement for defendants to prove exact law-by-law parity |
| Whether prior denial by Court of Common Pleas precludes relitigation here (law of the case) | Kennedy argued the earlier denial in Delaware proceedings prevents reconsideration | Defendants noted facts changed because Kennedy later filed a Pennsylvania complaint, so prior ruling is not controlling | Court held the law-of-the-case doctrine does not bar reconsideration due to changed circumstances; dismissal was appropriate |
Key Cases Cited
- McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281 (Del. 1970) (establishes McWane doctrine favoring deference to first-filed forum to avoid duplicative litigation)
- Lisa, S.A. v. Mayorga, 993 A.2d 1042 (Del. 2010) (discusses interplay of McWane and forum non conveniens and deference to first-filed actions)
- Dura Pharmaceuticals, Inc. v. Scandipharm, Inc., 713 A.2d 925 (Del. Ch. 1998) (applies common nucleus of operative facts test to hold later-filed Delaware claims arise from same facts as earlier foreign action)
- General Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964) (forum non conveniens factors referenced as alternative basis for dismissal)