82 A.3d 1 | Del. Super. Ct. | 2012
I. Introduction
This case is one in a series of approximately twenty-five cases filed against defendant E.I. DuPont de Nemours and Company, Inc. (“DuPont”) by Argentine nationals who allege that they were exposed to asbestos while working in textile plants located in Berazategui, Argentina and Mercedes, Argentina. At the time of the alleged exposures, which began in the early 1960’s, the plants were owned by DuPont Argentina Sociedad Anomina (“DASA”). DASA, now known as DASRL, has its principal place of business in Argentina, and is a great-great grand-subsidiary of DuPont.
Multiple layers of ownership separate DASRL from DuPont. The majority owner of DASRL is DuPont de Nemours Investments, a wholly-owned subsidiary of DuPont Poland B.V., which, in turn, is a wholly-owned subsidiary of DuPont Textiles & Interiors Delaware, Inc., a wholly-owned subsidiary of the sole defendant in these cases, DuPont. DASRL has never conducted business in the United States, is incorporated under the laws of Argentina, and has its principal place of business in Buenos Aires, Argentina.
All of the claims in the twenty-five or more cases filed by the Jacobs & Crump-lar law firm allegedly arose from work that Plaintiffs or their Argentine family members performed in Argentina for their Argentine employers. All injured Plaintiffs or Plaintiffs’ decedents were diagnosed in Argentina and treated in Argentina.
Plaintiff in this case, Maria Elena Martinez, is the wife of a now deceased Argentine textile plant worker, Santos Roque Rocha (“Rocha”). Plaintiff claims that her husband suffered injuries from his exposure to asbestos while employed by DASRL, in Berazategui, Argentina. She has named DuPont as the sole defendant in this case and it is the only entity from which she seeks damages.
The Martinez case is one of the later-filed actions. It differs from the other cases in only two respects. First, Plaintiff in the case at bar alleges asbestos exposures related to a different manufacturing facility from the other cases. Mr. Rocha was employed at a plant in Berazategui rather than at DASRL’s plant in Mercedes, Argentina, where the other cases allege exposure. Secondly, Martinez is unlike the other lawsuits because Plaintiff seeks to separate herself from these other Argentine plaintiffs that preceded her by claiming she is not trying to pierce the corporate veil of DASRL’s parent corporation, a cause of action over which this Court lacks jurisdiction. Instead, Martinez has added a new theory of liability, the “direct participant” theory, which was not pled in the other actions.
In prior motions to dismiss some of these Argentine “test” eases, DuPont argued that if non-U.S. citizen foreign national workers were allowed to proceed against a U.S. grandparent corporation, rather than the properly incorporated and capitalized foreign subsidiary by whom they are or were directly employed, the structure and limited liability of the separate incorporated legal entity would be impermissibly disregarded. In essence, DuPont contended that the claims by
This new “direct participant” theory of liability, pled only in the Martinez case, in addition to all of the other various claims and theories of liability, renders this particular case the most viable “test” case. The Martinez Complaint is the action in which Plaintiff has best been able to flesh out the various theories of liability. Accordingly, if the Martinez case cannot survive a motion to dismiss, the remaining cases will likely be subject to dismissal as well, since they assert all but one of the theories presented herein. This Opinion is rendered with the expectation that it will have application to the other similar cases filed by Argentine nationals.
II. Factual and Procedural Background
A. History
Plaintiffs decedent, Santos Rocha, was employed at the DASRL textile plant in Berazategui, Argentina from 1963 until 1980. He died of mesothelioma on August 1. 2009, twenty-nine years after he ceased employment with DASRL. His wife, Maria Martinez, was appointed as administrator of his estate (the “Rocha Estate”) by an Argentine court approximately a year after his death, on June 3, 2010. DASRL records confirm that Rocha was employed by DASRL, not DuPont, at the Berazate-gui plant.
During the years that Rocha was employed at the Berazategui Plant, the exclusive owner of the facility was DASRL.
Neither Rocha nor the Administrator of his Estate has initiated any civil claims in Argentina against DASRL in connection with Rocha’s asbestos-related occupational injury and death. Under Argentine law, an employee or his estate is required to notify the employer of the illness or injury and make a demand for compensation before initiating a civil suit for damages.
B. The Complaint
The Complaint in this case was filed on April 23, 2010. It alleges six separate counts against DuPont, one of which is actually a statement of facts rather than a claim for relief. Count I, which is contained only in this (the Martinez) case, asserts a direct liability claim against DuPont “due to its own separate and distinct tortious conduct.” This count essentially alleges that DuPont was responsible for the safety procedures and regulations that existed at the Berazategui plant, and that it either directly or indirectly caused workers there to use asbestos, without adequately warning them of its hazards and without providing protection from exposures. Specifically, Martinez asserts that DuPont “provided raw asbestos ... or contributed funds to purchase raw asbestos that was used” by DASRL át the plant. The Complaint also states that DuPont “provided management, engineering, and safety services to [DASRL] in a negligent manner,” causing injury to Rocha. DuPont is alleged to have “directed and/or controlled the use of asbestos at the ... Berazategui plant” either by direct employee interaction or through rules and regulations. Plaintiff also claims that DuPont trained DASRL (then DASA) management, staff, and employees in “unsafe ways” and “failed to provide proper training for the safe use and handling of asbestos.” Martinez further asserts that DuPont can be held liable for conducting health, safety, and occupational hygiene audits, and for monitoring production and safety procedures at the Argentine plants.
The allegations that are set forth in Count I reappear elsewhere throughout the Complaint. For example, in Count IV, which is the negligence count, Martinez asserts that DuPont failed to exercise ordinary care and caution for the safety of Rocha by: 1) requiring him to work with and around asbestos fibers in an unsafe manner; 2) failing to advise and/or warn workers of practices that would reduce the risk of inhaling, ingesting, or otherwise absorbing asbestos fibers; 8) failing to provide adequate warnings of the unreasonable risks of exposure to asbestos to those likely to come into contact with asbestos fibers at DASRL’s plants; 4) failing to provide adequate safety equipment designed to limit Rocha’s exposure to asbestos; and 5) failing to conduct adequate research into the safety risks posed by asbestos.
Similarly, Count VI of the Complaint, which is titled “DuPont’s Liability in Argentina” alleges that DuPont acted negligently, willfully, and wantonly in allowing asbestos fibers to be utilized in the Beraza-tegui plant, without any caution, warning, or safeguards, and in failing to enforce the same safety regulations in its Argentine subsidiary’s plants as it imposed on its own manufacturing facilities in the United States. This Count further alleges that DuPont managers assigned to the Argentine subsidiaries were responsible for the imposition of inadequate safety regulations in the Argentine plant.
The allegations set forth in Count V raise the theory of strict liability as a basis for holding DuPont liable for engaging in an ultra-hazardous activity. This Count
Many of the same statements that are contained in the negligence count (Count IV) are rehashed in Count VII, which alleges willful and wanton conduct. In this Count, Plaintiff seeks to recover punitive damages as a result of DuPont’s willful and wanton behavior.
Turning lastly to Count III of the Complaint, which ironically is labeled “Employment Exposure,” Plaintiff addresses Rocha’s exposure to asbestos as a result of his employment at the DASRL plant in Berazategui from 1963 to 1980. The allegations against DuPont in this Count are incorrectly asserted as though DuPont was Rocha’s employer. All of the allegations in this Count, which relate to whether DuPont supplied or otherwise controlled the use of asbestos at the Berazategui plant, are more than adequately covered elsewhere in the Complaint, as discussed above.
C. Motion to Dismiss
On July 30, 2010, DuPont filed the instant Motion to Dismiss this Complaint, raising numerous arguments in support of dismissal of each of the Counts of the Complaint, on both legal and factual bases. DuPont argues that the Complaint fails to join DASRL as an indispensable party pursuant to Rule 19; that Plaintiff has sued the wrong party as it was DASRL, not DuPont, that was Rocha’s employer; that the Complaint fails to state a claim against DuPont for the conduct of its subsidiary; that this Court has no jurisdiction over “veil-piercing;” and that Plaintiffs most recent “direct participant liability” theory, amounts to nothing more than repackaged veil-piercing.
D. Selection of an Expert on Argentine Law
During the time that the instant motion, and those in the other Argentine cases, were pending, the bulk of the asbestos docket was transferred to another Judge. Much time elapsed while the details of that transfer needed to be clarified. Additionally, the Court’s initial assessment of the experts’ affidavits raised the possibility that an independent expert would potentially be required. While these matters were being considered, the motions to dismiss in this case and in the other four test cases were held in abeyance.
After reviewing the legal experts’ affidavits proffered by the parties, which set forth their opinions on the question of a parent corporation’s liability as a direct participant in causing the work-related in
On May 14, 2012, the Court advised the parties, based upon its own research and consultation with legal authorities and scholars in the field, that it intended to proceed with two experts that were not chosen by either party. The Court reasoned that these two experts, one an Argentine corporate lawyer and the other an Argentine labor lawyer, could best assist it with the issues since both labor law and corporate law were implicated by the direct participant liability concept. While DuPont interposed no objections to either of the Court’s proposed experts, Plaintiffs counsel strongly opposed both, arguing that these individuals lacked expertise in tort law and would be sympathetic to the concerns of a global multinational corporation, such as DuPont, based on their professional backgrounds.
Plaintiff sent a follow-up letter to the Court on May 25, 2012, again expressing opposition to one of the experts proposed by the Court because he was an Executive Vice President of the International Employers Organization, which considered— but did not pass — a resolution to the effect that chrysotile asbestos is a less dangerous form of asbestos fibers, a defense that Plaintiffs counsel asserted was used by employers in mesothelioma cases in Delaware. Counsel nowhere mentioned how the expert voted on the issue, or why the question before the Court concerning the direct participant liability of a parent corporation to employees of a subsidiary would be affected by the expert’s executive role in a labor organization.
DuPont responded by letter, asserting that Plaintiffs concerns were unfounded and irrelevant to the specific legal issue before the Court, particularly since the Court was unlikely to ask for opinions from the Argentine law experts on the relative toxicity of different forms of asbestos. DuPont also pointed out that obtaining a qualified expert with no connection to any trade group, law firm, or academic institution that has at one time or another taken a position on an issue bearing on asbestos litigation would be unlikely and unrealistic. That letter, in turn, prompted yet another expression of disagreement on the part of Plaintiffs counsel wherein he pointed out that his proposed experts had never taken any position on any issues in asbestos litigation.
Ultimately, DuPont’s counsel proposed that the Court set a hearing for the parties’ designated experts to testify and be cross-examined on the precise issue before the Court. In that way the Court could make its own determination as to whether it actually did require further assistance interpreting Argentine law. It could then appoint its own expert only if necessary, in the event the Court could not reach a conclusion on the viability of Plaintiff’s direct liability theory. Not surprisingly, Plaintiffs counsel objected because it would be logistically difficult to schedule a hearing promptly.
E. The Hearing
An evidentiary hearing was conducted by the Court on September 10, 2012. At that stage of the proceedings, the Court was focused on what appeared to be conflicting expert opinions regarding whether Argentine courts accepted Plaintiffs theory of direct participant liability on the part of DuPont, the parent corporation. The Court then believed that resolution of that issue, by determining the relative strengths and weaknesses of the experts’ opinions, would inform its decision on the ultimate issues presented in the Motion to Dismiss.
Prior to the hearing, as an accommodation to Plaintiff, the Court agreed to allow Plaintiffs two experts to testify by video-conference since they both reside in Ar
DuPont’s expert, Professor Keith S. Ro-senn, testified in person. He is currently director of the Inter-American Law Program at the University of Miami School of Law. He has been a full-time law professor since 1965. The program that he directs focuses on laws of the Americas, principally Latin American law, including Argentina. Professor Rosenn was a visiting Fulbright lecturer twice in Argentina and coauthored a book on Latin American law that has been widely used. He has served as an expert witness over 150 times and as an expert appointed by the Court on three occasions, including once in Delaware.
Professor Rosenn could not identify any reason why the Argentine courts would adopt the theory of direct participant liability, nor was he able to designate any statute or case that adopted the doctrine, as it has been conceived and explained in Forsythe v. Clark USA, Inc.,
According to Professor Rosenn, there is simply no need for this American theory of liability to be recognized in Argentina because an Argentine employee is not prohibited under Argentine law from bringing a tort action against an employer even if he is also seeking workers’ compensation benefits. Thus, the doctrine would be superfluous in Argentina as Argentine tort law provides for complete recovery for an employee.
While acknowledging that his expertise is more general, and that he is not an expert on only the law of Argentina, Ro-senn pointed out that none of the experts were able to point to any case law in
At least on paper, Plaintiffs two experts, Alberto Bueres
Because of the press of time,
I have no doubt in my mind as professor Bueres said also in professor Alterini’s report if you go to the two articles 1109 and 1113 that you can sue the main office of a company for damages occurred (sic) by an employee of a subsidiary when they are using, manipulating or near dangerous substances.18
Professor Compiani had not read any of the opinions in the American cases from which the doctrine of direct participant liability emanated.
Through their affidavits, which appear to have resulted from considerable research, DuPont’s experts concluded that there is no basis under any article of the Civil Code of Argentina to hold DuPont, as the corporate great-great grandparent, liable for alleged harm to employees of its subsidiary or members of the employees’ households. DuPont’s experts found no reported cases in Argentina imposing liability on a parent corporation for the corporation’s direct participation in the alleged torts of its subsidiary and opined that it would be quite extraordinary for an Argentine court to create such a doctrine. Were DuPont to be held liable to Plaintiff under Argentine law, it would be necessary for Plaintiff to allege specific evidence of wrongdoing by DuPont employees that would go far beyond the ordinary degree of supervision inherent in the relationship between a corporate parent and its subsidiary.
It its motion, DuPont raises several grounds for dismissal. First, it submits that the case should be dismissed on the basis of forum non conveniens in favor of adjudication in Argentina, as Plaintiff has no significant litigation-related connection to Delaware. Secondly, DuPont asserts that, even if this case were not subject to dismissal for forum non conveniens, Plaintiff has failed to join an indispensable party, DASRL, Plaintiffs employer and the owner of the premises where Plaintiff worked. DuPont argues that Martinez has not met her burden of showing that dismissal is not required under Superior Court Civil Rule 19.
DuPont next contends that Plaintiff has failed to plead a viable claim against DuPont for the alleged wrongful conduct of its indirect foreign subsidiary. It maintains that Counts III, IV, V, and VII all target the wrong party, as DuPont was not Rocha’s employer and did not own the Berazategui plant. DuPont argues that Plaintiff has failed to state a claim against DuPont as the corporate great-great grandparent of Rocha’s employer, DASRL. It submits that the Complaint consists of generalized conclusions and unspecified allegations of direction and control that do not meet Delaware’s pleading standard under Rules 8 and 9 of the Superior Court Civil Rules, which require that Martinez identify the specific conduct that supposedly caused Rocha’s injury. Finally, DuPont asserts that the Rocha Estate’s claims for both non-economic damages and punitive damages must be dismissed as these are not recoverable under Argentine law.
In response to the motion, Martinez argues that this Court should not dismiss the action on forum non conveniens grounds because Argentina is a “grossly inappropriate” forum. She asserts that DuPont cannot satisfy a single factor of the overwhelming hardship standard. Martinez further insists that she has sued the correct party because Argentine law allows a Plaintiff to sue a party who “controls” dangerous wastes and elements such as asbestos in “aggravated strict liability.” With respect to her failure to join DASRL, Plaintiff argues, with no citation to authority to support her claim, that “[njever has there been a ruling that a motion to dismiss is granted because there is an indispensable party that should have been joined. If so, there would be no asbestos litigation.”
IV. Standard of Review
DuPont moves for dismissal of Plaintiffs complaint based on several grounds, as previously described. All but one of DuPont’s arguments are asserted pursuant to Superior Court Civil Rule 12(b)(6), for failure to state a claim upon which relief can be granted, and the remaining argument is based on Rule 12(b)(7), for failure to join an indispensable party. The Superior Court Civil Rules provide two different standards for considering the arguments advanced in DuPont’s motion.
Upon a Rule 12(b)(6) motion to dismiss for failure to state a claim, the Court’s role is to determine “whether [the] plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint.”
A motion to dismiss for failure to state a claim must be converted to one for summary judgment, however, and disposed of as provided in Superior Court Civil Rule 56 when matters outside of the pleadings are submitted for consideration.
Both Plaintiff and Defendant have submitted affidavits and declarations in support of their arguments on the pending Motion to Dismiss.
Ultimately, the Court has decided, based on the arguments submitted by the parties, that it will convert only the portions of DuPont’s Motion to Dismiss to one for summary judgment which rely upon the material presented in the various affidavits and declarations.
V. Discussion
Based upon its thorough review of the Complaint, case law, experts’ testimony on Argentine law, and the parties’ lengthy briefs, the Court concludes that the Motion to Dismiss should be granted on several grounds. First, Counts III, IV, V, and VII assert claims against DuPont as if it was Rocha’s employer’, when in fact his employer was DASRL. Thus, Plaintiff has sued the wrong party.
Secondly, Plaintiff has failed to establish that her “new” legal theory of liability of the parent corporation for the actions of its indirect subsidiary, the direct participant liability theory, as stated in Counts I and VI, is recognized under Argentine law. Even if it was a viable basis for liability, Plaintiff has failed to allege the necessary predicate facts that would support such a theory.
Thirdly, throughout the entire Complaint, Plaintiff has failed to identify any specific actions by DuPont, as opposed to unsupported conclusory statements, that
Fourth, Martinez has failed to join a necessary and indispensable party, DASRL, the indirect foreign subsidiary that was Rocha’s employer and the owner and operator of the plant in Berazategui, Argentina, where Rocha claims he was exposed to asbestos.
Finally, although this Court is aware of the difficulty in meeting the “overwhelming hardship” standard for dismissal on forum non conveniens grounds, and is not premising dismissal of this case on that basis alone, it is nevertheless mindful of the extraordinary hardship to DuPont if it must defend a case in which it is not the real party responsible for any alleged harm to Plaintiff. Additionally, this Court should not be burdened with cases where the Defendant’s state of incorporation is being manipulated to confer jurisdiction on the wrong party. It is greatly inconvenient, unduly costly, and inconsistent with the interests of efficiency for a court in Delaware to: 1) apply the laws of another nation based on translations; 2) impose upon the Defendant the extra costs of discovery, lawyers, and experts that will result by having a trial on another continent from where the alleged tort occurred and where the evidence is located; and 3) decide claims where the Plaintiff is not a resident of Delaware, was not injured in Delaware, and where the Defendant’s state of incorporation has no rational connection to the cause of action.
A. Plaintiff Has Sued the Wrong Party and has Failed to State a Viable Claim Against DuPont for Any Wrongful Actions
In the Court’s judgment, Plaintiff has failed to demonstrate that the Complaint pleads a viable direct claim against DuPont as the corporate great-great grandparent of Rocha’s employer, DASRL, under either Delaware or Argentine law.
Counts III, IV, V, and VII of the Complaint rely entirely on the incorrect assumption that DuPont is actually the owner and operator of the Berazategui plant and that DuPont was Rocha’s employer. DuPont, however, did not own or operate the Argentine facility nor was it Mr. Rocha’s employer. It was merely an indirect corporate great-great grandparent of DASRL. Referring to DuPont interchangeably with DASRL in the Complaint, where the allegations are obviously intended to apply to the entity that owned and operated the plant, does not alter the reality of the entities’ corporate structures. Inasmuch as all four of these counts target the acts and conduct of Rocha’s employer and premises owner, they must be dismissed. Simply stated, Plaintiff has wrongly named DuPont as the employer and premises owner.
Moreover, Plaintiffs general claims in Counts I and VI, that DuPont “controlled” or “directed” the use of asbestos at the Berazategui plant, must also be dismissed because these counts allege only generalized conclusions rather than the specific factual circumstances that are required to support a direct liability claim against DuPont under Delaware’s pleading requirements.
No matter how critically one parses the Complaint, and even in light of the liberal standard applicable to motions to dismiss, Plaintiff fails to offer anything but conclu-sory and non-specific allegations of direction and control that do not give rise to any liability under the law. Since a parent company generally cannot be held liable for the actions of its subsidiary,
Yet, nowhere in any of the counts of the Complaint is there anything but generalized assertions of direction and control without reference to any specific acts constituting direction or control. None of the cases upon which Plaintiff relies support the position that these general statements are sufficient to state a claim.
Plaintiffs repeated assertion in her Complaint that DuPont is liable for “its own direct negligent conduct,” and that she is not seeking to hold DuPont liable for any acts committed by DASRL — without more — is not sufficient unless she can identify allegations of specific negligent acts or conduct by DuPont that gave rise to the alleged injury.
Nor does Plaintiffs assertion that the pleading rules are relaxed in toxic tort cases, because of the long latency periods between exposure and disease manifestation, provide any help to her. The issue before the Court is the sufficiency of Plaintiffs pleading that DuPont, as the corporate great-great grandparent of Rocha’s employer, is liable for those exposures. DuPont has not challenged the sufficiency of Plaintiffs allegations that Rocha was exposed to asbestos or that the asbestos caused injury to him. The standard for reviewing the sufficiency of Plaintiffs pleading on the basis of DuPont’s liability as a corporate great-great grandparent is, therefore, not affected in any way by the disease latency period, and the requirement of specificity is in no way diminished merely because this case is a “toxic tort” case.
The Martinez Complaint does appear at first blush to allege new facts, in an attempt to distinguish her case from the twenty or so other cases that Argentine national Plaintiffs have filed in Delaware. Notwithstanding this latest effort, those facts inserted in this Complaint, but not in the others, are either inconsequential or fail to assert any action by DuPont that resulted in Rocha’s asbestos exposure.
For example, the Complaint alleges that “asbestos workers” at the plant (Rocha was an electrician in the Nylon division, and not an asbestos worker) “wore white overalls in which they sometimes ate lunch at the plant buffet.” The Complaint also
In essence, Plaintiff has asserted only broad, conclusory, bare-bones allegations against DuPont, rather than against DASRL. These allegations fail to place DuPont — as opposed to DASRL — on notice of what specific duty it owed to Rocha, or how DuPont — as opposed to DASRL— breached that duty, leaving DuPont clearly unable to prepare a defense to the allegations. Even in the limited circumstances where the Martinez Complaint appears to allege new facts, the mere use of different terminology does not establish a factual predicate for imposing liability against DuPont.
For example, Paragraph 18 alleges that DuPont employees came to the Plant to conduct “[hjealth, safety and occupational injury audits.” Yet the complaint fails to allege that these audits caused harm to anyone nor that they in some way caused Rocha’s asbestos exposure. Similarly, in Paragraphs 19, 20, and 25, Plaintiff alleges that DuPont employees “monitored” production at the Plant and “patrolled” the plant to verify that the plant was in compliance with “security and confidentiality protocols” that are not otherwise described. Nowhere is it alleged that the monitoring or patrolling related to asbestos or Rocha’s exposure to it.
Again in Paragraphs 21 and 22, Plaintiff alleges that DuPont provided “engineering training for plant manufacturing” to Bera-zategui but does not even suggest that this training in any way related to asbestos or caused Rocha’s asbestos exposure. Even the paragraphs that contend DuPont manuals and newsletters were distributed at the Berazategui Plant (Paragraphs 28 and 24) do not allege that this information was in any way related to Rocha’s asbestos exposure.
Finally, Count VI, which is labeled “DuPont’s Liability in Argentina,” is not premised upon any improper conduct by DuPont. Instead, it relies on some type of unidentified and unstated affirmative obligation that a parent company must have to prevent actions by its subsidiaries. The language in Count VI alleges negligence by DuPont in “allowing asbestos fiber to be utilized ... without any caution, warning or safeguards ...” and contends that DuPont failed “to carry out due diligence” at the Argentine plant. Essentially then, Plaintiff is not only asserting that DuPont controlled and directed activities at DASRL’s Argentine facility, rendering it liable to Plaintiff in negligence, but also that it is liable because it did not engage in controlling the activities of its subsidiary. These inconsistencies exist throughout the Complaint, largely because Plaintiff repeatedly refers interchangeably to DuPont and DASRL as if they were one and the same entity, and because Plaintiff has not, and cannot, point to any specific action by DuPont that establishes ownership or control of DASRL that is different in any respect from that inherent in the normal parent subsidiary relationship.
B. There Exists No Precedent or Reason for the Direct Participant Liability Theory in Argentina
Under the “direct participant liability” theory, a parent company can be held liable for the work-related injuries of its subsidiary’s employees based upon the
In contrast to our common law system, Argentina is a civil law country whose laws are overwhelmingly governed by statute rather than by case law.
Reasoning that if the direct participant doctrine exists at all in Argentina, it would be in the Argentine Code, both of DuPont’s Argentine legal experts, Professor Keith Rosenn and Professor Alejandro Garro, conducted extensive statutory research. Neither was able to find any provision establishing existence of the doctrine. They also conducted thorough research in an effort to find Argentine ease law that might recognize the concept, but no such cases were found.
During the hearing at which expert testimony was received by the Court, both of Plaintiffs legal experts, Professor Alberto Bueres and Professor Maria Compiani, concluded that DuPont could be held liable in this case in accordance with that doctrine. Yet, their testimony revealed a basic lack of appreciation of the difference between liability in Articles 1109 and 1113 of the Argentine Code, where a party may be held directly liable when it engages in wrongful conduct causing injury to a Plaintiff, from “direct participant” liability, as that concept has developed in the United States. The latter theory is distinctly different and refers to the situation where a parent company may be held liable when it exercises control over its subsidiary that is “eccentric,” i.e., beyond the normal incidence of corporate ownership, and, as a result of that control, the subsidiary causes injury to the Plaintiff. That concept is neither adopted nor mentioned in either Article 1109 or Article 1113 of the Argentine Code. Not surprisingly, neither of Plaintiffs experts mentioned or identified any acts on the part of DuPont that would constitute the type of undue involvement in and control of DASRL that is atypical of the customary parent-subsidiary relationship.
Plaintiffs experts’ affidavits appeared at first blush to proffer opinions that were in direct conflict with those of DuPont’s experts. At the hearing, however, it became apparent that Plaintiffs experts’ blurring of the foregoing distinction accounted for the differences in opinions. When all was said and done, it was obvious to the Court that there is virtually no dispute among the experts about Argentina’s approach to compensating employees for injuries caused by the tortious conduct of their employers, whether it be by the direct actions of a parent or by the subsidiary/employer.
The lack of fundamental understanding of the “direct participant” theory can best be attributed to the fact that neither of Plaintiffs experts had actually read any of the American cases that explained the concept, including the one upon which Plaintiff relies heavily in Count I of the Complaint.
Moreover, Plaintiffs experts’ opinions as to the existence of the doctrine in Argentina were based upon an amorphous obligation of safety contained in a draft statute that was never enacted into law and an article by an Argentine priest that is basically a philosophical statement that individuals generally have a right to be free from unwarranted governmental intrusion.
Furthermore, neither expert had any understanding of how this concept evolved in connection with the limitations imposed on most American workers as a result of workers’ compensation statutes, limitations that do not exist in Argentina. And, when questioned directly about any authority upon which they relied, both experts were forced to agree with Professor Rosenn since they too were not able to identify any statutory or decisional Argentine law recognizing the theory.
Given this lack of understanding of the direct participant liability theory as developed in American case law, the Court cannot accept the conclusory ipse dixit opinions of Plaintiffs experts that such a doctrine exists in Argentina. What the Court does conclude is that Professor Ro-senn’s opinion and his rationale supporting it are extremely persuasive.
Given the fundamental differences in the workers’ compensation laws in the United States from those in Argentina, the absence of any direct participant theory in Argentina makes complete sense. In America, workers are barred from suing their employers in tort as they receive statutorily-established benefits as compensation. Argentina does not have a workers’ compensation exclusivity bar.
C. Plaintiff Failed to Join an Indispensable Party
In its Motion to Dismiss Plaintiffs Complaint, DuPont asserts, pursuant to Superi- or Court Civil Rule 19, that Plaintiff has failed to join “the real party in interest and the real target of her occupational asbestos claims.” Since DASRL cannot be joined in this action, DuPont claims that DASRL is an indispensable party, and “in equity and good conscience” this action must therefore be dismissed.
Under Rule 19(a) this Court is first required to determine whether DASRL is a necessary party. Rule 19(a)(2)(i) provides that an absent party “shall be joined” if:
(1) in the person’s absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may (i) as a practical matter impair or impede the person’s ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest.54
Superior Court Civil Rule 19 is virtually identical to its Federal counterpart, Federal Rule of Civil Procedure 19. In general, Delaware Courts respect authorities applying Federal Rules and those decisions are given “great persuasive weight” in the construction and application of a parallel Delaware Rule.
At the outset of this analysis, the Court notes that the burden of proof in the context of a Rule 19 determination is initially on the moving party, in this instance DuPont, to demonstrate that the absent party that must be joined, but cannot be, is needed for a just adjudication.
In the case at bar, there is no dispute that most of Plaintiffs allegations concern the actions of Rocha’s direct employer, DASRL, and not DuPont, its corporate
Plaintiffs minimal factual support for its efforts to hold DuPont liable for its “own direct, separate and distinct” wrongful conduct is either irrelevant or hardly distinguishable from the ordinary conduct of any parent corporation. But even more notably, the allegations in Plaintiffs Complaint refer directly to Rocha’s employer, DASRL, and not to its corporate great-great grandparent, DuPont. None of the foregoing allegations suggest any tortious conduct causing injury exclusively on the part of DuPont. In the final analysis, the lack of any articulated distinction between the alleged acts of DuPont from those of DASRL make Rocha’s employer an active participant in the conduct that is alleged against its parent.
In a trial on the merits, DuPont would likely mount a defense consistent with the arguments it has made since this litigation began. It has asserted, and will likely continue to assert, that DASRL is solely liable as Rocha’s employer. If the jury accepts DuPont’s argument that DASRL was responsible for the plant and work site, DASRL will be at least partially liable for damages. In a potential later trial in the appropriate forum, DASRL would claim that DuPont should be solely responsible for Rocha’s injuries. This circumstance would leave both DuPont and DASRL subject to a substantial risk of incurring double or otherwise inconsistent obligations, the precise result that Rule 19 seeks to prevent. Moreover, since Plaintiff is demanding monetary relief for damages caused solely as a result of Rocha’s employment at DASRL, the Court concludes that DASRL, although an indirect subsidiary of DuPont, has a paramount interest in the subject of this litigation. Its presence is crucial to the determination of the important issue of liability. Without its joinder, DASRL’s ability to protect that interest may be impaired. DASRL is more than a witness to the activities at issue in this case — it is an active participant.
When confronted with similar factual circumstances, federal courts in eases such as this have consistently held that a subsidiary is a necessary party in a suit against the subsidiary’s parent corporation where the subsidiary is an active participant in the activity that is alleged as the basis for recovery.
In Gay v. AVCO Financial Services, Inc.,
Similarly, the District Court for the District of Minnesota, in Polanco v. H.B. Fuller Co.,
Consideration of the factors enunciated in Fed.R.Civ.P. 19(b) leads to the conclusion that Fuller-Guatemala, the undisputed manufacturer of a product bearing its own name is an indispensable party in this products liability action. The exact effect which would be given a judgment adverse to Fuller-US on Fuller-Guatemala’s ability to litigate in Guatemala is unknown. However, plaintiffs Complaint necessarily implicates Fuller-Guatemala’s distinct and strong interest in legal determinations regarding the safety of its products. Nor is there any way, even under plaintiffs design conception theory, that a judgment against Fuller-US will not be speaking directly and adversely to the quality of Fuller-Guatemala’s products.66
As with the circumstances in Fuller-Guatemala’s case, so too is DASRL directly implicated in Martinez’s Complaint and so too are its interests likely to be distinct from DuPont’s, which will undoubtedly ascribe responsibility to DASRL, an entity not directly represented in this action.
Despite the fact that Plaintiff refers to her claims against DuPont as “independent,” it is apparent on the face of the Complaint that those claims necessarily derive completely from the relationship and dealings between DASRL and DuPont. The fact that DASRL is the Argentine subsidiary that employed Rocha, and owned and operated the manufacturing facility where his alleged asbestos exposures occurred, demonstrates that DASRL is needed for just adjudication. DASRL is a “necessary” party under Rule 19(a).
Since the parties are in agreement that DASRL cannot be joined as a party in this case under Rule 19(b), the Court must decide whether it is also an indispensable party and whether, in equity and good conscience, this action should be allowed to continue or be dismissed. Rule 19(b) sets forth four criteria that must be considered in determining indispensability:
If a person as described in subdivision (a)(l)-(2) hereof cannot be made a party, the Court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the Court include: First, to what extent a judgment rendered in the person’s absence might be prejudicial to the person or those already parties; second, the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; third, whether a judgment rendered in the person’s absence will be adequate; fourth, whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.
The Court initially turns to the first factor — the extent to which a judgment rendered in the person’s absence might be prejudicial to him or to those already parties. Any judgment entered without the presence of DASRL as a party subjects DuPont to being judged solely responsible for a liability which, if it exists at all, it undoubtedly shares. DuPont has a distinct interest in having the question of liability decided consistently as to all supposed wrongdoers. Without DASRL’s joinder, DuPont may be forced to assume full responsibility for a liability that may
Besides the prejudice to DuPont by DASRL’s absence, DASRL would also be prejudiced. It is not required that any finding of liability on DASRL’s part be binding in order to show prejudice.
Considering next the second factor, i.e., the extent to which the prejudice can be lessened by the shaping of relief through protective provisions in the judgment, this Court cannot envision any modifications to a judgment that would reasonably or adequately protect DuPont or DASRL. Nor has the Plaintiff offered or suggested any means or alternatives by which the prejudicial effects may be minimized.
The third factor in the Rule 19(b) analysis is “whether a judgment rendered in the person’s absence will be adequate.” The United States Supreme Court has interpreted this third consideration to refer to the interest of the courts and the public “in settling disputes by wholes, wherever possible[.]”
Finally, under the fourth factor, the Court must determine whether the Plaintiff will have an adequate remedy if the action is dismissed for nonjoinder. This factor weighs decidedly in favor of dismissal. Without question, Plaintiff has a satisfactory forum available in Argentina. After a full day of testimony from Argentine legal experts, all agreed that employees in Argentina have additional rights that would not be available to their counterparts in America.
The Argentine law experts described Argentina’s compensation system for occupationally-related injuries in detail. It is designed to ensure full compensation for
Neither Plaintiff nor the Rocha Estate will be prejudiced if this action is dismissed for nonjoinder of an indispensable party. If the claims asserted by Plaintiff have any merit, it is DASRL’s misconduct that is really at issue in this case, as it is the real party in interest, and the immediate wrongdoer in this litigation. Equity and good conscience require dismissal under these circumstances. The potential prejudice resulting from prosecution of this action far outweighs any benefit in proceeding in this forum.
D. DuPont has Demonstrated “Overwhelming Hardship” and Dismissal is Required Under the Forum Non Conveniens Doctrine
1. Facts Relevant to the Doctrine and the Parties’ Contentions
To appreciate the Court’s analysis on this issue and to place it in context, some of the significant facts need to be repeated here. This case is one in a series of cases filed by Plaintiffs counsel’s law firm, Jacobs & Crumplar, all of which involve asbestos claims that are alleged to have arisen from employment conditions at textile plants in Argentina. The Plaintiffs or their Argentine family members were allegedly exposed to asbestos while working for an Argentine company in Argentina. The injuries that occurred in Argentina were diagnosed in Argentina, and were treated in Argentina. The filing of this initial batch of cases, all on behalf of Argentine nationals, was preceded by a press release, issued by the Plaintiffs’ law firm, Jacobs & Crumplar, which announced that it is seeking information or evidence of additional cases related to DuPont’s use of asbestos overseas. DuPont’s counsel aptly pointed out that it is likely these cases herald “the next wave of asbestos litigation” which would be filed in the State of Delaware from Latin America, Africa, and Asia. The press announcement included the statement that additional foreign cases, similar to these, were “soon to follow.”
In its Motion to Dismiss, DuPont takes great pains to persuade the Court that litigating this case in a Delaware Court would impose an “overwhelming hardship” on it since Argentina is where all of the relevant events took place, where all of the witnesses and documents are located, where Martinez lives, where decedent’s actual employer and the plant where he was
Contrary to DuPont’s argument, Plaintiff asserts that Argentina is an “inappropriate” forum for resolution of this dispute and that DuPont has failed to demonstrate the “overwhelming hardship” necessary for this Court to stay or dismiss this action on the basis of forum non conveniens. She points out that Defendant cannot satisfy a single one of the factors that must be considered in its analysis under General Foods Corp. v. Cryo-Maid, Inc.
2. The Doctrine in Delaware
Forum non conveniens is a common law doctrine that developed as a means by which a “court may resist imposition upon its jurisdiction even when jurisdiction is authorized.”
Delaware’s forum non conveniens jurisprudence leaves little doubt that this state has a strong preference for respecting a plaintiffs choice of forum. The series of Delaware Supreme Court decisions that have reversed trial court orders granting motions to dismiss on forum non conve-niens grounds manifest this preference clearly.
Indeed, a thorough review of Delaware cases applying the standard would seem to suggest that the doctrine of forum non conveniens is all but non-existent in this state. In virtually every instance where the doctrine has been invoked to support dismissal, the strong showing that is required by defendant to demonstrate that this “drastic” relief is warranted has rarely been established.
Notwithstanding the extreme difficulty of obtaining relief on this basis, there are still suggestions in several of the decisions that the burden is not preclusive and that “there is a proper place for dismissals” in Delaware based on forum non conve-niens,
For example, in rejecting forum non conveniens as a basis for dismissal of several complaints by out-of-state plaintiffs alleging exposure to asbestos outside of Delaware, the Court in In re Asbestos Litigation (Abou-Antoun) left open a small window for reconsideration in the event that a substantial increase in filings would adversely affect the court’s ability to efficiently manage its docket, or would overwhelm its judicial or administrative resources:
As to the future, it may well be that a substantial increase in asbestos filings will have a deleterious impact on the efficiency of this Court and cause unmanageable congestion. That said, the Court is unwilling to speculate about such consequences or even to assume, as the defendants predict, that the “floodgates” will open to future filings as a result of this decision. Such conjecture would not only be improper, it would be illusory at best as the Court cannot possibly predict the ramifications of an increase in asbestos filings on the important aspects of the Court’s functions and duties. For now, the Court is satisfied that the “public interest” factors do not mandate dismissal. If necessary, the Court will revisit this question if the asbestos landscape in Delaware changes dramatically in the future.83
While the Court is indeed functioning adequately — though not as efficiently as litigants would desire — with the multitude of asbestos cases now before it, the burden on the one judge assigned to the asbestos docket is barely manageable. The specter of a “new wave” of filings from plaintiffs not just from other states, but literally from around the world, in addition to this and the other twenty or so Argentine cases now before the Court, may render this case the appropriate time and opportunity to revisit whether Delaware can expand its virtual “open door” policy to encompass this and other foreign cases “soon to follow.” Stated another way, if the doctrine of forum non conveniens does truly have any viability in this state — and the Delaware Supreme Court has promised that it does — then the facts of this case may prove the rare opportunity for its application.
3. Application of the Cryo-Maid Factors
Under well-established Delaware decisional law, the defendant’s burden is to demonstrate “with particularity” that application of the Cryo-Maid factors, as a
(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
(4) 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
(5) the pendency or nonpendency of a similar action or actions in another jurisdiction; and
(6) all other practical problems that would make the trial of the case easy, expeditious and inexpensive84
The foregoing factors “do not, of themselves, establish anything”
DuPont has vigorously argued that this case is the rare one that satisfies the “overwhelming hardship” standard as it will impose unique and severe burdens on DuPont. Its argument is supported by detailed and particularized affidavits as is required by case law.
In response, Plaintiff submits that DuPont cannot satisfy any of the Cryo-Maid factors and that no single factor standing alone meets Cryo-Maid’s “overwhelming hardship” standard. Plaintiffs primary argument against a forum non conveniens dismissal is that Argentina “most likely lacks jurisdiction to hear the suit,” and is therefore not an adequate alternate forum. Plaintiff provides no support for this assertion and the affidavits from her Argentine lawyers do not even refer to Argentina’s jurisdiction over DuPont.
Plaintiff also cites the Superior Court decision in Lluerma v. Owens Illinois
As an initial inquiry in a forum non conveniens analysis, the Court is required to determine whether Argentine courts are capable of providing an adequate alternate forum. From the Court’s review of all the legal experts’ declarations and the case law, it is satisfied that Argentina has well developed standards and processes to address and provide compensation for meritorious asbestos injury claims arising within its borders.
The Argentine Courts clearly have jurisdiction over the Plaintiff and over DASRL, the actual employer and proper defendant in this case. There is (or was) a succession proceeding pending in the Court of the City of La Plata, Argentina relating to the Rocha estate.
While there exist decisions where courts have stated that less deference should be accorded to the plaintiffs choice of forum when that plaintiff elects to bring suit a great distance from home,
Notwithstanding the presumption, the fact that virtually all of the records will be Spanish language documents, which will require translation to English before DuPont can use them in its defense, contributes mightily to DuPont’s hardship. The burdens placed upon the parties and the Court, in litigating a case in English when the participants are all Spanish-speaking and appear by videoconference rather than in person, cannot be underestimated.
Mindful of the heavy burden placed upon DuPont to justify dismissal, the Court now turns to an assessment of each of the six factors that must be considered under Cryo-Maid.
a. Relative Ease of Access to Proof
DuPont argues that it would be subject to overwhelming hardship if it were required to litigate in Delaware while conducting virtually all of the discovery in Argentina. It argues that the vast majority of records are in Argentina and much of that evidence is in the possession of third parties. Plaintiff acknowledges that most of the relevant documents are in Spanish and that the witnesses do not speak English, which may create some hardship, but argues that is not “overwhelming” hardship. Plaintiff also claims that “documents and other evidence related to this litigation are situated in Delaware” but then does not identify a single witness, document, or other evidence located here. While the burden is not on Plaintiff to identify any evidence in Delaware, the assertion that relevant evidence is here is rather dubious.
DuPont specifically identifies the type of evidence it believes would be difficult and costly to obtain. That evidence includes Rocha’s medical records, testimony of his treating physicians, plant records documenting the location and use of asbestos, and evidence related to any other potential sources of asbestos to which Rocha may have been exposed. Compelling produetion of such evidence is expensive and unreliable.
DuPont argues that few, if any, sources of proof for Plaintiffs case are located in Delaware. Plaintiff responds by asserting that it needs documents and evidence located in this state. From the Court’s experience and knowledge about the types of evidence likely to be important in an asbestos employment exposure case, the Court is not convinced that there is any evidence located in Delaware, and Plaintiff has not even identified the type of evidence that could show liability on the part of DuPont. Since Plaintiff is attempting to hold DuPont liable for the actions of its distant subsidiary it is not surprising that she has not identified a single piece of evidence that would be in DuPont’s control and possession, rather than in the hands of the management of the DASRL-owned Berazategui plant and its employees.
Plaintiffs reliance upon the Ison decision
Rocha was an employee at the DASRL-owned Berazategui plant in Argentina where he alleges he was exposed to asbes
DuPont will face other challenges. Some documents will only be available through the cumbersome and unreliable intervention of the Argentine courts. For example, any witness who could provide information concerning Rocha’s exposure to asbestos from sources other than his employer’s premises would be in the possession and control of individuals or entities located in Argentina, not in Delaware. Rocha’s medical records relating to his diagnosis and treatment are also in the hands of third parties in Argentina.
DuPont concedes that Argentina is a signatory to the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (the “Hague Convention”), thereby allowing it to conduct discovery in Argentina. It also recognizes, however, that Argentina signed the Hague Convention subject to certain conditions that limit its powers to compel access to witnesses and documents. Specifically, Argentina will not execute Letters of Request issued for the purpose of obtaining pre-trial discovery, a substantial disadvantage to DuPont.
One indication of the overwhelming hardship DuPont would face if it is forced to litigate these claims in Delaware has already been demonstrated by the parties’ difficulties in obtaining expert declarations and affidavits in furtherance of their positions on the Motion to Dismiss. The Court was asked on four separate occasions for extensions of time to submit various filings because of problems encountered in obtaining assistance from Argentine law experts, who were presumably compensated for their services. The difficulty the parties would encounter if they are required to obtain discovery from uncompensated persons in Argentina would undoubtedly be substantial.
Considering the types of testimony and witnesses customarily presented in an asbestos case, the Court can logically assume that all or virtually all of the relevant fact witnesses are located in Argentina. Key DASRL personnel that DuPont has specifically identified by name in the Fernandez Declaration are Spanish-speaking residents of Argentina. Plaintiff lives in Argentina. Other surviving members of Rocha’s family, who would provide evidence about his lifestyle and the effects of his disease, are in Argentina and not likely to speak English. Plaintiffs co-workers, who have not yet been identified, but will certainly be critical to proof required for Plaintiffs case-in-chief, especially concerning the working conditions at the plant, are Argentine nationals living in Argentina.
b. Availability of Compulsory Process for Witnesses
This factor is directly tied to the first factor concerning access to proof. Defendant points out again that substantially all, if not all, of the witnesses — Rocha’s coworkers, supervisors, family members, product nexus witnesses, lifestyle witnesses, treating physicians, employers, and document custodians — are in Argentina. None of these witnesses are known to be subject to compulsory process with this Court and DuPont is not likely to receive the same level of voluntary cooperation as Plaintiff will receive.
Unlike the situation in Candlewood Timber Group, LLC v. Pan American Energy, LLC,
DuPont has in this instance shown with particularity that the location of all third-party critical witnesses imposes a heavy burden upon it to mount its defense through their cooperation and testimony. Under these circumstances, the availability of compulsory process from Delaware courts does contribute substantially to DuPont’s hardship.
c. A View of the Premises
DuPont maintains that this factor is significant because inspection of the Beraza-tegui plant and other Argentine premises where Rocha may have been exposed to asbestos will be an essential aspect of the parties’ expert industrial hygienist’s reports. These experts will likely need to obtain information about the layout of the plant, the use of asbestos there, the location and condition of any remaining asbestos materials still on the premises, the potential for “fiber drift” within the plant, and the proximity of asbestos to the area where Rocha worked. Defendant also points out that if discovery reveals Rocha was exposed to asbestos at premises other than the Berazategui plant, these other areas, undoubtedly located in Argentina, could yield important evidence and its experts may need to tour these premises as well. DuPont submits that experts from the United States would need to travel in excess of 5000 miles for inspection; if they are from Argentina, they in turn would have to come as far to Delaware for trial.
Plaintiff responds that an inspection would be unnecessary since DuPont is “already intimately familiarity (sic) with the Berazategui plant as it has directed and
In the Court’s judgment, this factor is not implicated because the exposures occurred years ago and it is unlikely that a current inspection of the plant would yield relevant information. Nor would inspections of other possible sources of contamination be helpful in determining conditions that existed previously. Since a view of the premises is rarely necessary in these cases, and since the work sites at issue are not likely to be in the same condition as they were when Rocha worked there, an inspection of the premises would not be of much benefit to either party.
d. Applicability of Delaware Law
Plaintiff recognizes that substantive Delaware law will not apply to this case and that Argentina has the dominant relationship to the parties and the events giving rise to this litigation. Under the Restatement (Second) of Conflict of Laws §§ 6 and 145-46, plaintiff concedes that her claims are governed by Argentine law. This factor does indeed work a significant hardship upon DuPont because it will incur increased expense, inconvenience, and delay.
Decedent Rocha was an Argentine national who resided in Argentina, was allegedly exposed to asbestos while working in Argentina for an Argentine company properly incorporated and capitalized in Argentina, whose injuries occurred in Argentina, and whose illness was diagnosed and treated in Argentina, where he died and where a succession proceeding involving his estate is pending. Plaintiff is not a resident of Delaware, the alleged tort was not committed in Delaware, and Delaware substantive law will not apply to this case. More importantly, Delaware — DuPont’s State of incorporation — has no rational connection to the cause of action in this case and is clearly being used as a subterfuge to avoid suing the decedent’s actual Argentine employer, who should be named as the defendant herein. In essence, DuPont has been named as a defendant in this litigation not because it employed Rocha and exposed him to asbestos, but as a vehicle to bring this and other future foreign litigation into the United States, and specifically into Delaware.
While Delaware courts are frequently called upon to interpret and apply foreign laws, when those laws are in Spanish and have been enacted in the context of a civil law system originating from the Napoleonic Code, the application of foreign law imposes that much more of a hardship. Even considering the fact that DuPont is a global corporation that is accustomed to litigation on an international level, and irrespective of the importance to Delaware of providing litigants with “a neutral forum to adjudicate commercial disputes against Delaware entities,”
e. The Pendency or Non-Pendency of a Similar Action in Another Jurisdiction
In the forum non conveniens analysis, the absence of a prior pending action in another jurisdiction “is an important, if not controlling, consideration.”
Argentina does have a well-developed legal system that provides compensation for occupational injuries, including asbestos-related illness.
Claims involving injuries, illnesses, or death that resulted in connection with work performed prior to 1996 are subject to the system that was established in 1915, when Argentina’s Federal Congress enacted Law No. 9688.
If a plaintiff chooses to proceed under the Civil Code system, he or she is required to prove all elements of liability, including negligence or intentional misconduct on the part of the employer.
In 1995, the Argentine National Congress enacted Law 24.577, known as the Ley de Riesgos del Trabajo (“LRT”), or Occupational Risks Law, that established a new compensation system for occupational injury, illness, or death.
Argentine labor law requires that an employee (or his estate) seeking compensation for an occupational illness or injury must first notify the employer and make a demand for damages, before initiating a civil suit for damages.
Other former DASRL employees and family members of former DASRL employees have initiated pre-filing demands and mediations against DASRL in Argentina seeking compensation for alleged asbestos-related injuries.
In August 2009, an Argentine citizen living in the vicinity of the Berazategui plant filed a lawsuit against DASRL and the plant’s current owner, alleging that operations at the plant caused environmental pollution, specifically including asbestos contamination.
f. Other Practical Considerations
Defendant contends that other practical considerations justify dismissal of this case on forum non conveniens grounds. In particular, DuPont emphasizes the fact that DASRL, Rocha’s former employer and the former owner of the premises in question, cannot be compelled to appear in this action. Obviously, this factor is also the basis for DuPont’s Rule 19 contention that an indispensable party cannot be joined.
In looking at all six of the Cryo-Maid factors that must be addressed in any forum non conveniens analysis, and their
The real reason that DuPont would be subject to overwhelming hardship if forced to litigate this case, and others like it, in Delaware is not because of the problems relating to access to proof or in translating most of the testimony and documents from Spanish to English. It is because it is not DuPont — but DASRL — who employed Rocha and who owned and operated the plant and premises where he was allegedly exposed to asbestos. This circumstance, which is addressed more thoroughly in other sections of this Opinion, is at the very heart of this Court’s forum non conveniens analysis, and allows this case to fit the category of one of the “rare cases where the drastic remedy of dismissal is warranted.” Viewed in this way, the burden of litigating in this forum is so severe as to result in manifest hardship to DuPont because it should not have been named as a defendant in the first place.
Indeed, the Delaware Supreme Court in Candlewood even remarked that, had the parties advanced the argument that Argentina was an indispensable party in that case, such that Pan American would be prejudiced without its presence, that circumstance would have been a relevant consideration.
It also bears mentioning that Delaware Courts, after considering the Cryo-Maid factors, have on occasion found dismissal
In IM2 Merchandising v. Tirex Corp., the plaintiff IM2 filed a complaint arising out of the Tirex Companies’ (Tirex Corporation and its subsidiary, Tirex Canada) failure to meet their contractual obligations to supply rubber mats through a patented scrap tire recycling system.
The Court held that it lacked personal jurisdiction over Tirex Canada (an issue not present here but only because plaintiff has chosen not to sue an indispensable party) under 10 Del. C. § 3104 because, even if the Court could accept the premise that Tirex Canada had no real separate identity from its Delaware parent, none of the conduct at issue in the case occurred in Delaware.
If the plaintiffs’ stark theory was accepted, the courts of Delaware would have personal jurisdiction over the non-Delaware subsidiary of a Delaware parent corporation whenever such a subsidiary engages in joint conduct with its Delaware parent outside of Delaware. To accept this theory would be to rewrite § 3104 and to pass the limits of this state’s authority under the federal constitution.132
The Chancery Court then continued to hold that forum non conveniens was an alternative basis for dismissal, finding that the defendant had met its burden of estab-. lishing overwhelming hardship.
Turning to the public interest factor, the Court cannot ignore the weighty impact upon its docket that this additional caseload would trigger, although recent political circumstances have minimized the burden on the Superior Court. The Court previously alluded to the burden that is placed upon the limited resources of the Superior Court when it is required to adjudicate asbestos cases involving plaintiffs from all fifty states with little or no connection to this forum. It has acknowledged the fact that the citizens of Delaware have to shoulder the expense and strain on its judges and juries by the onslaught of additional foreign cases that have no other connection to Delaware than the mere residency of their parent corporation. Judge Slights expressed his concern in the language quoted earlier from In re Asbestos Litigation (Aboiir-Antoun) and there is no doubt that the additional workload has had a serious impact upon the Court’s ability to administer swift and consistent justice. Several months ago, this public interest factor may have been of sufficient concern to have led the Court to conclude that the effect on the Court’s docket had become unmanageable. The Delaware Legislature has, however, addressed this problem by increasing the number of Superior Court Judges in New Castle County beginning in January of 2013. Whether the citizens of Delaware would have chosen to remedy the Court’s congestion in this manner is irrelevant to the inquiry here. This Court is at least more comfortable in concluding that the specter of additional filings, from a Court resource or docket management perspective, does not enter into the Court’s scrutiny at this time.
Ultimately, the Court must approach the forum non conveniens analysis in this case with due regard to the particular and unique facts that make this and the other similar Argentine cases entirely inappropriate to be litigated and adjudicated in Delaware. Aside from the obvious difficulties inherent in requiring a Court in Delaware to apply the laws of a foreign country to a cause of action filed by a foreign plaintiff, concerning employment conditions at a textile plant in Argentina that is owned and operated by an Argentine company, the Court cannot ignore the fact that these cases have been filed in Delaware only through distortion and manipulation of the typical parent-subsidiary corporate relationship, and only because these Plaintiffs have made extraordinary efforts to attribute conduct and actions to the parent corporation that were strictly the acts of its Argentine subsidiary. There is in this case, and the others like it, no local interest. There is no local controversy, and “home” is not Delaware to Plaintiff, Plaintiffs decedent, or the relevant employer DASRL. Even if the Delaware Supreme Court were to approve of the use of a company’s Delaware incorporation, without more, as an appropriate reason to deny a defendant’s forum non conveniens application for dismissal, it is not likely to countenance the fiction contrived by Plaintiff here — that DuPont, not DASRL, was in control of the Berazategui plant in Argentina — solely as a basis to use Delaware as a forum for these tort disputes.
Nor should this Court be willing to accept Plaintiffs elaborate attempts to attribute to DuPont an obscure and plainly inapplicable theory of liability, i.e. direct participant liability, to justify filing cases in this state. These are non-commercial and non-corporate garden-variety toxic
Finally, the Court is fully aware of the authority upon which Plaintiff relies to retain jurisdiction over these foreign national filings and the similarities in some of the fact patterns. Yet, it is not persuaded that these cases must inform the Court’s decision here. This is so because neither Ison, Candlewood, nor Lluerma involved any effort by a plaintiff to litigate a case or cases in Delaware by distorting the relationship of the parties such that the defendant was wrongly sued by virtue of its corporate parent status.
The Lluerma case, for example, involved Spanish nationals allegedly exposed to asbestos in Spain. The plaintiffs in Lluerma worked exclusively on American warships or in shipyards where the ships were flying the American flag. Since ships flying the American flag are considered to be American soil, the Court in that case was uncertain whether Spain would even have jurisdiction over activities occurring on American warships while docked in Spain.
Even in the Candlewood decision, where the Delaware Supreme Court reversed the Court of Chancery’s dismissal of the action on forum non conveniens grounds because the trial court’s analysis gave undue consideration to the relative interests of Argentina in contrast to Delaware, the Court recognized the importance of naming the proper parties. The Court there rejected any determination based on whether an alternate forum would be more convenient, finding that such an analysis lowered the applicable standard and minimized “a significant Delaware interest in the lawsuit, which is to make available to litigants a neutral forum to adjudicate commercial disputes against Delaware entities even where the dispute involves foreign law and the parties and the conduct are centered in a foreign jurisdiction.” Yet, it specifically acknowledged that, had the Plaintiff made the argument that it would have been prejudiced if the case proceeded in Delaware without the Argentine governmental entities as indispensable parties, such a position — had it been asserted — would have constituted an independent basis for dismissal of the action.
In this instance, DASRL is indeed an indispensable party and this Court has so found in a prior section of this Opinion. As in Candlewood, such a finding provides a related yet independent basis to dismiss this case.
Thus, when all is said and done, even the seemingly insurmountable burden of proving “overwhelming hardship” to justify dismissal in a case involving a nominal Delaware corporation can in fact be met when the circumstances are sufficiently unique as they are here. This is so because the type of hardship facing DuPont if it is forced to litigate this case (and others like it) in Delaware is sufficiently unusual to make it the exception. The fact of the matter is that DuPont should not be placed in the position of having to defend this type of lawsuit in Delaware, or in Argentina, or anywhere. DuPont has been wrongly identified as Rocha’s former employer, and is being charged with direct responsibility for, and control of, the conditions at the Berazategui textile plant, when it was not and never has been in such a position. The bulk of Plaintiffs claims treat DuPont as though it stood in the shoes of DASRL. Forcing DuPont to defend these claims at all — in Delaware or in any other forum — is plainly wrong under any standard of fairness. Viewed in this
VI. Conclusion
For all of the foregoing reasons, DuPont’s Motion to Dismiss is GRANTED.
IT IS SO ORDERED.
Ya me despido.
. DASA has since been reorganized as DuPont Argentina Sociedad de Responsabilidad Limitada ("DASRL”). To avoid confusion, the Court will use the designation DASRL to refer to the Argentine entity.
. Declaration of Monica B. Fernandez ("Fernandez Decl.”) ¶ 5.
. Until December 14, 2009, DASRL was a sociedad anomina and was known as DuPont Argentina Sociedad Anomina. The Complaint refers to "DuPont Argentina SA” presumably referring to what is now known as DASRL. DASRL was referred to as "DASA” in DuPont’s Motions to Dismiss the "test cases.”
. DASRL is owned by DuPont de Nemours Investments (DNIS) which has a 95 percent interest in the company. DuPont International B.V. holds the remaining 5 percent interest. DNIS is wholly owned by DuPont International B.V., which in turn is owned by DuPont Textiles & Interiors Delaware, Inc. ("DTI-DE”). Since DuPont owns DTI-DE, it is therefore technically the great-great grandparent of DASRL.
.Declaration of Dr. Ricardo Foglia ("Foglia Decl”) ¶¶ 65-67.
. Fernandez Decl. ¶ 12.
. Id.
. DuPont argues that, even if this Court had jurisdiction over that remedy, which it does not, Plaintiff has failed to plead the factual predicate necessary for piercing the corporate veil.
. It is inconceivable that Plaintiff's counsel had not considered these logistical problems when he earlier chose to file these cases in Delaware rather than in Argentina, where all Plaintiffs, witnesses, and his experts reside.
. 590 F.2d 655, 658 (6th Cir.1979).
. By letter, DuPont requested that Plaintiff identify the "past Delaware asbestos cases.” Plaintiff identified "the Kojron litigation in the late 1970's” and Mergenthaler v. Asbestos Corporation of America, Inc. He also pointed to several similar Complaints after Kojron, none by name, and all of which had been resolved by settlement. Neither of the two cases to which counsel referred provides any authority for counsel’s claims that a parent company may be held liable for acts of negligence which caused injury to employees of its subsidiary.
For example, Kojron involved an employee of Chevron, who sued his employer (not his employer’s great-great grandparent company) as a result of his exposure to asbestos. The decision addressed whether claims for gross negligence or intentional tort could be maintained, or whether they were part of a workers' compensation scheme. The Court held that the workers' compensation law trumped common law claims and that they were not separately actionable.
Similarly, the Mergenthaler case had nothing to do with direct participant liability by a parent corporation. The issue in that case was whether the exclusivity provisions of Delaware's workers' compensation law would bar an employee's suit against the employer for wrongful deprivation of an alleged property right to assert claims arising from an employee's work-related injury against third parties. The decision addressed the question in four consolidated cases filed by asbestos workers and their spouses. The Court concluded that the Workers' Compensation Act bars any action by an employee against his employer for work-related physical injury.
None of the cases to which Plaintiff's counsel referred in his letter response involved actions against a parent company by an employee of its subsidiary based on the concept of direct participant liability.
Plaintiff's counsel’s vague assertion that he has "successfully prosecuted claims against Hercules on behalf of Haveg employees in almost four hundred cases” cannot be independently substantiated by the Court and it therefore cannot accept such a bold statement as authority.
. 224 Ill.2d 274, 309 Ill.Dec. 361, 864 N.E.2d 227 (2007).
. 524 U.S. 51, 118 S.Ct. 1876, 141 L.Ed.2d 43 (1998).
. 590 F.2d 655 (6th Cir. 1979).
. Motion to Dismiss Hearing Transcript ("Mot. to Dismiss Hr’g Tr.”) at 32:1-6, Sept. 10, 2012.
. Professor Alterini was unable to testify due to illness, and in fact, has since passed away.
. The Court set aside a full day for the hearing but the use of translators and videoconferencing substantially protracted the proceedings.
.Mot. to Dismiss Hr'g Tr. at 134:18-23.
. Plaintiff's Answering Brief in Opposition ("Pl.'s Answering Br. in Opp’n”) at 22. Plaintiff’s Answering Brief, filed October 1, 2010, is incorrectly labeled Plaintiff’s "Reply Brief.” The Court will refer to this brief as the Answering Brief.
. Super. Ct. Civ. R. 19(a).
. Super. Ct. Civ. R. 19(b).
. Spence v. Funk, 396 A.2d 967, 968 (Del. 1978) (citations omitted).
. Id.
. Id.; Wyoming Concrete Indus., Inc. v. Hickory Commons, LLC II, 2007 WL 53805, at *1 (Del.Super. Jan. 8, 2007) (citation omitted).
. Doe v. Cahill, 884 A.2d 451, 458 (Del.2005) (citation omitted).
. Super. Ct. Civ. R. 12(b); Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1287 (Del.2007).
. Super. Ct. Civ. R. 56(c).
. E.g., Storm v. NSL Rockland Place, LLC, 898 A.2d 874, 879 (Del.Super.2005).
. Id. at 880.
. Id. at 879-80.
. Both parties have argued that the materials submitted do not require that the Court consider all arguments under the summary judgment standard. See DuPont’s Supplemental Submission Regarding Argentine Law at 9-10, filed Oct. 1, 2012; See also Pl.'s Supplemental Submission Regarding Conversion to Summary Judgment at 3-4, filed Oct. 1, 2012.
. See, e.g., Fernandez Decl. ¶¶ 4-7 (”[C]er-tain of the allegations in the Complaint assert that Mr. Rocha was employed by E.I. DuPont or assert that DuPont directly controlled his working conditions when he worked at the Plant. Employment records in DASRL’s possession indicate that Mr. Rocha was employed by DASRL from March 15, 1963 to July 3, 1980, at which time his employment with DASRL was terminated. During his employment for DASRL, Mr. Rocha worked as an electrician in the Nylon Textile division of the Berazategui Plant. DASRL company records confirm that, during the time Mr. Rocha worked at the Berazategui Plant, that Plant was owned and operated exclusively by DASRL. The Berazategui Plant has never been owned or operated by E.I. DuPont.”).
. Letter from the Honorable Peggy L. Able-man, Judge, Superior Court of Delaware, to Thomas C. Crumplar, Esquire, Counsel for Plaintiff, and to John C. Phillips, Jr., Esquire, Counsel for Defendant (Sept. 13, 2012) (E-file Transaction ID 46425032).
. Super. Ct. Civ. R. 12(b) ("[A]ll parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.”); Appriva, 937 A.2d at 1288 (”[T]he Superior Court must give the parties at least ten days notice of its intent to convert a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment.”).
. The Court may convert a portion of a motion to dismiss into a summary judgment motion and consider the remaining portion under Rule 12(b)(6). See Great American Assurance Co. v. Fisher Controls Int’l, Inc., 2003 WL 21901094, at *5 n. 36 (Del.Super. Aug. 4, 2003) (citing Yaw v. Talley, 1994 WL 89019 (Del.Ch. Mar. 2, 1994)).
. Plaintiff refers to Argentine law to support the adequacy of its pleadings. Since the governing rules of pleading are procedural, not substantive, Delaware Superior Court Civil Rules apply.
. Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). The Court recognizes that the Delaware Supreme Court has expressly declined to adopt the federal court "plausibility” standard, set forth in Iqbal and Twombly, and instead decided to retain the “conceivability” standard. See Cambium Ltd. v. Trilantic Capital Partners III L.P., 2012 WL 172844, at *1, 36 A.3d 348 (Del.2012) (TABLE) (citing Cent. Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings, LLC, 27 A.3d 531, 535 (Del.2011)). The Delaware Supreme Court has also, however, stated that it declines "to accept conclusory allegations unsupported by specific facts or to draw unreasonable inferences in favor of the non-moving party.” Price v. E.I. DuPont de Nemours & Co., 26 A.3d 162, 166 (Del.2011) (emphasis added). As such, this Court has applied the conceivability standard utilized in Delaware, but it also declines to accept Plaintiff's unsupported and conclusory allegations, which lack even minimal factual support.
. See, e.g., Cent. Mortgage Co., 27 A.3d at 535.
. Pauley Petroleum, Inc. v. Cont'l Oil Co., 239 A.2d 629, 633 (Del. 1968) (disregarding the corporate form of a parent-subsidiary relationship is only permitted upon a showing of certain specific factors in the interest of justice) (citations omitted).
. Bestfoods, 524 U.S. 51, 118 S.Ct. 1876; Boggs, 590 F.2d 655; Forsythe, 309 Ill.Dec. 361, 864 N.E.2d 227.
. Grobow v. Perot, 539 A.2d 180, 187 (Del. 1988) ("[Ujpon a motion to dismiss, only well-pleaded allegations of fact must be accepted
. TI Group Auto. Sys., Inc. v. VDO North America, LLC, 2002 WL 484838, at *2-3 (D.Del. Mar. 7, 2002); Lawler v. Penske Logistics, Inc., 2005 WL 2758086, at *2 (Mich.Ct. App. Oct. 25, 2005).
. Medi-Tec of Egypt Corp. v. Bausch & Lomb Surgical, France, 2004 WL 5366102, at *2 (Del.Ch. Mar. 4, 2004).
. See Bestfoods, 524 U.S. 51, 118 S.Ct. 1876 (1998); See also Forsythe, 309 Ill.Dec. 361, 864 N.E.2d 227; Born v. Simonds Int'l Corp., 2009 WL 5905396 (Mass.Super. Dec. 30, 2009); Esmark, Inc. v. Nat'l Labor Relations Bd., 887 F.2d 739, 759-60 (7th Cir.1989).
. Mot. to Dismiss Hr’g Tr. at 20:14-16, Sept. 10, 2012.
. See id. at 20:17-21:3.
. 224 Ill.2d 274, 309 Ill.Dec. 361, 864 N.E.2d 227 (2007).
. It is not clear which decisions were summarized or by whom, as they were not attached to Professor Compiani’s submission.
. Article 19 of Argentine Constitution provides: "The private actions of men which in no way offend public order or morality, nor injure a third party, are only reserved to God and are exempted from the authority of judges. No inhabitant of the Nation shall be obliged to perform what the law does not demand nor deprived of what it does not prohibit.”
. Mot. to Dismiss Hr'g Tr. at 117:12-23, Sept. 10, 2012.
. Id. at 117:20-23. The parties agree that there is no workers’ compensation exclusivity bar in Argentina, and workers may sue an employer in tort as well as recover workers' compensation benefits there.
. See, 'e.g., Boggs, 590 F.2d 655 (widows of deceased coal miners brought wrongful death
.Super. Ct. Civ. R. 19(a).
. Cede & Co. v. Technicolor, Inc., 758 A.2d 485, 490 (Del.2000) (citing Cede & Co. v. Technicolor, Inc., 542 A.2d 1182, 1191 n. 11 (Del.1988)).
. Roberts v. Delmarva Power & Light Co., 2007 WL 2319761, at *3 (Del.Super. Aug. 6, 2007) (quoting Fedirko v. G & G Const. Inc., 2007 WL 1784184, at *3 (Del.Super. May 22, 2007)).
. Fedirko, 2007 WL 1784184, at *3.
. Plaintiff's Complaint ¶ 10.
. Plaintiff’s failure to plead with particularity is another independent ground for dismissal.
. Freeman v. Northwest Acceptance Corp., 754 F.2d 553, 559-60 (5th Cir.1985) (In a suit against the parent corporation, a subsidiary is a necessary party if it "emerges as an active participant in the alleged” tort.); Ethypharm S.A. France v. Bentley Pharm., Inc., 388 F.Supp.2d 426, 431 (D.Del.2005) (A subsidiary is a necessary party where the plaintiff’s interactions were almost entirely with the subsidiary and the plaintiff brought suit against the parent corporation alone.); Jurimex Kommerz Transit G.M.B.H. v. Case Corp.,
. Ethypharm S.A. France, 388 F.Supp.2d at 431 (The plaintiff may be prevented from obtaining complete relief if the absent subsidiary is found partly or completely liable, (citing Japan Petroleum Co. (Nigeria), Ltd. v. Ashland Oil, Inc., 456 F.Supp. 831 836 (D.Del.1978))).
. See Polanco, 941 F.Supp. at 1521 (The court "identified no way in which a judgment could be shaped or limited to avoid prejudice to the sübsidiary.” (citing Dou Yee Enter. (S) PTE, Ltd. v. Advantek, Inc., 149 F.R.D. 185 (D.Minn.1993))); Glenny v. American Metal Climax, Inc., 494 F.2d 651, 653 (10th Cir. 1974) (A parent corporation has no ability to protect its own interests if it is unable to be joined in a suit involving actions of its corporate subsidiary).
. Id. at 1522.
. Id. at 1521.
. Schutten v. Shell Oil Co., 421 F.2d 869, 874 (5th Cir. 1970); Evergreen Park Nursing & Convalescent Home, Inc. v. American Equitable Assurance Co., 417 F.2d 1113, 1115 (7th Cir. 1969).
. Provident Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. 102, 111, 88 S.Ct. 733, 19 L.Ed.2d 936 (1968).
. Evergreen Park, 417 F.2d at 1115.
. Mot. to Dismiss Hr’g Tr. at 33: 10-22, 128: 13-15, 142: 6-8, Sept. 10, 2012.
. United States v. Demko, 385 U.S. 149, 151, 87 S.Ct. 382, 17 L.Ed.2d 258 (1966) (citations omitted).
. Declaration of Professor Atilio A. Alterini (“Alterini DecL”) ¶ 7; Declaration of Professor Keith S. Rosenn ("Rosenn Dec!.”) ¶ 16.
. Mot. to Dismiss Hr’g Tr. at 33:10-22, 35:3-13, 131:18-22, 142:6-11, Sept. 10, 2012.
. Id. at 88:17-20, 118:5-19, 126:8-23.
. Press Release, Jacobs & Crumplar, DuPont Exports Disease and Cancer from Asbestos Exposure to Argentina (June 16, 2009) (attached to Defendant’s Motion to Dismiss as Exhibit A) (“Three Argentinian workers from [the Mercedes, Argentina] plant have today filed suit against DuPont for asbestos-related injuries caused by their workplace exposure to asbestos. More are soon to follow ... [M]any American companies still continue to promote the use of deadly asbestos in Latin America, Africa, and Asia ... [Jacobs & Crumplar] also requests] assistance in obtaining any information or evidence related to DuPont’s use of asbestos overseas.”)
. 198 A.2d 681 (Del.1964).
. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).
. Candlewood Timber Group, LLC v. Pan American Energy, LLC, 859 A.2d 989, 998-1000 (Del.2004); Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refining, L.P., 777 A.2d 774, 778-79 (Del.2001); Ison v. E.I. DuPont de Nemours and Co., Inc., 729 A.2d 832, 842 (Del. 1999).
. In re Asbestos Litig. (Abou-Antoun), 929 A.2d 373, 380-81 (Del.Super.2006) (citing Mar-Land, 777 A.2d at 777-78).
. See Mar-Land, 777 A.2d at 778; See also Candlewood, 859 A.2d at 998.
. Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 267 (Del.2001); Ison, 729 A.2d at 842.
. Taylor v. LSI Logic Corp., 689 A.2d 1196, 1201 (Del.1997) ("The Court of Chancery did not predicate its decision upon the inherent power of a trial court to control its own docket, manage its affairs, achieve the orderly disposition of its business and promote the efficient administration of justice. We do not decide this question, but we note that nothing we decide herein is intended to preclude such an argument from being made in a proper case.”); Abou-Antoun, 929 A.2d at 388-90 ("The Delaware Supreme Court has not considered 'public interest’ factors when reviewing motions to dismiss based on forum non conveniens. At the same time, however, it has not expressly rejected the 'public interest' factors either.”).
. Abou-Antoun, 929 A.2d at 389-90.
. General Foods Corp. v. Cryo-Maid Inc., 198 A.2d 681, 684 (Del. 1964), overruled in part on other grounds, Pepsico, Inc. v. Pepsi-Cola Bottling Co. of Asbury Park, 261 A.2d 520 (Del. 1969).
. Taylor, 689 A.2d at 1199 (quoting Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P'ship, 669 A.2d 104, 108 (Del. 1995)).
. Taylor, 689 A.2d at 1199; Chrysler First, 669 A.2d at 108.
. E.g., Mar-Land, 777 A.2d at 779 (citation omitted).
. See Candlewood, 859 A.2d at 994; See also Aveta, Inc. v. Colon, 942 A.2d 603, 609 (Del. Ch.2008) ("[M]otions to ... dismiss can be and are decided on facts presented in affidavits. To establish overwhelming hardship with particularity, a defendant should identify particular, specific evidence necessary to its case that it will be unable to produce in Delaware.”) (internal citations omitted).
. 729 A.2d 832.
. 2009 WL 1638629 (Del.Super. June 11, 2009).
. Declaration of Miguel N. Armando ¶ 3.
. Mot. to Dismiss Hr’g Tr. 128:2-12, Sep. 10, 2012.
. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).
. Ison, 729 A.2d at 842.
. Id. at 835.
. At the hearing on September 10, 2012, the Court was confronted with the suggestion that one of the witnesses testifying in Argentina may have been receiving information from an unknown individual during his testimony. Without the witness being present in the
. 729 A.2d 832.
. Id. at 836.
. Defendant’s Opening Brief ("Def.’s Opening Br.”) at 5-6.
. Id. at 10.
.See Def.’s Opening Br. at 43; See also Candlewood, 859 A.2d at 995.
. See Fernandez Decl. ¶ 29.
. Candlewood, 859 A.2d at 1000.
. Id.
. States Marine Lines v. Domingo, 269 A.2d 223, 226 (Del. 1970).
. See generally Foglia Decl.
. Id. ¶ 11.
. Id.
. Id.n 12-14.
. Id. ¶ 14.
. Id. ¶ 16.
. Id.
. Id. ¶ 17.
. IdA 20.
. Id.n 21-37.
. Id. ¶ 22.
. Argentine labor courts have exclusive jurisdiction over these cases and they are frequently utilized by its citizens. In 2009, in excess of 41,000 occupational injury cases were filed in the Argentine labor courts. By the end of 2010, more than 63,000 cases were initiated there.
. Foglia Decl. ¶¶ 48, 61.
. Id. ¶ 61.
. Foglia Decl. ¶¶ 65-67; Fernandez Decl. ¶ 12.
. Fernandez Decl. ¶ 13.
. Def.’s Opening Br. at 6.
. Fernandez Decl. ¶¶ 15-16.
. 859 A.2d 989.
. 929 A.2d 373.
.Candlewood, 859 A.2d at 1000.
. See IM2 Merck, and Mfg., Inc. v. Tirex Corp., 2000 WL 1664168 (Del.Ch. Nov. 2, 2000); See also Nash v. McDonald's Corp., 1997 WL 528036 (Del.Super. Feb. 27, 1997).
. IM2 Merck., 2000 WL 1664168, at *7-11.
. Id. at * 1-2.
. Id. at *3-5.
. Id. at *5.
. Id. at *7-41.
. Id. at *11.