McWane doctrine in Delaware

2025Dismissal in Deference to Florida The defendants also request the dismissal or stay of this action in favor of the Sarasota Action, citing the McWane doctrine.216 Under McWane, this court may exercise its discretion to stay an action “when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues.”217 “If the foreign action is not ‘first-filed,’ the Court will pursue an inquiry ‘akin to a forum non conveniens analysis.’”218 When this action was filed on February 29, 2024, UAV did not sue on the Services Ag

2025Dismissal in Deference to Florida The defendants also request the dismissal or stay of this action in favor of the Sarasota Action, citing the McWane doctrine.216 Under McWane, this court may exercise its discretion to stay an action “when there is a prior action pending elsewhere, in a court capable of doing prompt and complete justice, involving the same parties and the same issues.”217 “If the foreign action is not ‘first-filed,’ the Court will pursue an inquiry ‘akin to a forum non conveniens analysis.’”218 When this action was filed on February 29, 2024, UAV did not sue on the Services Ag

2023Paul’s claims, which have been stayed.119 To the extent Plaintiffs’ coverage claims against AmerisourceBergen were ever pending in California, they have now been voluntarily dismissed without prejudice.120 “[W]hen a prior-filed case is no longer pending, relief will be granted 117 270 A.3d 239 (Del. 2022). 118 See Gramercy Emerging Markets Fund, 173 A.3d at 1036 (“[A] Delaware action with a predecessor pending elsewhere . . . implicates McWane’s discretionary standard.” (emphasis added)); see also Aranda, 183 A.3d at 1250 (noting that the McWane test is implicated when there is “a second-filed

2023Paul’s claims, which have been stayed.119 To the extent Plaintiffs’ coverage claims against AmerisourceBergen were ever pending in California, they have now been voluntarily dismissed without prejudice.120 “[W]hen a prior-filed case is no longer pending, relief will be granted 117 270 A.3d 239 (Del. 2022). 118 See Gramercy Emerging Markets Fund, 173 A.3d at 1036 (“[A] Delaware action with a predecessor pending elsewhere . . . implicates McWane’s discretionary standard.” (emphasis added)); see also Aranda, 183 A.3d at 1250 (noting that the McWane test is implicated when there is “a second-filed

2017Lisa, S.A. v. Mayorga, 993 A.2d 1042, 1047 (Del. 2010) (providing that only ―where the Delaware action is not the first filed‖ will the McWane doctrine apply).

2017Lisa, S.A. v. Mayorga, 993 A.2d 1042, 1047 (Del. 2010) (providing that only ―where the Delaware action is not the first filed‖ will the McWane doctrine apply).

2026Mar. 26, 2007)). “[W]here contracting parties have expressly agreed upon a legally enforceable forum selection clause, a court should honor the parties’ contract and enforce the clause, even if, absent any forum selection clause, the McWane principle might otherwise require a different result.” Ingres Corp. v. CA, Inc., 8 A.3d 1143, 1145 (Del. 2010).

2026If WWEC is correct, then the Court cannot defer to the first-filed Enforcement Action because “[w]here contracting parties have expressly agreed upon a legally enforceable forum selection clause, a court should honor the parties’ contract and enforce the clause, even if, absent the forum selection clause, the McWane principle might otherwise require a different result.” Ingres Corp., 8 A.3d at 1145 .

2016Super. 2006) (discussing “presumption” of deference to first-filed forum when forum non conveniens is invoked as grounds for dismissal of plaintiff‟s action). 7 entitled to deference.28 Instead, the Delaware Courts will stay or dismiss the later- filed Delaware action where the plaintiff has initially filed a similar action outside Delaware.29 This approach recognizes that “litigation should be confined to the forum in which [the first action] is [] commenced.”30 As such, McWane rests on ideas of “comity and the necessities of an orderly and efficient administration of justice.”31 The McWane d

2016Super. 2006) (discussing “presumption” of deference to first-filed forum when forum non conveniens is invoked as grounds for dismissal of plaintiff‟s action). 7 entitled to deference.28 Instead, the Delaware Courts will stay or dismiss the later- filed Delaware action where the plaintiff has initially filed a similar action outside Delaware.29 This approach recognizes that “litigation should be confined to the forum in which [the first action] is [] commenced.”30 As such, McWane rests on ideas of “comity and the necessities of an orderly and efficient administration of justice.”31 The McWane d

2023Paul’s claims, which have been stayed.119 To the extent Plaintiffs’ coverage claims against AmerisourceBergen were ever pending in California, they have now been voluntarily dismissed without prejudice.120 “[W]hen a prior-filed case is no longer pending, relief will be granted 117 270 A.3d 239 (Del. 2022). 118 See Gramercy Emerging Markets Fund, 173 A.3d at 1036 (“[A] Delaware action with a predecessor pending elsewhere . . . implicates McWane’s discretionary standard.” (emphasis added)); see also Aranda, 183 A.3d at 1250 (noting that the McWane test is implicated when there is “a second-filed

2023Paul’s claims, which have been stayed.119 To the extent Plaintiffs’ coverage claims against AmerisourceBergen were ever pending in California, they have now been voluntarily dismissed without prejudice.120 “[W]hen a prior-filed case is no longer pending, relief will be granted 117 270 A.3d 239 (Del. 2022). 118 See Gramercy Emerging Markets Fund, 173 A.3d at 1036 (“[A] Delaware action with a predecessor pending elsewhere . . . implicates McWane’s discretionary standard.” (emphasis added)); see also Aranda, 183 A.3d at 1250 (noting that the McWane test is implicated when there is “a second-filed

2016DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1104 (Del. 2014) (citing Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 269 (Del. 2001)). 6 hardship and McWane—operate consistently and in tandem to discourage forum shopping and promote the orderly administration of justice „by recognizing the value of confining litigation to one jurisdiction, whenever that is both possible and practical.‟”24 Though both doctrines petition to the court‟s discretionary power, McWane is fundamentally concerned with ideas of comity, while forum non conveniens addresses whether the Defendant “will be subje

2016DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1104 (Del. 2014) (citing Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 269 (Del. 2001)). 6 hardship and McWane—operate consistently and in tandem to discourage forum shopping and promote the orderly administration of justice „by recognizing the value of confining litigation to one jurisdiction, whenever that is both possible and practical.‟”24 Though both doctrines petition to the court‟s discretionary power, McWane is fundamentally concerned with ideas of comity, while forum non conveniens addresses whether the Defendant “will be subje

2020As to the first argument, Nokia relies upon Dura Pharmaceuticals, Inc. v. Scandipharm, Inc., in which the Court of Chancery found that an Alabama action was first-filed even though it was initiated only four days before a Delaware action.33 In Dura, however, there was no race to the courthouse because the parties had been free to file suit for several weeks, and the Delaware action was filed in reaction to the 31 2018 WL 3217650 , at *7-8. 32 Rapoport, 2005 WL 3277911 , at *4 (internal quotations omitted). 33 713 A.2d at 927-28 . 10 Alabama action. 34 Unlike the facts in Dura, it is evident fr

2020As to the first argument, Nokia relies upon Dura Pharmaceuticals, Inc. v. Scandipharm, Inc., in which the Court of Chancery found that an Alabama action was first-filed even though it was initiated only four days before a Delaware action.33 In Dura, however, there was no race to the courthouse because the parties had been free to file suit for several weeks, and the Delaware action was filed in reaction to the 31 2018 WL 3217650 , at *7-8. 32 Rapoport, 2005 WL 3277911 , at *4 (internal quotations omitted). 33 713 A.2d at 927-28 . 10 Alabama action. 34 Unlike the facts in Dura, it is evident fr

2016DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1104 (Del. 2014) (citing Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 269 (Del. 2001)). 6 hardship and McWane—operate consistently and in tandem to discourage forum shopping and promote the orderly administration of justice „by recognizing the value of confining litigation to one jurisdiction, whenever that is both possible and practical.‟”24 Though both doctrines petition to the court‟s discretionary power, McWane is fundamentally concerned with ideas of comity, while forum non conveniens addresses whether the Defendant “will be subje

2016DuPont de Nemours & Co., Inc., 86 A.3d 1102, 1104 (Del. 2014) (citing Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 269 (Del. 2001)). 6 hardship and McWane—operate consistently and in tandem to discourage forum shopping and promote the orderly administration of justice „by recognizing the value of confining litigation to one jurisdiction, whenever that is both possible and practical.‟”24 Though both doctrines petition to the court‟s discretionary power, McWane is fundamentally concerned with ideas of comity, while forum non conveniens addresses whether the Defendant “will be subje

2016Although the McWane doctrine disfavors later-filed Delaware suits, a stay or dismissal in favor of the first-filed action is not a matter of right. 28 When a party moves to stay or dismiss a later-filed Delaware suit, the Court must consider whether there is a prior pending action in another jurisdiction that involves the same parties and issues and whether the other jurisdiction’s courts are capable of delivering prompt and complete justice. 29 These factors, as well as all other pertinent facts and circumstances, are balanced against “the possibility of inconsistent and conflicting rulings i

2016Although the McWane doctrine disfavors later-filed Delaware suits, a stay or dismissal in favor of the first-filed action is not a matter of right. 28 When a party moves to stay or dismiss a later-filed Delaware suit, the Court must consider whether there is a prior pending action in another jurisdiction that involves the same parties and issues and whether the other jurisdiction’s courts are capable of delivering prompt and complete justice. 29 These factors, as well as all other pertinent facts and circumstances, are balanced against “the possibility of inconsistent and conflicting rulings i

2016Assuming this argument has not been waived for failure to raise it within the text of Plaintiff‟s brief, Cf. Turnbull for Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994) (holding failure of party to raise issue in text of brief generally constitutes waiver of issue on appeal), the argument is inapposite because the Court finds that the earlier order is not barred from reconsideration due to the “law of the case” doctrine. 66 See McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281, 283 (Del. 1970).

2016Assuming this argument has not been waived for failure to raise it within the text of Plaintiff‟s brief, Cf. Turnbull for Turnbull v. Fink, 644 A.2d 1322, 1324 (Del. 1994) (holding failure of party to raise issue in text of brief generally constitutes waiver of issue on appeal), the argument is inapposite because the Court finds that the earlier order is not barred from reconsideration due to the “law of the case” doctrine. 66 See McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281, 283 (Del. 1970).

2016See also Lamp v. Heyman, 366 A.2d 882, 885 (Pa. 1976). 41 Lamp, 366 A.2d at 886 . 42 See, e.g., Mine Safety Appliances Co. v. AIU Ins.

2016See also Lamp v. Heyman, 366 A.2d 882, 885 (Pa. 1976). 41 Lamp, 366 A.2d at 886 . 42 See, e.g., Mine Safety Appliances Co. v. AIU Ins.

2021The proper forum non conveniens analysis is associated with the names of the Supreme Court cases applying the doctrine in various contexts—General Foods Corp. v. Cryo–Maid, Inc.,25 McWane Cast Iron Pipe Corp. v. McDowell–Wellman Engineering Co.,26 and Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C.27 Each of these cases dealt with a unique procedural posture—“a first-filed Delaware case with no case pending elsewhere (the Cryo–Maid test); a second-filed Delaware case with another first-filed case pending elsewhere (the McWane test); and . . . [the] Gramercy [test]—a later-filed De

2021The proper forum non conveniens analysis is associated with the names of the Supreme Court cases applying the doctrine in various contexts—General Foods Corp. v. Cryo–Maid, Inc.,25 McWane Cast Iron Pipe Corp. v. McDowell–Wellman Engineering Co.,26 and Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C.27 Each of these cases dealt with a unique procedural posture—“a first-filed Delaware case with no case pending elsewhere (the Cryo–Maid test); a second-filed Delaware case with another first-filed case pending elsewhere (the McWane test); and . . . [the] Gramercy [test]—a later-filed De

2010Although the 1999 Florida Action and the Federal Action cannot be treated as first filed under the McWane doctrine, those actions underscore the fact that Lisa's Delaware action was the last filed in this complicated family dispute. 17 .Chadwick, 2004 WL 1874652, at *2 ("under the McWane doctrine, a duplicative action that is substantially or functionally identical to an earlier suit may be dismissed or stayed.”).

2010Although the 1999 Florida Action and the Federal Action cannot be treated as first filed under the McWane doctrine, those actions underscore the fact that Lisa's Delaware action was the last filed in this complicated family dispute. 17 .Chadwick, 2004 WL 1874652, at *2 ("under the McWane doctrine, a duplicative action that is substantially or functionally identical to an earlier suit may be dismissed or stayed.”).

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2023The first question when applying the McWane doctrine is whether “there is a prior action pending elsewhere.”37 Bright Data, through its response, does not 33 263 A.2d 281, 283 (Del. 1970); see also Prezant v. DeAngelis, 636 A.2d 915, 918 (Del. 1994); Williams Gas Supply Co. v. Apache Oil Corp., 594 A.2d 34, 36 (Del. 1991); ANR Pipeline Co. v. Shell Oil Corp., 525 A.2d 991, 992 (Del. 1987). 34 McWane, 263 A.2d at 283 . 35 Id. 36 Palmer v. Palmer, 409 A.2d 1050, 1052 (Del. 1979). 37 McWane, 263 A.2d at 283 . 7 dispute the contours of McWane; instead, it argues that: (i) McWane is inapplicable be

2022Ch. 2007) (quoting In re Topps Co. S’holders Litig., 924 A.2d 951, 953 (Del.

2022Ch. 2007) (quoting In re Topps Co. S’holders Litig., 924 A.2d 951, 953 (Del.

2022Wolfe & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 5.01 (2021) (observing that “the Court of Chancery tends to afford decidedly less deference” to the McWane factors when considering competing stockholder representative suits). 29 Brandin v. Deason, 941 A.2d 1020, 1024 (Del.

2022Wolfe & Michael A. Pittenger, Corporate and Commercial Practice in the Delaware Court of Chancery § 5.01 (2021) (observing that “the Court of Chancery tends to afford decidedly less deference” to the McWane factors when considering competing stockholder representative suits). 29 Brandin v. Deason, 941 A.2d 1020, 1024 (Del.

2021The combination of Gramercy, Chavez and Marquinez create the kind of conflict giving rise to an “extraordinary circumstance” justifying relief. 188 Dorsey v. State, 761 A.2d 807, 816 (Del. 2000) (quoting 3 WILLIAM BLACKSTONE, COMMENTARIES *109). 189 Lisa, 993 A.2d at 1047 . 190 United Phosphorus, Ltd. v. Micro-Flo, 808 A.2d 761, 764 (Del. 2002). 191 In In re Asbestos Litig., a majority of this Court affirmed the dismissal of the plaintiff’s case where the plaintiff was two months late with her expert reports (which were ultimately completed and filed before her motion for change of trial date

2020Lisa, S.A. v. Mayorga, 993 A.2d 1042, 1047 (Del. 2010). 31 In re Citigroup Inc. Shareholder Derivative Litigation, 964 A.2d 106, 116 (Del.

2020Ch. 2008) (“[D]espite linguistic appearance to the contrary, forum non conveniens is not a doctrine of convenience; it is a doctrine of significant, actual hardship.”). 24 General Foods Corp. v. Cryo–Maid, Inc., 198 A.2d 681, 684 (Del. 1964). -7- pendency or non-pendency of other lawsuits between the parties over the same subject25 has consistently been added to the enumeration of the Cryo–Maid factors.26 When the Delaware case is the first action filed, relief via forum non conveniens is available only in the face of “overwhelming hardship” from Delaware litigation.27 This application of the

2019Thus, this Court places less emphasis on the celerity of such plaintiffs and grants less deference to the speedy plaintiff’s choice of forum.”). 7 See, e.g., id. (“[T]his Court has recognized that the adequacy of the complaint is a more important factor than time of filing in a McWane analysis of shareholder derivative actions, so much so that this Court will, in certain instances, grant or deny a stay based on this factor alone.”). 8 That is, the first action filed in Delaware, but filed later than one or more California complaints. 3 Plaintiff here filed another well-crafted Delaware complai

2019Thus, this Court places less emphasis on the celerity of such plaintiffs and grants less deference to the speedy plaintiff’s choice of forum.”). 7 See, e.g., id. (“[T]his Court has recognized that the adequacy of the complaint is a more important factor than time of filing in a McWane analysis of shareholder derivative actions, so much so that this Court will, in certain instances, grant or deny a stay based on this factor alone.”). 8 That is, the first action filed in Delaware, but filed later than one or more California complaints. 3 Plaintiff here filed another well-crafted Delaware complai

2019The Delaware Superior Court held that “the general rule that tortfeasors are not necessary parties under Rule 19(a) prevents the Court from even reaching the Rule 19(b) issue and accessing the equitable power in Rule 19(b).”4l To the extent that Plaintiff has brought a Survival Claim in Delaware, Bryn Mawr is also not a necessary party.42 The Delaware Complaint alleges some injuries Apr. 18, 2017) (“the Delaware Supreme Court’s McWane doctrine [has] been developed to minimize claims splitting.”). 40 Maldonado v. Flynn, 417 A.2d 378, 383 (Del.