Cryo-Maid factors in Delaware

2025Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1036-37 (Del. 2017) (describing the Cryo-Maid factors: “(1) [t]he relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the [premises], if appropriate; . . . (4) all other practical problems that would make the trial of the case easy, expeditious and inexpensive; . . . (5) whether or not the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction”; and (6) “the pendency or nonp

2025Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1036-37 (Del. 2017) (describing the Cryo-Maid factors: “(1) [t]he relative ease of access to proof; (2) the availability of compulsory process for witnesses; (3) the possibility of the view of the [premises], if appropriate; . . . (4) all other practical problems that would make the trial of the case easy, expeditious and inexpensive; . . . (5) whether or not the controversy is dependent upon application of Delaware law which the courts of this State more properly should decide than those of another jurisdiction”; and (6) “the pendency or nonp

2024Ct. Aug. 26, 2024). 26 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 inexpensive.122 Dismissal on forum non conveniens grounds requires the movant show that “overwhelming hardship and inconvenience” would result if dismissal is not granted.123 “It is not enough that all of the Cryo-Maid factors may favor defendant.”124 Depriving the plaintiff of their chosen forum requires the movant to “meet the hi

2024Ct. Aug. 26, 2024). 26 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 inexpensive.122 Dismissal on forum non conveniens grounds requires the movant show that “overwhelming hardship and inconvenience” would result if dismissal is not granted.123 “It is not enough that all of the Cryo-Maid factors may favor defendant.”124 Depriving the plaintiff of their chosen forum requires the movant to “meet the hi

2024Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964). 35 Reply at 17-21. 36 Opp’n at 6-7. 8 as a mandatory forum selection clause because Foster Farms “irrevocably submit[ted] itself” to personal and subject matter jurisdiction in Delaware.37 Aside from relying on Section 8.2, OneSource asks the Court to treat this case as first-filed under McWane in recognition of its relationship to the Federal Action and the anticipatory nature of the California Action.38 Based on that premise, OneSource argues that the Cryo-Maid factors do not reflect the “overwhelming hardship” Foster Farms must show

2024Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964). 35 Reply at 17-21. 36 Opp’n at 6-7. 8 as a mandatory forum selection clause because Foster Farms “irrevocably submit[ted] itself” to personal and subject matter jurisdiction in Delaware.37 Aside from relying on Section 8.2, OneSource asks the Court to treat this case as first-filed under McWane in recognition of its relationship to the Federal Action and the anticipatory nature of the California Action.38 Based on that premise, OneSource argues that the Cryo-Maid factors do not reflect the “overwhelming hardship” Foster Farms must show

2023P’ship., 669 A.2d 104, 106 (Del. 1995)). 3 inconvenience truly is visited on the protesting defendant hailed here.2 Indeed, Delaware courts are “hesitant to grant [relief] based on forum non conveniens, and the doctrine is not a vehicle by which the Court should determine [merely] which forum would be most convenient for the parties.”3 Whether to grant relief via forum non conveniens is left to the trial courts’ discretion.4 And when deciding a motion to dismiss invoking forum non conveniens, the Court applies the well-worn Cryo- Maid factors.5 Those are: (1) the relative ease of access to pro

2023P’ship., 669 A.2d 104, 106 (Del. 1995)). 3 inconvenience truly is visited on the protesting defendant hailed here.2 Indeed, Delaware courts are “hesitant to grant [relief] based on forum non conveniens, and the doctrine is not a vehicle by which the Court should determine [merely] which forum would be most convenient for the parties.”3 Whether to grant relief via forum non conveniens is left to the trial courts’ discretion.4 And when deciding a motion to dismiss invoking forum non conveniens, the Court applies the well-worn Cryo- Maid factors.5 Those are: (1) the relative ease of access to pro

2024Ct. Aug. 26, 2024). 26 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 inexpensive.122 Dismissal on forum non conveniens grounds requires the movant show that “overwhelming hardship and inconvenience” would result if dismissal is not granted.123 “It is not enough that all of the Cryo-Maid factors may favor defendant.”124 Depriving the plaintiff of their chosen forum requires the movant to “meet the hi

2024Ct. Aug. 26, 2024). 26 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 inexpensive.122 Dismissal on forum non conveniens grounds requires the movant show that “overwhelming hardship and inconvenience” would result if dismissal is not granted.123 “It is not enough that all of the Cryo-Maid factors may favor defendant.”124 Depriving the plaintiff of their chosen forum requires the movant to “meet the hi

2023No. 2022-0621-SEM February 28, 2023 Page 8 of 22 (6)] any other matters that would affect the conduct of the litigation and the expeditious and economic administration of justice.33 “The first Cryo-Maid factor asks whether there is (i) an earlier-filed action, (ii) between the same or substantially similar parties, (iii) addressing the same or substantially similar subject matter, (iv) pending in a court capable of addressing the matter in a just way.”34 If the answer to each sub part is “yes”, then the presumption under McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281,

2023No. 2022-0621-SEM February 28, 2023 Page 8 of 22 (6)] any other matters that would affect the conduct of the litigation and the expeditious and economic administration of justice.33 “The first Cryo-Maid factor asks whether there is (i) an earlier-filed action, (ii) between the same or substantially similar parties, (iii) addressing the same or substantially similar subject matter, (iv) pending in a court capable of addressing the matter in a just way.”34 If the answer to each sub part is “yes”, then the presumption under McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281,

2017However, Delaware courts have attributed less significance to the “access to proof” factor under the Cryo-Maid analysis in the context of corporate and commercial disputes involving larger, more sophisticated entities.9 Additionally, even if Plaintiffs’ medical records are physically located outside Delaware, it should 7 Taylor, 689 A.2d at 1200. 8 Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 268 (Del. 2001). 9 See, e.g., 1 Oak Private Equity Venture Capital Ltd. v. Twitter, Inc., 2015 WL 7776758 , at *8 (Del.

2017However, Delaware courts have attributed less significance to the “access to proof” factor under the Cryo-Maid analysis in the context of corporate and commercial disputes involving larger, more sophisticated entities.9 Additionally, even if Plaintiffs’ medical records are physically located outside Delaware, it should 7 Taylor, 689 A.2d at 1200. 8 Warburg, Pincus Ventures, L.P. v. Schrapper, 774 A.2d 264, 268 (Del. 2001). 9 See, e.g., 1 Oak Private Equity Venture Capital Ltd. v. Twitter, Inc., 2015 WL 7776758 , at *8 (Del.

2022DuPont de Nemours & Co., Inc. 729 A.2d 832, 849 (Del. 1999). 32 Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 38 (Del. 1991). 8 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 inexpensive.33 These factors are well known in shorthand fashion as the Cryo-Maid factors.34 How those factors are applied depends on the posture of the case - “what changes is the strength of the presum

2022DuPont de Nemours & Co., Inc. 729 A.2d 832, 849 (Del. 1999). 32 Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 38 (Del. 1991). 8 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 inexpensive.33 These factors are well known in shorthand fashion as the Cryo-Maid factors.34 How those factors are applied depends on the posture of the case - “what changes is the strength of the presum

2024One paramount consideration is Delaware’s “especially strong” respect 81 In re Asbestos Litig., 929 A.2d at 381 (“Analysis of the Cryo-Maid factors is not quantitative. . . .

2024One paramount consideration is Delaware’s “especially strong” respect 81 In re Asbestos Litig., 929 A.2d at 381 (“Analysis of the Cryo-Maid factors is not quantitative. . . .

2023The final factor examines “all other practical problems that would make the trial of the case easy, expeditious and inexpensive.”27 Tri-State and Crown repeat Delaware’s more jurisdictional hook for entity Defendants certainty is insufficient to allow the litigation to proceed here.”28, 29 Plaintiffs maintain that in order for Defendants to meet their burden they must demonstrate that the hardship is substantial and overwhelming and not merely more convenient.30 When the Cryo-Maid factors are considered they only slightly favor the grant 23 Def.s’ Mot. to Dismiss at 11 n.3; Pl.s’ Answering Br.

2023The final factor examines “all other practical problems that would make the trial of the case easy, expeditious and inexpensive.”27 Tri-State and Crown repeat Delaware’s more jurisdictional hook for entity Defendants certainty is insufficient to allow the litigation to proceed here.”28, 29 Plaintiffs maintain that in order for Defendants to meet their burden they must demonstrate that the hardship is substantial and overwhelming and not merely more convenient.30 When the Cryo-Maid factors are considered they only slightly favor the grant 23 Def.s’ Mot. to Dismiss at 11 n.3; Pl.s’ Answering Br.

2021Ch. 2008) (“This Court has previously considered language barriers when applying the forum non conveniens doctrine”). 70 Aveta, 942 A.2d at 614 (granting a stay where a language barrier existed thus requiring a translator for evidence and witnesses, and the Cryo-Maid factors weighed in favor of the defendant); see also Eurofins Pharma US Hldgs., Inc. v. Bioalliance Pharma SA, 2009 WL 2992552 , at *7 (D.

2021Ch. 2008) (“This Court has previously considered language barriers when applying the forum non conveniens doctrine”). 70 Aveta, 942 A.2d at 614 (granting a stay where a language barrier existed thus requiring a translator for evidence and witnesses, and the Cryo-Maid factors weighed in favor of the defendant); see also Eurofins Pharma US Hldgs., Inc. v. Bioalliance Pharma SA, 2009 WL 2992552 , at *7 (D.

2021Energy, LLC, 859 A.2d 989, 998 (Del. 2004) (expanding the Cryo-Maid factors); Chase, 2019 WL 6833958 , at *3 (applying six factors). 17 causes [] significant hardship and inconvenience.”77 It does not matter whether, on balance, a majority of the factors favor defendant—“[t]he issue is whether any or all of the Cryo-Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware.

2021Energy, LLC, 859 A.2d 989, 998 (Del. 2004) (expanding the Cryo-Maid factors); Chase, 2019 WL 6833958 , at *3 (applying six factors). 17 causes [] significant hardship and inconvenience.”77 It does not matter whether, on balance, a majority of the factors favor defendant—“[t]he issue is whether any or all of the Cryo-Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware.

2021Contractors, Inc., 777 A.2d at 778 ; see also Gramercy, 173 A.3d at 1036 -37 (citing Gen.

2016Contractors, Inc. v. Caribbean Petroleam Ref, L.P., 777 A.2d 774, 781 (Del. 2001)). 45 Taylor v. LSILogic Corp., 689 A.zd 1196, 1199 (Del. 1997). 46 Martinez, 86 A.3d at 1104 (“a defendant must meet the high burden of showing that the traditional forum non conveniens factors weigh so heavily that the defendant will face ‘overwhelming hardship’ if the lawsuit proceeds in Delaware.” (citations omitted)). 47 Id. (quoting Taylor, 689 A.2d at 1198-99) (outlining Cryo-Maid factors). 12 and determine whether any or all of them truly cause both inconvenience and hardship.”48 The Court should not tally

2016Credit Corp., 669 A.2d at 108 (“The issue is whether any or all of the Cryo-Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware.”). 86 82 A.3d 1 (Del.

2016Credit Corp., 669 A.2d at 108 (“The issue is whether any or all of the Cryo-Maid factors establish that defendant will suffer overwhelming hardship and inconvenience if forced to litigate in Delaware.”). 86 82 A.3d 1 (Del.

2022Regardless of which party was the first to file, the Court approaches the forum non conveniens issue by analyzing the six Cryo-Maid factors: (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 non-pendency of a similar action or actions in another jurisdiction; and (6) all other practical problems that would

2014Delaware “courts consider the so-called Cryo-Maid factors” when determining “whether a defendant has met this heavy burden of establishing overwhelming hardship.” United Phosphorus, 808 A.2d at 764 .

2025“Delaware courts analyze forum non conveniens issues by balancing the so-called ‘Cryo-Maid factors.’” Hamilton P’rs, L.P. v. Englard, 11 A.3d 1180, 1212 (Del.

2023The final factor examines “all other practical problems that would make the trial of the case easy, expeditious and inexpensive.”27 Tri-State and Crown repeat Delaware’s more jurisdictional hook for entity Defendants certainty is insufficient to allow the litigation to proceed here.”28, 29 Plaintiffs maintain that in order for Defendants to meet their burden they must demonstrate that the hardship is substantial and overwhelming and not merely more convenient.30 When the Cryo-Maid factors are considered they only slightly favor the grant 23 Def.s’ Mot. to Dismiss at 11 n.3; Pl.s’ Answering Br.

2023The final factor examines “all other practical problems that would make the trial of the case easy, expeditious and inexpensive.”27 Tri-State and Crown repeat Delaware’s more jurisdictional hook for entity Defendants certainty is insufficient to allow the litigation to proceed here.”28, 29 Plaintiffs maintain that in order for Defendants to meet their burden they must demonstrate that the hardship is substantial and overwhelming and not merely more convenient.30 When the Cryo-Maid factors are considered they only slightly favor the grant 23 Def.s’ Mot. to Dismiss at 11 n.3; Pl.s’ Answering Br.

2023The only Cryo-Maid factor for which Nokia’s argument was not heavily premised on the appeal of the Federal Action was the fifth factor, where Nokia argues that Continental’s FRAND Claims are largely “claims . . . for breach of contract under French law[.]”216 Assuming that to be the case, a Delaware court “must not let its own lack of facility in a foreign language or foreign law tilt the choice-of-law calculus [because] to do so is unfair to the parties[.]” 217 Furthermore, “Delaware courts often decide legal issues—even unsettled ones—under the law of 213 Defs.’ OB at 45–54. 214 See id. at 5

2022DuPont de Nemours & Co., Inc. 729 A.2d 832, 849 (Del. 1999). 32 Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 38 (Del. 1991). 8 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 inexpensive.33 These factors are well known in shorthand fashion as the Cryo-Maid factors.34 How those factors are applied depends on the posture of the case - “what changes is the strength of the presum

2022DuPont de Nemours & Co., Inc. 729 A.2d 832, 849 (Del. 1999). 32 Williams Gas Supply Co. v. Apache Corp., 594 A.2d 34, 38 (Del. 1991). 8 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 inexpensive.33 These factors are well known in shorthand fashion as the Cryo-Maid factors.34 How those factors are applied depends on the posture of the case - “what changes is the strength of the presum

2021Super. 1964), overruled in part on other grounds sub. nom., Pepsico, Inc. v. Pepsi-Cola Bottling Co., 261 A.2d 520 (Del. 1969). 33 E.g., In re Citigroup Inc. S’holderr Derivative Litig., 964 A.2d 106 (Del Ch. 2009). 34 Id. at 116 . 35 Id. at 117 (citation omitted). 7 Because neither action can be considered first-filed, I should apply my discretion to dismiss in favor of the pending foreign action, where the Cryo-Maid factors support such an outcome, without applying a presumption in favor of either forum. 36 The Defendants as movants bear the burden to demonstrate that the applicable factors

2021Super. 1964), overruled in part on other grounds sub. nom., Pepsico, Inc. v. Pepsi-Cola Bottling Co., 261 A.2d 520 (Del. 1969). 33 E.g., In re Citigroup Inc. S’holderr Derivative Litig., 964 A.2d 106 (Del Ch. 2009). 34 Id. at 116 . 35 Id. at 117 (citation omitted). 7 Because neither action can be considered first-filed, I should apply my discretion to dismiss in favor of the pending foreign action, where the Cryo-Maid factors support such an outcome, without applying a presumption in favor of either forum. 36 The Defendants as movants bear the burden to demonstrate that the applicable factors

2021Aug. 13, 2018); see also Aranda v. Philip Morris USA Inc., 183 A.3d 1245, 1250-51 (Del. 2018) (“As explained in Gramercy: McWane draws on Cryo-Maid’s factors because both tests are rooted in forum non conveniens doctrine.”). 25 Aranda, 183 A.3d at 1250-51 (Del. 2018) (citing Gramercy, 173 A.3d 1033, 1038 (Del. 2017). 26 Nokia, 2020 WL 2095829 , at *3 (Del.

2021Aug. 13, 2018); see also Aranda v. Philip Morris USA Inc., 183 A.3d 1245, 1250-51 (Del. 2018) (“As explained in Gramercy: McWane draws on Cryo-Maid’s factors because both tests are rooted in forum non conveniens doctrine.”). 25 Aranda, 183 A.3d at 1250-51 (Del. 2018) (citing Gramercy, 173 A.3d 1033, 1038 (Del. 2017). 26 Nokia, 2020 WL 2095829 , at *3 (Del.

2021No. 2019-0218-PWG March 1, 2021 argues that the parties in this case have engaged in a de facto stay, and moving forward in both cases would be duplicative and wasteful.44 Looking at the Cryo-Maid factors of relative ease of access to proof, availability of compulsory process for witnesses, and the possibility of the view of the premises, I find that they weigh against granting the stay, since the Delaware Property is located in Delaware, and two of the three parties reside in Delaware and are subject to compulsory process in Delaware.45 In addition, Defendants are seeking to depose Marianne,

2021No. 2019-0218-PWG March 1, 2021 argues that the parties in this case have engaged in a de facto stay, and moving forward in both cases would be duplicative and wasteful.44 Looking at the Cryo-Maid factors of relative ease of access to proof, availability of compulsory process for witnesses, and the possibility of the view of the premises, I find that they weigh against granting the stay, since the Delaware Property is located in Delaware, and two of the three parties reside in Delaware and are subject to compulsory process in Delaware.45 In addition, Defendants are seeking to depose Marianne,

2018Super. 2006) (stating that proximity to evidence is a factor, but is “by no means dispositive in determining overwhelming hardship.” In fact, the Delaware Supreme Court has “declined to find overwhelming hardship even in a case where the vast majority of the relevant evidence was in a faraway foreign country (New Zealand) and likely could be accessed only through the cumbersome procedures set forth in the Hague Convention.”) (citing Ison, 729 A.2d at 843 and Hall v. Maritek Corp., 170 A.3d 149, 167 (Del.

2018Super. 2006) (stating that proximity to evidence is a factor, but is “by no means dispositive in determining overwhelming hardship.” In fact, the Delaware Supreme Court has “declined to find overwhelming hardship even in a case where the vast majority of the relevant evidence was in a faraway foreign country (New Zealand) and likely could be accessed only through the cumbersome procedures set forth in the Hague Convention.”) (citing Ison, 729 A.2d at 843 and Hall v. Maritek Corp., 170 A.3d 149, 167 (Del.

2016Only after the Court looks to these two very distinct defendant and plaintiff considerations, Plaintiff argues, can it 33 777 A.2d 774 (Del. 2001). 33 859 A.2d 989 (De1. 2004). 34 See supra note 7 (outlining Cryo-Maia' factors). 35 “The factors pertaining to the private interests of the litigants included the ‘relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make

2014Co. of Pittsburgh Pa. v. RLC Corp., 449 A.2d 257, 261-62 (Del.Super.1982) (considering the fact that Delaware law applied as a factor that weighed against dismissal). .

2014Co. of Pittsburgh Pa. v. RLC Corp., 449 A.2d 257, 261-62 (Del.Super.1982) (considering the fact that Delaware law applied as a factor that weighed against dismissal). .