Kolber v. Holyoke Shares, Inc.
| Citation | 59 Del. 66,9 Storey 66,213 A.2d 444 |
| Parties | , 59 Del. 66 Aaron KOLBER, Plaintiff Below, Appellant, v. HOLYOKE SHARES, INC., a Delaware corporation, Defendant Below, Appellee. |
| Decision Date | 22 September 1965 |
| Court | United States State Supreme Court of Delaware |
Upon appeal from judgment of Superior Court for New Castle County dismissing action. Reversed.
Richard J. Abrams, of Richards, Layton & Finger, Wilmington, for the plaintiff below, appellant.
Richard F. Corroon, of Berl, Potter & Anderson, Wilmington, and Charles Oechler, Robert Ehrenbard and Richard J. Concannon, of Kelley, Drye, Newhall, Maginnes & Warren, New York City, for the defendant below, appellee.
This is an action for an agent's commission or 'finder's fee' brought by the plaintiff Aaron Kolber, a resident of New York, against the defendant, Holyoke Shares, Inc., a Delaware corporation, in connection with the sale of the defendant's business. No similar action has been brought in any other jurisdiction. The defendant moved to dismiss the complaint on the ground of forum non conveniens and the Superior Court granted the motion. The ultimate question before us is whether the defendant made a sufficient showing to justify the dismissal.
Affidavits, filed by the defendant in support of its motion, show that all parties, all potential witnesses, and all events relating to the allegations of the complaint, are centered in the New York City area. The defendant concludes therefrom that none of the acts complained of, and none of the persons or places involved, bear any relationship to Delaware, except that the defendant is a Delaware corporation. It is also represented that the trial of the cause will involve a serious dispute as to the facts, requiring confrontation of witnesses before the trier of fact for the best test of credibility. The defendant's inability to compel attendance of New York residents as witnesses in Delaware, it is stated, will deprive the defendant of the benefit of such confrontation. Finally, it is stated that the New York Statute of Frauds governs the case, that the law on the point is unsettled, and that the open questions of New York law should be settled by the courts of New York.
Upon the basis of such showing, the Superior Court concluded that the defendant was entitled to dismissal of the action on the ground of forum non conveniens, relying upon Winsor v. United Air Lines, 2 Storey 161, 154 A.2d 561 (1958) and General Foods Corporation v. Cryo-Maid, Inc., Del., 198 A.2d 681 (1941). We are unable to agree.
It is quite ordinary for Delaware courts to determine causes in which all persons involved are non-residents of Delaware and in which none of the events involved occurred here. These factors alone are not, in our opinion, sufficient to warrant interference with the plaintiff's usual choice of forum.
What more has the defendant demonstrated? There is no showing that the case involves a prodigious number of witnesses or an unmanageable volume of documents and records; and the distance between New York City and Wilmington has not proven to be undue hardship in the many extensive litigations which have been carried on in this State involving parties, witnesses, and lawyers, resident in New York.
Concededly, the best test of the credibility of witnesses requires their appearance before the trier of fact. The advantages of 'live testimony', as contrasted with depositions, are unquestionable; but litigants are constantly obliged to resort to depositions under our broad discovery procedures, even where the facts are in hot dispute; and we perceive no sufficient reason for making this case an exception on that ground.
This leaves the reason that unsettled New York law governs the case. This factor is not sufficient reason, in our opinion, for dismissal under the doctrine of forumnon conveniens, either alone or in combination with the other factors mentioned. It is not unusual, of course, for Delaware courts to deal with open questions of the law of sister states or of foreign countries. Cf., Anonymous v. Anonymous, 7 Terry 458, 85 A.2d 706, aff'd. DuPont v. DuPont, 8 Terry 231, 90 A.2d 468 (1952); Bata v. Hill, 37 Del.Ch. 96, 139 A.2d 159, aff'd. 39 Del.Ch. 258, 163 A.2d 493 (1960). It has occurred frequently in the past and, here again, we find no sufficient reason for making an exception in this case.
Our conclusions are not in conflict with the Winsor case, the General Foods case, or any other Delaware case which has come to our attention.
The Winsor case is clearly inapposite on its facts. That case involved a commercial airline crash in Colorado, resulting in the death of many passengers. A large...
To continue reading
Request your trial
-
Miller v. Phillips Petroleum Co. Norway
..."the combination and weight of the factors to be considered balance overwhelmingly in favor of the defendant." Kolber v. Holyoke Shares, Inc., Del.Supr. 213 A.2d 444, 447 (1965). Accord States Marine Lines v. Domingo, Del.Supr., 269 A.2d 223, 225 (1970); Parvin v. Kaufmann, 236 A.2d at 427;......
-
Martinez v. E.I. Dupont De Nemours & Co.
...and stringent. As we acknowledged in Ison, the overwhelming hardship standard arose out of this Court's 1965 decision in Kolber v. Holyoke Shares, Inc.16 There, we summarized the proper application of the forum non conveniens dismissal standard as follows: “The dismissal of an action on the......
-
Aranda v. Philip Morris U.S. Inc.
...this is so is that under the overwhelming hardship test motions to dismiss for forum non conveniens have seldom been granted. In Kolber v. Holyoke Shares, Inc. , then Justice Herrmann wrote that dismissal would occur only in "the rare case" where the factors "balance overwhelmingly in favor......
-
Ison v. EI DuPont de Nemours and Co.
...language of the Delaware jurisprudence. That phrase may be a unique Delaware formulation originally appearing in the 1965 case of Kolber v. Holyoke Shares, Inc.,40 in which the court cited the U.S. Supreme Court decision in Gulf Oil Corp. v. Gilbert to the effect that "unless the balance is......