Mozeik v. Seramone & Sons Home Improvement, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
BRADLEY and CELESTE )
MOZEIK, )
Plaintiffs, )
)
v. ) C.A. N14C-11-099 PRW
)
SERAMONE & SONS HOME )
IMPROVEMENTS, INC., )
a Delaware Corporation, )
JOE SERAMONE, JR., and )
TRUBUILT CONSTRUCTION CO., )
a Maryland Corporation, )
Defendants. )
Submitted: April 27, 2015
Decided: April 28, 2015
MEMORANDUM OPINION AND ORDER
Upon Defendant’s, Trubuilt Construction Co., Motion to Dismiss
the Plaintiffs’ Complaint,
DENIED.
Victor F. Battaglia, Esquire, Biggs and Battaglia, Wilmington, Delaware, Attorney
for Plaintiffs.
R. Karl Hill, Esquire, Seitz, Van Ogtrop & Green, P.A., Wilmington, Delaware,
Attorney for Defendant.
WALLACE, J.
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I. INTRODUCTION
Before the Court is Defendant Trubuilt Construction Company’s
(“Trubuilt”) motion to dismiss. Plaintiffs Bradley and Celeste Mozeik (together
the “Mozeiks”) live in Earleville, Maryland. The Mozeiks hired Seramone & Sons
Home Improvement (“Seramone”) to complete renovations on their home, and
Seramone hired Trubuilt to complete some of the construction. The Mozeiks now
allege that the work Seramone and Trubuilt completed on their home was
substandard and not done in a workmanlike manner. 1 As the Mozeiks have
selected an appropriate forum for their action, the Court DENIES Trubuilt’s
motion to dismiss.
II. FACTUAL BACKGROUND
Mr. and Mrs. Mozeik hired Seramone, a company incorporated and based in
Wilmington, Delaware, to complete renovations on their home in Earleville,
Maryland in March 2014. Wilmington is approximately 35 miles from Plaintiffs’
home in Cecil County, Maryland. These renovations included: a two-story
addition containing two bathrooms (one newly constructed, the other an existing
bathroom to be gutted and reconstructed); installation of heating, ventilation, and
air-conditioning (HVAC); installation of a new roof on the addition; replacement
1
See Compl. at ¶¶ 11-12.
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of a cantilever deck; filling in a well; adding a closet to the living room; plumbing
for a washer and dryer; and construction of a screened porch.2
Without consulting the Mozeiks, Seramone retained Trubuilt, a Maryland
corporation headquartered in Rising Sun, Maryland, to complete parts of the
renovation. The Mozeiks claim Trubuilt acted as an undisclosed agent of
Seramone at all times. Trubuilt’s headquarters in Maryland is approximately 39
miles from Wilmington.
Seramone assured the Mozeiks that at least one bathroom would be usable in
June 2014. The Mozeiks claim that after almost ten weeks, there was little or no
progress completed on the renovation. 3 In early July, the bathroom was not
completed, and the Mozeiks denied Seramone additional time to complete the
renovations. 4
As a result of Seramone and Trubuilt’s work, the Mozeiks claim they
incurred at least six building violations from Cecil County’s Department of Permits
and Inspections.5 They claim it cost approximately $100,000 to fix the
Defendants’ work. 6 The Mozeiks also allege Seramone and Trubuilt forged their
2
See id. at ¶ 5.
3
See id. at ¶ 11.
4
See id. at ¶ 10.
5
See id. at ¶ 11.
6
See id. at ¶ 14.
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signatures on an application for a building permit, which is currently under
investigation by the Maryland Home Improvement Commission, the Maryland
Department of Labor Licensing and Regulation, and the Maryland Attorney
General. 7 They have brought claims for Breach of Contract, Breach of the Implied
Warranty of Good Quality and Worksmanship, and Negligent Construction against
Seramone and Trubuilt.
III. STANDARD OF REVIEW
Unless a defendant can demonstrate a significant burden, a plaintiff’s choice
of forum “should rarely be disturbed.” 8 A motion to dismiss based on forum non
conveniens is “addressed to the trial court’s sound discretion.” 9 This Court’s
discretion is guided by the now-familiar 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 the 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 make the trial of the case easy, expeditious, and
inexpensive. 10
7
See id. at ¶ 16.
8
Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P’ship, 669 A.2d 104, 107 (Del.
1995) (citing Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947)).
9
Martinez v. E.I. Dupont De Nemours & Co., 86 A.3d 1102, 1104 (Del. 2014).
10
Id. (citing Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964); Taylor
v. LSI Logic Corp., 689 A.2d 1196, 1198-99 (Del. 1997)).
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No plaintiff’s forum choice should be disturbed unless – in the “rare case”11 – the
complaining defendant can demonstrate through the Cryo-Maid factors
“overwhelming hardship.” 12 “It is not enough that all of the Cryo-Maid factors
may favor the defendant.”13 The Court must balance the plaintiff’s forum choice
against the impact of that choice on the defendant to consider whether an action
should be dismissed for overwhelming hardship and inconvenience.14 A defendant
must therefore meet a “high burden” – one that the Delaware Supreme Court has
described as “stringent . . . [but] not preclusive” – in satisfying the overwhelming
hardship standard. 15
IV. PARTIES’ CONTENTIONS
Trubuilt argues that the Mozeiks’ Complaint should be dismissed on the
grounds of forum non conveniens. 16 Because the Mozeiks and Trubuilt are both
11
Martinez, 86 A.3d at 1104 (quoting Chrysler, 669 A.2d at 105) (internal quotations
omitted).
12
Id. (“[T]o prevail under the forum non conveniens doctrine, 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.”).
13
Chrysler, 669 A.2d at 105.
14
See id. at 107
15
Martinez, 86 A.3d at 1104-06.
16
See Def.’s Mot. to Dismiss at 1.
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Maryland residents and the property is located in Maryland, Trubuilt says
Maryland is the proper venue. Trubuilt suggests it would be easier to litigate in
Maryland because witnesses, documents, and the property are there. Further,
Trubuilt claims the action should be dismissed in Delaware because Maryland law
will apply to the action and practical considerations weigh in favor of dismissal.
According to the Mozeiks, Delaware is a proper venue for their suit. And,
they say, Trubuilt here has not demonstrated the required overwhelming hardship
for dismissal.17
V. DISCUSSION
Considering the Cryo-Maid factors, the Court finds that Trubuilt has not
demonstrated such overwhelming hardship to warrant dismissal on the grounds of
forum non conveniens.
A. The Relative Ease of Access to Proof
To demonstrate that it would be very difficult to produce evidence in
Delaware, a defendant must show a prodigious number of witnesses or an
unmanageable volume of documents and records. 18 Trubuilt believes because it
would be “easier” to obtain proof in Maryland, the Complaint should be dismissed.
17
See Plfs.’ Resp. to Def.’s Mot. to Dismiss ¶ 2.
18
Reedy v. Moore, 1986 WL 15423, at *2 (Del. Super. Ct. Dec. 11, 1986) (citing Kolber v.
Holyoke Shares, Inc., 213 A.2d 444, 446 (Del. 1965)).
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But Trubuilt has not demonstrated it would need to shuttle numerous witnesses or
unmanageable paperwork across state lines. Because Trubuilt has not
particularized the hardship it claims it will face, this factor does not here provide
much weight in favor of dismissal.19
B. The Availability of Compulsory Process for Witnesses
Trubuilt claims that it will not be able to enforce subpoenas for testimony
from members of the Maryland Home Improvement Commission, the Maryland
Department of Labor, Licensing and Regulation, the Maryland Attorney General’s
office, and Cecil County’s Department of Permits and Inspections. While live
testimony is preferable, witnesses may also be deposed under Delaware’s broad
discovery procedures. 20 If a party were somehow unable to compel a witness’s
attendance, deposition testimony by video recording is available. 21 While it seems
unlikely that the majority of either party’s witnesses would be unable to make the
35-mile trip, if necessary, their depositions may be taken and used as evidence.
This factor does not overwhelmingly demonstrate dismissal is warranted.
19
See United States Marine Lines v. Domingo, 269 A.2d 223, 225 (Del. 1970) (“The
defendant may not prevail on this ground because it failed to particularize sufficiently the
hardship it claims in this connection.”).
20
See Kolber, 213 A.2d at 446 (“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. . .”).
21
Reedy, 1986 WL 15423, at *2 (“Even though the amount of travel involved does not
seem overwhelming, these witnesses could be deposed on videotape. . .”).
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C. The Possibility of the View of the Premises
Trubuilt argues that taking a jury to view the Plaintiffs’ property is cost-
prohibitive. There is nothing presented here that suggests that the jury needs to
travel to the Mozeiks’ home to decide the case. Juries usually, in cases like this,
consider photographs, videos, and other evidence instead of traveling to the situs of
an alleged tort or contract dispute.22 A live jury view of the premises, in fact,
would be highly unusual. But even if the jury were required to visit the Plaintiffs’
property, a distance of 35 miles is not far enough weigh in favor of dismissal.23
D. Application of Delaware Law
Maryland law certainly applies in this case. But, the fact that Maryland law
will apply “should not deter this Court from proceeding to decide the case on the
merits,” as courts in Delaware regularly consider the laws of other states. 24 As this
22
See id. at *2.
23
See Chrysler, 669 A.2d at 1007 (stating that taking jury between Philadelphia and
Wilmington, less than 30 miles, “barely rises to the level of an inconvenience” and is thus not a
hardship); Kolber, 213 A.2d at 446 (finding that distance between New York City and
Wilmington, approximately 120 miles, was not an undue hardship).
24
Weisberg v. Hensley, 278 A.2d 334, 337-38 (Del. Ch. 1971) (denying motion to dismiss
based on forum non conveniens). See also Reedy, 1986 WL 15423, at *1 (stating Delaware can
interpret Maryland law).
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case also does not appear to include unsettled areas of law, 25 this factor does not
weigh heavily toward dismissal.
E. Pendency of a Similar Action in Another Jurisdiction
Without citing any authority, Trubuilt argues that because Maryland
agencies are investigating the Mozeiks’ related regulatory, administrative or
criminal complaints, those investigations should be considered similar actions.
The Mozeiks counter that because the Maryland investigations are not capable of
doing complete justice for the parties on the same issues, those investigations are
of no moment here.26 While the current pendency of another “action” is an
important factor, 27 even the potential to actually file a similar suit in another
jurisdiction does necessarily counsel towards dismissal. 28 As a dismissal here
25
See Martinez, 86 A.3d at 1110 (upholding dismissal under forum non conveniens where
“the plaintiff in the case is a citizen of a foreign state whose law is at issue . . . the injury in the
case occurred in that foreign state, and the case turns on unsettled issues of foreign law”).
26
See Cnty. of York Emps. Ret. Plan v. Merrill Lynch, 2008 WL 4824053, at *2 (Del. Ch.
Oct. 28, 2008) (quoting McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263
A.2d 281, 284 (Del. 1970)) (stating court may 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”).
27
See United States Marine Lines v. Domingo, 269 A.2d 223, 226 (Del. 1970) (“The
absence of such other pending action is an important, if not a controlling, consideration.”).
28
See Reedy v. Moore, 1986 WL 15423, at *2 (Del. Super. Ct. Dec. 11, 1986) (“As to factor
five, pendency or nonpendency of a similar action in another jurisdiction, defendant Crabtree
merely states that plaintiffs could easily file the case in Maryland. This is not overwhelming, so
his burden as to factor five is not satisfied.”).
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would require the Mozeiks to start an entirely new case against Trubuilt in
Maryland, the consequent delay and expense do not weigh in favor of dismissal. 29
F. Practical Considerations
Trubuilt lastly claims that because Maryland’s public interest is implicated
and Trubuilt is a small company with limited financial resources, this case would
be better resolved in Maryland. Where appropriate, a court may “weigh the
efficient administration of justice and analogous considerations,” such as
extraordinary and cumbersome expenses. 30 In this case, both Trubuilt and the
Mozeiks are located about an hour’s drive from Wilmington. Trubuilt will not
incur cumbersome expenses litigating here. As Seramone is a Delaware
corporation, and Trubuilt’s liability may be predicated on Seramone’s, Delaware’s
public interest is also implicated. Accordingly, the final factor does not weigh in
favor of dismissal.
VI. CONCLUSION
“[I]n deciding forum non conveniens motions to dismiss, Delaware trial
judges must decide whether the defendants have shown that the forum non
conveniens factors weigh so overwhelmingly in their favor that dismissal of the
29
Parvin v. Kaufmann, 236 A.2d 425, 427 (Del. 1967) (“[A] dismissal necessarily would
force the plaintiff to start anew. The consequent delay and expense weigh heavily against the
defendants. . .”).
30
Martinez, 86 A.3d at 1113.
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Delaware litigation is required to avoid undue hardship and inconvenience to
them.” 31 Trubuilt has not. In turn, Trubuilt has failed to show that this is one of
the rare cases that warrants dismissal on forum non conveniens grounds. Its
Motion to Dismiss the Mozeiks’ Complaint is therefore DENIED.
IT IS SO ORDERED.
/s/ Paul R. Wallace
PAUL R. WALLACE, JUDGE
Original to Prothonotary
cc: All counsel via File & Serve
31
Id. at 1106.
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