IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILLIAM KENNEDY, )

)

Plaintiff, )

)

)

v. ) C.A. No. N15C-12-077 VLM

)

)

MARIA H. BARBOZA, M.S., D.M.D., )

et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Submitted: September 23, 2016

Decided: October 26, 2016

Upon Consideration of Defendants’ Motion to Dismiss, GRANTED.

E.E. Allinson, III, Esquire. Sullivan, Hazeltine, Allinson, LLC, Wilmington, 

Delaware. Attorney for the Plaintiff.

Christine Kane, Esquire. White and Williams, LLP, Wilmington, Delaware. 

Attorney for the Defendants. 

MEDINILLA, J.
2

INTRODUCTION

Plaintiff William Kennedy alleges Defendant Maria H. Barboza, M.S., 

D.M.D. and her dental practice, Defendant Centre for Cosmetic Dentistry,

improperly received and retained funds meant for use in the treatment of his dental 

condition between March and October 2012. Defendants move to dismiss 

Plaintiff‟s Complaint under the McWane doctrine or, alternatively, forum non 

conveniens because Plaintiff is simultaneously litigating claims of professional 

negligence in Pennsylvania state court related to the same period of treatment with 

Defendant and her practice. After consideration of the parties‟ briefings and oral 

arguments, for the reasons stated below, Defendants Maria H. Barboza, M.S., 

D.M.D. and Centre for Cosmetic Dentistry‟s Motion to Dismiss is GRANTED

without prejudice. 

FACTUAL AND PROCEDURAL HISTORY

Factual Background

In March 2012, Plaintiff William Kennedy sought dental care from 

Defendant Dr. Maria Barboza at her dental practice, Centre for Cosmetic Dentistry, 

(“Defendants”) located in Chadd‟s Ford, Pennsylvania.1 After a routine dental 

visit, a periodontist at Dr. Barboza‟s office removed several of Mr. Kennedy‟s 

 

1

See First Amended Third-Party Complaint at ¶ 8, CPU4-14-002643 (Dec. 17, 2014) 

[hereinafter Compl.]. 
3

teeth in the first of a three-staged treatment of his medical condition.2 At a followup visit, Mr. Kennedy‟s teeth were shaved down to “spikes” and a temporary 

bonding agent was applied.3 

During this period, however, Mr. Kennedy and Defendants were apparently

in disagreement about Mr. Kennedy‟s ability to pay for his dental care.4 After 

consulting with Defendants‟ office staff, Mr. Kennedy received financing for a 

portion of the procedures allegedly without receiving any information on the 

details of his financing arrangement.5 

Shortly thereafter, and while his teeth remained only partially treated, 

Mr. Kennedy was told that he would need to cover a deficiency in payment of 

several thousand dollars.6 Mr. Kennedy refused to make any additional payments

and left Defendant‟s practice on October 16, 2012.7

Procedural Background

On September 12, 2014, Portfolio Recovery Associates, LLC (Portfolio), an 

assignee of GE Capital—the holder of the putative loan for Mr. Kennedy‟s dental 

 

2

See id. at ¶ 9.

3

See id. at ¶ 10, 15-18. 

4

See id. at ¶ 10-14, 19-20. 

5

See id. at ¶ 10-14.

6

See id. at ¶ 19-20

7

See id. at ¶ 20-22. See also Defendant‟s Opening Brief at 3 [hereinafter Def. Br.].
4

care—sued Mr. Kennedy in Delaware Court of Common Pleas.8 Portfolio alleged 

Mr. Kennedy was in default on his loan in the amount of $10,711.74.9 

Mr. Kennedy thereafter impleaded Defendants in the default action as thirdparty defendants on October 29, 2014.10

 Mr. Kennedy alleged claims of unjust 

enrichment, conversion, battery, breach of contract, replevin, and bailment.11 After 

Portfolio and Mr. Kennedy settled the debt claim, Defendants moved to dismiss the 

third party complaint on the basis of personal jurisdiction, statute of limitations, 

and forum non conveniens.

12

 

The Court of Common Pleas denied Defendants‟ Motion to Dismiss the 

third party complaint.

13

 Despite Plaintiff‟s March 5, 2014 filing of a writ of 

summons in Pennsylvania against Defendants, the Court of Common Pleas found 

the lack of “progress” in Pennsylvania following the writ did not preclude the 

Delaware action from proceeding forward.

14 The Court reasoned that the writ only 

 

8

See Def. Br. at 1. Mr. Kennedy is a Delaware resident. See Compl. at ¶ 1.

9

See Def. Br. at Exhibit A.

10 See Third-Party Complaint, CPU4-14-002643 (Oct. 29, 2014).

11 See id.

12 See Def. Br. at 1.

13 Order at 2, CPU4-14-002643 (Nov. 20, 2015) [hereinafter Order]. See also Defendants‟ Reply 

Brief at Exhibit A [hereinafter Def. Rep. Br.]. 

14 See Order at 2. (“Although there is another litigation involving the same parties and similar 

issues pending in Pennsylvania, there has been no progress in the Pennsylvania proceeding other 
5

extended the time “in which [Plaintiff] may file a Complaint.”15 Following the 

Court‟s ruling on the Motion to Dismiss, Defendants removed the case to Superior 

Court in December 2015.16

However, on March 2, 2016, Mr. Kennedy filed a Complaint in the 

Pennsylvania Court of Common Pleas for Delaware County alleging professional 

negligence, assault, battery, and fraud in relation to Dr. Barboza‟s dental treatment 

from March to October 2012.17 

Defendants filed their Motion to Dismiss on June 15, 2016, under the

doctrine established in McWane Cast Iron Pipe Corp. v. McDowell-Wellman 

Engineering Co.18 (“McWane”). Alternatively, Defendants‟ Motion seeks to 

dismiss the Complaint on the basis of forum non conveniens. Defendants 

submitted their brief in support of the Motion on July 8, 2016. Plaintiff responded 

on August 16, 2016. Defendants replied on September 8, 2016. Oral argument 

 

than the filing of a writ granting Plaintiff an extension of time in which he may file a 

Complaint.”).

15 Id. The writ and accompanying praecipe are attached as Exhibit D in Def. Br.

16 See Def. Br. at 1.

17 Mr. Kennedy filed two amended complaints in Pennsylvania state court. His Second 

Amended Complaint was filed on August 17, 2016. He has since dropped his claims of battery 

and assault originally pled in the Pennsylvania Complaint. Defendants‟ preliminary objections 

to the Second Amended Complaint were pending as of September 23, 2016.

18 263 A.2d 281 (Del. 1970).
6

was heard on September 23, 2016. Having considered the respective pleadings, 

submissions and oral arguments, the matter is ripe for review. 

CONTENTION OF THE PARTIES

Defendants move for dismissal on two grounds. First, Defendants argue 

that, under the McWane doctrine, Plaintiff‟s Delaware action should be dismissed 

so that Plaintiff may prosecute the totality of his claims in Pennsylvania state 

court.19 Second, assuming this Court was to find the McWane doctrine 

inapplicable, Defendants argue that application of the Cryo-Maid20 factors suggests 

that dismissal of the Delaware action is warranted on the basis of forum non 

conveniens.

21

 

STANDARD OF REVIEW

The McWane doctrine is an analogue of the common law forum non 

conveniens doctrine.

22 As with a motion to dismiss under forum non conveniens, a 

motion raising the McWane doctrine is “addressed to the trial court‟s sound 

discretion.”23 “These two forum non conveniens doctrines—overwhelming 

 

19 Defendants‟ Motion to Dismiss at ¶ 7 [hereinafter Def. Motion].

20 General Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681 (Del. 1964).

21 Def. Motion at ¶¶ 4-6.

22 See Lisa, S.A. v. Mayorga, 993 A.2d 1042, 1047 (Del. 2010).

23 Martinez v. E.I. DuPont 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)).
7

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 subjected to overwhelming 

hardship and inconvenience if required to litigate in Delaware.”25 Since the Court 

finds that the McWane doctrine applies to the Delaware action, the Court does not 

address the merits of the conventional forum non conveniens argument.

McWane applies where the plaintiff prosecutes two simultaneous claims of 

the same nature against the same parties.26 Under Delaware law, plaintiff‟s firstfiled forum is entitled to substantial deference.27 However, where McWane

applies, plaintiff‟s bifurcated approach to litigating one matter in two courts is not 

 

24 Lisa, S.A., 993 A.2d at 1047 (quoting United Phosphorus, Ltd. v. Micro-Flo, 808 A.2d 761, 

764 (Del. 2002)).

25 Id.

26 See id. See also Mine Safety Appliances Co. v. AIU Ins. Co., 2011 WL 300252, at *4 (Del. 

Super. Jan. 24, 2011).

27 See Lisa, S.A., 993 A.2d at 1047 (“Where the Delaware action is the first-filed, the plaintiff‟s 

choice of forum will be respected and rarely disturbed, even if there is a more convenient forum 

to litigate the claim.”). Cf. In re Asbestos Litig., 929 A.2d 373, 381 (Del. Super. 2006) 

(discussing “presumption” of deference to first-filed forum when forum non conveniens is 

invoked as grounds for dismissal of plaintiff‟s action).
8

entitled to deference.

28

 Instead, the Delaware Courts will stay or dismiss the laterfiled 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 doctrine is a three-part analysis.32 First, this Court must look

to whether there is a pending action in another jurisdiction at the time the Delaware 

action was filed.

33

 Second, the Court will compare the pending action with the 

Delaware one to determine whether the pending action involves the same parties 

and identical or functionally similar claims.

34

 Finally, the Court will determine

whether the court in the first-filed action is “capable of delivering prompt and 

 

28 See United Phosphorus, Ltd., 808 A.2d at 764 (“If there is a prior pending action in another 

jurisdiction, our courts may exercise their discretion to grant a stay on a significantly lower 

showing.”).

29 See id.

30 McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281, 283 (Del. 

1970).

31 Id.

32 See id. at 283. See also Mine Safety Appliances Co. v. AIU Ins. Co., 2011 WL 300252, at *4 

(Del. Super. Jan. 24, 2011).

33 See Mine Safety Appliances Co., 2011 WL 300252, at *4 (citing McWane, 263 A.2d at 283).

34 See Chadwick v. Metro Corp., 2004 WL 1874652, at *2 (Del. Supr. Aug. 14, 2004). 
9

complete justice.”35 If the three inquiries are answered in the affirmative, this 

Court has the discretion to either stay or dismiss the Delaware action.36

DISCUSSION

I. McWane Inquiry One: Pending Action in Foreign Jurisdiction

It is undisputed that Plaintiff filed a writ of summons on March 5, 2014.

Accordingly, Plaintiff‟s Pennsylvania action is the first-filed action under 

Pennsylvania‟s Rules of Civil Procedure. Notably, the Court of Common Pleas did 

not address this first-in-time issue raised here. Therefore, this Court finds that the 

earlier Order does not prevent this Court from making such a determination on the 

present Motion.

37

Under Pennsylvania‟s Rules of Civil Procedure, a civil action is commenced 

on the filing of either “(1) a praecipe for a writ of summons, or (2) a complaint.”38 

“No further action of a plaintiff is required under Rule 1007 to commence an 

action.”39 The writ tolls the relevant statute of limitations for a period of time 

 

35 Mine Safety Appliances Co., 2011 WL 300252, at *4.

36 See Chadwick, 2004 WL 1874652 at *2.

37 See infra, notes 61-65 and accompanying text (discussing “law of the case” doctrine).

38 PA. R.C.P. No. 1007.

39 Anderson v. Bernhard Realty Sales Co., Inc., 329 A.2d 852, 854 (Pa. Super. Ct. 1974).
10

equal to the original statute of limitations.40 Rule 1007 is “clear and unambiguous;

it does not admit to qualification in effort to ascertain its spirit.”41

Typically, the timing of an action vis-à-vis another action is not in 

question.42 However, rather than filing a complaint in Pennsylvania, Mr. Kennedy 

filed a statutory “writ of summons” under Pennsylvania‟s Rules of Civil 

Procedure. At that time, Portfolio had not yet sued Plaintiff in Delaware for claims 

related to the financing arrangement.43 

Since a writ is one statutory method to commence an action without filing a 

complaint, the Delaware impleader action—filed ten months after the Pennsylvania 

writ—is second-in-time to the Pennsylvania action. Therefore, under McWane‟s

first inquiry, there was a pending action in another jurisdiction at the time the 

Delaware action was filed.

II. McWane Inquiry Two: Same Issues and Same Parties

“In Delaware, under the McWane doctrine, a duplicative action that is 

substantially or functionally identical to an earlier suit may be dismissed or 

 

40 Id. See 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. Co., 2011 WL 300252, at *5 (Del. Super. 

Jan. 24, 2011) (noting timing of earlier action was undisputed).

43 See Def. Br. at 1-2. The Delaware impleader action did not commence until October 29, 2014. 
11

stayed.”44 Whether a claim is “substantially or functionally identical” is defined in 

Delaware using the federal joinder rule, i.e., the “common nucleus of operative 

facts” test.45 This flexible standard recognizes that the “parties and facts need not 

be identical, and, in a typical McWane analysis, they rarely are.”46

This Court is guided by the Supreme Court‟s application of the “common 

nucleus of operative facts” test in Chadwick v. Metro Corp.,

47 where the Court held 

that an after-filed Delaware defamation action should be dismissed under McWane. 

The Supreme Court in Chadwick affirmed the dismissal of the after-filed Delaware 

action, finding the latter claim involved the same parties and functionally identical 

claims as a previously filed and pending Pennsylvania defamation action. The 

Court applied McWane notwithstanding the defendant-author who wrote an

allegedly defamatory article in the Delaware action was not the same author in the 

earlier action and the article was published five years later. Applying the 

“common nucleus of operative facts” test, the Court found that the actions arose 

from the same facts (plaintiff‟s acrimonious divorce proceedings) for purposes of 

 

44 Chadwick v. Metro Corp., 2004 WL 1874652, at *2 (Del. Supr. Aug. 14, 2004).

45 Id. (quoting Dura Pharmas., Inc. v. Scandipharm, Inc., 713 A.2d 925, 930 (Del. Ch. 1998)).

46 Mine Safety Appliances Co., 2011 WL 300252, at *4.

47 2004 WL 1874652 (Del. Supr. Aug. 14, 2004).
12

the McWane doctrine and the two actions involved the same magazine even though 

different authors actually wrote the articles.48

This Court is also guided by the Delaware Court of Chancery‟s analysis in

Dura Pharmaceuticals, Inc. v. Scandipharm, Inc.,

49 where the court stayed an 

after-filed Delaware action that involved the same parties, but where the plaintiff 

argued that the tort-based Delaware claims were only “tangentially” related to the 

contract-based claims pending in another jurisdiction. Applying the “common 

nucleus of operative facts” test, the court found both the contract and tort claims 

arose out of a “common nucleus of operative facts;” that is, involving the singular 

breach of a merger agreement between the parties.50 Since the Delaware action 

was the later-filed action, the “McWane comity analysis” applied and the action 

was stayed for the claims to be “brought in the same court at the same time. . . .”51

In this case, Plaintiff argues that the parties are not the same because 

Plaintiff was originally sued by Portfolio on the underlying debt, for which 

Defendants were impled as third-party defendants.52 Notably, the Court of 

 

48 See id. at *2

49 713 A.2d 925, 930 (Del. Ch. 1998).

50 See id.

51 Id. (quoting Transamerica Corp. v. Reliance Ins. Co. of Ill., 1995 WL 1312656, at *5 (Del. 

Super. Aug. 30, 1995)).

52 See Plaintiff‟s Brief at ¶ 19 [hereinafter Pl. Br.].
13

Common Pleas changed the case to a direct action between Plaintiff and 

Defendants following Portfolio‟s settlement of the debt with Plaintiff. As such, 

both the Pennsylvania and Delaware actions are claims by Mr. Kennedy against 

Dr. Barboza and her dental practice. 

Both actions also allege functionally identical claims arising out of a 

common nucleus of operative facts. The two actions arise solely out of Mr. 

Kennedy‟s treatment at Defendant‟s practice for the condition of his teeth.53 

Plaintiff, however, argues that the claims in Pennsylvania are sounded in 

professional negligence and the Delaware action is one of “civil theft and out-ofpocket pecuniary loss.”54

 Yet, this sort of parsing of claims was rejected in 

Chadwick and Dura Pharmaceuticals, among other cases applying McWane,

55

because the events underlying all the claims arose out of a common nucleus of 

operative facts. Moreover, duplicative and functionally identical claims involving

 

53 But see id. at ¶ 19 (“In fact, [the two actions] do not arise from a „common nucleus of 

operative facts,‟ as Defendants contend. Mr. Kennedy was drawn into this litigation on a debt 

claim and remains involved to pursue recovery of the proceeds of the bank loan that belong to 

him.”).

54 Id. at ¶ 18-19. Plaintiff states that the Pennsylvania case “sounds in professional negligence, 

vicarious liability, ostensible agency, corporate liability, assault, battery and fraud . . . [while] the 

Delaware [a]ction sounds in unjust enrichment, conversion, breach of contract, replevin, and 

bailment.” Id. at ¶ 18. 

55 See, e.g., Transamerica Corp., 1995 WL 1312656, at *3 (holding breach of contract and bad 

faith claims arising out of insurance contract were “sufficiently similar” where related action was 

pending in California and resolution of Delaware claims depended heavily on California court‟s 

adjudication of underlying insurance claims). 
14

the same event carries the potential risk of “inconsistent or conflicting rulings, 

which is precisely what the McWane doctrine seeks to prevent.”56 

However these claims may have originally been “captioned,” today this case 

involves a claim of professional malpractice and fraud against a healthcare 

provider and her practice. The parties are the same. The claims are functionally 

identical. Therefore, this Court answers the second inquiry of McWane in the 

affirmative.

III. McWane Inquiry Three: Alternate Capable Court

The third inquiry under McWane asks whether the out-of-state forum for the 

first-filed action is capable of delivering “prompt and complete justice.”57 Clearly,

the Pennsylvania Court of Common Pleas for Delaware County is “capable of 

delivering prompt and complete justice” in Plaintiff‟s multiple claims because it is 

both a court of general jurisdiction and sits in the county where the alleged conduct 

took place.

Plaintiff argues that the Pennsylvania court “may or may not” be capable of 

meeting this final inquiry under McWane because Defendants have failed to offer 

“evidentiary support for their conclusory assertion” to the contrary.58 Plaintiff 

 

56 Def. Br. at 7 (citing McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 

A.2d 281, 283 (Del. 1970)).

57 McWane, 263 A.2d at 283. 

58 Pl. Br. at ¶ 17.
15

contends, in essence, that Defendants must engage in a survey of Pennsylvania and 

Delaware law under McWane to determine if all the counts in the Delaware action 

are viable under Pennsylvania law.59 Plaintiff‟s assertion is incorrect. This type of 

showing is simply not applicable to the McWane doctrine.60 This Court, therefore,

finds that the Pennsylvania Court of Common Pleas is capable of handling the 

present claims, including the contract-based claims alleged in the Delaware action. 

The “Law of the Case” Doctrine

Plaintiff further argues that the “law of the case” doctrine bars relitigation of 

the issues presented in Defendants‟ Motion to Dismiss filed in the Court of 

Common Pleas. Plaintiff‟s argument is one of estoppel: since the Court of 

Common Pleas considered this issue earlier in the case, Plaintiff argues that this 

Court may not revisit that earlier decision. In response, Defendants argue that the 

factual basis for the Order denying the motion has changed substantially. 

 

59 See id. (“Does Pennsylvania law track Delaware law count-for-count with the same elements, 

evidentiary burdens, and statutes of limitation? Defendants do not say.”).

60 Defendants were “puzzled” by Plaintiff‟s assertion that they would need to prove that 

Pennsylvania was an adequate forum for the Delaware claims. Def. Rep. Br. at 4. Additionally, 

the claims in the Delaware action (unjust enrichment, conversion, breach of contract, replevin, 

and bailment) are fully available under Pennsylvania law. See, e.g., Telwell Inc. v. Grandbridge 

Real Estate Capital, LLC, 2016 WL 4035675, at *6 (Pa. Super. Ct. July 21, 2016) (discussing 

common law elements of unjust enrichment under Pennsylvania law); Pittsburgh Const. Co. v. 

Griffith, 834 A.2d 572 (Pa. Super. Ct. 2003) (breach of contract and conversion under 

Pennsylvania law); Beachwoods Flying Serv. Inc. v. Al Hamilton Contracting Corp., 464 A.2d 

440, 442-43 (Pa. Super. Ct. 1983) (replevin and bailment under Pennsylvania law).
16

Specifically, in the intervening period, Plaintiff has filed a Complaint in 

Pennsylvania and is actively litigating the case there. 

“Under the „law of the case doctrine,‟ a court‟s legal ruling at an earlier 

stage of proceedings controls later stages of those proceedings, provided the facts 

underlying the ruling do not change.”61 This doctrine is flexible “in that, unlike 

res judicata, it is not an absolute bar to reconsideration of a prior decision that is 

clearly wrong, produces an injustice or should be revisited because of changed 

circumstances.”62 As such, the “law of the case doctrine” is akin to the stare 

decisis doctrine.63

The Court of Common Pleas‟ November 20, 2015 Order states: “Although 

there is another litigation involving the same parties and similar issues pending in 

Pennsylvania, there has been no progress in the Pennsylvania proceeding other 

than the filing of a writ granting Plaintiff an extension of time in which he may file 

a Complaint.”64 Subsequent to this Order, Plaintiff chose to file his civil action in 

Pennsylvania. Certainly, the facts of the underlying ruling have changed since 

 

61 Nationwide Emerging Managers, LLC v. Northpointe Holdings, LLC, 112 A.3d 878, 894-95 

(Del. 2015) (emphasis added).

62 Gannet Co., Inc. v. Kanaga, 750 A.2d 1174, 1181 (Del. 2000).

63 See id. at 1181-82 (quoting Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 866 

(1992)).

64 Order at 2 (emphasis added).
17

progress has been made by Plaintiff‟s own actions. His decision to litigate his 

claims in Pennsylvania cannot be overlooked. Accordingly, and by the express 

language of the “law of the case” doctrine, the doctrine does not bar relitigation of

McWane because the facts of the underlying ruling have changed.65

CONCLUSION

The McWane doctrine permits the trial judge to either stay or dismiss the 

claim if all three inquiries are answered in the affirmative. Here, McWane applies 

in full. Moreover, since the Pennsylvania case is now progressing through the 

Court of Common Pleas in Delaware County, the reason for remaining in 

Delaware—the jurisdiction second-in-time to Pennsylvania—appears at odds with 

the policy interests McWane seeks to protect.

66

 This Court finds that Plaintiff‟s

 

65 See Northpointe, 112 A.2d at 895. Plaintiff argued at oral argument—for the first time—that 

Defendants must satisfy the procedural requirements under DEL. SUPER. CT. CIV. R. 60 in order 

to relitigate the McWane doctrine on the present Motion. Assuming 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). The McWane Court explained that deference to the first-filed forum: 

avoid[s] the wasteful duplication of time, effort, and expense that 

occurs when judges, lawyers, parties, and witnesses are 

simultaneously engaged in the adjudication of the same cause of 

action in two courts. Also to be avoided is the possibility of 

inconsistent and conflicting rulings and judgments and an 

unseemly race by each party to trial and judgment in the forum of 

its choice. Public regard for busy courts is not increased by the 

unbusinesslike and inefficient administration of justice such 

situation produces.
18

case should be dismissed under the McWane doctrine so as to avoid duplicative 

and inefficient administration of claims arising out of a common nucleus of 

operative facts. Accordingly, Defendants‟ Motion to Dismiss is GRANTED

without prejudice.

IT IS SO ORDERED. 

/s/ Vivian L. Medinilla

Judge

oc: Prothonotary

cc: All Counsel of Record (via e-filing)

 

Id.