IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LINCOLN BENEFIT LIFE COMPANY, )

)

Plaintiff/ )

Counterclaim-Defendant, )

)

v. ) C.A. No. N17C-08-301 ALR

)

WILMINGTON TRUST, N.A., )

as Securities Intermediary, )

)

Defendant/ )

Counterclaim-Plaintiff. )

Submitted: January 17, 2019

Decided: March 21, 2019

Upon Defendant’s Motion to Stay

GRANTED

MEMORANDUM OPINION

Joseph C. Schoell, Esq., Drinker Biddle & Reath LLP, Wilmington, Delaware, Jason 

P. Gosselin, Esq., Katherine L. Villaneuva, Esq., Christopher F. Petrillo, Esq., 

Drinker Biddle & Reath LLP, Philadelphia, Pennsylvania, Attorneys for Plaintiff.

Steven L. Caponi, Esq. K&L Gates LLP, Wilmington, DE, Attorney for Defendant.

Rocanelli, J.
1

Defendant Wilmington Trust, N.A., as Securities Intermediary, has moved to 

stay this action in favor of a pending action in a Mississippi federal court between 

the same parties and involving the same issues. Plaintiff Lincoln Benefit Life 

Company opposes the motion to stay. Previously, this Court declined to dismiss this 

action on the basis of forum non conveniens finding Wilmington Trust did not meet 

the high burden required to deprive a plaintiff of its choice of forum.

1

 

FACTUAL AND PROCEDURAL BACKGROUND

In October 2007, Lincoln Benefit, a Nebraska life insurance company, issued 

a life insurance policy on the life of Adele Frankel (“Policy”) to a Mississippi trust. 

Upon the death of Ms. Frankel in August 2016, Wilmington Trust, which holds the 

Policy as Securities Intermediary, made a demand to Lincoln Benefit for the Policy 

proceeds to be paid (“Claim”). While the Claim was under review–in other words, 

before responding to Wilmington Trust–Lincoln Benefit filed this declaratory 

judgment action on August 23, 2017, seeking a declaration that the Policy is void ab 

initio under Mississippi insurable interest laws (“Delaware Declaratory Judgment 

Action”). According to Lincoln Benefit, the Policy was fraudulently procured as 

part of a stranger-originated life insurance (“STOLI”) scheme contrary to 

Mississippi law. Shortly thereafter, on September 22, 2017, Lincoln Benefit filed a 

 

1 See Lincoln Benefit Life Co. v. Wilmington Trust, N.A., 2018 WL 1638871 (Del. 

Super. Apr. 5, 2018) (MEMORANDUM OPINION AND ORDER).
2

lawsuit in the United States District Court for the Northern District of Mississippi, 

Oxford Division (“Mississippi Federal Court”) asserting claims for breach of 

contract, bad faith, and fraud, and seeking payment of the Claim or, in the alternative, 

the return of the Policy premiums (“Mississippi Action”).2

The two lawsuits have proceeded on parallel tracks with competing pretrial 

motions and coordinated discovery.

3 On October 20, 2017, Wilmington Trust 

moved to dismiss the Delaware Declaratory Judgment Action in favor of its secondfiled suit in the Mississippi Federal Court, asking this Court to exercise its discretion 

on the basis of forum non conveniens. Soon thereafter, on October 30, 2017, Lincoln 

Benefit moved to dismiss the Mississippi Action, arguing that the Mississippi

Federal Court lacks personal jurisdiction over Lincoln Benefit and also asking that 

the Mississippi Federal Court refrain from hearing the case under the Colorado River

abstention doctrine.

4

 

 

2 Wilmington Trust, N.A. v. Lincoln Benefit Life Co., C.A. No. 3:17-cv-185-SA-RP 

(N.D. Miss.).

3 The Mississippi Federal Court granted the parties permission to use and rely upon 

any discovery that has been given or obtained in connection with the Delaware 

Declaratory Judgment Action to the same extent as if it had been given or obtained 

in connection with the Mississippi Action. Wilmington Trust, N.A., v. Lincoln Benefit 

Life Co., C.A. No. 3:17-cv-185-SA-RP, at 3 (N.D. Miss. Dec. 3, 2018) (ORDER).

4 Colo. River Water Conservation Dist. v. United States, 424 U.S. 800, 818-19 

(1976) (explaining that circumstances allowing dismissal of a federal suit due to the

presence of a concurrent state proceeding for reasons of wise judicial administration, 

though exceptional, do nevertheless exist).
3

Thus, motions were pending in both courts with each plaintiff asking each 

court to defer to the other litigation. This Court denied the motion to dismiss the 

Delaware Declaratory Judgment Action by Memorandum Opinion and Order dated 

April 5, 2018. Just a few months later,5 on September 18, 2018, the Mississippi 

Federal Court denied Lincoln Benefit’s motion to dismiss, finding, among other 

things, that the exercise of personal jurisdiction over Lincoln Benefit was 

appropriate.6

Parallel challenges continued in both jurisdictions. Upon motion by Lincoln 

Benefit, the Mississippi Federal Court declined to stay the Mississippi Action by 

Order dated December 3, 2018.7 Wilmington Trust filed a motion for judgment on 

the pleadings, decision on which is stayed in the Delaware Declaratory Judgment 

Action. Wilmington Trust now seeks to stay the Delaware Declaratory Judgment 

Action in favor of the Mississippi Action. In the meantime, a motion for summary 

 

5 Decisions on the pending motions were subject to similar internal court guidelines 

for prompt decision-making. This judicial officer was prepared to defer to a decision 

by the Mississippi Federal Court to adjudicate that case to conclusion. However, 

decision by the Mississippi Federal Court was delayed when the Mississippi Action 

was reassigned to a different judge after the motion to dismiss had been pending for 

several months.

6 Wilmington Trust, N.A. v. Lincoln Benefit Life Co., 328 F.Supp.3d 586, 597 (N.D. 

Miss. 2018). 

7 Wilmington Trust, N.A., v. Lincoln Benefit Life Co., C.A. No. 3:17-cv-185-SA-RP, 

at 3 (N.D. Miss. Dec. 3, 2018) (ORDER).
4

judgment was filed on behalf of Wilmington Trust in the Mississippi Action on 

February 27, 2019.

The Delaware Declaratory Judgment Action is scheduled for a 5-day trial on 

September 9, 2019. The Mississippi Action is scheduled for trial in December of 

2019. Accordingly, not only has the Mississippi Federal Court asserted jurisdiction 

and expressed a preference to resolve this dispute, but the Court has set a trial date 

which is nearly contemporaneous to the trial date in Delaware.

LEGAL STANDARD

The granting of a stay in favor of a foreign action is not a matter of right, but

rests within the sound discretion of the trial court.8 In considering a motion to stay, 

the threshold inquiry of determining the applicable standard is dependent upon the 

circumstances surrounding the filing of the actions.9

Where one of two “competing” actions is filed before the other, the McWane

standard controls and the first-filed action is generally entitled to preference.10 The 

Court’s discretion should be exercised freely in favor of a stay when there is a prior 

 

8 BP Oil Supply Co. v. Conoco Phillips Co., 2010 WL 702382, at *2 (Del. Super. 

2010).

9

Id.

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

283 (Del. 1970); Rosen v. Wind River Systems, Inc., 2009 WL 1856460, at *3 (Del. 

Ch. June 26, 2009).
5

action involving the same parties and issues that are pending elsewhere in a court 

that is capable of doing prompt and complete justice.11 

In contrast, where two or more actions are contemporaneously filed, the 

Court examines a motion to stay under the traditional forum non conveniens

framework without regard to a McWane-type preference of one action over the 

other.12 To justify a stay where the actions are contemporaneously filed, generally 

“the movant need only demonstrate that the preponderance of applicable forum 

factors ‘tips in favor’ of litigating the dispute in the non-Delaware forum.”

13

 

However, when granting a stay of a contemporaneously filed action on forum non 

conveniens grounds would likely have the same ultimate effect as dismissal, the 

movant must demonstrate that litigating in Delaware would cause overwhelming 

hardship and inconvenience.

14

When parties are simultaneously engaged in the adjudication of the same 

cause of action in two courts, regardless of which action is considered first-filed, the 

 

11 McWane Cast Iron Pipe Corp., 263 A.2d at 283; Rosen, 2009 WL 1856460, at *3.

12 National Union Fire Ins. v. Turner Constr., 2014 WL 703808, at *2 (Del. Super. 

Feb. 17, 2014) (citing Rosen, 2009 WL 1856460, at *3.).

13 BP Oil Supply Co., 2010 WL 702382, at *2 (citing Azurix Corp. v. Synagro 

Technologies, Inc., 2000 WL 193117, at *5 (Del. Ch. Feb. 3, 2000)). Under these 

circumstances, “...balancing all of the relevant factors, the focus of the analysis 

should be which forum would be the more ‘easy, expeditious, and inexpensive’ in 

which to litigate.” National Union Fire Ins., 2014 WL 703808, at *2.

14 BP Oil Supply Co., 2010 WL 702382, at * 2 (citing In re Citigroup Inc. S’holder 

Derivative Litig., 964 A.2d 106, 117 (Del. Ch. 2009)).
6

Court’s discretion must always be informed by principles of comity and necessities 

of an orderly and efficient administration of justice.15 The unseemly race by each 

party to judgment in the forum of its choice and the possibility of inconsistent rulings 

is to be avoided.16

DISCUSSION

Simultaneous litigation of the dispute in both Delaware and Mississippi poses 

a risk of inconsistent rulings and militates in favor of a stay. Under the 

circumstances presented here, the motion to stay is not subject to the same 

“overwhelming hardship” standard that governed the motion to dismiss previously 

denied by this Court. The relative hardships to the parties and concerns for judicial 

economy have changed since denying the motion to dismiss. In the interest of 

judicial economy and given the unacceptable possibility of inconsistent verdicts, the 

Delaware Declaratory Judgment Action should be stayed as set forth in the following 

discussion.

I. The Delaware Declaratory Judgment Action is Not Entitled to Great 

Deference as First-Filed.

As a preliminary matter, the Court must first consider the circumstances 

surrounding the filing of the actions to determine whether the Delaware Declaratory 

Judgment Action is entitled to deference as the first-filed action or if the actions 

 

15 Rosen, 2009 WL 1856460, at *3.

16 McWane Cast Iron Pipe Corp., 263 A.2d at 283.
7

should be considered contemporaneously filed for purposes of this motion. This is 

a question of fact determined by reference to the underlying procedural history.17 

The Court’s analysis is informed by its “complementary objectives of discouraging 

both forum shopping and contrived races to the courthouse.”18 When determining if 

deference is appropriate, the Court looks at the natural alignment of the parties and 

may consider if the suits were filed within the same general time frame or in 

anticipation of litigation.19“Where the actions were filed within the same general 

time frame, the Court considers the actions simultaneously filed so as to avoid a 

‘race to the courthouse.’”20 Moreover, a first-filed declaratory judgment action 

brought in an anticipatory nature is not entitled to the deference generally afforded 

to a plaintiff’s choice of forum.

21

In Playtex, Inc. v. Columbia Cas. Co., a foreign action seeking a declaration 

of rights and obligations under an insurance policy was filed in anticipation of an 

action for damages filed by the natural plaintiff.22 Although the foreign action was 

first filed in Playtex, the Court did not attribute this choice of forum the deference 

 

17 Rapoport v. The Litigation Trust of MDIP INC., 2005 WL 3277911, at *2 (Del. 

Ch. Nov. 23, 2005). National Union Fire Ins., 2014 WL 703808, at *2; Playtex, Inc. 

v. Columbia Casualty Co., 1989 WL 40913, at *4 (Del. Super. Apr. 25, 1989).

18 Rapoport, 2005 WL 3277911, at *2.

19 National Union Fire Ins., 2014 WL 703808, at *2-3.

20 Id. at *2.

21 Playtex, Inc., 1989 WL 40913, at *5.

22 Id. at *4.
8

typically afforded.23 The Court found that it was “reasonable to presume that [the 

natural plaintiff] would have filed suit if [the insurer] had denied coverage.”24 

Similarly, in National Union Fire Ins., v. Turner Constr. Co., the Court found 

the issue of whether two actions involving the same parties were filed 

contemporaneously to be a close question when the first-filed declaratory action was 

filed in Delaware just nine days before the foreign action was filed.25 The National 

Union Court found that the first-filed Delaware action was a declaratory judgment 

action brought in anticipation of litigation that would be brought by the natural 

plaintiffs and that the parties were actually properly aligned in the foreign action as 

natural plaintiff and defendant.26 Taking these circumstances into account, the 

National Union Court balanced the forum non conveniens factors without great 

deference to the first-filed Delaware action.

In its decision addressing the Wilmington Trust’s motion to dismiss, this 

Court treated this Delaware Declaratory Judgment Action as first-filed for the 

purposes of a forum non conveniens analysis and gave great weight to Lincoln 

Benefit’s choice of forum. Consideration was appropriate at that stage. Now, given 

the more well-developed record, and in consideration of the decisional law on 

 

23 Id. at *5.

24 Id.

25 2014 WL 703808 at *4.

26 Id.
9

anticipatory declaratory judgment actions, the Delaware Declaratory Judgment 

Action is not entitled to deference as a first-filed action. At the time the Delaware 

Declaratory Judgment Action was commenced, Lincoln Benefit had still not denied 

Wilmington Trust’s claim, and Wilmington Trust could not initiate a lawsuit in 

Mississippi or elsewhere because there was no dispute ripe for adjudication.

27

 Once 

Lincoln Benefit denied the claim for death benefits, Wilmington Trust, arguably the 

natural plaintiff, filed the Mississippi Action within thirty days of the Delaware 

Declaratory Judgment Action being initiated by Lincoln Benefit. Taking into 

account the natural alignment of the parties and the anticipatory filing of a 

declaratory judgment action, the actions were contemporaneously filed, and this 

 

27 During oral argument, this Court learned of other similar lawsuits filed in 

Delaware which also involve competing actions in foreign jurisdictions, though 

involving different underlying life insurance policies. See Lincoln Benefit Life Co. 

v. Wilmington Trust, N.A., N18C-02-168 MMJ CCLD (Del. Super.); Lincoln Benefit 

Life Co. v. Wilmington Trust, N.A., N18C-01-082 EMD CCLD (Del. Super.). This

Court would be remiss if it did not note its disappointment that counsel failed to alert 

the Court each time a related action was filed. This Court requires that “[e]very 

newly filed complaint shall be accompanied by a Case Information Statement (CIS)” 

listing any related cases either pending or recently resolved in the Superior Court. 

Sup. Ct. Civ. R. 3. The purpose of this requirement is to ensure that related actions 

will be assigned to the same judge to improve judicial economy and reduce the risk 

of inconsistent decisions. To that point, the jurisdictional challenges have been the 

same in the other Delaware litigation. In a decision staying one of these cases in 

favor of a first-filed competing action in a foreign jurisdiction, the Court noted “the 

machinations of both Lincoln Benefit and Wilmington Trust concerning the filing of 

lawsuits in anticipation of litigation.” Lincoln Benefit Life Co. v. Wilmington Trust, 

N.A., N18C-01-082 EMD CCLD, at *8 (Del. Super. July 31, 2018). Accordingly, 

the same issues are pending before multiple Delaware judges – exactly the scenario 

the requirements of Rule 3 intend to avoid. 
10

Court will balance the forum non conveniens factors and weigh any hardship without 

great deference to either party’s choice of forum.

II. Forum Non Conveniens Analysis: The Overwhelming Hardship 

Standard Applies.

Delaware courts determine whether to stay an action based on forum non 

conveniens by evaluating six factors: 

(1) whether Delaware law applies;

(2) the relative ease of access to proof;

(3) the availability of compulsory process for witnesses;

(4) the possibility of viewing the premises;

(5) the pendency or nonpendency of a similar action or actions in 

another jurisdiction; and

(6) all other practical considerations that would make the trial easy, 

expeditious, and inexpensive.28 

The Delaware Declaratory Judgment Action and the Mississippi Action are 

proceeding contemporaneously as discovery is ongoing and applicable regardless of 

where the dispute is ultimately resolved. Wilmington Trust’s motion for judgment 

on the pleadings is currently pending in the Delaware Declaratory Judgment Action,

and a motion for summary judgment is pending in the Mississippi Action.

The Mississippi Federal Court has declined to stay or dismiss the Mississippi 

Action in favor of the Delaware Declaratory Judgment Action. The Mississippi 

Federal Court, which is capable of prompt and complete justice, has made it clear 

 

28 Miller v. Phillips Petroleum Co. Norway, 537 A.2d 190, 202 (Del. 1988) (citing 

Parvin v. Kaufmann, 236 A.2ds 425, 427 (Del. 1967); General Foods Corp. v. CryoMaid, Inc., 198 A.2d 681, 684 (Del. 1964)).
11

that it intends to exercise jurisdiction over this dispute.

29

 Thus, one or more of the 

forum non conveniens factors, either separately or together, must subject 

Wilmington Trust to sufficient hardship to warrant staying the Delaware Declaratory 

Judgment Action in favor of the Mississippi Action.

30

III. Wilmington Trust Has Satisfied Its Burden of Showing Hardship 

Which Entitles Wilmington Trust to a Stay of the Delaware 

Declaratory Judgment Action.

Litigating the Delaware and Mississippi Actions simultaneously poses a risk 

of inconsistent rulings. While this Court is well-equipped to decide the Delaware 

Declaratory Judgment Action, including rulings on matters of Mississippi state law, 

principles of comity and judicial economy must always inform the Court’s decision 

of whether to stay an action. Thus, the pendency of an identical action filed in 

Mississippi Federal Court, as well as practical considerations, concerns for judicial 

 

29 See Wilmington Trust, N.A., 328 F.Supp.3d at 597. The Mississippi Federal Court 

concluded that it is better able than the Delaware Superior Court to address issues of 

Mississippi state law. Id. at n. 3 (“Obviously, this court has more experience in 

applying Mississippi law than a Delaware state court does, and this constitutes a 

rather strong reason not to abstain from hearing this case.”). As previously noted, 

this Court is confident that it is well-equipped to interpret the state law of another 

jurisdiction. Moreover, while the United States District Court for the Northern 

District of Mississippi may be physically located in Mississippi, it is a federal court 

without a strong interest in interpreting Mississippi state law. See PHL Variable Ins. 

Co. v. Price Dawe 2006 Ins. Trust, 28 A.3d 1059 (Del. 2011) (answering certified 

questions from the Delaware District Court on insurance issues and illustrating that 

a federal court has no authority to interpret the state law of the state in which it 

physically sits).

30 In re Citigroup Inc., 964 A.2d at 117 (citing to Bear Stearns at *5).
12

economy, and the possibility of inconsistent verdicts creates sufficient hardship and 

inconvenience to justify stay of the Delaware Declaratory Judgment Action. 

The Delaware Declaratory Judgment Action is scheduled for trial in 

September 2019. The Mississippi Action is scheduled for trial merely ninety days 

later, in December 2019. Accordingly, the trial schedule in the Mississippi Federal 

Court will not unduly delay resolution of the dispute.31 A stay of Delaware 

proceedings is warranted.

CONCLUSION

In consideration of the pendency of a similar action involving the same parties 

and issues in a court that is capable of doing prompt and complete justice, as well as

the risk of inconsistent rulings, the Court finds that litigating the Delaware 

Declaratory Judgment Action presents overwhelming hardship and inconvenience.

The Mississippi Federal Court is proceeding toward a timely resolution of the 

Mississippi Action. Allowing this Delaware Declaratory Judgment Action to 

proceed simultaneously with the Mississippi Action will not promote comity or the 

necessities of an orderly and efficient administration of justice. This Delaware 

Declaratory Judgment Action is therefore hereby stayed until final resolution of the 

 

31 In the event that trial of the Mississippi Action is delayed, this Court will entertain 

a motion to lift the stay and schedule trial of the Delaware Declaratory Judgment 

Action in an expedited manner. The parties would not be prejudiced by such a 

ruling, as both actions are subject to the same discovery per the Mississippi Federal 

Court’s recent Order.
13

related action pending before the United States District Court for the Northern 

District of Mississippi.

IT IS SO ORDERED.

Andrea L. Rocanelli

_______________________________

The Honorable Andrea L. Rocanelli