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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 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.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 costprohibitive. 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.