IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

NATIONAL UNION FIRE INSURANCE 

COMPANY OF PITTSBURGH, PA.,

 Plaintiff, 

 v. 

 

FEDEX CORP., FEDEX GROUND 

PACKAGE SYSTEM, INC., GREAT 

AMERICAN INSURANCE COMPANY 

OF NEW YORK, and LIBERTY 

MUTUAL INSURANCE EUROPE 

LIMITED,

 

 Defendants.

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) C.A. No.: N22C-08-488 EMD CCLD 

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Submitted: May 26, 20231

Decided: July 18, 2023

Upon the Defendants’ Motion to Dismiss or, in the alternative, Stay First Amended Complaint 

and Cross-Claim of Liberty Mutual Insurance Europe Limited

GRANTED

Robert Cahall, Esquire, McCormick & Priore, P.C., Newark, Delaware, Daniel McNeel Lane, 

Jr., Esquire, Kelly A. Potter, Esquire, Norton Rose Fulbright US LLP, San Antonio, Texas, Mina 

Matin, Esquire, Lisa Schapira, Esquire, Norton Rose Fulbright US LLP, New York, New York. 

Attorneys for Plaintiff National Union Fire Insurance Company of Pittsburgh, PA.

Steven L. Caponi, Esquire, Matthew B. Goeller, Esquire, Megan E. O’Connor, Esquire, K&L 

Gates LLP, Wilmington, Delaware, Carolyn M. Branthoover, Esquire, Jessica L.G. Moran, 

Esquire, K&L Gates LLP, Pittsburgh, Pennsylvania. Attorneys for Defendants FedEx Corp. and 

FedEx Ground Package System, Inc.

Richard M. Beck, Esquire, Sally E. Veghte, Esquire, Klehr Harrison Harvey Branzburg LLP, 

Wilmington, Delaware, James P. Ruggeri, Esquire, Edward B. Parks, II, Esquire, Sean T. Kelly, 

Esquire, Ruggeri Parks Weinberg LLP, Washington, D.C. Attorneys for Defendant Great 

American Insurance Company of New York. 

1 D.I. No. 59.
2

Marc S. Casarino, Esquire, Kennedys CMK LLP, Wilmington, Delaware. Attorney for 

Defendant and Counterclaim Plaintiff Liberty Mutual Insurance Europe SE.

DAVIS, J.

I. INTRODUCTION

This action is an insurance coverage dispute contract claim assigned to the Complex 

Commercial Litigation Division of the Court. Plaintiff National Union Fire Insurance Company 

of Pittsburgh, PA (“National Union”) commenced this action against Defendants FedEx Corp. 

(“FedEx Corp.”); FedEx Ground Package System, Inc. (“FedEx Ground”) (together, “FedEx”), 

Great American Insurance Company of New York (“GAIC”), and Liberty Mutual Insurance 

Europe Limited (“LM”). 

FedEx filed a Motion to Dismiss, or in the Alterative, Stay First Amended Complaint and 

Cross-Claim of LM (the “Motion”), asserting that, under the doctrines of comity and forum non 

conveniens, the Court should dismiss or stay the present action (the “Delaware Action”) due to 

the currently pending and more comprehensive Pennsylvania suit (the “Pennsylvania Action”). 

FedEx maintains that the Pennsylvania action is based on the same legal issues and facts raised 

in this action. FedEx contends that for purposes of comity, this action is not entitled to any 

deference as the first-filed action (despite the Pennsylvania Action being filed after National 

Union initiated this suit) because National Union filed this action in anticipation that FedEx 

would file a breach of contract claim against National Union in another jurisdiction. 

FedEx also alleges that the LM and GAIC’s cross-claims against FedEx should be stayed 

under the McWane factors, as the cross-claims are second-filed to the Pennsylvania Action, in 

which FedEx brought LM and GAIC as defendants in a breach of contract suit. 

For the reasons stated below, the Motion is GRANTED. The Court will issue the stay 

solely on comity grounds. The Court provides an alternative forum non conveniens analysis that 
3

demonstrates the case could proceed here; however, the Pennsylvania Court (as defined below) 

has manifested a desire to address the disputes of the parties on an efficient basis. As such, 

comity warrants a stay of this action pending further developments in the Pennsylvania Action

(as defined below).

II. RELEVANT FACTS

A. THE PARTIES

National Union is a Pennsylvania corporation with its principal place of business in New 

York, New York.2 

FedEx Corp. is a Delaware corporation with its principal place of business in Memphis, 

Tennessee.3

FedEx Ground is a Delaware corporation with its principal place of business in Moon 

Township, Pennsylvania. FedEx Ground is a wholly owned subsidiary of FedEx Corp.4

GAIC is a New York corporation with its principal place of business in Cincinnati, Ohio.5

LM is a foreign corporation with its principal place of business in Leudelange, Grand 

Duchy of Luxembourg.6

B. THE INSURANCE POLICIES

FedEx Ground maintains a liability insurance program which is renewed annually. 

During the relevant period between October 1, 2011, and October 1, 2012, FedEx Ground was 

covered under six (6) excess liability insurance policies.7

2 First Amended Complaint for Declaratory Judgment (“Amend. Compl.”) ¶ 20.

3

Id. ¶ 21.

4

Id. ¶ 22.

5

Id. ¶ 23.

6 Liberty Mutual’s Answer (“LM Answer”) ¶ 24.

7 Defendants’ Motion to Dismiss (the “Mot.”) at 5.
4

National Union’s commercial umbrella liability policy (the “NU Policy”) served as the 

first-layer of the six excess liability insurance policies for FedEx Ground.8 The NU Policy 

provided for an excess coverage of up to $50 million for each occurrence of liability.9 Under the 

NU Policy, FedEx Ground maintained responsibility for a self-insured Retained Limit amount of 

$10 million for assuming its own defense in lawsuits for personal and bodily injury claims.10

The NU Policy declared that National Union was not obligated to defend or pay for defense costs 

for actions against FedEx Ground until FedEx Ground exhausted the Retained Limit amount due 

to “Loss,” i.e., “sums actually paid as judgments or settlements.”11 Upon exhaustion of the $10 

million Retained Limit for “Loss,” under Section III.A titled “Defense Provisions,” the NU 

Policy obligated National Union to defend FedEx Ground in any suit seeking damages for 

personal and bodily injury, and make indemnification payments to FedEx Ground for any postjudgment interest arising out of the suits.12

GAIC’s policy provided the third layer of excess liability coverage to FedEx between the 

relevant period of October 1, 2010, and October 1, 2011 (the “GAIC Policy”).13 The GAIC 

Policy provided “coverage up to a per Occurrence and Aggregate Limit of $50,000,000 excess of 

$100,000,000 in ‘Underlying Limits of Insurance.’”14 As such, GAIC would pay up to 

$50,000,000 to FedEx after the underlying first- and second-layer insurers have already paid out 

$100,000,000 in total. The GAIC Policy followed the terms, definitions, conditions, and 

exclusions of the NU Policy except for certain modifications.15 As discussed below, GAIC paid 

8 Amend. Compl. ¶ 30; Mot. at 5.

9 Amend. Compl. ¶¶ 32-33; National Union Commercial Umbrella Liability Policy for FedEx (“NU Policy”) 

Declarations Item 3A, Section 1(A)-(B), Section IV(A). 

10 Amend. Compl. ¶ 35.

11 Id. ¶ 35; NU Policy at 20.

12 Amend. Compl. ¶ 37; NU Policy § III.A (as amended by Endorsement Number 26).

13 Amend. Compl. ¶ 47. 

14 Id. 

15 Id. ¶ 49. The differing terms and clauses from the NU Policy are not relevant for purposes of this suit.
5

an indemnity amount of $47,168,750 to FedEx/FedEx Ground in relation to the original Morga 

Judgment.16

LM’s policy provided the fifth layer of excess liability coverage to FedEx between the 

relevant period of October 1, 2010, and October 1, 2011 (the “LM Policy”).17 The LM Policy 

provided “coverage up to a per Occurrence and Aggregate Limit of $50,000,000 excess of 

$250,000,000, which is in turn ‘excess of various insurances and/or retentions as more fully set 

forth in the Lead Underlying Policy.’”18 Like the GAIC Policy, the LM Policy followed the 

terms, definitions, conditions, and exclusions of the NU Policy except for certain 

modifications.19 The LM Policy did not apply until the Underlying Insurers “have paid or have 

been held liable to pay the full amount of their respective Limit(s) of Liability . . . .”20

The three other remaining (second, fourth, and sixth layer) excess liability policies of the 

six total included arbitration clauses, and as such, those insurers are not parties to this suit. 

C. THE MORGA ACTION

On or around June 22, 2011, a FedEx owned tractor trailer was involved in an accident 

with a pickup truck, resulting in the deaths of a 21-year-old woman and her 4-year-old daughter, 

and injuries to the woman’s nineteen-month-old son.21 Alfredo Morga and other plaintiffs filed 

suit in New Mexico against FedEx Corp, FedEx Ground, and other defendants in response to the 

accident (the “Morga Action”).22 On or around January 23, 2015, a jury awarded the Morga

Action plaintiffs $165,533,000 in damages, with FedEx Ground and its agents liable for 

16 Id. ¶ 52.

17 Id. ¶ 53.

18 Id.

19 Id. ¶ 55. The differing terms and clauses from the NU Policy are not relevant for purposes of this suit.

20 Id.

21 Id. ¶ 59.

22 Id.
6

$157,256,350 of that total (the “Morga Judgment”).23 After the trial, the Morga Action 

defendants sought a remitter of the damages, arguing that the jury verdict was excessive.24 The 

Morga Action plaintiffs then sought pre-judgement interest, which was awarded at an annual rate 

of 5%, amounting to $20,908,670.38 upon the final judgment date of April 3, 2015.25

Under New Mexico Law, post-judgment interest accrues at a rate of 15% from the date of 

entry of a judgment based on tortious conduct, bad faith or intentional or willful acts.26 As such, 

the Morga Judgment began accruing a 15% post-judgment interest rate on April 3, 2015.27 

On August 24, 2015, FedEx Ground filed a notice of appeal with the New Mexico Court 

of Appeals.28 The appeals court affirmed the Morga Judgment on February 6, 2018.29 In March 

2018, FedEx Ground initiated an appeal to the NM Supreme Court (the “Morga Appeal”).30 On 

May 19, 2022, the NM Supreme Court affirmed the Morga Judgment, and published its opinion 

on July 12, 2022.31 National Union, LM, and GAIC were not involved in the Morga Action 

appeal process because FedEx Ground hired its own counsel for both appeals.32 As of June 

2022, the post-judgment interest on the Morga Judgment accrued to an amount of $188 

Million.33 FedEx also incurred nearly $21,000,000 in pre-judgment interest.34 FedEx paid the 

pre- and post-judgment interest amounts to the underlying plaintiffs.35

23 Id. ¶ 60.

24 Id. ¶ 61.

25 Id.

26 Id. ¶ 7.

27 Id.

28 Id. ¶ 62.

29 Id.

30 Id. ¶ 63.

31 Id.

32 Id. ¶¶ 64-68.

33 Id. ¶ 7. It is likely that the current amount of post-judgment interest owed in the Morga judgment is higher, as the 

pleadings do not show that a stay was placed on the accrual of the post-judgment interest for purposes of the present 

litigation, or the PA suit.

34 Id.

35 Id.
7

On June 14, 2022, FedEx contacted National Union to request $50 Million in indemnity 

payments in satisfaction of the original Morga Judgment amount.36 Then, on June 15, 2022, 

FedEx’s counsel requested that the payment be made via wire transfer.37 National Union 

received the wire transfer instructions on June 22, 2022. National Union then made the 

indemnify payment of $50 million to the Morga Action plaintiffs on June 23, 2022.38 GAIC paid 

$47,168,750 in indemnify payments directly to FedEx in connection with the Morga Judgment.39

LM has not indemnified FedEx for any judgment amounts related to the Morga Judgment.40

D. CURRENT LITIGATION

National Union filed its Complaint against FedEx Ground and FedEx Corp with this 

Court on August 30, 2022.41 FedEx filed a Motion to Dismiss or Stay on September 28, 2022.42

National Union then filed an Amended Complaint on October 7, 2022, joining GAIC and LM as 

co-defendants, alleging that National Union is not obligated to indemnify FedEx Ground for any 

pre- and post-judgment interest amounts related to the Morga Judgment.43

National Union contends that under the NU Policy, National Union was obligated to 

defend FedEx Ground for the lawsuits only after FedEx Ground exhausted its $10 million 

Retained Limit for payment of “Loss,” which did not occur until June 2022, after the conclusion 

of both the Morga Action and the Morga Appeal. National Union states that because it did not 

opt to, nor had a duty to, undertake the subsequent appeals of the original Morga Judgment under 

the NU Policy, all pre- and post-judgment interest amounts are not indemnifiable to FedEx. 

36 Id. ¶ 85. 

37 Id. ¶ 86.

38 Id. ¶¶ 88-89.

39 Id. ¶ 52.

40 Id. ¶ 58.

41 D.I. No. 1. FedEx Ground filed its Pennsylvania Action on September 6, 2022, against National Union, LM, and 

GAIC.

42 D.I. No. 16.

43 Amend. Compl. (D.I. No. 19).
8

On September 6, 2022, FedEx initiated the Pennsylvania Action in the Court of Common 

Pleas of Alleghany County, Pennsylvania (the “Pennsylvania Court”).44 FedEx contends that the 

Pennsylvania Action is “significantly more comprehensive” than this case.45 FedEx bases this 

contention on the fact that it asserts more causes of action than would be asserted here in 

Delaware.46 All the claims, however, arise out of the same operative insurance policies.47

On October 21, 2022, LM filed an answer to National Union’s Amended Complaint, 

asserting affirmative defenses, a counterclaim against National Union, and cross-claims against 

FedEx and GAIC.48 LM’s counterclaim seeks to obtain a declaration of National Union’s rights 

and obligations to FedEx under the NU Policy with respect to coverage for the pre- and postjudgment interest accrued on the Morga Judgment.49 Additionally, LM’s cross-claim seeks to 

obtain a declaration of its rights and obligations under Liberty’s policy with respect to coverage 

for the pre- and post-judgment interest accrued on the Morga Judgment.50 

On November 7, 2022, FedEx filed a Motion to Dismiss or, in the Alternative, Stay First 

Amended Complaint and Cross-Claim of Liberty Mutual Insurance Europe Limited.51 FedEx 

argued that this action should be dismissed or stayed on grounds of comity or forum non 

conveniens, due to the pending and more comprehensive Pennsylvania Action filed by FedEx 

Ground on September 6, 2022.52 FedEx alleged that the Delaware action was filed by National 

Union in anticipation of FedEx Ground’s impending suit against National Union for its failure to 

pay for the pre- and post-judgment interest amounts. FedEx also argues that LM’s cross- and 

44 D.I. No. 30 at 9 (“Mot.”).

45 Id.

46 Id.

47 Id.

48 D.I. No. 22 (“LM Answer”).

49 Id. at 97.

50 Id.

51 D.I. No. 30.

52 Id. at 2.
9

counterclaims was a perpetuation of National Union’s “procedural gamesmanship” and should 

be stayed under McWane for failing to relate back to the original complaint.53

On November 7, 2022, GAIC filed an Answer to the First Amended Complaint seeking a 

declaratory judgment.

54

 GAIC maintains that it was not obligated to indemnify FedEx for the 

pre- or post-judgment interest arising of the Morga Judgment.55 GAIC stated that under the 

GAIC excess insurance policy, pre- and post-judgment interest amounts are “expressly 

considered as Defense Expenses, payable by the insured(s) until it/they satisfy the Retained 

Limit.”56 GAIC also alleges that because the Retained Limit ($10 Million) was not exhausted 

until sometime in June 2022, after the Morga Appeal concluded, the triggering event which 

would have obligated GAIC to indemnify FedEx for the pre- and post-judgment interest amounts 

never occurred.57 

On November 15, 2022, FedEx filed a Motion to Stay Declaratory Judgment Cross-Claim 

of Defendant Great American Insurance Company of New York.58 FedEx argued that GAIC’s 

cross-claims against FedEx should be stayed following the McWane doctrine and the “first-filed 

rule,” because GAIC’s cross-claims against FedEx were filed two months after FedEx 

commenced the PA Action against GAIC.59 FedEx contends that GAIC’s cross-claims against 

FedEx do not “relate back” to the original Complaint by National Union because GAIC was not 

a party to the original Complaint, and GAIC’s cross-claims are also independent from National 

Union’s claims.60 

53 Id. at 3.

54 D.I. No. 31 (“GAIC Answer”).

55 Id.

56 GAIC Answer ¶ 183.

57 Id. ¶¶ 183-184.

58 D.I. No. 34 (the “Mot. to Stay GAIC”).

59 Id. at 12-13.

60 Id. at 17.
10

On December 7, 2022, GAIC filed its Opposition to FedEx’s Motion to Stay Declaratory 

Judgment Cross-Claims of GAIC.61 On that same date, LM filed its Opposition to FedEx’s 

Motion to Dismiss or Stay the Amended Complaint and LM’s cross-claims.62

On December 7, 2022, National Union filed its Opposition to FedEx’s Motion to Dismiss 

or Stay.63 National Union disagrees with FedEx’s arguments that this action should be dismissed 

or stayed due to the alleged, more “comprehensive” nature of the PA action. National Union 

argues that having more claims does not make an action more “comprehensive.”

64 Additionally, 

National Union reaffirms that, based on forum non conveniens factors, Delaware remains the 

proper forum for the dispute and the PA action does not receive the benefit of the “first filed 

rule” under Delaware caselaw, nor should it be treated as “contemporaneously filed” by the 

Court.65

On December 22, 2022, FedEx filed its Reply Brief in support of its motion to dismiss or 

stay National Union’s Amended Complaint.66 On the same day, FedEx also filed its Reply Brief 

in support of its motions to stay GAIC and LM’s cross-claims.67

III. PARTIES’ CONTENTIONS

A. THE MOTION

FedEx seeks to dismiss or stay the Delaware Action based on grounds of comity or forum 

non conveniens. FedEx argues that while the first-filed rule provides deference to the plaintiff’s 

choice of forum, “[n]o such deference is due . . . when the two actions involve different parties 

such that the court in which the first-filed action was brought is unable to provide complete 

61 D.I. No. 41.

62 D.I. No. 42.

63 D.I. No. 43 (“Opp.”).

64 Id. at 23.

65 See id.

66 D.I. No. 44.

67 D.I. No. 45.
11

relief.”68 FedEx cites to Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Turner Constr. Co., 

where this Court found that two factors should be considered when determining whether to give 

deference to the plaintiff’s choice of forum: (i) whether the first-filed action was “filed in 

anticipation of litigation” for the purpose of securing a favorable forum, and (ii) if the defendant 

in the first-filed action is the natural plaintiff.69

FedEx argues that the Delaware Action was filed by National Union in anticipation of 

FedEx Ground initiating coverage litigation elsewhere in a “race to the courthouse” situation. 

FedEx points to National Union’s lack of corporate ties to Delaware as having neither its 

incorporation nor its principal place of business in Delaware, and Delaware’s lack of connection 

to the underlying NU Policy, or the Morga Action. FedEx also contends that FedEx Ground is 

the natural plaintiff in this dispute as the insured party seeking indemnification from its insurer 

for a claim under an existing liability insurance policy.

FedEx claims that the balance of the Cryo-Maid factors supports the finding that 

Pennsylvania is the proper forum for the present dispute. FedEx argues that even if the Court 

finds that there are insufficient grounds to find “overwhelming hardship” necessary for an 

outright dismissal, a stay is still appropriate under the totality of the Cryo-Maid factors. 

B. THE OPPOSITION

National Union argues that the Motion should be denied because FedEx failed to 

sufficiently show “overwhelming hardship” under the Cryo-Maid balancing test for dismissal or 

a stay of a first-filed suit for forum non conveniens. 

68 Mot. at 13.

69 Id. at 15 (citing Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Turner Constr. Co., 2014 WL 703808, at *4 (Del. 

Super. Feb. 17, 2014)).
12

First, National Union rejects FedEx’s contentions that the Pennsylvania action should be 

considered as “contemporaneously filed,” or that the Delaware Action should not be considered 

as the “first-filed” action, because there was “no race to the courthouse.” National Union notes 

that communications with FedEx’s counsel made prior to the PA Action show that FedEx was 

“caught off guard” and “surprised” by National Union’s filing of the present suit, evincing the 

lack of a “race to the courthouse.” National Union also argues that FedEx was aware prior to 

NM Supreme Court’s affirmation of the Morga Judgment that National Union would not 

indemnify FedEx for any pre- or post-judgment interest amounts under the existing NU Policy. 

National Union states that the Pennsylvania Action was filed over a week after the Delaware 

Action was filed, further evincing that the Pennsylvania Action was a reactionary filing, and that 

there was no race to the courthouse. 

Additionally, National Union contends that the consideration of the “natural plaintiff” is 

only implicated when there is a real race to the courthouse, which did not happen here. National 

Union argues that an insurer filing a declaratory judgment against the insured party does not 

automatically create a presumption that the first-filed action was an anticipatory filing and cites 

to Delaware caselaw where Delaware courts have denied motions to dismiss or stay in favor of 

the insurer’s first-filed declaratory judgment actions.70 

Furthermore, National Union states that contrary to FedEx’s arguments, the Pennsylvania

Action is not “significantly more comprehensive” than the Delaware Action, as both disputes 

arise out of the same factual and legal issues, and simply having more claims does not make a 

suit more comprehensive. National Union contends that in fact, the Pennsylvania Action is less 

70 Opp. at 17 (citing In re CVS, 2022 WL 3330427, at *4 (Del. Super. Aug. 12, 2022); Certain Underwriters at 

Lloyds, 2008 WL 660485, at *5 (Del. Super. Mar. 7, 2008); Lincoln Benefit Life Co. v. Wilmington Tr., N.A., 2018 

WL 1638871, at *2 (Del. Super. Apr. 5, 2018)).
13

comprehensive than the Delaware Action because the Pennsylvania Action does not include 

FedEx Corp., who is a necessary party to the current dispute but cannot be hailed in 

Pennsylvania due to the state’s lack of personal jurisdiction over FedEx Corp. 

Lastly, National Union maintains that a stay of the Delaware Action would have the same 

effect as a dismissal because “FedEx Corp. is not subject to personal jurisdiction in 

Pennsylvania, such that a stay as to the Delaware Action will have the same practical effect as a 

dismissal as to FedEx Corp.”71 National Union cites to Natl. Union Fire Ins. Co. of Pittsburgh, 

PA v. Axiall Corporation, where the Court noted that “where a stay will likely have substantially 

the same effect as a dismissal, the defendant must show that one or more of the factors, either 

separately or together, would subject the defendant to sufficient hardship to warrant staying the 

proceedings.”72

LM and GAIC also oppose the Motion.

IV. STANDARD OF REVIEW

Upon a motion to dismiss, the Court (i) accepts all well-pled factual allegations as true, 

(ii) accepts even vague allegations as well-pled if they give the opposing party notice of the 

claim, (iii) draws all reasonable inferences in favor of the non-moving party, and (iv) only 

dismisses a case where the plaintiff would not be entitled to recover under any reasonably 

conceivable set of circumstances.73 However, the court must “ignore conclusory allegations that 

lack specific supporting factual allegations.”74

71 Opp. at 19.

72 Id. at 18 (citing Natl. Union Fire Ins. Co. of Pittsburgh, PA v. Axiall Corporation, 2019 WL 4303388, at *4 (Del. 

Super. Sept. 11, 2019)).

73 See Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 536 (Del. 2011); Doe v. 

Cedars Academy, 2010 WL 5825343, at *3 (Del. Super. Oct. 27, 2010). 

74 Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998). 
14

V. DISCUSSION

A. COMITY WARRANTS STAYING THE DELAWARE ACTION. 

This Court must decide whether to defer to the Pennsylvania Court and stay the Delaware 

Action. The Court may follow the doctrine of comity, which applies when two courts have 

“concurrent jurisdiction over the same matter.”75 The doctrine is not a legal rule but “an 

expression of one state's entirely voluntary decision to defer to the policy of another, especially 

in the face of a strong assertion of interest by the other jurisdiction.”76 A court may use its 

discretion to stay a matter if the same matter is pending in a different court because a court 

“should not assume to disturb another court's disposition of a controversy unless there are good 

reasons for doing so.”77 

The Delaware Supreme Court applied the doctrine of comity in two related cases, First 

Health Settlement Class v. Chartis Specialty Insurance Company and Corvel Corporation v. 

Homeland Insurance Company of New York.

78

 First Health depended on whether the Delaware 

Supreme Court should defer to an interpretation of a Louisiana statute by the Louisiana Court of 

Appeals from collateral litigation.79 In a 3-2 decision with a dissent, the Supreme Court adopted 

the Louisiana court’s interpretation, instead of using Delaware law.80 Both the majority and the 

dissent addressed the doctrine of comity. The Supreme Court acknowledged that “[c]omity 

permits one state to give effect to the laws of a sister state, not out of obligation, but out of 

respect and deference.”81 The dissent agreed that comity is important and that courts should try 

75 16 AM. JUR. 2D Conflict of Laws § 11 (2015).

76 Id. (internal footnotes omitted).

77 Id.

78 Corvel Corp. v. Homeland Ins. Co. of N.Y., 112 A.3d 863 (Del. 2015); First Health Settlement Class v. Chartis 

Specialty Ins. Co., 111 A.3d 993 (Del. 2015).

79 First Health, 111 A.3d at 998-1001.

80 Id. at 999-1000.

81 Id. at 998.
15

to avoid conflicting rulings.82 The dissent disagreed with the majority because the Louisiana 

court should have shown comity to Delaware courts83 and because following what the Louisiana 

court decided would be “demonstrably unfair” to the parties.84 The Corvel decision is nearly 

identical to the First Health decision.85

This Court is going to apply the doctrine of comity here and stay this action in deference 

to the Pennsylvania Action. The Pennsylvania Court has already decided that the Pennsylvania 

Action should proceed. The Pennsylvania Court did this even though it was known that the 

Delaware Action existed and that it was filed prior to the Pennsylvania Action. The 

Pennsylvania Court ruled that the Pennsylvania Action should proceed over the objections of 

National Union, LM and GAIC. While the Pennsylvania Court has not specifically articulated its 

reasons, this Court infers that the Pennsylvania Court did so because: (i) there are factual ties to 

Pennsylvania, and (ii) one of the insureds, FedEx Ground, has its principal place of business in 

Pennsylvania. In this case, staying the Delaware Action out of deference to the Pennsylvania 

Court would avoid confusion and inconsistent rulings. As stated by the Delaware Supreme 

Court, the doctrine of comity is important and courts should try to avoid issuing conflicting 

rulings on the same issue.86 Moreover, a stay would conserve judicial resources and avoid 

duplicative litigation costs for the parties.87 

82 Id. at 1000.

83 “Had the Louisiana trial court itself showed comity by staying its hand after the Delaware Superior Court made 

the first ruling in the coverage issue and letting this case run its course to finality, the conflict the Majority Opinion 

is trying to avoid would not have arisen in the first instance.” Id. at 1007.

84 Id.

85 Corvel, 112 A.3d 863 (Del. 2015).

86 First Health, 111 F.3d at 1001. 

87 The Court reviewed the record in this civil action and noted that the parties are engaged in discovery. The Court 

encourages using that discovery in the Pennsylvania Action in order to mitigate litigation expenses.
16

The Court is staying this action solely on the grounds of comity. The Court has engaged 

in the additional analysis requested by the parties in the event some issue arises in the 

Pennsylvania Action that would warrant lifting the stay here.

B. THE “OVERWHELMING HARDSHIP” STANDARD APPLIES.

Under Delaware law, a motion to stay or dismiss on grounds of forum non conveniens is 

addressed to the sound discretion of the Court. When applying the forum non conveniens 

analysis, courts “always must consider judicial economy and principles of comity.”88 “In 

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.”89 Delaware courts apply 

different standards depending on the circumstances when determining whether a suit should be 

stayed or dismissed for forum non conveniens.

If the Court deems the Delaware Action as first-filed, dismissal under forum non 

conveniens is only available when the defendants show “overwhelming hardship” from litigating 

the Delaware action.90 Delaware courts have held that the overwhelming hardship standard also 

applies where granting a stay of a contemporaneously filed action would likely have the same 

ultimate effect as a dismissal.91 The standard “is not intended to be preclusive[,]” but it “is 

intended as a stringent standard that holds defendants who seek to deprive a plaintiff of [its] 

chosen forum to an appropriately high burden.”92 Defendants may satisfy the standard if they 

can convince the Court that the action is “one of those rare cases where the drastic relief of 

88 Turner, 2014 WL 703808, at *2.

89 Id.

90 In re CVS Opioid Insurance Litig., 2022 WL at *4.

91 Turner, 2014 WL 703808, at *2.

92 Martinez v. E.I. DuPont de Nemours & Co., 86 A.3d 1102, 1105 (Del. 2014).
17

dismissal is warranted based on a strong showing that the burden of litigating in this forum is so 

severe as to result in manifest hardship . . . .”93

When a movant seeks a stay under forum non conveniens grounds and multiple actions 

are considered contemporaneously filed, this Court examines the motion to stay “under the 

traditional forum non conveniens framework without preference for one action over the other to 

avoid rewarding the victor of the “race to the courthouse.”94 In other words, “the movant need 

only demonstrate that the preponderance of applicable forum factors ‘tips in favor’ of litigating 

the dispute in the non-Delaware forum.”95

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

conveniens by evaluating the six Cryo–Maid factors. The Court will consider: (1) whether 

Delaware law governs the case; (2) the relative ease of access to proof; (3) the availability of 

compulsory process for witnesses; (4) the pendency of any similar action in another jurisdiction; 

(5) the possibility of a need to view the premises; and (6) all other practical considerations that 

would make the trial easy, expeditious, and inexpensive.96

A plaintiff’s choice of forum generally is entitled to great deference.97 However, the 

forum choice is not immune from scrutiny.98 The Court takes into account the circumstances 

surrounding the filing of the actions to determine if the first-filed action should be given great 

deference.99 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.”100 Delaware 

93 Ison v. E.I. DuPont de Nemours & Co., 729 A.2d 832, 835 (Del. 1999).

94 In re CVS, 2022 WL 3330427, at *4.

95 Turner, 2014 WL 703808, at *2.

96 Id.

97 Id.

98 Id.

99 Id.

100 Id.
18

courts find that when a first-filed declaratory judgment is deemed to have been filed in an 

anticipatory nature, it is not entitled to the deference generally provided to first filed actions. 

Delaware courts also look at whether the defendant in the first filed action is the “natural 

plaintiff” when considering the facts of the case.101 

National Union argues that the Pennsylvania Action was a reactionary filing by FedEx in 

response to the Delaware Action, and that there was no “race to the courthouse.” National Union 

alleges that before FedEx initiated the Morga Appeal, FedEx was made aware of National 

Union’s position that it would not cover any pre- or post-judgment interest amounts arising from 

the Morga Judgment.102 National Union contends that the Delaware Action is not one of the rare 

instances where some precipitating event spurred the parties to seek relief at roughly the same 

time. National Union argues that FedEx had years of notice that National Union would not cover 

the pre- and post-judgment interest amounts from the Morga Judgment, and that FedEx had 

ample notice and time to file their suit against National Union, but notably, only chose to do so 

after National Union filed the Delaware Action. 

FedEx contends that the Delaware Action was a “pre-emptive, insurer-commenced 

declaratory judgment action” which was filed in a race to the courthouse and with the 

anticipation that FedEx would file its breach of contract claim against National Union 

elsewhere.103 FedEx also claims that Delaware caselaw provides a presumption that an insured 

101 Id.

102 Opp. at 6. In support, National Union states that prior to the entry of the Morga Judgment on April 3, 2015, 

National Union informed FedEx on March 6, 2015, that it would not cover any post-judgment interest claims under 

the NU Policy, and FedEx never disputed this position. On June 13, 2022, FedEx’s insurance broker requested 

coverage from FedEx’s excess insurers for the post-judgment interest on the Morga Judgment and advised the 

insurers to “reconsider their position” regarding the lack of coverage for the accrued interest amounts but did not 

indicate that it would initiate litigation over the conflict. On September 15, 2022, in a call between counsel for 

FedEx and counsel for National Union, FedEx’s counsel allegedly indicated that FedEx was “caught off guard” and 

“surprised” by National Union’s filing of this suit on August 31, 2022. Opp. at 6-7, 17.

103 Mot. at 16.
19

party seeking coverage from its insurer is the “natural plaintiff,” and here, as FedEx is seeking 

coverage from its insurer, FedEx is the “natural plaintiff.” 

The facts show that the Delaware Action filed by National Union should receive some 

deference as first filed, because there was no “race to the courthouse.” The facts in this case 

closely mirrors those of In re CVS, where this Court did not find evidence of a “race to the 

courthouse” when both the insured and the insurer parties in a coverage dispute had been free to 

file an action at any time prior to the insurer filing a first-filed declaratory judgment action in 

Delaware, and the facts showed that CVS, as the insured party, stated that the insurer “surprised 

CVS with this action” by filing “without warning or provocation.”104

FedEx was aware as early as April 3, 2015, that National Union would not be covering 

any pre- or post-judgment interest amounts arising from the Morga Judgment and Morga

Appeal. This is supported by FedEx’s June 13, 2022 communications to its excess insurers a 

month after the New Mexico Supreme Court’s affirmation of the Morga Judgment. FedEx 

advised the excess insurers to “reconsider their position” that post-judgment interest would not 

be covered under the existing excess liability policies. Like In re CVS, the coverage dispute was 

already ripe before National Union filed the Delaware Action. 

FedEx was made aware in April 2015 that if they sought to appeal the Morga Judgment, 

without National Union becoming involved in the appeal process either voluntarily or by 

contractual obligation, the NU Policy would not indemnify FedEx for any pre- or post-judgment 

interest arising from the Morga Judgment. If FedEx believed that National Union and the excess 

liability insurers were obligated to indemnify FedEx for the interest amounts, FedEx

104 In re CVS, 2022 WL 3330427, at *5.
20

should/could have filed the Pennsylvania Action against the insurer prior to August 30, 2022, 

when National Union filed this action. 

The call between the parties’ counsel on September 15, 2022, when FedEx’s counsel 

indicated to National Union that FedEx was “caught off guard” and “surprised” by National 

Union filing the present action further supports the notion that there was no “race to the 

courthouse.” In In re CVS, this Court found that when the defendant CVS stated that the plaintiff 

“surprised CVS with this action” by filing the declaratory judgment suit “without warning or 

provocation,” it evinced that there was no race to the courthouse.105 The same holds true here.

FedEx argues that “[w]hen an insurer has failed to provide coverage, the insured is the 

‘natural plaintiff’ to sue for payment.”106 While Delaware caselaw does provide that “the 

insured[] is in the role of the natural plaintiff following a denial of coverage,”107 as the In re CVS

Court noted, when there was no evidence of a race to the courthouse, the “status as the ‘natural 

plaintiff’ carries little independent significance.”108

The Court finds that the Delaware Action should receive some deference as the first-filed 

action because FedEx does not sufficiently show that there was a real “race to the courthouse” or 

that the Delaware Action was anticipatorily filed by National Union. The Court does note that 

the Amended Complaint was filed after FedEx sought to stay this action and after FedEx filed 

the Pennsylvania Action. Much of this dilutes the fact that this case was filed about a week 

before the Pennsylvania Action. 

105 Id.

106 Mot. at 16.

107 Nat'l Union Fire Ins. Co. of Pittsburgh, PA v. Crosstex Energy Servs., L.P., 2013 WL 6598736, at *5 (Del. Super. 

Dec. 13, 2013).

108 In re CVS, 2022 WL 3330427, at *11.
21

C. NO PARTY CAN MEET THE OVERWHELMING HARDSHIP STANDARD.

When the Delaware case is the first-filed action, a party seeking relief via forum non 

conveniens must show that they will face “overwhelming hardship” from litigating the Delaware 

action unless it is not dismissed.109 While FedEx also seeks a stay as an alternative relief, a stay 

is likely to have similar effects here as a dismissal because it would force National Union to 

effectively lose its choice of forum as the plaintiff, and litigate the same legal issues in the 

second-filed forum. As such, the “overwhelming hardship” standard will also apply to FedEx’s 

alternative motion to stay the Delaware Action.

110

The Court will consider the following Cryo-Maid factors for the forum non conveniens

analysis: (1) whether Delaware law governs the case; (2) the relative ease of access to proof; (3) 

the availability of compulsory process for witnesses; (4) the pendency of any similar action in 

another jurisdiction; (5) the possibility of a need to view the premises; and (6) all other practical 

considerations that would make the trial easy, expeditious, and inexpensive.

The subsequent analysis of the Cryo-Maid factors show that no party could overcome the 

burden of demonstrating that the balance of the Cryo-Maid factors weighs “so overwhelmingly 

in [its] favor that dismissal of the Delaware litigation is required to avoid undue hardship and 

inconvenience to [it].”111

1. Whether Delaware law governs the case. 

This factor does not support the finding that the present action should be dismissed or 

stayed or show “overwhelming hardship” against FedEx. This first factor assesses “whether the 

109 Id. at *7.

110 BP Oil Supply Co. v. ConocoPhillips Co., 2010 WL 702382, at *2 (Del. Super. Jan. 12, 2010).

111 Martinez, 86 A.2d at 1106.
22

controversy is dependent upon the application of Delaware law which the courts of this State 

more properly should decide than those of another jurisdiction.”112

FedEx states that the NU Policy has no governing law provision, and the Motion does not 

require the Court to make the choice of law determination at this time.113 FedEx also argues that 

while FedEx Ground and FedEx Corp. are both incorporated in Delaware, there are no other 

connections between Delaware and the parties or the underlying facts of the case.114 FedEx 

contends that “Delaware has no particular interest in applying its insurance coverage law to a 

dispute between a Pennsylvania-headquartered policyholder and its Pennsylvania-incorporated 

insurer regarding a liability arising out of a suit tried in New Mexico.”115 FedEx concludes that 

whether Delaware law applies is “an inapplicable or neutral factor.”116 

This case is in its initial stages and no party takes a strong position on what law will 

apply to the dispute. National Union argues that that FedEx failed to meet its burden to show 

that there was an actual conflict of law between Delaware and any another jurisdiction. National 

Union also contends that FedEx’s briefing is absent of any arguments that Pennsylvania law 

would be more applicable or relevant to the issues. FedEx argues that beside FedEx Ground and 

FedEx Corp.’s incorporation in Delaware, the case has no further connections to Delaware. 

Moreover, FedEx offers no support that Pennsylvania or another state’s laws would be more 

applicable to the case. 

The Court would be surprised if Delaware law would apply to this case. On choice of 

law, the Court follows the holding in Certain Underwriters of Lloyds, London v. Chemtura 

112 Id. at 1104.

113 Mot. at 19.

114 Id.

115 Id. at 20.

116 Id. at 21.
23

Corp.117 when determining which law applies to a comprehensive insurance program. The 

Supreme Court emphasized that, when applying the Second Restatement factors to a corporatewide insurance program, the inquiry should center on the insurance contracts and not the 

underlying claims. Otherwise, the insurance policies could be subject to different interpretations 

depending on the state law where each claim arose. While the factual record is undeveloped, the 

Court doubts that Delaware was the (a) place of contracting; (b) the place of negotiating; (c) the 

place of performance; and (d) the location of the subject matter of the contract. It is true that 

certain parties are incorporated in Delaware but that, most likely, would not warrant the 

application of Delaware law. 

2. The relative ease of access to proof.

This factor does not support the finding that the present action should be dismissed or 

stayed and fails to show “overwhelming hardship” against any party. When analyzing the 

relative ease of access to proof, Delaware courts look at the “proximity of the proposed forum to 

the necessary proof.”118

FedEx argues that much of the proof “relevant to the parties’ course of dealing with 

respect to the Morga Action and NU Pittsburgh’s related coverage obligations to FedEx Ground 

is located in Pennsylvania, where FedEx Ground is headquartered and where most of FedEx 

Ground’s employees who interacted with its insurers are presently located.”119 FedEx also notes 

that most of the documentary proof is in the claims management system that FedEx Ground 

maintains in Pennsylvania. 

117 160 A.3d 457 (Del. 2017).

118 In re Asbestos Litig., 929 A.2d 373, 383 (Del. Super. 2006).

119 Mot. at 21.
24

National Union argues that the relative access to proof is the same in Delaware as in 

Pennsylvania because the relevant evidence consisting of electronically stored information and 

documentation. National Union notes that Delaware courts have already recognized that 

“modern methods of information transfer render concerns about transmission of documents 

virtually irrelevant.”120

Here, the relative ease of access to proof is neutral. As FedEx themselves conclude, 

much of the relevant proof is documentary in nature, and stored on claims management systems 

maintained by FedEx Ground in their Pennsylvania offices. The physical location of where the 

electronic files are located and stored offers no ascertainable hardship to FedEx in this litigation, 

as the information can be transmitted near instantaneously with modern technology. The 

information itself is not native to Delaware nor Pennsylvania, as the underlying Morga suit and 

appeals all occurred in NM. FedEx’s conclusory statement regarding the location of “FedEx 

Ground’s employees who interacted with its insurers” seems to imply that such employees may 

be potential witnesses, but as addressed in the following section, it is a non-issue for purposes of 

access to relevant proof for this action.

3. The availability of compulsory process for witnesses.

This factor does not support the finding that the present action should be dismissed or 

stayed and fails to show “overwhelming hardship” against any party. When analyzing this factor, 

Delaware courts must evaluate whether “another forum would provide a substantial 

improvement as to the number of witnesses who would be subject to compulsory process.”121

FedEx argues that this factor weighs in favor of the PA Action because “many of the 

potential witnesses reside in Pennsylvania, where FedEx Ground is located and where [National 

120 Opp. at 20 (emphasis in original).

121 Azurix Corp. v. Synagro Techs., Inc., 2000 WL 193117, at *6 (Del. Ch. Feb. 3, 2000).
25

Union] is corporately located and conducts extensive business.”122 FedEx argues that litigating 

in Delaware would limit the number of compulsory witnesses, and that the Delaware Action 

provides no advantage in compelling witnesses to testify at trial. 

National Union argues that the “potential witnesses” residing in Pennsylvania are all 

FedEx Ground employees who can be made available by FedEx for testimony purposes as 

required. National Union also points out that under Delaware caselaw, if a defendant fails to 

“name the witnesses it deem[s] necessary to call . . . or explain why their testimony could not be 

presented in Delaware by deposition . . . [i]t follows that the defendant fail[s] to sustain its 

burden of proof.”123 

Here, the availability of compulsory process for witnesses is a neutral factor. While it 

may be true that most of the relevant witnesses to this action are FedEx Ground employees 

residing in Pennsylvania, FedEx fails to identify any specific witnesses who would only be 

available to testify in the Pennsylvania Action. FedEx also offers no arguments or explanations 

as to why their own employees could not be made to either testify in Delaware or made available 

for depositions. As the In re CVS Court noted, when the potential witnesses are employees of 

the parties, such witnesses “generally do not require compulsory process to obtain their 

appearance.”124 As such, the availability of compulsory process for witnesses does not favor 

either Pennsylvania or Delaware, and is insufficient to show “overwhelming hardship” on 

FedEx. The Court does recognize, however, that it would be limited on who it could “compel” 

to testify live at trial.

122 Mot. at 22.

123 Opp. at 21 (citing States Marine Lines v. Domingo, 269 A.2d 223, 226 (Del. 1970)).

124 In re CVS, 2022 WL 3330427, at *8 (citing Rosen v. Wind River Sys., Inc., 2009 WL 1856460, at *6 (Del. Ch. 

June 26, 2009)).
26

4. The pendency of any similar action in another jurisdiction.

FedEx argues that this factor is the “most significant,” and weighs heavily in favor of the 

Pennsylvania Action. FedEx contends that the Pennsylvania Action is the more comprehensive 

action. FedEx notes that the Pennsylvania Action not only includes all of the claims at issue in 

the Delaware Action, but also contains additional claims against National Union, GAIC, and 

LM.125 FedEx also alleges that if the Delaware Action is not dismissed or stayed, it will suffer 

overwhelming hardship by being forced to litigate in both forums and face the possibility of 

inconsistent judgments.126 Additionally, FedEx contends that GAIC and LM are improperly 

joined defendants in the present action.127

Both the Delaware Action and the Pennsylvania Action rely on the same factual issues 

and questions. Both suits present the same core question as to whether the excess liability 

insurers need to indemnify FedEx for the Morga pre- and post-judgment interest. FedEx fails to 

address how the Pennsylvania Action is more capable of answering the question than Delaware. 

FedEx seems to rely on an argument that the Pennsylvania Action is somehow more 

comprehensive because it contains more claims than the Delaware Action. However, the Court 

does not believe that a greater number of claims necessarily makes one case more comprehensive 

than the other. As National Union notes in their Opposition, the additional claims FedEx asserts

125 Mot. at 25. In the Pennsylvania Action, FedEx Ground asserted four causes of action against National Union (two 

counts for breach of contract, one count of promissory estoppel, and one count of bad faith), two causes of action 

against GAIC (one count for breach of contract related to pre-judgment interest, and one count for breach of contract 

related to post-judgment interest) and one cause of action against LM (one count for declaratory judgment).

126 Mot. at 26.

127 This branch of argument by FedEx related to the alleged impropriety of National Union joining GAIC and LM as 

co-defendants to FedEx is not relevant to the discussion of forum non conveniens and will not be addressed here. 

For contextual purposes only, FedEx asserts throughout its briefings that National Union joined LM and GAIC as 

defendants in an alleged ploy to “defeat FedEx Ground’s legitimate choice of forum in Pennsylvania” and for 

procedural “gamesmanship.” National Union brought in LM and GAIC as necessary parties to the suit because LM 

and GAIC were the other excess liability insurers whose indemnification liability would be implicated depending on 

whether the Court finds that National Union is or is not liable to indemnify FedEx. LM and GAIC assert crossclaims against FedEx which closely mirror National Union’s declaratory judgment claims against FedEx. 
27

in the Pennsylvania Action could have been asserted as counterclaims in the Delaware Action, 

instead of being filed in a separate suit in a different forum based on the same factual issues. 

FedEx also contends that it would suffer overwhelming hardship if forced to litigate in 

two forums based on a common set of factual issues and risk inconsistent judgments. As the 

Court in In re CVS noted, when a party files a second action, then proceeds to complain that it 

will face overwhelming hardship by having to litigate the same issue in two separate forums, the 

alleged hardship is a self-inflicted problem to which the Courts give little weight in a forum non 

conveniens analysis.128

Additionally, FedEx cites to Lincoln Benefit Life Co. v. Wilmington Trust, N.A., to show 

that Delaware courts have previously stayed Delaware declaratory judgment actions when: (i) the

foreign case was found to be more comprehensive, and (ii) promoting judicial economy and 

avoiding the risk of inconsistent verdicts.129 Lincoln must be discounted some as the decision 

was based, in part, on the finding that the Delaware action would not receive deference as the 

first-filed action. As such, the mere pendency of any similar action in another jurisdiction is 

insufficient to show “overwhelming hardship” on FedEx.

One very important fact is that the court in Pennsylvania Action has determined that it 

has jurisdiction and will proceed with the litigation. National Union, GAIC and LM filed 

preliminary objections in the Pennsylvania Action. On January 8, 2023, the Pennsylvania Court 

overruled these preliminary objections.130 National Union, GAIC and LM filed a joint motion 

for reconsideration on March 3, 2023.131 The Pennsylvania Court subsequently heard argument 

128 In re CVS, 2022 WL 3330427, at *11.

129 Mot. at 27 (citing Lincoln Benefit Life Co. v. Wilmington Trust, N.A., 2019 WL 1307870, at *5 (Del. Super. Mar. 

21, 2019)).

130 D.I. No. 47.

131 D.I. No. 56.
28

on the motion for reconsideration and then denied the motion.132 Unless this Court grants a stay, 

therefore, the parties will be proceeding in both the Pennsylvania Action and here.

5. The possibility of a need to view the premises.

Both parties agree that this factor is irrelevant and does not require an analysis. 

6. All other practical considerations that would make the trial easy, expeditious, 

and inexpensive.

FedEx argues that as other practical considerations, the Court should consider 

inefficiency, judicial economy, and risk of inconsistent rulings. FedEx contends that “significant 

inefficiencies” would occur if the Delaware Action is permitted to continue concurrently with the 

Pennsylvania Action, resulting in duplicative discovery, motions, and expenses for the parties. 

FedEx also claims that simultaneous litigation between the parties would risk inconsistent rulings

from the Delaware and Pennsylvania courts. Additionally, FedEx contends that Delaware has no 

interest in providing a forum to the action because the only connection to Delaware is the 

corporate residence of the defendants, FedEx Corp., and FedEx Ground. 

The Court understands that if the Delaware Action is not dismissed or stayed, litigating 

two concurrent actions in Delaware and Pennsylvania will increase costs to the parties and 

double the use of judicial resources to adjudicate over duplicative issues. However, this fault lies 

with the parties’ unexplained need to shop forums. No party can demonstrate that Pennsylvania 

has a greater interest in adjudicating this matter, or that Delaware has no interest in keeping the 

Delaware Action. The Supreme Court has already rejected arguments that a Delaware action 

should be stayed “simply to avoid the undesirable result of having two mirror-image actions 

proceeding in two different jurisdictions.”133

132 D.I. No. 59.

133 Certain Underwriters at Lloyds v. Tyson Foods, Inc., 2008 WL 660485, at *5 (Del. Super. Mar. 7, 2008).
29

Additionally, the fact that the only natural connection of the parties to Delaware is FedEx 

Corp.134 and FedEx Ground135 are incorporated in Delaware is not a convincing factor for 

purposes of a forum non conveniens analysis. As the Tyson Foods Court noted, 

Delaware has a significant interest in making a neutral forum available to parties in 

commercial disputes who file against Delaware entities, even where . . . the parties 

and conduct are centered in another jurisdiction. The forum non conveniens

analysis is not altered where the only connection to Delaware is the defendant's 

status as a Delaware entity.136

The Court recognizes that concurrent litigation in both Pennsylvania and Delaware would 

increase litigation costs and duplicate the use of judicial resources for the same issues. While 

valid concerns, the Court notes that these concerns do not rise to the level of showing an 

“overwhelming hardship” upon any party if the Delaware Action is not dismissed or stayed 

under forum non conveniens. 

VI. CONCLUSION

For the reasons stated above, the Court will GRANT the Motion as to a stay for purposes 

of comity. The Court will not, however, dismiss the Delaware Action in the event issues arise in 

the Pennsylvania Action that would warrant action here. 

IT IS SO ORDERED

Dated: July 18, 2023

Wilmington, Delaware

/s/ Eric M. Davis

Eric M. Davis, Judge

cc: File&ServeXpress

134 FedEx Corp. is a Delaware corporation with its principal place of business in Memphis, TN. Amend. Compl. at ¶

21.

135 FedEx Ground is a Delaware corporation with its principal place of business in Moon Township, PA. Amend. 

Compl. ¶ 22.

136 Id.