IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

FELIX ZILBERSTEIN,

Plaintiff,

v. 

DANIEL H. FRANKENSTEIN, 

JANVEST CAPITAL PARTNERS, LLC, 

JANVEST CAPITAL PARTNERS II, 

LLC, JANVEST TECHNOLOGIES, LP,

Defendants.

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Submitted: October 29, 2021

Decided: November 12, 2021

Upon Defendants’ Motion to Dismiss the Complaint

or in the Alternative to Stay

GRANTED in part.

MEMORANDUM OPINION

Antranig N. Garibian, Esquire, (Argued), of GARIBIAN LAW OFFICES PC, 

Wilmington, Delaware, Attorney for Plaintiff.

Matthew P. Denn, Esquire (Argued), and Peter H. Kyle, Esquire of DLA PIPER 

LLP, Wilmington, Delaware, Attorneys for Defendant.

Adams, J.
2

I. Introduction

Felix Zilberstein (“Zilberstein” or “Plaintiff”) is a citizen of Israel and former 

member of Janvest Capital Partners, LLC (“Janvest I”) and Janvest Capital Partners

II, LLC (“Janvest II”), two private equity firms in Israel organized under Delaware 

law.1 Daniel Frankenstein (“Frankenstein”) was a manager of Janvest I and currently 

serves as a manager to its successor, Janvest II. Janvest I served, and Janvest II

currently serves, as the general partner to Janvest Technologies, L.P. (“Janvest LP”) 

(collectively, “Janvest entities”). Zilberstein filed this lawsuit against Frankenstein 

and the Janvest entities (collectively, “Defendants”). Defendants moved to dismiss 

or stay this action pursuant to Superior Court Civil Rule 12(b)(3) in favor of pending 

litigation in Israel. Frankenstein, a California resident, has separately moved to 

dismiss for lack of personal jurisdiction under Superior Court Civil Rule 12(b)(2). 

This decision grants Defendants’ motion to stay based on the doctrine of forum non 

conveniens. Given the decision to stay, the Court will not address Frankenstein’s 

motion to dismiss under 12(b)(2) at this time.

1 Filings in Zilberstein’s action in Court of Chancery indicate that Janvest I 

dissolved as of July 30, 2018, shortly before Janvest II was formed. See Def.’s Op. 

Br. in Support of Mot. to Dismiss at 1, Zilberstein v. Janvest Capital Partners LLC, 

C.A. No. 2021-0074 (Del. Ch. May 11, 2021).
3

II. Factual Background

The facts for purposes of Defendants’ motion to dismiss pursuant to Rule 

12(b)(3) are drawn from the Complaint, the documents it incorporates by reference, 

and other filings on the docket. When considering such a motion, the court is not 

“shackled to the plaintiff’s complaint” and may consider extrinsic evidence.2 At this 

stage of the case, the Court views the record in the light most favorable to the 

Plaintiff.

A. Janvest Entities

Janvest I and Janvest II are private equity firms that invest in early-stage

Israeli-based companies. Both are organized as Delaware limited liability 

companies with operations and members in Israel. In June 2018, Frankenstein 

formed Janvest II to succeed Janvest I as the general partner of Janvest LP, a 

Delaware limited partnership. Janvest I and Janvest II made investments through 

Janvest LP. One company Janvest LP invested in was an Israeli technology 

company, Electronic Vision Systems Ltd. (“eVision”).

2 Simon v. Navellier Series Fund, 2000 WL 1597890, at *5 (Del. Ch. Oct. 19, 

2000).
4

B. Janvest LP’s Investment in eVision and Zilberstein’s Exit

In exchange for Janvest LP’s investment in eVision, Janvest LP became an 

eVision shareholder with the right to appoint a director to eVision’s Board of 

Directors. Janvest LP appointed Zilberstein to serve in this role. 

In November 2017, Zilberstein decided to retire. Zilberstein approached 

Frankenstein and Brian Rosenzweig (“Rosenzweig”), a fellow member of Janvest I 

and Janvest II, about the transition of his duties. It was around this time that 

Frankenstein began to suspect that Zilberstein was misappropriating funds properly 

owed to Janvest LP. Thus, following Zilberstein’s decision to retire and upon

Frankenstein’s suspicions of Zilberstein’s alleged misappropriation, Janvest LP 

informed eVision of its intent to replace Zilberstein’s position on the board with 

Frankenstein. eVision denied Janvest LP’s request and informed Janvest LP that 

Zilberstein served as eVision’s CEO for several years. This, coupled with suspicions 

of Zilberstein’s alleged misdeeds, prompted Janvest LP to sue Zilberstein and 

eVision, along with other eVision directors and officers, in Israel.

C. Emails and Lawsuits

On April 15, 2019, Frankenstein emailed other Janvest I and Janvest II 

members alleging Zilberstein had improperly served as eVision’s CEO and used his 

position as a conduit for pocketing funds properly owed to Janvest LP (“Defamatory 

Email 1”). On July 30, 2020, Frankenstein sent a follow up email with the subject 
5

“Pending Litigation Notification” (“Defamatory Email 2”). The email informed the 

recipients of Janvest LP’s intent to pursue legal action based on Zilberstein’s and 

eVision’s alleged unlawful transfer of funds.

Janvest LP then filed suit in Israel against Zilberstein, eVision, and other

eVision directors and officers (“Janvest Israeli Litigation I”) ordering eVision to 

disclose financial statements and allow Janvest LP to appoint a director of their 

choosing. The suit settled on October 20, 2020. As a result, eVision replaced

Zilberstein with Frankenstein on the board and turned over the requested financial 

records. The disclosure and review of the relevant financial records, Defendants 

contend, revealed Zilberstein’s alleged misappropriation.

3

 

Following Janvest Israeli Litigation I, Janvest LP sent a letter to eVision, 

Zilberstein, and others attempting to recover the funds properly owed to Janvest LP

(“Demand Letter”). The Demand Letter, sent on December 9, 2020, stated that if 

the funds were not received within 21 days, Janvest LP intended to take legal action. 

Frankenstein then emailed Janvest I and Janvest II members with the subject line 

“Additional Pending Litigation.” In the email, Frankenstein reported the outcome 

of Janvest Israeli Litigation I, and Janvest LP’s intent to recoup its losses

(“Defamatory Email 3”). On January 7, 2021, Janvest LP’s counsel sent a final 

3 Defs.’ Opening Brief (“Def.’s Op.”) at 1.
6

warning to eVision affirming Janvest LP’s intent to pursue legal action against 

Zilberstein and eVision if they could not reach an agreement outside of court.

4

About a week later, on January 15, 2021, Zilberstein filed his Complaint

against Defendants in this Court for defamation.

5 The basis for Zilberstein’s 

defamation action is Defamatory Email 1, Defamatory Email 2, and Defamatory 

Email 3. Thirteen days later, on January 28, 2021, Janvest LP filed another action

in Israel (“Janvest Israeli Litigation II”) against Zilberstein, eVision, and other 

Israeli individuals and entities to recover its losses from Zilberstein’s alleged 

misappropriation. That same day, Zilberstein also filed two separate books and 

records actions in the Court of Chancery against Janvest I and Janvest II.

6

D. Procedural History

In Janvest Israeli Litigation II, Zilberstein filed a Statement of Defense and a

motion to stay in deference to his actions in this Court and the Court of Chancery.

7

 

A hearing in Janvest Israeli Litigation II occurred on October 25, 2021.8 As a result, 

the court in Israel ordered the parties to complete document production within seven 

days and engage in pre-mediation.9

4 Def.’s Ex. 3.

5 See Dkt. 1.

6 2021-0074-KSJM and 2021-0075- KSJM.

7 Defs.’ Reply Br. 7.

8 See Dkt. 24.

9

Id.
7

In response to Zilberstein’s Complaint in this Court, Defendants filed a

Motion to Dismiss or Stay on April 14, 2021 based on the doctrine of forum non 

conveniens and the pendency of Janvest Israeli Litigation II.

III. Standard of Review

The Defendants move to dismiss or stay this action based on the doctrine of 

forum non conveniens.

10 A motion invoking this doctrine proceeds pursuant to Rule 

12(b)(3) for improper venue.11 Where an action involving the same or similar parties 

and the same or similar issues is filed in another jurisdiction contemporaneously 

with or after the Delaware action, the forum non conveniens analysis applies.12

The doctrine of forum non conveniens grants the court discretionary authority

to decline jurisdiction where “considerations of convenience, expense, and the 

interests of justice” show that the plaintiff’s chosen forum would be “unduly 

inconvenient, expensive, and otherwise inappropriate.”13 While ordinarily a 

plaintiff’s choice of forum should rarely be disturbed, such choice is not immune 

10 Frankenstein filed a 12(b)(2) motion to dismiss for lack of personal 

jurisdiction. Def.’s Op. at 15. Given the Court’s decision to stay the action, the 

Court will not address Frankenstein’s 12(b)(2) motion.

11 See Lefkowitz v. HWF Hldgs., LLC, 2009 WL 3806299, at *3 (Del. Ch. Nov. 

13, 2009).

12 See Martinez v. E.I. DuPont de NeMours and Co., Inc., 86 A.3d 1102, 1104 

(Del. 2014).

13 Monsanto Co. v. Aetna Casualty and Surety Co., 559 A.2d 1301, 1304 (Del. 

Super. 1988).
8

from scrutiny.14 A plaintiff may not “vex, harass, or oppress the defendant” by 

imposing unnecessary expense or trouble through an inconvenient forum.15

Delaware courts have articulated five factors to consider in a forum non 

conveniens analysis, collectively referred to as the “Cryo-Maid factors.”16 The 

factors are: 

(1) the existence of other litigation involving substantially similar parties or 

subject matter; 

(2) whether the controversy is dependent upon Delaware law;

(3) the relative ease of access to proof;

(4) the availability of compulsory process for witnesses; and

(5) all other practical problems that would make the trial easy, expeditious, 

and inexpensive.17

14 Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. Turner Constr. Co., 2014 WL 

703808, at *2 (Del. Super. Feb. 17, 2014).

15 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508 (1947).

16 Martinez, 86 A.3d at 1104. 

17 GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 101 (Del. 2021) 

(citing Aranda v. Philip Morris USA Inc., 183 A.3d 1245, 1250 (Del. 2018)). The 

Cryo-Maid factors are presented in the relative order of importance for corporate 

and commercial disputes as indicated by the Court of Chancery in Focus Financial 

Partners, LLC v. Holsopple, 250 A.3d 939, 952 (Del. Ch. 2020). The list omits a 

Cryo-Maid factor – “the possibility of the view of the premises” – because it is 

irrelevant to this case and not discussed in this decision. See Holsopple, 250 A.3d 

at 952 n.3 (finding that the view of the premises is not relevant to the case and thus 

not discussed and noting that the factor is frequently irrelevant in corporate and 

commercial disputes). 
9

The precise burden on a movant seeking a stay depends on the timing of the 

Delaware action in relation to any competing actions. If the Delaware action is firstfiled, the court, in considering the Cryo-Maid factors, gives deference to the 

plaintiff’s choice of forum.18 To prevail, a defendant seeking to stay a first-filed 

Delaware action pending the outcome of a subsequent suit must show sufficient

“inconvenience and hardship.”19 This standard is notably less demanding than the 

“overwhelming hardship” standard applicable when a defendant seeks dismissal of 

a first-filed Delaware action.20 

To justify a stay where competing actions are viewed as contemporaneously 

filed, the movant must show that overall, the Cryo-Maid factors “tips in favor of 

litigating the dispute in the non-Delaware forum.”

21 Where actions are considered 

18 See Chrysler First Bus. Credit Corp. v. 1500 Locust Ltd. P’ship, 669 A.2d 

104, 107-08 (Del. 1995).

19 GTE Mobilnet Inc. v. Nehalem Cellular, Inc., 1994 WL 116194, at *1 (Del. 

Ch. Mar. 17, 1994) (citing ANR Pipeline Co. v. Shell Oil Co., 525 A.2d 991, 992 

(Del. 1987).

20 HFTP Invs., L.L.C. v. ARIAD Pharms., Inc., 752 A.2d 115, 121 (Del. Ch. 

1999) (“[W]here (as here) the moving party seeks a stay rather than a dismissal, the 

‘burden on the moving party is a lesser one.’”) (quoting Life Assurance Co. v. 

Associated Invs. Int’l Corp., 312 A.2d 337, 340 (Del. Ch. 1973); see also Azurix 

Corp. v. Synagro Technologies, Inc., 2000 WL 193117, at *4-5 (Del. Ch. Feb. 3, 

2000) (“For this claim to be dismissed, Synagro would have to demonstrate that it 

would suffer undue...hardship if it is required to litigate in Delaware...Synagro 

bears a much lighter burden, however, in order to justify a stay”); see also Moore 

Golf, Inc. v. Ewing, 269 A.2d 51 (Del. 1970) (“[T]he burden on the moving party is 

a lesser one where a stay rather than a dismissal is sought”).

21 Turner Constr. Co., 2014 WL 703808, at *2.
10

simultaneously filed, the court does not give deference to either forum.22 Instead, 

the Court, in weighing the relevant factors, must determine which of the competing 

fora would be the more “easy, expeditious, and inexpensive” for litigation.

23

 

IV. Analysis

Before turning to the Cryo-Maid analysis, the Court will determine whether 

the Delaware action was first-filed or contemporaneously filed with the competing 

action, as the timing determines the appropriate deference afforded to the plaintiff’s 

chosen forum.

A. The Delaware Action and Janvest Israeli Litigation II were Filed 

Contemporaneously

When two cases are filed at approximately the same time, the court compares 

the fora without preference for one action over the other to avoid rewarding the 

victor in a “race to the courthouse.”

24 To determine whether an action filed first in 

time but in close temporal proximity to another action should be treated as 

contemporaneously filed, the court should consider the circumstances surrounding 

22 See Holsopple, 250 A.3d at 953-54 (“Where the competing actions were filed 

virtually simultaneously, warranting less deference to the winner of a race to the 

courthouse...the court may place less emphasis on filing priority and determine by 

a preponderance of the evidence whether litigating in one forum or the other would 

be easier, more expeditious, and less expensive”).

23 Royal Indem. Co. v. Gen. Motors Corp., 2005 WL 1952933, at *7 (Del. Super. 

2005) (citing HFTP Invs., 752 A.2d at 122).

24 GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 234 A.3d 1186, 1195 (Del. 

Super. 2020) (quoting In re Citigroup Inc. Shareholder Derivative Litigation, 964 

A.2d 106, 116 (Del. Ch. 2009)) (internal quotations omitted).
11

the filings.

25 “Ultimately, the exercise of the court’s discretion will depend upon 

review of the relevant practical considerations keeping in mind the broader policies 

of comity between the states and their courts and the orderly and efficient 

administration of justice.”26

Delaware courts have found actions filed in different jurisdictions to be 

contemporaneous despite a plaintiff technically filing first where there is no 

significant time difference, and the nature of the actions are similar suggesting that 

the plaintiff filed in an anticipatory nature.

27

 This Court specifically has previously 

found actions filed two weeks apart as contemporaneously filed.

28 Here, Janvest 

Israeli Litigation II was filed less than two weeks after the Delaware litigation. 

Plaintiff filed his Complaint in Delaware on January 15, 2021. In the weeks leading 

up to that date, there were at least three communications on behalf of Janvest LP 

indicating Janvest LP’s intent to initiate legal proceedings if Plaintiff and eVision 

25 AG Res. Hldgs., LLC v. Terral, 2021 WL 486831, at *3 (Del. Ch. Feb. 10, 

2021). 

26 Id. (citing Adirondack GP, Inc. v. Am. Power Corp., 1996 WL 684376, at *6 

(Del. Ch. Nov. 13, 1996)).

27 See AG Res. Hldgs., 2021 WL 486831, at *3 (finding actions filed four days 

apart to be simultaneously filed); see Turner Construction Co., 2014 WL 703808, at 

*3 (treating actions filed eight days apart as contemporaneously filed because 

plaintiff filed “in anticipation of litigation”); see also Holsopple, 250 A.3d at 954 

(stating that while the Delaware action was technically filed first, the California 

action, filed five days after, was “roughly contemporaneous”).

28 See Williams Gas Supply Co. v. Apache Corp., 1991 WL 18091, at *1-3 (Del. 

Super. Feb. 12, 1991) (treating actions filed two weeks apart as contemporaneously 

filed because plaintiff filed in anticipation of another suit).
12

did not cooperate.29 About a week following Janvest LP’s last letter threatening 

litigation, Plaintiff filed his Complaint in Delaware alleging defamation. Plaintiff

beat Defendants to the courthouse by thirteen days. 

The temporal proximity of the filing, the known imminence of Janvest Israeli 

Litigation II, and the similarity in substance between Plaintiff’s action and Janvest 

Israeli Litigation II suggests that Plaintiff engaged in a race to the courthouse. To 

avoid rewarding the winner of such a race, the Court considers the actions 

contemporaneously filed. As such, the Court affords neither party first-filer 

preference and will analyze the Cryo-Maid factors without deference to either forum.

B. The Cryo-Maid Factors Weigh in Favor of a Stay

Having established that neither forum is afforded deference, the Court now 

turns to an analysis of the Cryo-Maid factors. The Court finds that each factor 

29 The first communication was the Demand Letter sent to Zilberstein on 

December 9, 2020 where Janvest LP’s counsel threatened litigation if Zilberstein 

and eVision did not repay Janvest LP for the misappropriated funds. The second 

communication was Defamatory Email 3, cited in Zilbertstein’s Complaint and sent 

on December 15, 2020, where Frankenstein announced his intent to pursue litigation 

seeking monetary compensation from Zilberstein. The third communication was on 

January 7, 2021 from Janvest LP’s counsel indicating that further warning will not 

be sent. The Court recognizes that Zilberstein was not a direct recipient of the 

second and third communications. The Court infers, however, that Zilberstein was 

aware of the second communication as it is attached to his Complaint in this action. 

The Court also infers Zilberstein’s awareness of the third communication as it was 

sent to his co-defendant’s counsel in Janvest Israeli Litigation I. Even if Zilberstein 

was unaware of the second and third communications, he received the December 9, 

2020 Demand Letter putting him on notice of impending litigation.
13

weighs in favor of staying Plaintiff’s action in Delaware pending resolution of 

Janvest Israeli Litigation II. 

1. Existence of Similar Litigation

The first Cryo-Maid factor addresses the existence of litigation involving 

substantially similar parties or subject matter, and the pendency of the competing 

litigation.30 In evaluating existing similar litigation, the court must consider issues 

of “comity and the necessities of an orderly and efficient administration of justice” 

such as whether the actions are duplicative.31 Another consideration is the amount 

of judicial resources expended in the other matter. “If a judge in one forum has 

invested actual, substantive effort in a case, a competing forum should consider 

carefully whether one of its judges should make a similar case-specific 

investment.”32 

Here, this factor weighs in favor of allowing the Israeli litigation to proceed. 

In Janvest Israeli Litigation II, the court in Israel held a hearing on October 25, 2021 

where the court ordered the parties to complete document production and engage in 

pre-mediation meetings to try to settle the claim.33

30 Gramercy Emerging Mkts. Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 

1037 (Del. 2017).

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

281, 283 (Del. 1970).

32 Hamilton P’rs v. Englard, 11 A.3d 1180, 1217 (Del. Ch. 2010).

33 See Dkt. 24.
14

This Court has yet to address the pleading-stage viability of Plaintiff’s claims, 

let alone whether the Court has personal jurisdiction over Frankenstein, and no 

discovery has taken place. Although the causes of action are not identical, the core 

of both actions revolve around the same nexus of facts. Janvest Israeli Litigation II 

involves the truth or falsity of the allegedly defamatory statements at the crux of 

Plaintiff’s Complaint. Thus, it is in the interest of the efficient administration of 

justice to allow Janvest Israeli Litigation II to proceed and stay Plaintiff’s action 

pending resolution in Israel. As such, this factor weighs heavily in favor of the 

Defendants. 

2. Applicability of Delaware Law

The second factor— “whether or not the controversy is dependent upon the 

application of Delaware law ...”34—relates to whether Delaware law governs the 

dispute. This factor does not merely involve an “academic inquiry into what law to 

apply.”35 The fact that Delaware law may govern is not conclusive.36 Rather, the 

factor focuses on Delaware’s degree of interest in the dispute.37 Absent a central 

novel and substantial issue of Delaware law, this factor is typically accorded less 

34 Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964).

35 Holsopple, 250 A.3d at 956.

36 In re Chambers Dev. Co., Inc. Shareholders Litig., 1993 WL 179335, at *3 

(Del. Ch. 1993) (citing Jim Walter Corp. v. Allen, 1990 WL 3899, at *5 (Del. Ch. 

Jan. 12, 1990)).

37 Holsopple, 250 A.3d at 956.
15

weight than other significant factors.38 In evaluating this factor, the court should 

consider the “nature and novelty of questions of law to be answered, the desirability 

of providing a Delaware forum, and the importance of overseeing the conduct of 

particular classes of actors and policing against particular types of wrongdoing.”39

Though Plaintiff contends that Delaware law governs his defamation action, 

it is not clear whether Delaware substantive law applies. Defendants argue that in a 

defamation action, the local law where the publication occurs determines the 

applicable substantive law.40 The Court has not conducted a conflict of laws analysis 

determining what law governs. Thus, it is not certain that Plaintiff’s claims require 

application of Delaware law. 

Even if Delaware law applies, Plaintiff’s defamation claim does not raise any 

novel or substantial issues of Delaware law. The mere fact that a defendant is a 

Delaware entity is not sufficient to avoid a stay or dismissal. As the Supreme Court 

of Delaware explained, “even Delaware corporations can avoid facing suit in 

Delaware, where the connection between the claims at issue and Delaware are 

attenuated and the defendant corporation faces an undue burden.”41 The Supreme 

Court has applied this same rationale to nonresident officers and directors.42 Here, 

38 See Hoover Indus. v. Chase, 1988 WL 73758, at *4 (Del. Ch. July 13, 1988).

39 Hamilton P’rs, 11 A.3d at 1213.

40 Def.’s Op. at 12.

41 Hazout v. Ting, 134 A.3d 274, 279 (Del. 2016).

42 Id.
16

the only connection between Plaintiff’s claim and Delaware is that the Janvest 

entities are registered in Delaware. Accordingly, this factor weighs in favor of the 

Defendants. 

3. Ease of Access to Proof

The third factor—the ease of access to proof—requires the Court to evaluate 

the evidence’s proximity to the competing fora.

43 Though “[w]ith current 

technology, the importance of this factor has faded for corporate and commercial 

disputes.”44

Here, most of the potential witnesses, documents, and other evidence are in

Israel. Plaintiff acknowledged at the hearing on the Motion to Dismiss that the 

evidence and witnesses are not in Delaware but located in another country.45 

Plaintiff resides in Israel. The recipients of the allegedly defamatory emails at issue 

reside in Israel. eVision is based in Israel. The Janvest entities operate in Israel. 

Janvest Israeli Litigation I, which sheds light on the truth or falsity of the allegedly 

defamatory emails, occurred in Israel. Janvest Israeli Litigation II is pending in 

Israel. Again, the Defendants’ lone connection to Delaware is the entities’ place of 

43 Turner Construction Co., 2014 WL 703808, at *5 (quoting In re Asbestos 

Litig., 929 A.2d 373, 383 (Del. Super. 2006)).

44 Id. at 973. 

45 See Oral Arg.Tr. 17:16-17, 18:5-7.
17

registration. The Court also notes that some of the evidence could be in another 

language, namely Hebrew. Thus, this factor weighs in favor of the Defendants.

4. Availability of Compulsory Process

The fourth factor—the availability of compulsory process for witnesses—asks 

whether the court can compel the relevant witnesses to appear.46 This Court has 

identified this factor as an “important consideration in assessing the appropriateness 

of a forum.”47 It requires the Court to evaluate whether “another forum would 

provide a substantial improvement as to the number of witnesses who would be 

subject to compulsory process.”48 The Court may also take into consideration the 

importance of the inconvenienced witnesses.49 When there is a similar action 

pending in a forum where a compulsory process is available for the witnesses, this 

factor favors a stay.50

Here, Defendants assert that necessary and relevant witnesses reside in Israel. 

The recipients of the allegedly defamatory statements are Israeli citizens, the 

misconduct alleged in the defamatory statements occurred in Israel, and the alleged 

damages to Plaintiff’s reputation in the community is in Israel, where Plaintiff 

46 Cryo-Maid, 198 A.2d at 685.

47 Monsanto, 559 A.2d at 1307.

48 Mt. Hawley Ins. Co. v. Jenny Craig, Inc., 668 A.2d 763, 769 (Del. Super. 

1995). 

49 Monsanto, 559 A.2d at 1308.

50 See Chambers Dev. Co., 1993 WL 179335, at *6.
18

resides. Plaintiff conceded during the hearing on the Motion to Dismiss that “there

[i]s a witness who is unwilling to appear in a Delaware court.”51 

To obtain testimony from witnesses in Israel unwilling to appear in Delaware, 

the parties would need to rely on the Hague Convention on the Taking of Evidence 

Abroad in Civil or Commercial Matters (“Hague Convention on Evidence”).

52

 

Under the Hague Convention on Evidence, a signatory to the Convention may 

request evidence from another signatory for use in judicial proceedings.53 The 

United States and Israel are signatories to the Hague Convention on Evidence. Thus,

the parties may obtain testimony from unwilling witnesses through letters of 

request.

54

 

This process, however, presents several challenges. For one, letters of request 

are just that – requests – and thus, may be rejected.

55

 A letter of request also does

not compel live testimony at trial.

56

 Rather, the parties would have to rely on 

51 Oral Arg. Tr. 18:22-23, 19:1.

52 See, e.g., Ingenico Inc. v. Ioengine LLC, 2021 WL 765757 (D. Del. Feb. 26, 

2021).

53 Hague Evidence Convention on the Taking of Evidence Abroad in Civil or 

Commercial Matters (“Hague Convention on Evidence”) art. 1, Mar. 18, 1970, 23 

U.S.T. 2555.

54 Id.; 28 U.S.C. § 1781.

55 Hague Convention on Evidence art. 11-12.

56 In re Air Crash at Madrid, Spain on August 20, 2008, 893 F.Supp.2d 1020, 

1032 (C.D. Cal. 2011); Mastafa v. Australian Wheat Bd. Ltd., 2008 WL 4378443, at 

*8 (S.D.N.Y. Sept. 25, 2008).
19

deposition transcripts,

57 a condition that the United States Supreme Court has noted 

is “not satisfactory to court, jury or most litigants.”

58

 Lastly, other courts have noted 

the procedures’ shortcomings, describing it as “a difficult and time-consuming – if 

not altogether futile – endeavor”59 and “notoriously inefficient.”60 

Here, a party seeking to obtain testimony from a witness in Israel must first

file with this Court a motion for issuance of letters of request.61 If approved, the 

request is forwarded to the Central Authority for Israel.62 Once received, Israel has 

the discretion, albeit limited, to reject the request under certain circumstances.63

Only upon approval from Israel can counsel begin scheduling deposition

proceedings. Even still, the witness may oppose the discovery sought if such 

discovery is impermissible pursuant to Israeli law.64 This is but a rudimentary 

summary of an arduous process that does not yield live testimony, but rather a 

transcript, and the potential challenges that accompany it. 

57 In re Air Crash at Madrid, 893 F.Supp.2d at 1032. 

58 Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511 (1947).

59 Melgares v. Sikorsky Aircraft Corp., 613 F.Supp.2d 231, 243 n.8 (D. Conn. 

2009).

60 Da Rocha v. Bell Helicopter Textron, Inc., 451 F.Supp.2d 1318, 1325 (S.D. 

Fla. 2006).

61 Super. Ct. Civ. R. 28.

62 Hague Convention on Evidence art. 2.

63 Hague Convention on Evidence art. 5, 6, 11, 12.

64 Hague Convention on Evidence art. 9, 11.
20

The difficulties facing a party seeking compulsory process from an Israeli 

witness hinder this Court from being an ideal forum. In contrast, there is a similar 

action pending in Israel that avoids these challenges. In Janvest Israeli Litigation II, 

witness availability is greater and simpler as Israel is where most of the witnesses 

are located, where the conduct at issue occurred and where Janvest Israeli Litigation 

II is pending. Thus, given this Court’s limited ability to issue the necessary

compulsory process and the action pending in an alternative forum that avoids these 

confines, this factor weighs heavily in favor of the Defendants.

5. Other Practical Considerations

The final Cryo-Maid factor requires the court to consider any other practical 

considerations that would make litigation easy, expeditious, and inexpensive.65 This 

factor “is neither hollow in meaning nor rigid in its application.”

66 In evaluating this

factor, Delaware courts have considered the state and public interest in adjudication, 

judicial economy, plaintiff’s motives, and language barriers for foreign witnesses. 

The potential boundaries of what a court may consider are “limited only by the 

imagination of creative counsel.”67

65 Cryo-Maid, 198 A.2d at 684.

66 Martinez, 86 A.3d at 1112.

67 DONALD J. WOLFE, JR. & MICHAEL A. PITTENGER, CORPORATE AND 

COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY, SECOND EDITION 

§ 5.02[g] 5-52 (Matthew Bender & Co., 2d ed. 2018).
21

This Court has found in favor of a stay where the only connection between 

the parties and Delaware is the place of incorporation.68 That is the case here. 

Plaintiff is not a resident of Delaware. Frankenstein is not a resident of Delaware. 

The only connection this case has to Delaware is the Janvest entities’ place of 

registration. Thus, considerations of the state and public interest weigh in favor of 

Defendants.

Given the procedural posture of the competing action, its relevance to the 

competing forum, and its duplicative nature to the case at hand, considerations of 

judicial economy weigh in favor of Defendants.

Considering the circumstances surrounding Plaintiff’s filing, it appears that 

Plaintiff filed his Complaint in Delaware in anticipation of Janvest Israeli Litigation 

II. While Defendants’ communications prior to Plaintiff’s filing showed an intent 

to pursue litigation if necessary, they also indicated a desire to negotiate a resolution 

outside of the courthouse if possible. Plaintiff ignored Defendants’ requests and 

commenced a defamation action in Delaware. Thus, Plaintiff’s motives indicate an 

attempt to preempt Defendants’ suit in Israel.

The potential language barrier that may arise if this case proceeds in Delaware 

also weighs in favor of Defendants. Delaware courts have noted that language 

68 Royal Indem., 2005 WL 1952933, at *11.
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barriers can present a problem under the practical considerations factor.69 When 

language barriers require translation for evidence or witnesses and an alternative 

appropriate forum is available, Delaware courts have found this factor to weigh in 

favor of a stay.70 Here, most of the potential witnesses are in Israel and the evidence 

in Hebrew, thus requiring translation. Considering the potential language barrier, 

Israel is the more appropriate forum. 

The practical considerations all point to Israel, where Janvest Israeli Litigation 

II is pending, as the appropriate forum for this dispute. Thus, this factor weighs 

overwhelmingly in favor of the Defendants.

V. Conclusion

The Plaintiff is in Israel, not Delaware. The entities involved are in Israel, not 

Delaware. The evidence is in Israel, not Delaware. The potential witnesses are in 

Israel, not Delaware. The alleged misconduct at the core of both actions occurred in 

Israel, not Delaware. It is not clear whether Delaware law even applies. The lone 

connection Plaintiff’s action has to Delaware is that the Janvest entities are registered 

in Delaware. There is an action involving the same facts pending in Israel. The 

69 Aveta, Inc. v. Colon, 942 A.2d 603, 614 (Del. Ch. 2008) (“This Court has 

previously considered language barriers when applying the forum non conveniens 

doctrine”).

70 Aveta, 942 A.2d at 614 (granting a stay where a language barrier existed thus 

requiring a translator for evidence and witnesses, and the Cryo-Maid factors weighed 

in favor of the defendant); see also Eurofins Pharma US Hldgs., Inc. v. Bioalliance 

Pharma SA, 2009 WL 2992552, at *7 (D. Del. Sept. 18, 2009).
23

Court finds that the application of the Cryo–Maid factors weigh in favor of staying 

this case pending the current Israeli litigation. Because the Court has decided to stay 

the action in deference to Janvest Israeli Litigation II, it will not decide whether 

jurisdictional discovery is appropriate at this time.

Accordingly, Defendants’ Motion to Dismiss or Stay Plaintiff’s Complaint is 

GRANTED in part. This action is stayed pending the outcome of Janvest Israeli 

Litigation II. IT IS SO ORDERED.