COURT OF CHANCERY OF THE STATE OF DELAWARE SELENA E. MOLINA LEONARD L. WILLIAMS JUSTICE CENTER MASTER IN CHANCERY 500 NORTH KING STREET, SUITE 11400 WILMINGTON, DE 19801-3734
Final Report: February 28, 2023 Date Submitted: November 7, 2022
Julian Karpoff David C. Hutt 33026 W. Falling Creek Street R. Eric Hacker Lewes, DE 19958 Morris James, LLP 107 W. Market Street Georgetown, DE 19947
Vincent G. Robertson Mark F. Dunkle Kyle F. Dunkle Parkowski, Guerke & Swayze, P.A. 19354C Miller Road Rehoboth Beach, DE 19971
Re: Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM
Dear Counsel & Parties:
In this abatement action, a residential landowner challenges his neighbor’s
industrial activities as unlawful. But the landowner first asserted his claims before
Sussex County’s Board of Adjustment. The County asks that the landowner be
compelled to elect one forum in which to proceed. The neighbor asks that this action
be dismissed under McWane in favor of the first-filed board proceedings. I find the
latter should be granted and thus the former is moot. This is my final report. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 2 of 22
I. BACKGROUND1
Julian Karpoff (the “Plaintiff”) owns and resides at 33026 W. Falling Creek
Street, in Lewes, Delaware, within Sussex County.2 The Plaintiff’s property is
within the Village of Five Points subdivision (the “Subdivision”), which is now
home to approximately 600 residential households.3
But before the Subdivision, there was Atlantic Concrete Co., Inc. (“Atlantic”).
Since around 1970, Atlantic has operated a cement batching business on a 4.97-acre
parcel of land adjoining what is now the Subdivision (the “Batching Plant Land”).4
This business predates the zoning ordinance the Plaintiff seeks to enforce in this
action and is not challenged.
At issue is a second parcel Atlantic purchased on May 31, 2001 (the “Subject
Land”).5 The Subject Land adjoins the Batching Plant Land and what is now the
1 Unless otherwise noted, the facts recited herein are taken from the Complaint. Docket Item (“D.I.”) 1. On February 6, 2023, the Plaintiff moved for leave to file an amended complaint to add (1) the Department of Natural Resources and Environmental Control as a defendant and (2) two additional counts. D.I. 59-62. The motion is not fully briefed but I decline to delay issuing this report under the rationale of Hillblom v. Wilmington Tr. Co., 2022 WL 17428978, at *1 (Del. Ch. Dec. 6, 2022) (denying a motion to amend without prejudice because “Court of Chancery Rule 15 does not permit a plaintiff to amend his complaint after he filed his answering brief but before the motion to dismiss is decided”). 2 D.I. 1 ¶ 2. 3 Id. ¶ 7. 4 Id. ¶¶3, 6. 5 See id. ¶ 4. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 3 of 22
Subdivision.6 Although the Subject Land is zoned AR-1 Agricultural/Residential,
from 2001 through 2006, the Subject Land was not used for industrial operations.7
Next-door, during that time, the Subdivision was being developed; development
began in 2003 and construction was completed in or around 2006.8
Only after the Subdivision was fully developed was the Subject Land utilized
for industrial purposes. In the summer of 2021, Atlantic transferred parts of its
concrete recycling operation to the Subject Land from a property on Ritter Lake
Road (the “Ritter Property”).9 The Ritter Property had been used for Atlantic’s
concrete recycling operation for around twenty (20) years until around June 2021.10
“This operation consisted of (1) dumping residual cement, (2) breaking up the
resulting concrete with a ‘breaker’ device, and (3) crushing the resulting pieces of
concrete.”11 But in or around June 2021, the operations at the Ritter Property were
6 Id. 7 D.I. 1 ¶ 6. 8 Id. ¶ 7. 9 Id. ¶ 9. 10 Id. ¶ 8. 11 Id. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 4 of 22
deemed a non-conforming use and Atlantic transferred parts (1) and (2) to the
Subject Land.12
As part of the transferred operation, Atlantic dumps and breaks cement on the
Subject Land using a pneumatic breaker device.13 The pneumatic breaker “emits
noise and vibration like a pile driver” and typically commences at 7:00 a.m.,
continuing through 3:00 p.m., Monday through Friday.14 The Plaintiff avers these
“operations produce substantial and excessive noise and vibration and dust which
are disruptive to the normal daily activities of . . . those living in the vicinity,
including the Plaintiff, and [are] otherwise noxious and offensive to those living in
the vicinity and their health, including the Plaintiff.”15
The Plaintiff brought these complaints first to the director of Sussex County’s
Department of Planning and Zoning (the “Director”).16 In a letter dated March 4,
2020, the Plaintiff complained that the industrial activities on the Subject Land were
a non-conforming use and that Atlantic’s non-conforming use exception for the
Batching Plant Land could not extend to the Subject Land because the Subject Land
12 D.I. 1 ¶¶ 8-9. 13 Id. ¶ 9. 14 Id. 15 Id. 16 Id. ¶ 10. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 5 of 22
was purchased after the enactment of the applicable zoning ordinance.17 On April
29, 2022, the Director issued a director’s determination finding that Atlantic’s use
of the Subject Land was a valid expansion of Atlantic’s pre-existing use of the
Batching Plant Land.18
On May 26, 2022, the Plaintiff appealed the Director’s determination to
Sussex County’s Board of Adjustment (the “Board”).19 The Board was prepared to
hear the appeal at a hearing scheduled for September 2022, but the appeal was stayed
until the end of November 2022 (the proceedings before the Board will be referred
to herein as the “Administrative Proceedings”).20
Unsatisfied with the Administrative Proceedings, the Plaintiff filed his
complaint before this Court on July 15, 2022.21 The complaint seeks abatement of
the alleged unlawful use of the Subject Land and declaratory relief that the use of
17 Id. 18 Id. 19 Id. 20 D.I. 12, Ex. B. During oral argument, counsel for Atlantic provided further details on the current state of the appeal. The Plaintiff has filed motions to recuse members of the Board, and there has been continued back and forth between the Plaintiff and Board’s attorney. D.I. 58. The Plaintiff also provided the Board’s attorney with a proposed motion for a stay, and the Board’s attorney agreed to a three-month stay, ending in November 2022. Id. It is unknown if the Administrative Proceedings have progressed since. 21 D.I. 1. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 6 of 22
the Subject Land is unlawful.22 In addition to Atlantic, the Plaintiff named Sussex
County as a defendant (together with Atlantic, the “Defendants”).23
On August 29, 2022, Sussex County filed a motion to compel the Plaintiff’s
election of a single forum: this Court or the Board.24 Atlantic went a step further,
filing a motion to dismiss this litigation for forum non conveniens in favor of the
prior-filed Administrative Proceedings.25 While these motions were being briefed,
the parties filed various discovery motions.26 On November 7, 2022, I heard
telephonic oral argument on all outstanding motions.27 I ruled on the outstanding
discovery motions28 and took the motion to compel election of a single forum and
motion to dismiss under advisement.29
II. ANALYSIS
Both motions before me seek to restrict adjudication of this matter to a single
forum. Atlantic’s motion to dismiss goes further than Sussex County’s motion to
22 Id. 23 Id. 24 D.I. 10. 25 D.I. 11. 26 D.I. 24, 34, 38, 42. 27 D.I. 58. 28 D.I. 52-55. 29 D.I. 56, 57. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 7 of 22
compel by arguing this Court should abstain in favor of the Administrative
Proceedings. I agree and I find that Atlantic’s motion to dismiss should be granted,
as explained below, rendering Sussex County’s motion moot.
A. The Administrative Proceedings are a prior action under the first Cryo-Maid factor, triggering McWane.
As explained most recently by Vice Chancellor Laster, “a motion invoking
the doctrine of forum non conveniens proceeds under Rule 12(b)(3) and seeks
dismissal on grounds of improper venue.”30 Under this lens, “the court is not
shackled to the plaintiff’s complaint and is permitted to consider extrinsic evidence
from the outset.”31 To this expanded record, the Court applies the so-called “Cryo-
Maid” factors.”32 Those factors are:
(1) the existence of other litigation involving substantially similar parties or subject matter; (2) whether the controversy depends upon a question of Delaware law which the courts of this State more properly should decide than those of another jurisdiction; (3) the relative ease of access to proof; (4) the availability of compulsory process for witnesses; [(5) the possibility of a view of the premises;
30 Harris v. Harris, 2023 WL 355179, at *6 (Del. Ch. Jan. 23, 2023) (citing Lefkowitz v. HWF Hldgs., LLC, 2009 WL 3806299, at *3 (Del. Ch. Nov. 13, 2009)). 31 Id. at *6–8 (Del. Ch. Jan. 23, 2023) (internal quotations omitted) (quoting Simon v. Navellier Series Fund, 2000 WL 1597890, at *5 (Del. Ch. Oct. 19, 2000)). 32 See Gen. Foods Corp. v. Cryo-Maid, Inc., 198 A.2d 681, 684 (Del. 1964). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 8 of 22
(6)] any other matters that would affect the conduct of the litigation and the expeditious and economic administration of justice.33
“The first Cryo-Maid factor asks whether there is (i) an earlier-filed action,
(ii) between the same or substantially similar parties, (iii) addressing the same or
substantially similar subject matter, (iv) pending in a court capable of addressing the
matter in a just way.”34 If the answer to each sub part is “yes”, then the presumption
under McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d
281, 283 (Del. 1970) applies.35 Under McWane, “the court will dismiss or stay the
Delaware action in deference to the [p]rior [a]ction unless the Cryo-Maid factors
weigh heavily in favor of allowing the Delaware action to proceed.”36
The Plaintiff argues that “McWane’s presumption of dismissal”37 should not
apply because the Administrative Proceedings are in the State of Delaware and are,
33 Harris, 2023 WL 355179, at *7. In Harris, Vice Chancellor Laster omitted the view-of- the-premises factor, because it was irrelevant to the claims before him. Id. at n.5. 34 Id. 35 Id. 36 Id. (citing Gramercy Emerging Markets Fund v. Allied Irish Banks, P.L.C., 173 A.3d 1033, 1037 (Del. 2017)). “[T]he calculus only will favor denying the motion and permitting the Delaware action to move forward if the Delaware plaintiff has invoked a specialized statutory proceeding designed to address a particular issue or if Delaware otherwise has a particularly strong interest in the dispute.” Id. (citing Focus Fin. P’rs, LLC v. Holsopple, 250 A.3d 939, 953–54, 956 (Del. Ch. 2020)). 37 GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 101 (Del. 2021). But see Riordan Ltd. v. IVN Consulting, LLC, 2021 WL 2879786, at *4 (Del. Ch. July 9, 2021) (finding dismissal inappropriate). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 9 of 22
thus, not “an earlier-filed action.” But this argument imposes a new geographical
restriction not evident in McWane, Cryo-Maid, or their progeny. Those cases, rather,
focus on whether there is a parallel action, which implicates the principles in favor
of judicial economy and against forum shopping and inconsistent verdicts. Whether
that action is a formal court proceeding or in a different state, is not dispositive.
The Delaware Supreme Court’s decision in LG Electronics, Inc. v.
InterDigital Communications, Inc. is instructive.38 In LG Electronics, the Delaware
Supreme Court affirmed this Court’s finding that a first-filed arbitration was a prior
action triggering McWane. The Court explained:
[T]here is no principled reason to distinguish an arbitration proceeding from other first-filed actions. . . . [T]he principles underlying McWane apply equally when the first-filed action is an arbitration: the desire to avoid the “wasteful duplication of time, effort, and expense that occurs when judges, lawyers, parties, and witnesses are simultaneously engaged in the adjudication of the same cause of action in two courts,” and “the possibility of inconsistent and conflicting rulings and judgments and an unseemly race by each party to trial and judgment in the forum of its choice.”39
As the Plaintiff concedes, nowhere in its analysis did the court in LG Electronics
discuss where the arbitration was proceeding.40 In context, it is not difficult to
38 114 A.3d 1246 (Del. 2015). 39 Id. at 1252. 40 D.I. 20, p. 7, n. 8. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 10 of 22
understand why; the physical location of the arbitration was not material to the
court’s decision. The court focused on the “principles underlying McWane” and
concluded that those principles weighed in favor of treating the first-filed arbitration
as a first-filed action. In the decision affirmed, Vice Chancellor Laster found
persuasive that arbitrations have been treated as prior actions in other contexts, such
as for purposes of issue and claim preclusion.41
The same is true here. The Administrative Proceedings were initiated first
and involve the same parties and issues as this action. Absent a stay or dismissal,
this action and the Administrative Proceedings would proceed in parallel; the risk of
duplicative efforts, inconsistent verdicts, and race to a decision all favor application
of McWane. And, like arbitrations, administrative decisions are treated as having
preclusive effect for purposes of issue and claim preclusion.42
Taking this back to the first Cryo-Maid factor, I find the Administrative
Proceedings are an earlier-filed action, between the same parties, and addressing the
41 LG Elecs., Inc. v. InterDigital Commc’ns, Inc., 98 A.3d 135, 138-39 (Del. Ch. 2014), aff’d, 114 A.3d 1246 (Del. 2015). 42 See Betts v. Townsends, Inc., 765 A.2d 531, 534 (Del. 2000) (“Under the doctrine of res judicata, a party is foreclosed from bringing a second suit based on the same cause of action after a judgment has been entered in a prior suit involving the same parties. Similarly, where a court or administrative agency has decided an issue of fact necessary to its decision, the doctrine of collateral estoppel precludes relitigation of that issue in a subsequent suit or hearing concerning a different claim or cause of action involving a party to the first case.”) (citations omitted). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 11 of 22
same subject matter. One question remains: is the administrative body “capable of
addressing the matter in a just way.”43 “Rendering justice entails accurately applying
controlling law as well as ensuring that all parties necessary to a complete resolution
are joined (or can be joined by service of process) in a competing action.”44 I find
the Board is capable of rendering justice.45
The Board is well-poised to analyze and address the Sussex County zoning
ordinances.46 And the Board, thus far, has acted promptly to do so.47 The delay in
the Administrative Proceedings is, admittedly, attributable to the Plaintiff, who
requested a stay. There is nothing to suggest the Board cannot or will not move
promptly to address the matter before it, subject to its rules of procedure.48 Although
43 Harris, 2023 WL 355179, at *7. 44 Brookstone Partners Acquisition XVI, LLC v. Tanus, 2012 WL 5868902, at *6 (Del. Ch. Nov. 20, 2012). 45 Atlantic argues that the Plaintiff has “conceded that the Board is competent to adjudicate the matter” by first selecting the Board as his forum; I nonetheless address this factor on its merits. But see In re Diamond Foods, Inc. Derivative Litig., 2013 WL 755673, at *4 (Del. Ch. Feb. 28, 2013) (finding a plaintiff “conced[ed] that a non-Delaware court could competently adjudicate the claim” by first filing in a different jurisdiction). 46 See Sussex Cty. C. § 115-208. 47 See, e.g., D.I. 19, Ex. 2 (demonstrating that the Board responded to the Plaintiff’s supplemental motion one day after it was submitted). 48 RULES OF PROCEDURE OF THE BOARD OF ADJUSTMENT OF SUSSEX COUNTY, DELAWARE, https://sussexcountyde.gov/sites/default/files/PDFs/BOA_Rules_of_Procedure.pdf (last visited Feb. 28, 2023). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 12 of 22
I appreciate the Plaintiff’s concerns about those rules, I find those concerns are more
appropriately weighed in the remaining Cryo-Maid factors; they do not, in my view,
go toward whether the Board is “capable of addressing the matter in a just way.”49
The first Cryo-Maid factor has been met and the McWane presumption
applies.50
49 Harris, 2023 WL 355179, at *7. Under 9 Del. C. § 6916, the Board has jurisdiction to hear appeals from the decision of any administrative officer. Further, under 9 Del. C. § 6915, the County was charged with providing “general rules to govern the organization, procedure and jurisdiction of the Board of Adjustment[.]” To conclude that provisions in those rules render the Board incapable of addressing a matter otherwise properly before it in a just way would not be appropriate on the record before me. 50 The Plaintiff argues that the principles underlying McWane do not apply because the Plaintiff instituted both actions. He emphasizes the following quote from McWane: “a defendant should not be permitted to defeat the plaintiff’s choice of forum in a pending suit by commencing litigation involving the same cause of action in another jurisdiction of its own choosing[.]” McWane, 263 A.2d at 283. But such is just one consideration of the McWane analysis, which is not dispositive. For example, in LG Electronics, the same party who demanded arbitration, filed an action with the Court of Chancery, which was dismissed in favor of the first-filed arbitration under McWane. LG Elecs., Inc. v. InterDigital Commc’ns, Inc., 114 A.3d at 1252. See also Luchi v. Luchi, 2020 WL 1274879, at *3 (Del. Ch. Mar. 17, 2020), adopted (Del. Ch. 2020) (applying McWane to actions filed by the same party); In re Diamond Foods, Inc. Derivative Litig., 2013 WL 755673, at *4 (dismissing parallel litigation filed by what the Court termed “Dual Forum Plaintiffs” under McWane). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 13 of 22
B. The remaining Cryo-Maid factors do not weigh heavily in favor of this action.
Having found the McWane presumption applies, I must now return to the
remaining Cryo-Maid factors. If those factors do not weigh heavily in favor of
allowing this action to proceed, it should be stayed or dismissed.
Factor (2) and (3) ask “whether the controversy depends upon a question of
Delaware law which the courts of this State more properly should decide than those
of another jurisdiction” and require that I look to “the relative ease of access to
proof[.]”51 These factors are in equipoise—both actions are pending within this
State, where the Subject Land is located.
Factor (4) looks to “the availability of compulsory process for witnesses;”52
whether either forum “can compel the relevant witnesses to appear for discovery and
trial.”53 The Plaintiff argues this factor favors this action because the Board’s “rules
do not provide for compulsory process, direct cross-examination of adverse
witnesses, discovery, nor pleading by anyone other than the appellant.” 54 The
51 Harris, 2023 WL 355179, at *7. 52 Id. 53 Holsopple, 250 A.3d at 974. 54 D.I. 20, p. 16. These limitations are what compelled the Plaintiff to file this action. See D.I. 19 (“The Plaintiff brought this action because of the procedural inadequacies encountered in the BOA appeal.”). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 14 of 22
Plaintiff appears correct—although the Plaintiff “will be afforded the opportunity to
present testimony and evidence supporting” his appeal to the Board under Rule
15.3,55 I can find nothing in the Board’s rules expressly permitting discovery or the
subpoena process.56 Further, Rule 14.6 provides: “No cross-examination of
witnesses or applicants will be permitted. All questions for others should be directed
to the Board and the Board may direct the question to the appropriate person.”57
Thus, I find this factor favors this action.
Factor (5) inquires into “the possibility of the view of the premises.” The
Plaintiff argues that this factor favors this action because the Administrative
Proceedings do not contemplate a view of the premises. Conversely, Court of
Chancery Rule 34 sets forth a procedure for entry upon land for inspection and other
purposes. But the mere availability of a discovery tool does not tilt the scale.
Because both proceedings are in the same state as the Subject Land and there appears
to be no dispute that the Subject Land is being used for industrial purposes such that
55 Sussex Cty. Bd. of Adjustment R. 15.3. 56 See also D.I. 19, Ex. 2, p.9 (reflecting the Board’s view that “conducting pre-hearing discovery would be inconsistent with the process and procedures in [the Board’s] rules and is therefore not permitted”). 57 Sussex Cty. Bd. of Adjustment R. 14.6. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 15 of 22
inspection would be essential to proving the Plaintiff’s claims, I find this factor is
neutral.58
Finally, factor (6) looks to “any other matters that would affect the conduct of
the litigation and the expeditious and economic administration of justice.”59 This
factor “is a catch-all factor that looks to any other matters that would affect the
conduct of the litigation and the expeditious and economic administration of
justice.”60 “Under this prong, Delaware courts have examined a wide array of
considerations[,] including judicial economy, the motives of the parties filing suit in
the respective jurisdictions, and public interest.”61 “It authorizes a trial court to take
into account the need to control its own docket, manage its affairs, achieve the
orderly disposition of its business, and promote the efficient use of judicial
resources.”62
58 See, e.g., VTB Bank v. Navitron Projects Corp., 2014 WL 1691250, at *9 (Del. Ch. Apr. 28, 2014) (finding this factor neutral given the availability of video recording); IM2 Merch. & Mfg., Inc. v. Tirex Corp., 2000 WL 1664168, at *10 (Del. Ch. Nov. 2, 2000) (same). 59 Harris, 2023 WL 355179, at *7. 60 Id. at *13 (quoting Holsopple, 250 A.3d at 974) (quotation marks omitted). 61 Pipal Tech Ventures Priv. Ltd. v. MoEngage, Inc., 2015 WL 9257869, at *9 (Del. Ch. Dec. 17, 2015). 62 Holsopple, 250 A.3d at 974–75. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 16 of 22
Both sides argue this factor favors them. The Plaintiff’s arguments arise from
his abatement request; first, that the request distinguishes this action from the
Administrative Proceedings and second, that the abatement statute provides for, or
contemplates, parallel actions. Atlantic urges me to consider the policy
considerations against forum shopping. I address these arguments in turn.
First, I appreciate that the abatement request lies solely before this Court. But,
like Vice Chancellor Laster in LG Electronics, I find this request for injunctive relief
does not move the needle in favor of permitting parallel actions. In LG Electronics,
the non-moving party argued against dismissal under McWane because of its claim
in this Court for injunctive relief to bar future contractual breaches. But Vice
Chancellor Laster found, and the Delaware Supreme Court affirmed, that the claim
was not yet ripe—the injunction would only issue if there was a pattern of conduct
supporting a reasonable apprehension of future breaches.63
I hold similarly here. The injunctive relief requested here is an abatement of
the non-conforming use. But, before that injunctive relief can be granted, there must
be a determination that Atlantic’s use is non-conforming. That question is currently
pending before the Board, the first forum selected by the Plaintiff. If the Board finds
63 LG Elecs., Inc. v. InterDigital Commc’ns, Inc., 98 A.3d at 145. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 17 of 22
the use non-conforming, it may direct further enforcement and order appropriate
relief. It would also be unreasonable, at this time, to infer that Atlantic would
willfully ignore such finding and enforcement efforts, such that there is a reasonable
apprehension of the need for injunctive relief.64
The Plaintiff also argues that 9 Del. C. § 6919(d) contemplates parallel
actions. He reasons, because the statute permits an action for abatement “in addition
to other remedies provided by law,”65 a proceeding before the Board is not exclusive
of a judicial remedy and both actions can continue. In support, the Plaintiff points
to Scarborough v. Mayor & Council of Town of Cheswold, 303 A.2d 701 (Del. Ch.
1973) and Vivari v. Francis, 1991 WL 79472 (Del. Ch. May 6, 1991).
64 As argued by Sussex County in support of its motion, “the use violation alleged by Plaintiff would become self-abating under Sussex County Code if Plaintiff prevails before the Board.” D.I. 28, p.3. I also find Vice Chancellor Zurn’s recent decision in Delta Eta Corp. v. City of Newark, C.A. No. 2021-1106-MTZ, D.I. 45 analogous. Therein, Vice Chancellor Zurn dismissed claims challenging a zoning decision for lack of subject matter jurisdiction, finding the “request for an injunction falls short of invoking this Court’s equitable jurisdiction both because it has not sufficiently pled the need for an injunction, and because a writ of certiorari provides an adequate remedy at law.” Id. The Court rejected the argument that “the Court of Chancery and the Superior Court share concurrent jurisdiction over zoning disputes, and that a plaintiff can choose to litigate in this Court through the mere request for injunctive relief.” Id. (citations omitted). Rather, the Court held the plaintiff to its burden of pleading “a reasonable apprehension of future harm.” Id. (citations omitted). Absent such, the plaintiff had an adequate remedy at law: to challenge the administrative decision in the Superior Court. Id. 65 9 Del. C. § 6919(d). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 18 of 22
In Scarborough, Chancellor Duffy addressed a homeowner challenge to a
county ordinance. The homeowner sought injunctive relief to prevent construction
the homeowner alleged was in violation of the ordinance.66 Relying on Kent
County’s version of 9 Del. C. § 6919(d), the Chancellor found the homeowner was
not required to first appeal to the county’s board of adjustment.67 He reasoned the
administrative remedy was not exclusive, nor “substantially equivalent” to the
injunctive relief requested.68 Thus, the homeowner did not fail to exhaust
administrative remedies and the action filed in this Court could proceed.69 Likewise,
this Court, in Vivari, held that the Rehoboth Beach Zoning Ordinance (as defined
therein), did “not limit plaintiffs’ remedy to an appeal to the Board of Adjustment.”70
These cases are inapposite to the issue at hand. The Plaintiff chose to appeal
to the Board and that action remains pending. The question is not whether he was
required to do so but whether he should be permitted to maintain and actively litigate
both that appeal and this action. I find he should not, after my analysis of the Cryo-
Maid factors, applying the McWane presumption. The Plaintiff’s attempt to use the
66 Scarborough, 303 A.2d at 703-04. 67 Id. at 704. 68 Id. 69 Id. 70 Vivari v. Francis, 1991 WL 79472, at *5. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 19 of 22
remedy language in 9 Del. C. § 6919(d) and the doctrine of exhaustion of
administrative remedies to supplant the forum non conveniens analysis is
unpersuasive.
Moving to Atlantic’s arguments, under this catch-all, Atlantic implores me to
consider the “why”; why the Plaintiff brought this action and the related policy
implications. As recognized by the Delaware Supreme Court in Lisa, S.A. v.
Mayorga, forum non conveniens “discourage[s] forum shopping and promote[s] the
orderly administration of justice by recognizing the value of confining litigation to
one jurisdiction, whenever that is both possible and practical.”71 Here, the Plaintiff
admits that he filed this action due to what he saw as “procedural inadequacies” in
the Administrative Proceedings related to discovery and trial procedure. But the
Plaintiff chose his forum and should be compelled to litigate therein.
Overall, I find this final factor favors the Administrative Proceedings. The
Board was ready to proceed and has devoted resources to the matter before it.72
Although the Plaintiff appears to distrust or have concerns about the Board’s ability
to decide the dispute neutrally, there are avenues for him to address those concerns.
Specifically, under 9 Del. C. § 6918(a), “[a]ny persons jointly or severally aggrieved
71 993 A.2d 1042, 1047 (Del. 2010) (citations and quotation marks omitted). 72 See, e.g., D.I. 19, Ex. 2. Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 20 of 22
by a decision of the Board . . . may present to the Superior Court in and for Sussex
County, a petition duly verified, setting forth that such decision is illegal in whole
or in part, specifying the grounds of the illegality.” This avenue weighs in favor of
requiring the Plaintiff to litigate in his first chosen forum.
* * *
Altogether, I find the remaining Cryo-Maid factors do not weigh heavily in
favor of this action. Most factors were neutral, although factor (4) weighed in favor
and factor (6) weighed against. Although “[t]he final factor will seldom, in isolation,
be dispositive of whether dismissal on the grounds of forum non conveniens is
warranted[,]”73 the McWane presumption requires heavy weight in favor of this
second filed action for the Plaintiff to avoid dismissal or a stay. The considerations
under factor (4) are insufficient to heavily outweigh those under factor (6). Thus,
this action should be dismissed or stayed in favor of the Administrative Proceedings.
C. This action should be dismissed.
In GXP Capital, LLC v. Argonaut Manufacturing Services, Inc., the Delaware
Supreme Court carefully examined the presumptions that apply to a forum non
conveniens analysis depending on the procedural posture.74 In cases like this, where
73 Harris, 2023 WL 355179, at *13 (citations and quotation marks omitted). 74 253 A.3d 93 (Del. 2021). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 21 of 22
there is a first filed action, the Delaware Supreme Court reiterated “McWane’s
presumption of dismissal.”75 This Court is, however, within its discretion is stay,
rather than dismiss. When it is “impossible to predict with certainty the course of
earlier-filed litigation in another jurisdiction” a stay may be more appropriate.76 This
Court will also stay when the parties’ dispute may not be fully resolved in the prior
action.77 Such would ensure the non-moving party is “not deprived of a forum.”78
These considerations are not present here. The Administrative Proceedings
are functionally identical with the claims in this action, as already explained. The
outcome of the Administrative Proceedings may then be appealed to the Delaware
Superior Court under 9 Del. C. § 6918. This provides an adequate remedy at law for
the Plaintiff.79 For these reasons, I find this case should be dismissed in favor of the
Administrative Proceedings. This dismissal should be without prejudice.80
75 GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d at 101. But see Riordan Ltd. v. IVN Consulting, LLC, 2021 WL 2879786, at *4 (Del. Ch. July 9, 2021) (finding dismissal inappropriate). 76 Schnell v. Porta Sys. Corp., 1994 WL 148276, at *6 (Del. Ch. Apr. 12, 1994). 77 See, e.g., USX Corp. v. U.S. Denro Steels, Inc., 2001 WL 1269329, at *2 (Del. Ch. June 29, 2001). 78 Hurst v. Gen. Dynamics Corp., 583 A.2d 1334, 1341 (Del. Ch. 1990). 79 See Delta Eta Corp. v. City of Newark, C.A. No. 2021-1106-MTZ, D.I. 45. 80 See Harris, 2023 WL 115541, at *8 (recognizing that dismissal for forum non conveniens is without prejudice); IM2 Merch. & Mfg., Inc. v. Tirex Corp., 2000 WL 1664168, at *12 (accord). Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County, C.A. No. 2022-0621-SEM February 28, 2023 Page 22 of 22
III. CONCLUSION
For the above reasons, I find that the motion to dismiss should be granted and
the motion to compel election of a single forum should be denied as moot. Under
Court of Chancery Rule 12(b)(3), this action should be dismissed for forum non
conveniens without prejudice and in favor of the first-filed Administrative
Proceedings. This is my final report and exceptions may be filed under Court of
Chancery Rule 144.
Respectfully submitted,
/s/ Selena E. Molina
Master in Chancery