Naples Center for Dermatology & Cosmetic Surgery, PA d/b/a Riverchase Dermatology v. Trisan, C.A. No. 2023-1231-BWD (Del. Ch. May 2, 2025)
On May 2, 2025 Vice Chancellor David granted a motion to dismiss pursuant to Court of Chancery Rule 12(b)(3) for improper venue after holding that plaintiff had waived an exclusive jurisdiction provision and then applying the doctrine of forum non conveniens.
Plaintiff Riverchase Dermatology (“Riverchase”) is a Florida corporation providing surgical, general, and cosmetic dermatology services to patients in Florida. Defendant, Trisan, was a physician’s assistant that executed an employment agreement with Riverchase. The employment agreement contained restrictive covenants and included a provision selecting Delaware as the exclusive jurisdiction and venue for any actions arising out of or relating to the employment agreement (the “Exclusive Jurisdiction Provision”)
Trisan eventually left Riverchase and began working for a competitor. Shortly thereafter, Riverchase filed a lawsuit in Florida against Trisan and the new employer, alleging, among other claims, that Trisan had breached the employment agreement and the restrictive covenants. Several weeks after the Florida litigation was filed, defendants in the Florida litigation sent Riverchase a “safe harbor letter” asserting that they would move to dismiss the Florida Action and seek sanctions because the employment agreement included the Exclusive Jurisdiction Provision that required claims relating to the employment agreement to be brought in Delaware.
Months later, counsel for Riverchase in Florida sent Trisan’s counsel an email acknowledging that the defendants’ motion to dismiss in Florida argued that the forum selection provision in the employment agreement required actions to be brought in Delaware, but asked if defendants would agree to litigate in Florida in order to continue discussing potential settlement. Trisan’s counsel responded that Trisan would agree to waive the Delaware jurisdiction provision.
Just over a month after that email between counsel, Riverchase filed suit in Delaware for breach of the restrictive covenants in the employment agreement and alleged violations of the Delaware Uniform Trade Secrets Act. At the same time, Riverchase sought leave in Florida to dismiss Trisan as a defendant without prejudice to pursue the litigation against Trisan in Delaware. In response, Trisan argued that Riverchase had waived the Exclusive Jurisdiction Provision. The Florida court dismissed Trisan without prejudice without addressing the Exclusive Jurisdiction Provision or the waiver argument. Trisan then moved to dismiss in Delaware pursuant to Court of Chancery Rules 12(b)(3) and 12(b)(6).
The Court began its legal analysis by highlighting that generally “[t]he courts of Delaware defer to forum selection clauses” and routinely give such clauses effect. Here, however, Trisan argued that the Exclusive Jurisdiction Provision had been waived and therefore the Court should not defer to it. The Court noted that waiver under Delaware law is “the voluntary and intentional relinquishment of a known right,” which can be either express or implied, as long as it is unequivocal.
The Court first considered whether Riverchase had expressly waived the Exclusive Jurisdiction Provision via its counsel’s email to Trisan’s counsel expressly asking if Trisan would agree to litigate in Florida. The Court held that there was an express waiver. In the email, Riverchase’s counsel asked if Trisan would agree to litigate in Florida and Trisan’s counsel confirmed that Trisan would waive the Delaware Exclusive Jurisdiction Provision in the employment agreement. The Court rejected Riverchase’s argument that this agreement was conditioned on the parties reaching a settlement, noting that Trisan had in fact filed an answer in Florida admitting that Florida was the proper venue.
The Court then considered whether there had been an implicit waiver due to the fact that Riverchase brought its claims first in Florida. The Court concluded that Riverchase “clearly and unequivocally relinquished its rights under the Exclusive Jurisdiction Provision by pursuing nearly identical claims in Florida Court for seven months before eventually deciding to bring those claims in Delaware instead.” The Court addressed Riverchase’s argument that simply filing a lawsuit in the wrong forum is not enough for waiver of a forum selection provision. Riverchase contended that Delaware courts will not find waiver in the absence of prejudice, relying on cases in the arbitration context. The Court distinguished arbitration provisions, highlighting that, because of Delaware’s strong public policy favoring arbitration, “when considering whether a party implicitly waived its right to arbitration, the Court considers not merely the inconsistency of a party’s actions, but the presence or absence of prejudice which is determinative of the issue of waiver.” The Court stated that the same policy concerns are absent in the case of parties with no connection to Delaware litigating over restrictive covenants. And furthermore, the Court concluded that Riverchase’s attempt to shop forums after having the parties litigate for seven months in Florida was enough prejudice to support an implicit waiver.
Because the Exclusive Jurisdiction Provision had been waived, the Court moved on to evaluating the case under the Cryo-Maid factors. The Court concluded that Delaware was not the appropriate forum under the doctrine of forum non conveniens.
Specifically, as between Delaware and Florida for potential venues, the Court found that, although the parties had selected Delaware law to govern their contractual relationship, Delaware did not have any other interest in the dispute. The Court also concluded that access to proof and the availability of compulsory process weighed in favor of Florida. Moving to the fourth factor regarding the pendency of similar actions in another jurisdiction, the Court noted the fact that there was currently no litigation pending against Trisan, but also stated that Delaware courts discourage forum shopping, so on balance this factor weighed against dismissal, but was not dispositive. Finally, the Court looked at public policy concerns surrounding the outcome of the legal issues presented, concluding that Florida has a significant interest in resolving issues implicating access to medical care in its jurisdiction and ensuring its laws are enforced with respect to the employment rights of its citizens, whereas Delaware has no interest in the dispute. Based on a balancing of the Cryo-Maid factors, the Court concluded that Delaware was not the appropriate forum and dismissed the complaint.