IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
AVVE, INC.,
Plaintiff,
V. C.A. No. Nl8C-lO-Oll RRC
UPSTACK TECHNOLOGIES, INC.,
f/k/a ALT TAB, INC.,
Defendant.
Submitted: March 4, 2019
Decided: April 12, 2019
On Defendant’s Motion to Dismiss
Count 3 of Plaintiff’ s Amended Complaint.
GRANTED.
MEMORANDUM OPINION
Tiffany M. Shrenk, Esquire, and Andrew R. Silverman, Esquire, MacElree Harvey,
LTD, Centreville, Delaware, Attorneys for Plaintiff Avve, Inc.
Barry M. Klayman, Esquire, and Matthew Bleich, Esquire, Cozen O’Connor P.C.,
Wilmington, Delaware, Attorneys for Defendant Upstack Technologies, Inc.
COOCH, R.J.
I. INTRODUCTION
Upstack Technologies, Inc. (“Defendant”) has moved to dismiss Count 3 of
Avve, Inc.’s (“Plaintiff’) Amended Complaint, pursuant Superior Court Civil Rule
12(b)(6). Plaintiff’s complaint arises out of an alleged breach of a commercial
services contract between Plaintiff and Defendant. Plaintiff alleges that Defendant
breached the contract in a number of Ways and committed fraud. The breach of
contract claims, Counts l and 2 of the Amended Complaint, are unchallenged by
Defendant in the instant motion to dismiss, and a Trial Scheduling Order has been
issued for those counts.
Count 3 claims that Defendant committed fraud under Delaware law by
allegedly misrepresenting certain aspects of Defendant’s business prior to the parties
entering into the service contract. Defendant’s primary argument is that Plaintiff has
failed to satisfy the heightened pleading requirements for fraud claims under
Superior Court Civil Rule 9(b). Defendant argues that Plaintiff has not plead fraud
with sufficient particularity and specificity as required by Rule 9(b). Plaintiff
counters that the complaint sufficiently apprises Defendant of the nature of the claim
and thus satisfies Rule 9(b).
The Court concludes that Count 3 of Plaintiff’s Amended Complaint does not
meet the heightened pleading standards of Rule 9(b). Accordingly, Defendant’s
Motion to Dismiss Count 3 of the Amended Complaint is granted.
II. FACTS AND PROCEDURAL HISTORY
Avve, Inc. provides digital layaway services for e-commerce retailers and
their customers. Ms. Patricia Hauseman served as Avve’s Chief Executive Officer.
Upstack Technologies, Inc. provides website-building and maintenance services by
providing software developers for its clients. Upstack advised potential clients that
it selects the developer from a network of engineers, and all undergo a rigorous
hiring process to ensure that each engineer “possess[es] top tier communication,
personality, and tech sl