IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
OTTO CANDIES, LLC, et al. )
)
Plaintiffs, )
)
v. ) C.A. No. 2018-0435-MTZ
)
KPMG, LLP, et al. )
)
Defendants. )
MEMORANDUM OPINION
Date Submitted: March 22, 2019
Date Decided: April 25, 2019
David E. Ross, ROSS, ARONSTAM & MORITZ LLP, Wilmington, Delaware;
Terry L. Wit, A. William Urquhart, Juan P. Morillo, Derek L. Shaffer, Lauren H.
Dickie, QUINN EMANUEL URQUHART & SULLIVAN, LLP; San Francisco,
California and Washington, D.C.; Attorneys for Plaintiffs
Kevin R. Shannon, Matthew F. Davis, and Christopher N. Kelly, POTTER
ANDERSON & CORROON LLP, Wilmington, Delaware; Gregory G. Ballard and
Jose F. Sanchez, SIDLEY AUSTIN LLP, New York, New York; Attorneys for
Defendant KPMG Cárdenas Dosal, S.C.
Todd Schiltz, DRINKER BIDDLE & REATH LLP, Wilmington, Delaware; Robert
A. Scher and Jonathan H. Friedman, FOLEY & LARDNER LLP, New York, New
York; Attorneys for Defendant KPMG, LLP
Timothy Jay Houseal, Jennifer M. Kinkus, William E. Gamgort, YOUNG
CONAWAY STARGATT & TAYLOR LLP, Wilmington, Delaware; Ana C.
Reyes, WILLIAMS & CONNOLLY, LLP, Washington, D.C.; Attorneys for
Defendant KPMG International Cooperative
ZURN, Vice Chancellor
Peculiar facts can prod the limits of otherwise routine court rules. This case
provides one such example: namely, whether this Court’s specific rules on
amendments apply when parties transfer a fully briefed motion from another
Delaware court. Plaintiffs initially filed this action in the Superior Court, where the
parties briefed and argued motions to dismiss. The Superior Court held that it lacked
subject matter jurisdiction and plaintiffs transferred the case, along with the motions
as briefed in the Superior Court, to this Court under 10 Del. C. § 1902. On February
28, 2019, this Court issued a memorandum opinion dismissing plaintiffs’ complaint
for lack of personal jurisdiction and for failure to state a claim.1
Court of Chancery Rule 15(aaa) requires plaintiffs faced with a motion to
dismiss for failure to state a claim to either amend their complaint instead of
opposing the motion, or else stand firm and face a dismissal with prejudice if they
lose. The Superior Court has no corollary requirement. To inform whether
plaintiffs’ dismissals are with or without prejudice, this Court’s opinion requested
supplemental briefing on the applicability of Rule 15(aaa) to fully briefed dispositive
motions transferred under Section 1902.
I conclude that Rule 15(aaa), or the policies that motivate it, apply when a
complaint is transferred to this Court subject to a fully briefed motion seeking
1
Otto Candies, LLC v. KPMG LLP, 2019 WL 994050, at *2-6 (Del. Ch. Feb. 28, 2019).
dismissal under Rules 12(b)(6) or 23.1. Transferring plaintiffs must either seek leave
to amend or stand firm on their complaint and risk dismissal with prejudice under
Rule 15(aaa). However, because the parties in this action were the first to confront
this issue, the interests of justice require a mulligan. Extinguishing plaintiffs’ claims
with prejudice under Rule 15(aaa) would be unduly penal under the circumstances,
and so their claims are dismissed without prejudice under the good cause exception
to Rule 15(aaa). Plaintiffs may move to amend.
I. BACKGROUND
I refer readers to the background section of the prior opinion in this case for a
full recitation of the facts.2 Here, I provide only a brief overview of the procedural
posture relevant to my decision.3
Plaintiffs filed their complaint on February 26, 2016 in the Superior Court.4
On June 27, 2016, Defendants separately moved to dismiss (the “Motions to
Dismiss”). The parties stayed briefing on the Motions to Dismiss for more than a
year as they litigated complex personal jurisdictional disputes that culminated in a
series of protective orders, a ruling from the appointed Special Master on the scope
2
Otto Candies, 2019 WL 994050, at *2-6. I also import any defined terms from that
opinion.
3
See Otto Candies, LLC v. KPMG LLP, C.A. No. N16C-02-260 PRW CCLD (Del. Super.
Ct.) [hereinafter Superior Court Action].
4
Superior Court Action, D.I. 1.
2
of personal jurisdiction, and a decision from the Superior Court adopting the Special
Master’s decision in full.5 With the personal jurisdiction issues settled and
jurisdictional discovery complete, Plaintiffs opposed the Motions to Dismiss on
September 13, 2017.6 Defendants filed reply briefs on November 13 and 14, 2017.7
The parties’ briefing on the Motions to Dismiss totaled 271 pages, excluding
exhibits and affidavits. Defendants sought dismissal on a number of grounds,
including that the Superior Court lacked subject matter jurisdiction to hear Plaintiffs’
claims for negligent representation, which are typically heard in the Court of
Chancery. On December 4, 2017, the Superior Court heard argument on the Motions
to Dismiss. On December 15, 2017, Plaintiffs filed a motion for judicial notice of
certain materials that purportedly “would be relevant to a proposed amended
complaint should Defendants’ motions to dismiss not be denied and Plaintiffs be
granted leave to replead.”8 On April 25, 2018, the Superior Court ruled that it lacked
subject matter jurisdiction to hear negligent misrepresentation claims, and permitted
Plaintiffs the opportunity to transfer venue to this Court under Section 1902.9
5
Otto Candies, 2019 WL 994050, at *3-5.
6
Superior Court Action, D.I. 99.
7
Superior Court Action, D.I. 104-109.
8
Superior Court Action, D.I. 113 ¶ 1.
9
Otto Candies, LLC v. KPMG LLP, 2018 WL 1960344, at *4 (Del. Super. Ct. Apr. 25,
2018). The Superior Court denied Plaintiffs’ motion for judicial notice as mooted by its
jurisdictional ruling. Id. at *5.
3
On June 13, 2018, Plaintiffs re-filed their complaint in this Court with minor
amendments to bring the complaint in line with our procedural rules. In a joint letter
accompanying that transfer, the parties stated:
While the Superior Court held that it lacked subject matter jurisdiction
over plaintiffs’ claims, it did not rule on other issues defendants raised
in their pending motions to dismiss . . . . Those issues remain
outstanding. . . . The parties respectfully request that Your Honor rule
on the motion to dismiss issues that remain outstanding.10
The parties also transferred the motion for judicial notice from the Superior
Court, and Plaintiffs filed a second motion for judicial notice of materials that, as in
the first motion, purportedly “would be relevant to any proposed amended
complaint, should one be occasioned by this Court’s ruling on Defendants’ motions
to dismiss.”11 Defendants’ opposition to the second motion for judicial notice raised
the question of Rule 15(aaa)’s applicability to any amended complaint for the first
time in this action.12
I heard argument on November 7, 2018.13 At argument, I denied the motions
for judicial notice as unripe because they were framed in the context of a yet-unfiled
amended complaint. On February 28, 2019, I granted the Motions to Dismiss and
dismissed Plaintiffs’ claims under Rules 12(b)(2) and 12(b)(6) for lack of personal
10
D.I. 2 at 2.
11
D.I. 45 ¶ 1.
12
D.I. 56 ¶ 10 n.7.
13
I refer to the hearing transcript as the “Hearing Tr.”
4
jurisdiction and failure to state a claim. However, in light of the parties’ skirmishes
on Rule 15(aaa), I requested supplemental briefing on its application and whether
the dismissals should be with or without prejudice. On March 22, the parties filed
their submissions.14
II. ANALYSIS
A. Rule 15(aaa) And Its Policies Apply, But Plaintiffs Have Shown
Good Cause To Prevent Dismissal With Prejudice.
Rule 15(aaa) requires parties to make a choice when faced with a motion to
dismiss under Rules 12(b)(6) or 23.1: amend or stand firm.
In the event a party fails to timely file an amended complaint or motion
to amend . . . and the Court thereafter concludes that the complaint
should be dismissed under Rule 12(b)(6) or 23.1, such dismissal shall
be with prejudice . . . unless the Court, for good cause shown, shall find
that dismissal with prejudice would not be just under all the
circumstances.15
“The purpose of Rule 15(aaa) was to curtail the number of times that the Court
of Chancery was required to adjudicate multiple motions to dismiss the same
action.”16 Accordingly, “[t]he rule is intended to conserve litigants’ and judicial
14
D.I. 77 (Defendants), 78 (Plaintiffs).
15
Ct. Ch. R. 15(aaa).
16
Braddock v. Zimmerman, 906 A.2d 776, 783 (Del. 2006).
5
resources by discouraging a party from briefing a dispositive motion before filing an
amended complaint.”17
Plaintiffs initially filed their complaint in the Delaware Superior Court, which
has no corollary to Rule 15(aaa). When the Superior Court agreed with Defendants
that it lacked subject matter jurisdiction, it did so without reaching any other
substantive arguments in the Motions to Dismiss. Under Section 1902, Plaintiffs
elected to transport the Motions to Dismiss and their briefing whole-cloth from
Superior Court to this Court. The parties understood that transferring to this Court
required compliance with this Court’s Rules.18
Had Plaintiffs filed in this Court to begin with, Rule 15(aaa) would have
required them to either stand on their complaint or amend in response to the Motions
to Dismiss. The question now is whether Rule 15(aaa) applies where (i) a fully
briefed motion to dismiss under Rule 12(b)(6) is transferred from Superior Court to
this Court, and (ii) plaintiffs elect to stand on that briefing and their complaint rather
than seek leave to amend promptly upon transfer. I hold that it does.
17
E. Sussex Assocs., LLC v. W. Sussex Assocs., LLC, 2013 WL 2389868, at *1 (Del. Ch.
June 3, 2013).
18
See generally D.I. 1 (modifying complaint to comply with Court Rules); D.I. 2 (joint
letter from the parties requesting that the Court “rule on the motion to dismiss issues that
remain outstanding”); 10 Del. C. § 1902.
6
Plaintiffs argue that Rule 15(aaa) cannot apply because it demands that parties
make their choice to amend or stand firm “no later than the time such party’s
answering brief in response to [a relevant motion] is due to be filed,” and that
deadline was never triggered in this Court because the parties transferred the fully
briefed dispute from the Superior Court.19 While I recognize that Rule 15(aaa) does
not squarely map on to a motion transferred under Section 1902, this Court has
discretion to conform the transferred case “to law and to the rules and practice of
[this] court, and may by rule or special order provide for amendments in pleadings
and for all other matters concerning the course of procedure for hearing and
determining the cause as justice may require.”20 Even if Rule 15(aaa)’s procedures
were not triggered, in my view, its underlying policies should apply on these facts
to “curtail the number of times that the Court of Chancery [is] required to adjudicate
multiple motions to dismiss the same action.”21 The spirit of Rule 15(aaa) demands
that parties transferring to this Court with a fully briefed motion to dismiss must
either promptly move to amend, or else stand on their papers and risk a dismissal
with prejudice. Requiring an amendment after transfer does not penalize parties for
19
D.I. 78 at 3.
20
10 Del. C. § 1902.
21
Braddock, 906 A.2d at 783; see also E. Sussex Assocs., 2013 WL 2389868, at *1.
7
beginning their case in a different Delaware court. But it does oblige them to timely
conform to this Court’s rules and policies once they arrive.
Rule 15(aaa) only permits a dismissal without prejudice where “the Court, for
good cause shown, [finds] that dismissal with prejudice would not be just under all
the circumstances.”22 Plaintiffs attempt to show good cause by arguing a lack of
notice that the Rule 9(b) pleading standard might apply to their claims.23 But
Defendants repeatedly pressed to apply Rule 9(b) in their motions to dismiss before
the Superior Court, so Plaintiffs were aware of those arguments even before
transferring. Plaintiffs could have sought leave to amend to address any concerns
regarding Rule 9(b) either in the Superior Court or upon transfer to this Court. Nor
is Rule 15(aaa) rendered unjust by Plaintiffs’ proffered bevy of amendments to shore
up the complaint’s deficiencies.24 Nearly every plaintiff who receives a decision
dismissing their complaint will have a better idea of how to improve their pleading.
Rule 15(aaa) exists to avoid that scenario and force plaintiffs to make their call:
amend or stand.25
22
Ct. Ch. R. 15(aaa); see also TVI Corp. v. Gallagher, 2013 WL 5809271, at *22-23 (Del.
Ch. Oct. 28, 2013) (applying Rule 15(aaa) good cause exception where plaintiffs
mistakenly filed wrong pleading).
23
D.I. 78 at 4.
24
D.I. 78 at 4-5.
25
Braddock, 906 A.2d at 783; E. Sussex Assocs., 2013 WL 2389868, at *1.
8
Nonetheless, I find that dismissal of the claims in this case with prejudice
would be unjust for a different reason. Rule 15(aaa)’s application to a fully briefed
motion to dismiss transferred to this Court under Section 1902 is an issue that has
yet to be resolved—or apparently even raised—in a written Delaware decision.26
Although Plaintiffs would have been wise to seek clarification on the application of
Rule 15(aaa), or even seek leave to amend out of caution in light of their multiple
motions for judicial notice contemplating stronger pleadings, I recognize that the
parties were in uncharted waters. On these unique facts, the policies underlying Rule
15(aaa) yield to the Court’s broader policy of liberal amendments.27
I conclude dismissal with prejudice is unduly penal where Plaintiffs failed to
predict the answer to this undecided procedural question. This Court has applied
Rule 15(aaa)’s good cause exception where, for instance, it found that plaintiffs had
made a good faith error in filing an incorrect complaint.28 I believe Plaintiffs
likewise operated in good faith while in the shadow of a murky and dispositive legal
issue. I apply the good cause exception to dismiss Plaintiffs’ claims without
26
The parties have not identified a case resolving this scenario, nor have I found one. The
closest instance appears to be Reed v. Withers, where Vice Chancellor Glasscock required
a motion to amend from a plaintiff who added new substantive allegations to a complaint
that was transferred from the Superior Court and subject to a fully briefed motion to dismiss
in that Court. See C.A. No. 8395-VCG (Del. Ch. Apr. 25, 2013).
27
See Ct. Ch. R. 15(a) (requiring that “leave shall be freely given when justice so
requires”).
28
TVI Corp., 2013 WL 5809271, at *22-23.
9
prejudice. But now that the issue has been sorted out, I would not give the same
latitude to future parties in similar situations.
B. Dismissal Under Rule 12(b)(2) Is Without Prejudice.
The opinion also dismissed claims against certain foreign parties for lack of
personal jurisdiction under Rule 12(b)(2). Those dismissals are not subject to Rule
15(aaa), which applies only against motions under Rules 12(b)(6) and 23.1.
Plaintiffs represent that they do not currently intend to renew their claims against
those foreign parties, but seek dismissal without prejudice in the event they learn
additional facts that would support personal jurisdiction. 29 Defendants assert that
Plaintiffs have already had the opportunity for jurisdictional discovery and cannot
cure their defects by repleading.30 I err on the side of caution and hereby dismiss the
claims under Rule 12(b)(2) without prejudice.31
III. CONCLUSION
Plaintiffs’ claims are dismissed under Rules 9(b), 12(b)(2), and 12(b)(6)
without prejudice. Plaintiffs may seek leave to amend.
29
D.I. 78 at 6 n.3.
30
D.I. 77 at 5.
31
Additionally, Plaintiffs renew their prior motions for judicial notice, which this Court
previously found unripe because they were in the context of an amended complaint. I
hereby deny those motions without prejudice as still unripe until a relevant amended
complaint is filed.
10