COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LORI W. WILL LEONARD L. WILLIAMS JUSTICE CENTER
VICE CHANCELLOR 500 N. KING STREET, SUITE 11400
WILMINGTON, DELAWARE 19801-3734
September 5, 2023
T. Brad Davey, Esquire Paul D. Brown, Esquire
Mathew A. Golden, Esquire Joseph B. Cicero, Esquire
Potter Anderson & Corroon, LLP Chipman Brown Cicero & Cole LLP
1313 North Market Street, 6th Floor 1313 North Market Street, Suite 5400
Wilmington, Delaware 19801 Wilmington, Delaware 19801
Stephen B. Brauerman, Esquire
Bayard, P.A.
600 North King Street, Suite 400
Wilmington, Delaware 19801
RE: Sal Gilbertie, et al. v. Dale Riker, et al.,
C.A. No. 2020-1018-LWW
Dear Counsel:
I have reviewed the plaintiffs’ Motion for Voluntary Dismissal of Claims
With Prejudice (the “Motion”). The Motion presents the latest twist in a long-
running dispute involving current and former officers of Teucrium Trading, LLC.
The legal saga began in 2019 when defendant Dale Riker—Teucrium’s former
CEO—filed a books and records action in this court. It proceeded through
threatened litigation in New York, the present action brought by Teucrium and
certain of its officers against Riker and his spouse (Teucrium’s former CFO), a
C.A. No. 2020-1018-LWW
September 5, 2023
Page 2 of 5
separate derivative action filed by Riker (that is now consolidated with this action),
and an advancement action.1
In this plenary suit, I have issued rulings on a motion to dismiss the
complaint,2 a motion to dismiss counterclaims,3 a motion for reconsideration,4 and a
motion to dismiss amended counterclaims.5 A subset of claims against Riker and
certain counterclaims remain. In the advancement action, I recently resolved cross-
motions for summary judgment in favor of the Rikers.6 That decision led the
plaintiffs to have a change of heart. They now seek to “dismiss their claims with
prejudice, without conditions, and without impacting Mr. Riker’s remaining two
counterclaims.”7
1
See C.A. No. 2019-0314-AGB (Del. Ch.); C.A. No. 2021-0561-LWW (Del. Ch.); C.A.
No. 2022-1030-LWW (Del. Ch.). For clarity, I refer to Dale Riker as “Riker” and to Dale
and Barbara Riker together as the “Rikers.”
2
Dkts. 71, 74.
3
Dkts. 115, 116.
4
Dkt. 123.
5
Dkts. 137, 146, 147.
6
C.A. No. 2022-1030-LWW (Del. Ch. June 13, 2023) (TRANSCRIPT). An interlocutory
appeal of that ruling was refused. See C.A. No. 2022-1030-LWW, Dkts. 56, 59.
7
Pls.’ Mot. for Voluntary Dismissal with Prejudice (Dkt. 156) ¶ 7.
C.A. No. 2020-1018-LWW
September 5, 2023
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The Rikers, however, oppose the Motion unless I impose a series of conditions
that largely relate to the advancement action.8 They ask that any order granting the
Motion also: (1) order Teucrium to advance the Rikers’ fees; (2) order the plaintiffs,
jointly and severally, to pay fees incurred from any re-do of discovery necessitated
by the dismissal; and (3) hold that the Rikers are “deemed wholly successful on the
merits or otherwise with respect to the claims asserted against them in this action.”9
Court of Chancery Rule 41(a)(2) provides for voluntary dismissal with court
approval:
[A]n action shall not be dismissed at the plaintiff’s instance save
upon order of the Court and upon such terms and conditions as
the Court deems proper. If a counterclaim has been pleaded by
a defendant prior to the service upon defendant of the plaintiff’s
motion to dismiss, the action shall not be dismissed against the
defendants’ objection unless the counterclaim can remain
pending for independent adjudication by the Court. Unless
otherwise specified in the order, a dismissal under this paragraph
is without prejudice.10
None of the conditions proposed by the Rikers are proper.
8
Rikers’ Resp. to Pls.’ Mot. for Voluntary Dismissal with Prejudice (Dkt. 158) (“Rikers’
Resp.”) ¶ 9.
9
Id. ¶¶ 10, 17, 20; [Proposed] Order Conditionally Granting Pls.’ Mot. for Voluntary
Dismissal of Claims with Prejudice (Dkt. 158).
Ct. Ch. R. 41(a)(2) (emphasis added); see also In re Marriott Hotel Props. II Ltd. P’ship
10
Unitholders Litig., 1997 WL 589028, at *6 (Del. Ch. Sept. 17, 1997) (explaining that a
motion under Rule 41(a)(2) is “directed to the sound discretion of the Court”).
C.A. No. 2020-1018-LWW
September 5, 2023
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First, the advancement action is (obviously) a separate matter. If Teucrium is
in violation of my summary judgment ruling, then the Rikers can seek appropriate
relief in that proceeding. They have not done so.
Second, I decline to order the plaintiffs to bear joint and several liability for
Riker’s discovery costs as a condition to dismissal. One would expect that the scope
of discovery would narrow with the dismissal of the plaintiffs’ remaining claims.
Riker asserts that granting the Motion shortly before the deadline to substantially
complete document production is prejudicial because he will need to proceed by
filing subpoenas rather than under previously served document requests.11 But
Teucrium’s advancement obligations and the Fitracks procedure I imposed in the
advancement action can resolve the payment of any such discovery costs.
Third, it would be inappropriate to provide an advisory opinion on whether
the Rikers have been successful in this action. The Rikers admittedly seek to
“streamline [their] eventual indemnification request.”12 But they must raise whether
they are entitled to indemnification at the appropriate time, in the appropriate action.
Indeed, none of the Rikers’ arguments amount to “plain legal prejudice.”13 In
assessing whether a defendant faces such prejudice, the court considers “(1) the
11
Rikers’ Resp. ¶ 18.
12
Id. ¶ 10.
13
Draper v. Gardner Defined Plan Tr., 625 A.2d 859, 863 (Del. 1993).
C.A. No. 2020-1018-LWW
September 5, 2023
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defendant[’s] effort and expense in preparation for trial; (2) excessive delay and lack
of diligence on the part of the plaintiff in prosecuting the action; (3) insufficient
explanation for the need to take a dismissal; and (4) [if] a motion for summary
judgment has been filed by the defendant.”14 The Rikers have not meaningfully
argued that they can establish any of these factors.
Nor could they. The plaintiffs have committed not to refile their claims
elsewhere.15 There is no effort by the plaintiffs to dismiss this action in favor of a
different action. And Riker’s counterclaims remain pending for adjudication by this
court, with all defenses preserved. As to matters concerning advancement, the
Rikers’ separate action remains pending.
Accordingly, the Motion will be granted without condition, pursuant to a
separate order.
Sincerely yours,
/s/ Lori W. Will
Lori W. Will
Vice Chancellor
14
Id. at 864.
15
Cf. West v. Access Control Related Enters., LLC, 296 A.3d 378, 386-87 (Del. 2023)
(affirming the denial of a motion for voluntary dismissal where substantial trial preparation
had occurred in Delaware and claims would be dismissed with prejudice and potentially
refiled elsewhere).