Summary
denying a motion for reargument where the plaintiff pointed to no material facts or pertinent principles of law that were misapplied, and alternatively was unable to allege new evidence under Rule 60(b)
Summary of this case from Am. Legacy Foundation v. Lorillard TobaccoOpinion
C.A. No. 20412-NC
Submitted: September 2, 2003
Decided: September 3, 2003
Robert-A. Ollar, Ph.D., Milford, PA
David L. Finger, Esquire, David L. Finger, P.A., Wilmington, DE
Dear Dr. Ollar and Mr. Finger:
Plaintiff Robert-A. Ollar has moved for reargument, "based upon new evidence," of this Court's dismissal, without prejudice, of the above-referenced matter, by bench ruling on August 20, 2003, and confirmed by Order, dated August 22, 2003.
Plaintiffs action, in the most general sense, sought judicial supervision of Defendant Infectech, Inc.'s shareholders' meeting, which, in the interim, was held on August 25, 2003.
Whether the holding of the shareholders' meeting has mooted Plaintiff's claim is an issue which I need not reach.
Plaintiff, following this Court's bench ruling, learned that Infectech had filed an action against him and others in Pennsylvania. He contends that the Pennsylvania action was "maliciously timed and calculated for the purpose of chilling communication of the second largest block of stockholders and to disenfranchise all of the stockholders and illegally predetermine the outcome of the election."
Pl.'s Mot. to Reargue Based Upon New Evidence, ¶ 4.
A motion for reargument under Court of Chancery Rule 59(f) requires its proponent to demonstrate that the Court overlooked a principle of law that would have controlling effect or that the Court misapprehended the law such that the outcome would have been affected. Plaintiff points to no material facts or pertinent principles of law which the Court misapprehended or misapplied. Thus, his motion for reargument must be denied.
Miles, Inc. v. Cookson America, Inc., 677 A.2d 505, 506 (Del.Ch. 1995).
Perhaps Plaintiff seeks relief from the Court's dismissal of his action because of "newly discovered evidence" under Court of Chancery Rule 60(b)(2). As of the hearing on August 20, 2003, Plaintiff was not aware that the Pennsylvania action had been filed. While the pendency of the Pennsylvania action may qualify as "newly discovered evidence" because there was no reason for the Plaintiff to have known of its filing, Plaintiff has not shown that the filing of that action adversely affected any rights at stake in the action which this Court dismissed. In short, his motion does not demonstrate why the result would have been different if Plaintiff had been able to point to the Pennsylvania action during this Court's consideration of the merits of Plaintiff's claim. Thus, to the extent that Plaintiff's application may also be read as having been brought under Court of Chancery Rule 60(b)(2), it is denied.
This conclusion, of course, does not preclude a challenge to the conduct of Infectech's shareholders' meeting based upon the meeting itself or the circumstances surrounding the meeting.
IT IS SO ORDERED.