Opinion
C. A. 2022-0130-SG
05-18-2023
Teuza - A Fairchild Technology Venture Ltd. v. Lindon, et al.,
Stephen E. Jenkins, Esquire Michael D. Walker, Esquire ASHBY & GEDDES Raymond J. DiCamillo, Esquire Kevin M. Gallagher, Esquire Kyle H. Lachmund, Esquire RICHARDS, LAYTON & FINGER, P.A. Scott B. Czerwonka, Esquire Andrea S. Brooks, Esquire WILKS LAW, LLC
Stephen E. Jenkins, Esquire Michael D. Walker, Esquire ASHBY & GEDDES
Raymond J. DiCamillo, Esquire Kevin M. Gallagher, Esquire Kyle H. Lachmund, Esquire RICHARDS, LAYTON & FINGER, P.A.
Scott B. Czerwonka, Esquire Andrea S. Brooks, Esquire WILKS LAW, LLC
SAM GLASSCOCK III VICE CHANCELLOR
Dear Counsel:
My April 27, 2023 Memorandum Opinion directed the parties "to submit a form of order consistent with [that] decision." The parties submitted competing orders, which differ only in whether the counts dismissed will be with or without prejudice. Plaintiff argues that "discovery in this case will reveal as-yet non-public facts concerning the complex and intertwined relationships among the various Defendants, and therefore there is good cause for the dismissals to be without prejudice [under Rule 15(aaa).]" Speculation about what evidence discovery might uncover does not constitute good cause. Dismissal of the counts in question is therefore with prejudice.
Teuza - A Fairchild Tech. Venture Ltd. v. Lindon, 2023 WL 3118180, at *11 (Del. Ch. Apr. 27, 2023).
Compare [Proposed] Order from Kevin M. Gallagher regarding the Ct.'s April 27, 2023 Memorandum Opinion, Dkt. No. 76, with Pl.'s Version of Proposed Order, Dkt. No. 75.
Letter to the Ct. from Stephen E. Jenkins concerning the Ct.'s direction to the parties to submit a form of order 5, Dkt. No. 75.
See Quadrant Structured Products Co., Ltd. v. Vertin, 2014 WL 5465535, at *5 (Del. Ch. Oct. 28, 2014) (rejecting Plaintiff's argument that the potential for discovery of relevant evidence warrants dismissal without prejudice).
To the extent evidence unearthed through discovery provides a compelling reason to do so, Plaintiff is free to raise this issue again, subject to law of the case doctrine.
See id.; In re EZCORP Inc. Consulting Agreement Derivative Litig., 2016 WL 197814, at *10 (Del. Ch. Jan. 15, 2016).
An order is attached.
ORDER
WHEREAS, on April 27, 2023, the Court issued a Memorandum Opinion (D.I. 116) granting in part and denying in part Defendants' motions to dismiss under Rules 12(b)(2) and 12(b)(6);
IT IS HEREBY ORDERED this 18th day of May 2023, for the reasons stated in the Memorandum Opinion, that:
1. The Motion to Dismiss under Rule 12(b)(2) filed by Defendants Michael Dreyer and Anoosheh Bostani (D.I. 34) is hereby continued pending jurisdictional discovery. Plaintiff shall be permitted to conduct jurisdictional discovery to explore the connections between the Trustees, Michael Dreyer and Anoosheh Bostani, and the sale to Bioventus for the purpose of demonstrating personal jurisdiction.
2. The Motion to Dismiss under Rule 12(b)(6) filed by Defendants Michael Dreyer, Anoosheh Bostani, Alfred E. Mann Trust, and Mann Group, LLC (D.I. 34) is hereby GRANTED with prejudice as to Count I, Count V, and Count VII, and DENIED as to Count IV, Count VI and Count X.
3. The Motion to Dismiss filed by Defendant Mark Lindon (D.I. 31) is hereby DENIED;
4. The Motion to Dismiss filed by David Scott, Nicholas Terrafranca, and Joseph Ruble (D.I. 30) is hereby GRANTED with prejudice; and
5. The Motion to Dismiss filed by Defendants Bioventus LLC and Bioventus Inc. (D.I. 33) is hereby GRANTED with prejudice.
6. Defendants Michael Dreyer, Anoosheh Bostani, Alfred E. Mann Trust, Mann Group, LLC, and Mark Lindon's Answer shall be filed on or before June 16, 2023.
The parties shall confer and submit a proposed pre-trial scheduling stipulation within 21 days of this Order.