This Weeks Cases

Third Circuit

Campbell v. Sussex Cty. Fed. Credit Union, DeFAX Case No. D66775 (3d Cir. Feb. 19, 2015) Ambro, J. (10 pages).

The district court erred in finding that appellee's former employee's supplemental retirement benefits plan was unenforceable for lack of consideration.

Practice Areas: Contracts , Performance , Labor and Employment , Employee Benefits , Executive Compensation (Labor and Employment) , Banking and Financial Institutions

Delaware Supreme Court

Vincent v. Div. of Child Support Enforcement, DeFAX Case No. 66769 (Del. March 2, 2015) Holland, J. (9 pages).

Father's objection to wage attachment that remained in effect long after end of consent order, when it was to have ceased, could not be heard for failure to file timely request for review of family court order. Order granting motion to affirm and affirming family court judgment.

Practice Areas: Family Law , Custody and Child Support

Delaware Supreme Court

CorVel Corp. v. Homeland Ins. Co. of N.Y., DeFAX Case No. D66771 (Del. March 6, 2015) Vaughn, J. (33 pages).

Comity considerations warranted deference to Louisiana court determination that costs of settling Louisiana suit were not subject to insurance policy exclusions for "penalties," even though Delaware trial court had previously reached contrary conclusion based on application of Delaware law to construction of policy terms. Superior Court judgment reversed.

Practice Areas: Insurance Law , Policy Terms , Civil Procedure , Choice of Law , Contracts , Interpretation

Delaware Superior Court

State of Del. v. Middletown Dev., Inc., DeFAX Case No. D66772 (Del. Super. March 10, 2015) Wallace, J. (20 pages).

Condemning agency was entitled to take possession of property prior to conclusion of condemnation proceeding where it had negotiated in good faith, had deposited an amount equal to the appraised fair market value of the property, and had committed no acts amounting to a de facto taking. Order granting condemning agency's motion for possession and denying property owner's motion to dismiss.

Practice Areas: Land Use and Planning , Civil Procedure , Motion Practice , Contracts , Breach

Delaware Superior Court

Bond v. Wilson, DeFAX Case No. D66767 (Del. Super. March 16, 2015) Scott, Jr., J. (11 pages).

In a negligence suit, where there is no noticeable defect, such as a loose or wobbly handrail, plaintiff must provide expert testimony in order to prevail on a motion for summary judgment. Plaintiff's motion denied.

Practice Areas: Torts , Personal Injury , Premises Liability , Licensees

Courts of Common Pleas

Frederick Enter., Inc. v. Sheehan, DeFAX Case No. D66766 (C.P. New Castle March 12, 2015) Surles, J. (12 pages).

Despite his failure to sign the agreement, defendant's actions regarding the contract terms constituted at least partial performance, negating his Statute of Frauds defense. Defendant's motion to dismiss denied.

Practice Areas: Contracts , Breach , Insurance Law , Policy Terms , Statute of Frauds

Courts of Common Pleas

Ellis v. Tri State Realty Assoc. LP, DeFAX Case No. 66768 (C.P. New Castle, March 4, 2015) Davis, J. (17 pages).

Plaintiffs who suffered a loss of personal possessions as a result of negligent conduct by the manager of a self-storage facility were limited to the damages amount stated in the rental agreement. Order granting in part and denying in part the defendant' motion for summary judgment.

Practice Areas: Contracts , Remedies , Breach , Torts , Damages , Punitive

Courts of Common Pleas

Washington v. Trautz, DeFAX Case No. D66770 (C.P. New Castle, Feb. 12, 2015) Rennie, J. (5 pages).

Credible evidence, including witness testimony, accident report, and damage to vehicle, supported defendant's claim traffic accident was not his fault. Decision following trial on plaintiff's claim for damages in favor of defendant.

Practice Areas: Torts , Motor Vehicles , Evidence , Competency

Delaware Court of Chancery

In re Zalicus, Inc. S'holders Litig., DeFAX Case No. D66765 (Del. Ch. Jan. 16, 2015) Bouchard, C. (5 pages).

The Court of Chancery declined to enter a proposed order closing this action because the parties failed to provide adequate notice of a stipulated mootness fee to the putative class.

Practice Areas: Civil Procedure , Motion Practice , Class Actions , Jurisdiction and Service of Process

Delaware Court of Chancery

City of Wilmington v. Fraternal Order of Police Lodge 1, DeFAX Case No. D66762 (Del. Ch. March 12, 2015) Glasscock, V.C. (5 pages).

In a collective bargaining dispute between the city of Wilmington and police officers, the parties were entitled to submit extrinsic evidence on the meaning of 19 Del.C. §1615(d)(6)'s "existing revenues" language in the context of an entirely retrospective contract proposal.

Practice Areas: Labor and Employment , Labor Law , Collective Bargaining Agreements , Arbitration (Labor and Employment) , Evidence

Delaware Court of Chancery

Southpaw Credit Opportunity Master Fund, LP v. Advanced Battery Techs., Inc., DeFAX Case No. D66759 (Del. Ch. Feb. 26, 2015) Legrow, M.C. (29 pages).

A stockholder was entitled to inspect some, but not all, of the company books and records it demanded, while the company failed to show that inspection was barred by laws and regulations of China. Chancery master's recommendation that a books and records inspection be ordered, subject to certain specified parameters, and subject to a standard confidentiality agreement.

Practice Areas: Securities and Federal Corporate Law , Shareholder Rights , Contracts , Breach , Securities Transactions

Delaware Court of Chancery

United Brotherhood of Carpenters Pension Plan v. Fellner, DeFAX Case No. D66761 (Del. Ch. Feb. 26, 2015) Noble, V.C. (12 pages).

Trust beneficiaries adequately pleaded that trustees should be removed from trusts and that the court should issue a declaratory judgment that one of the trustees acted with gross negligence or willful misconduct in his role as trustee. Order denying respondents' and nominal defendants' joint motion to dismiss.

Practice Areas: Securities and Federal Corporate Law , Real Estate Securities , Shareholder Rights , Securities Transactions

Delaware Superior Court

McCleod v. McCleod, DeFAX Case No. D66757 (Del. Super. Feb. 26, 2015) Brady, J. (17 pages).

Incarcerated pro se plaintiff failed to present sufficient evidence to warrant permitting his proffered experts to testify in personal injury suit against his father for alleged sexual abuse. Order deferring decision on defendant's motion to exclude to allow plaintiff time to identify a causation expert and describe the expert's testimony.

Practice Areas: Evidence , Expert Witnesses , Torts , Intentional Torts , Assault , Civil Procedure , Motion Practice

Delaware Superior Court

McLeod v. McLeod, DeFAX Case No. D66756 (Del. Super. Feb. 26, 2015) Brady, J. (11 pages).

A letter to the Delaware governor accusing plaintiff's father of being a "child molester" was made outside of a judicial proceeding for purposes of determining whether the letter was absolutely privileged and was therefore not a proper basis for a counterclaim for defamation. Order denying plaintiff's motion for summary judgment on defendant's counterclaim for defamation.

Practice Areas: Torts , Intentional Torts , Defamation , Civil Procedure

Courts of Common Pleas

Village of Windhover v. Mawn, DeFAX Case No. D66763 (C.P. New Castle Feb. 26, 2015) Danberg, J. (7 pages).

The court entered judgment in favor of appellant/defendant based on appellees' failure to file the complaint on appeal, as required by Court of Common Pleas Civil Rule 72.3(b), and subsequent failure to show that the error was excusable neglect.

Practice Areas: Appellate Law - Civil , Procedure , Landlord/Tenant Law

Courts of Common Pleas

Midland Funding, LLC v. Hanby, DeFAX Case No. D66758 (C.P. New Castle, Feb. 23, 2015) Smalls, C.J. (11 pages).

Evidence presented at trial failed to establish that plaintiff in action alleging nonpayment of credit card debt was proper party to bring action.

Practice Areas: Civil Procedure , Parties , Contracts , Breach , Jurisdiction and Service of Process

Courts of Common Pleas

TekTree LLC v. Borla Performance Indus. Inc., DeFAX Case No. D66760 (C.P. New Castle Feb. 24, 2015) Smalls, C.J. (15 pages).

Plaintiff failed to prove its breach of contract claims but did prove its tortious interference with contractual relations claim against defendant after she allegedly violated an employment agreement when she began working for plaintiff's client.

Practice Areas: Contracts , Breach , Labor and Employment , Hiring/Firing

Delaware Supreme Court

Alston v. Pritchett, DeFAX Case No. D66751 (Del. Feb. 26, 2015) Valihura, J. (9 pages).

Plaintiff who moved to stay enforcement of a settlement agreement in an underlying personal injury suit failed to substantiate the allegations he made concerning insurance companies, his counsel and the Delaware Superior Court. Affirmed.

Practice Areas: Civil Procedure , Settlement , Appellate Law - Civil , Stays , Contracts , Formation

Delaware Court of Chancery

3850 & 3860 Colonial Blvd., LLC v. Griffin, DeFAX Case No. D66746 (Del. Ch. Feb. 26, 2015) Noble, V.C. (27 pages).

Change in dispute resolution process from mediation and arbitration to litigation-only approach when limited liability company was converted to corporation did not release dissatisfied investor from obligation to seek decision by arbitrator on arbitrability of investor's fiduciary duty and contractual claims. Defendant's motion to dismiss denied and proceedings stayed pending arbitration.

Practice Areas: Alternative Dispute Resolution , Contractual Clauses , Securities and Federal Corporate Law , Shareholder Rights , Business Entities , LLCs and LLPS

Delaware Court of Chancery

Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., DeFAX Case No. D66747 (Del. Ch. Feb. 24, 2015) Parsons, V.C. (30 pages).

Under Delaware law, attorney work product privilege is applicable to third-party litigation funding agreements. Order granting motion to intervene and granting motion for protective order without prejudice to plaintiffs' renew motion to compel at a later time.

Practice Areas: Civil Procedure , Discovery , Evidence , Privileges , Banking and Financial Institutions

Delaware Court of Chancery

Sutherland v. Sutherland, DeFAX Case No. D66748 (Del. Ch. Feb. 27, 2015) Noble, V.C. (14 pages).

Prior attorney's motion to intervene to file petition for charging lien was justified and not untimely where it was filed within time specified in agreement between prior and current counsel. Order granting motion for leave to intervene.

Practice Areas: Civil Procedure , Motion Practice , Contracts , Performance , Legal Profession , Attorney Fee Recovery

Delaware Court of Chancery

In re Dole Food Co. Inc., DeFAX Case No. D66753 (Del. Ch. Feb. 27, 2015) Laster, V.C. (9 pages).

In consolidated breach of fiduciary duty and appraisal actions, the court held that an expert witness must be a biological person, not a corporation.

Practice Areas: Evidence , Expert Witnesses , Civil Procedure , Pre-trial Procedure , Business Entities

Delaware Superior Court

State v. Davis, Jr., DeFAX Case No. 66752 (Del. Super. March 3, 2015) Parker, Comm'r (5 pages).

Defendant who was convicted of theft of property disputed the state's ability to seek restitution for any of the items missing from the victim's residence, even though restitution was stipulated as part of the plea agreement. Affirmed.

Practice Areas: Criminal Law

Delaware Superior Court

Bon Ayre Land LLC v. Bon Ayre Community Ass'n, DeFAX Case No. D66754 (Del. Super. Feb. 26, 2015) Witham, R.J. (22 pages).

The court denied the manufactured housing community owner's request for a rent increase above the CPI-U pursuant to the Delaware Manufactured Home Owners and Community Owners Act, because it failed to comply with the procedural requirements of 25 Del.C. §7043(b).

Practice Areas: Residential and Commercial Real Estate , Administrative Law

Delaware Superior Court

Wood v. Rodeway Inn, DeFAX Case No. D66755 (Del. Super. March 4, 2015) Young, J. (9 pages).

Plaintiffs' complaint alleging that hotel's negligence caused plaintiff to slip and fall in a bathtub, although bordering on vagueness, was sufficient to survive the motion to dismiss.

Practice Areas: Torts , Personal Injury , Premises Liability , Civil Procedure , Motion Practice

U.S. District Court of Delaware

Yurgin v. United States, DeFAX Case No. D66740 (D. Del. Feb. 18, 2015) Sleet, J. (17 pages).

Pro se federal habeas petitioner's claims that his plea was not knowing and voluntary and that the district court should have granted a hearing to determine his competency were subject to a collateral waiver provision in the plea agreement, and his ineffective-assistance claims against his plea counsel and sentencing counsel lacked merit. Order denying relief under 28 U.S.C. §2255.

Practice Areas: Criminal Law , Appellate Law - Criminal

Delaware Court of Chancery

Henlopen Landing Homeowners Ass'n Inc. v. Vester, DeFAX Case No. D66739 (Del. Ch. Feb. 25, 2015) Ayvazian, M.C. (23 pages).

The master in chancery recommended granting respondents' motions to amend their answer, defenses and counterclaims in order to join two additional parties to their counterclaims alleging fair housing violations in a homeowners association's petition to enforce certain recorded deed restrictions.

Practice Areas: Civil Procedure , Parties , Motion Practice , Residential and Commercial Real Estate

Delaware Court of Chancery

Pulieri v. Boardwalk Props., LLC, DeFAX Case No. D66738 (Del. Ch. Feb. 18, 2015) Bouchard, C. (33 pages).

Claims based on alleged oral agreement to transfer property upon satisfaction of conditions failed because essential terms were not sufficiently definite to demonstrate existence of valid contract. Order granting motion to dismiss.

Practice Areas: Residential and Commercial Real Estate , Contracts , Interpretation , Fraud (Contracts)

Delaware Court of Chancery

Harrison v. Dixon, DeFAX Case No. D66744 (Del. Ch. Feb. 20, 2015) LeGrow, M.C. (13 pages).

Plaintiff was entitled to $28,721.03, plus costs and pre- and post-judgment interest after his sister intentionally misrepresented herself as the sole heir of their parents' estates in order to avoid sharing the estate with her siblings and their issue.

Practice Areas: Trusts and Estates , Torts , Liability , Joint and Several Liability

Delaware Superior Court

Kostyszyn v. Martuscelli, DeFAX Case No. D66737 (Del. Super. Feb. 18, 2015) Wallace, J. (15 pages).

Plaintiff purchasers of ice cream store failed to plead facts supporting claim that defendant sellers breached contract by failing to purchase agreed-upon quantities of ice cream. Order granting motion to dismiss fraud and breach of contract claims.

Practice Areas: Contracts , Breach , Fraud (Contracts)

Delaware Superior Court

Beta Data Servs. Inc. v. Verizon Fed. Inc., DeFAX Case No. D66745 (Del. Super. Feb. 23, 2015) Davis, J. (8 pages).

The court granted plaintiff's motion to add claims for fraud and deceit and breach of a five-year oral agreement to its breach of contract lawsuit, but denied the motion to add claims for detrimental reliance, as Virginia law applied to the case and detrimental reliance is not a recognized cause of action in Virginia.

Practice Areas: Contracts , Breach , Fraud (Contracts) , Civil Procedure , Statute of Limitations

Delaware Superior Court

Davis v. Christiana Care Health Servs., DeFAX Case No. D66742 (Del. Super. Feb. 27, 2015) Medinilla, J. (13 pages).

The Industrial Accident Board improperly dismissed claimant's petition to determine additional compensation due, since his claim therein was not part of his prior settlement with employer.

Practice Areas: Social Services Law , Workers

Delaware Court of Chancery

In the Matter of Bermor Inc., DeFAX Case No. D66733 (Del. Ch. Feb. 9, 2015) Laster, V.C. (10 pages).

The court granted a petition to dissolve two joint ventures pursuant to §273 of the DGCL after governance disputes arose between the owners, two families with a nearly-half-a-century-long relationship.

Practice Areas: Business Entities , Dissolution , Partnerships

Delaware Court of Chancery

Walther v. ITT Educ. Serv., Inc., DeFAX Case No. D66730 (Del. Ch. Feb. 10, 2015) Ayvazian, M.C. (40 pages).

A shareholder's statutory demand to inspect corporate books and records had to be denied for failure of the stockholder adequately to allege that mismanagement had resulted in any loss or injury to the corporation. Chancery master's report recommending denial of plaintiff's motion for summary judgment and granting of defendant's cross-motion for summary judgment.

Practice Areas: Securities and Federal Corporate Law , Corporate Governance/Compliance , Shareholder Rights

Delaware Court of Chancery

Lewis v. AimCo Props. LP, DeFAX Case No. D66734 (Del. Ch. Feb. 10, 2015) Parsons, V.C. (18 pages).

The court stayed plaintiffs' complaint for breach of fiduciary duty pending arbitration as it related to certain defendants and dismissed the action for failure to state a claim as it related to other defendants, since those defendants owed no fiduciary duty to plaintiffs.

Practice Areas: Securities and Federal Corporate Law , Mergers and Acquisitions , Civil Procedure , Motion Practice

Delaware Court of Chancery

Fortis Advisors LLC v. Dialog Semiconductor PLC, DeFAX Case No. D66727 (Del. Ch. Jan. 30, 2015) Bouchard, C. (24 pages).

Implied covenant-based claim that earn-out payments were owed to former equity holders of corporation could not survive where claimant failed to identify any gap in merger agreement in which alleged implied covenant would operate. Order granting defendant's motion to dismiss cause of action for failure to state a claim.

Practice Areas: Securities and Federal Corporate Law , Mergers and Acquisitions , Securities Transactions

Delaware Superior Court

Golden Chariot Motors LLC v. Donegal Mut. Ins. Co., DeFAX Case No. D66732 (Del. Super. Feb. 6, 2015) Young, J. (2 pages).

The court properly granted plaintiff's motion for default judgment after defendants failed to appear for a pre-trial conference, despite having received notice of such.

Practice Areas: Civil Procedure , Judgments , Pre-trial Procedure

Delaware Superior Court

Nationstar Mortgage LLC v. Crane, DeFAX Case No. D66728 (Del. Super. Jan. 29, 2015) Young, J. (6 pages).

A plaintiff who initially filed a mortgage foreclosure action in chancery claiming that the mortgage was not filed under seal, and who then transferred the action to Superior Court claiming that the mortgage was filed under seal, was not foreclosed from prevailing on the ground of judicial estoppel where neither of the two courts relied upon the original, contrary position in making a ruling. Order denying motion to dismiss.

Practice Areas: Creditors

Delaware Superior Court

Davis v. State Farm Ins. Co., DeFAX Case No. D66731 (Del. Super. Feb. 2, 2015) Butler, J. (8 pages).

The court granted insurance company's motion for summary judgment in plaintiff's action seeking coverage following an automobile accident, holding that plaintiff was not entitled to payment since he filed his claim outside the two year statute of limitations period and the 90-day grace period did not apply.

Practice Areas: Insurance Law , Civil Procedure , Motion Practice , Statute of Limitations

Delaware Superior Court

Dickerson v. Murray, DeFAX Case No. D66726 (Del. Super. Feb. 3, 2015) Stokes, J. (17 pages).

A client could not assert a claim against an attorney for conflict of interest because the attorney's alleged violation of professional ethics standards did not constitute an independent cause of action and because, to the extent the claim alleged a breach of fiduciary duty, the Superior Court lacked jurisdiction to hear the action.

Practice Areas: Legal Profession , Attorney Malpractice , Civil Procedure , Jurisdiction and Service of Process , Torts

Courts of Common Pleas

Wise v. G-Town Partners LP, DeFAX Case No. D66735 (C.P. New Castle Jan. 20, 2015, revised Jan. 21, 2015) Rennie, J. (6 pages).

Appellant properly filed his appeal from a Justice of the Peace Court order in the court of common pleas, since the case below had proceeded to trial as a debt action, despite beginning as a summary possession action.

Practice Areas: Appellate Law - Civil , Procedure , Timeliness , Civil Procedure , Motion Practice

Third Circuit

In re Hawkins, DeFAX Case No. D66722 (3d Cir. Feb. 11, 2015) per curiam (4 pages).

The district court properly found that appellants lacked standing to appeal an order in a bankruptcy case, since they were not "persons aggrieved" by the order.

Practice Areas: Civil Procedure , Standing , Bankruptcy , Creditors

U.S. District Court of Delaware

Sykes v. Seasons Pizza, DeFAX Case No. D66724 (D. Del. Feb. 4, 2015)Fallon, J. (13 pages).

The statute of limitations barred plaintiff's action alleging assault and excessive force claims under 42 U.S.C. §1983, arising out of his failed armed robbery attempt.

Practice Areas: Civil Procedure , Statute of Limitations , Torts , Personal Injury , Motion Practice

U.S. District Court of Delaware

KBC Asset Mgmt. NV v. McNamara, DeFAX Case No. D67711 (D. Del. Feb. 2, 2015) Burke, M.J. (20 pages).

The totality of circumstances warranted appointing one plaintiff as lead counsel and appointing that plaintiff's law firm representatives as lead counsel and liaison counsel following consolidation of two related shareholder suits. Order granting motion to consolidate and appoint lead counsel.

Practice Areas: Securities and Federal Corporate Law , Shareholder Derivative Suits , Civil Procedure , Motion Practice

Delaware Supreme Court

Sykes v. Delaware, DeFAX Case No. D66714 (Del. Jan. 30, 2015) Vaughn, J. (50 pages).

A capital defendant's attorney performance in failing to seek mitigating evidence for penalty phase of trial was objectively unreasonable, but he failed to demonstrate that full presentation of all mitigating evidence have produced a different result. Judgment of conviction and death sentence affirmed.

Practice Areas: Criminal Law , Constitutional Law

Delaware Court of Chancery

In re Appraisal of Ancestry.com, Inc., DeFAX Case No. D66708 (Del. Ch. Jan. 30, 2015) Glasscock, V.C. (57 pages).

The fair value of shares of a publicly-traded company held by stockholders who were cashed out when the company was purchased by a private equity investor was the actual per-share price paid by the purchaser.

Practice Areas: Securities and Federal Corporate Law , Securities Transactions , Business Entities , Valuation

Delaware Superior Court

Yossick-Cave v. Litten, DeFAX Case No. D66725 (Del. Super. Feb. 5, 2015) Young, J. (9 pages).

The court denied defendant's motion to dismiss plaintiff's civil action arising from defendant's sexual abuse of plaintiff, finding that defendant was properly served and the court had jurisdiction over him.

Practice Areas: Civil Procedure , Jurisdiction and Service of Process , Motion Practice , Parties

Delaware Superior Court

Meyers v. Intel Corp., DeFAX Case No. D66713 (Del. Super. Jan. 15, 2015) Jurden, J. (12 pages).

Colorado's substantive law is not so intertwined with Colorado's rule for pleading exemplary damages as to warrant applying Colorado's limitations period instead of Delaware's notice pleading standards. Order denying defendant's motion for partial judgment on the pleadings with regard to plaintiff's request for punitive damages.

Practice Areas: Civil Procedure , Choice of Law , Statute of Limitations , Torts , Toxic Torts

Delaware Superior Court

Norgues v. Mountaire Farms of Delaware Inc., DeFAX Case No. 66723 (Del. Super. Feb. 10, 2015) Graves, J. (10 pages).

The court affirmed the denial of unemployment insurance benefits to claimant, as the evidence showed that she was terminated for just cause based on her violation of a company policy outlined in the company's handbook.

Practice Areas: Social Services Law , Unemployment Compensation , Labor and Employment , Hiring/Firing

U.S. District Court of Delaware

Kickflip, Inc. v. Facebook, Inc., DeFAX Case No. D66718 (D. Del. Jan. 21, 2015) Stark, J. (12 pages).

Declaration attached to opposition to summary judgment that related to matters Rule 30(b)(6) corporate representative had declined to discuss in deposition, on ground that his knowledge derived from advice of counsel, constituted waiver of attorney-client privilege. Order permitting discovery consistent with waiver of attorney-client privilege with respect to matters referenced in declaration.

Practice Areas: Civil Procedure , Discovery , Evidence , Privileges

U.S. District Court of Delaware

Barrett v. McDonald, DeFAX Case No. D66716 (D. Del. Jan. 16, 2015) Stark, J. (6 pages).

A Delaware state prisoner who sought permission to join in a §1983 civil rights suit filed by prisoners in another Delaware prison failed to establish there was sufficient commonality of facts or law to warrant permissive joinder. Order denying motion for permissive joinder, granting motion to seal, and denying motion for expedited ruling.

Practice Areas: Civil Rights , Civil Procedure , Parties

Delaware Supreme Court

Textron, Inc. v. Acument Global Tech., Inc., DeFAX Case No. D66719 (Del. Jan. 23, 2015) Strine, C.J. (28 pages).

Parties' agreement that "tax benefit offset" in sales purchase agreement provision for reimbursement of certain pre-closing contingent liabilities was applicable only to actual tax benefits realized by purchasing corporation, not to hypothetical benefits deriving from pre-closing liabilities outside of the United States. Superior Court judgment affirmed.

Practice Areas: Securities and Federal Corporate Law , Mergers and Acquisitions , Contracts , Taxation

Delaware Court of Chancery

Weiner v. Milliken Design Inc., DeFAX Case No. D66715 (Del. Ch. Jan. 30, 2015) Parsons, V.C. (26 pages).

The court granted plaintiff's motion for summary judgment seeking to compel arbitration of a post-closing price adjustment pursuant to a stock and unit purchase agreement.

Practice Areas: Alternative Dispute Resolution , Arbitration (ADR) , Contracts

Delaware Court of Chancery

OptimisCorp v. Waite, DeFAX Case No. D66717 (Del. Ch. Jan. 28, 2015) Parsons, V.C. (33 pages).

The untimeliness of plaintiffs' request to amend their complaint, coupled with plaintiffs' inadequate responses during discovery and with the likelihood of prejudice to the defendants, warranted denying plaintiffs' permission to widen the scope of their conspiracy allegations. Order denying plaintiffs' motion to amend complaint and granting in part and denying in part defendants' motion in limine.

Practice Areas: Civil Procedure , Discovery , Parties , Motion Practice

Delaware Superior Court

Johnson v. Student Funding Grp. LLC, DeFAX Case No. D66710 (Del. Super. Jan. 26, 2015) Rocanelli, J. (5 pages).

The court denied defendants' motion to dismiss plaintiff's action after excluding from its consideration documents outside the pleadings.

Practice Areas: Civil Procedure , Motion Practice , Labor and Employment , Wages and Hours , Contracts

Delaware Superior Court

Evans v. Genentech Inc., DeFAX Case No. D66707 (Del. Super. Jan. 23, 2015) Young, J. (5 pages).

The court granted defendant pharmaceutical company's motion to dismiss plaintiff's personal injury action alleging adverse side-effects from a medication, as the two-year statute of limitations barred plaintiff's action.

Practice Areas: Civil Procedure , Statute of Limitations , Torts , Personal Injury , Motion Practice

Delaware Superior Court

Burns v. Wilson, DeFAX Case No. D66706 (Del. Super. Jan. 30, 2015) Brady, J. (18 pages).

The court granted attorney and law firm's motion for summary judgment based on proximate cause in plaintiff's legal malpractice action, since any alleged failure by attorney to present certain evidence in plaintiff's workers' compensation hearing was harmless, as that evidence would not have established that plaintiff had an occupational disease.

Practice Areas: Legal Profession , Attorney Malpractice , Social Services Law , Workers

U.S. District Court of Delaware

AJZN, Inc. v. Yu, DeFAX Case No. D66699 (D. Del. Jan. 26, 2015) Sleet, J. (30 pages).

An inventor who claimed corporate transactions deprived him of revenue and assets failed to state security fraud claims under federal and California law for failure to specifically plead he was induced to enter into asset purchase agreement through misrepresentations or omissions of material facts. Defendants' motion to granted as some counts and denied as to others.

Practice Areas: Securities and Federal Corporate Law , Securities Fraud , Contracts , Fraud (Contracts) , Securities Transactions

Delaware Supreme Court

Sells v. State of Delaware, DeFAX Case No. D66697 (Del. Jan. 27, 2015) Valihura, J. (26 pages).

Prosecution failed to establish prima facie case of discrimination based on African-American defendant's attempt to strike two white jurors, and trial court erred in ordering challenged jurors to be seated. Judgment of conviction reversed and remanded.

Practice Areas: Criminal Law , Constitutional Law

Delaware Court of Chancery

TrustCo Bank v. Mathews, DeFAX Case No. D66698 (Del. Ch. Jan. 22, 2015) Parsons, V.C. (37 pages).

Counsel: William Burnett, Flaster/Greenberg, P.C., Wilmington DE, Harry Giacometti, Alexis Arena, Flaster/Greenberg, P.C., Philadelphia PA, attorneys for plaintiffs; Robert Penza, Christopher Coggins, Polsinelli PC, Wilmington DE, Susan Mathews, Colin Mathews, Brendan Mathews, Devin Mathews, and Kiernan Mathews; William Kelleher, Gordon, Fournaris & Mammarella, P.A., Wilmington DE, attorneys for defendants.

Practice Areas: Civil Procedure , Statute of Limitations , Banking and Financial Institutions , Creditors

Delaware Court of Chancery

Ascension Ins. Holdings LLC v. Underwood, DeFAX Case No. D66700 (Del. Ch. Jan. 28, 2015) Glasscock, V.C. (15 pages).

The court denied plaintiff's motion for preliminary injunction seeking to enjoin defendants from breaching a covenant not to compete, as plaintiff failed to demonstrate a reasonable likelihood that it would prevail on the merits.

Practice Areas: Contracts , Breach , Civil Procedure , Choice of Law , Securities and Federal Corporate Law

Delaware Superior Court

Henry v. Middletown Farmers Mkt. LLC, DeFAX Case No. D66705 (Del. Super. Jan. 14, 2015) Young, J. (5 pages).

Defendants' second motion to dismiss plaintiff's negligence action merely created more factual disputes, rather than resolving them, thus the court denied the motion.

Practice Areas: Civil Procedure , Discovery , Motion Practice , Torts , Personal Injury

Delaware Superior Court

Myers v. Travelers Commercial Ins. Co., DeFAX Case No. D66703 (Del. Super. Jan. 26, 2015) Jurden, P.J. (9 pages).

The court granted defendant insurance company's motion to dismiss plaintiffs' complaint seeking declaratory relief, as the complaint amounted to a request for an advisory opinion that was not ripe for adjudication.

Practice Areas: Civil Procedure , Standing , Insurance Law , Automotive , Motion Practice

Delaware Superior Court

Damiani v. Gill, DeFAX Case No. D66704 (Del. Super. Jan. 28, 2015) Rocanelli, J. (7 pages).

The court granted defendant correctional officer's motion for summary judgment on plaintiff inmate's claim under 42 U.S.C. §1983 alleging denial of adequate medical care, as plaintiff could not show deliberate indifference.

Practice Areas: Constitutional Law , Civil Procedure , Motion Practice , Parties

Delaware Superior Court

Ellicott v. Stericyle Inc., DeFAX Case No. D66696 (Del. Super. Jan. 23, 2015) Scott, J. (15 pages).

Substantial evidence supported a determination by the Unemployment Insurance Appeal Board that an employee was terminated for just cause after she made inappropriate and threatening comments to her team leader her about her supervisor. Order affirming UIAB decision.

Practice Areas: Labor and Employment , Hiring/Firing , Social Services Law , Unemployment Compensation

U.S. District Court of Delaware

Square Ring, Inc. v. Doe-1, DeFAX Case No. D66694 (D. Del. Dec. 22, 2014) Sleet, J. (15 pages)

Square Ring, Inc. v. Doe-1, DeFAX Case No. D66694 (D. Del. Dec. 22, 2014) Sleet, J. (15 pages).

Practice Areas: Intellectual Property , Copyrights , Infringement (Copyright) , Internet Law , Civil Procedure , Judgments

U.S. District Court of Delaware

United Assoc. of Journeymen and Apprentice Plumbers and Pipefitters of the U.S. and Canada, Local 74 v. Int'l Brotherhood of Elec. Workers, Local 313, DeFAX Case No. D66695 (D. Del. Dec. 22, 2014) Fallon, M.J. (23 pages).

Union serving as exclusive bargaining agent both for its own employees and for employees of another union had no authority under the collective bargaining agreement to retain a portion of paycheck-deducted dues owed to the other union instead of forwarding the full amounts to the other union. Plaintiff union's motion for summary judgment granted in part; defendant union's motion for summary judgment denied; other motions to strike and for leave to supplement the record denied and granted in part.

Practice Areas: Labor and Employment , Labor Law , Collective Bargaining Agreements , Union Representation , Contracts , Breach

Delaware Supreme Court

McCoy v. State, DeFAX Case No. D66689 (Del. Jan. 20, 2015) Holland, J. (en banc) (61 pages).

The Delaware Supreme Court reversed and remanded defendant's convictions and death sentence, finding that the trial court erred in denying defendant's properly exercised peremptory challenge and prosecutorial misconduct prejudicially affected defendant's substantial rights to a fair trial.

Practice Areas: Appellate Law - Criminal , Criminal Law , Constitutional Law

Delaware Supreme Court

Moses v. Drake, DeFAX Case No. D66686 (Del. Jan. 27, 2015) Valihura, J. (11 pages).

The trial court properly found plaintiff's expert witness's opinion that it was "feasible" that plaintiff's back pain was causally related an automobile accident with defendant legally insufficient.

Practice Areas: Civil Procedure , Discovery , Pre-trial Procedure , Evidence , Expert Witnesses

Delaware Court of Chancery

I/M/O Tax Parcel No. 09-008.01-001, DeFAX Case No. D66691 (Del. Ch. Jan. 16, 2015) Glasscock, V.C. (14 pages).

Notwithstanding expert opinions expressing doubt as to the whether signatures on a deed were genuine, other testimony and evidence supported a conclusion that the deed was not invalid as a product of forgery. Order denying petition to set aside conveyance of real property.

Practice Areas: Evidence , Expert Witnesses , Residential and Commercial Real Estate , Documentary Evidence

Delaware Superior Court

Wiercinski v. Brescia Properties LLC, DeFAX Case No. D66687 (Del. Super. Jan. 15, 2015) Jurden, P.J. (8 pages).

The court granted defendant's motion to exclude plaintiff's expert witness's testimony because the expert's opinion was based solely on his work experience, and his methodology was not supported by any scientific data.

Practice Areas: Civil Procedure , Discovery , Pre-trial Procedure , Evidence , Expert Witnesses

Delaware Superior Court

Yellow Pages Group LLC v. Ziplocal LP, DeFAX Case No. D66688 (Del. Super. Jan. 27, 2015) Jurden, P.J. (12 pages).

The court granted defendant's motion to stay plaintiff's claim for indemnification, finding that the claim was not ripe because the underlying litigation was still pending.

Practice Areas: Contracts , Breach , Warranties , Civil Procedure , Motion Practice

Delaware Superior Court

Beach Babies Child Care Inc. v. Hurd, DeFAX Case No. D66690 (Del. Super. Jan. 23, 2015) Young, J. (11 pages).

The Unemployment Insurance Appeals Board's finding that a former employee was discharged without just cause was legally flawed because the board did not apply the proper legal standard.

Practice Areas: Social Services Law , Unemployment Compensation , Labor and Employment , Hiring/Firing , Administrative Law

U.S. District Court of Delaware

Shahin v. PNC Bank NA, DeFAX Case No. D66684 (D. Del. Jan. 13, 2015) Stark, J. (5 pages).

The court denied plaintiffs' motion for reargument, as plaintiffs' claims were repetitive of those previously considered and rejected or failed to plead facts that could give rise to defendants' liability.

Practice Areas: Civil Procedure , Motion Practice , Banking and Financial Institutions , Residential and Commercial Real Estate

Delaware Supreme Court

Carbaugh v. Woods on Herring Creek Homeowners Ass'n, DeFAX Case No. D66681 (Del. Jan. 14, 2015) Strine, C.J. (4 pages).

The trial court properly found that plaintiffs' complaint was barred under the doctrine of laches.

Practice Areas: Civil Procedure , Contracts , Appellate Law - Civil , Timeliness

Delaware Court of Chancery

Alfred v. Walt Disney Co., DeFAX Case No. D66680 (Del. Ch. Jan. 14, 2015) Glasscock, V.C. (14 pages).

Pro se plaintiff's complaint alleging that Disney was stalling the development of a flying car failed to state a claim upon which relief could be granted.

Practice Areas: Civil Procedure , Motion Practice , Jurisdiction and Service of Process , Contracts

Delaware Court of Chancery

Bear Stearns Mortgage Funding Trust 2006-SL1, DeFAX Case No. D66676 (Del. Ch. Jan. 12, 2015) Laster, V.C. (37 pages).

Meritorious grounds for reargument and redetermination of timeliness issues were presented where court and parties had earlier failed to address controlling Delaware case authority, failed to fully explicate key contractual provision, and failed to give due consideration to a recent amendment to Delaware code provision. Motion for reargument granted; previously granted motion to dismiss now denied as to all but two counts in complaint.

Practice Areas: Securities and Federal Corporate Law , Securities Fraud , Creditors

Delaware Court of Chancery

Parsons v. Digital River Inc., DeFAX Case No. D66679 (Del. Ch. Jan. 12, 2015) Glasscock, V.C. (6 pages).

The court denied plaintiff's motion to expedite with respect to two disclosure claims, as one claim was moot and the cost of expedition outweighed the value of any potential disclosure to stockholders.

Practice Areas: Securities and Federal Corporate Law , Shareholder Rights , Mergers and Acquisitions , Civil Procedure , Motion Practice

Delaware Court of Chancery

I/M/O Last Will and Testament of Smith, DeFAX Case No. D66682 (Del. Ch. Jan. 8, 2015) Ayvazian, M.C. (21 pages).

Petition challenging elderly decedent's will as product of undue influence lacked support of evidence establishing respondents had disposition to influence, or actually influenced, testator for an improper purpose. Master's recommendation that petition seeking an order voiding a will be denied.

Practice Areas: Trusts and Estates

Delaware Superior Court

Knott v. Covert, DeFAX Case No. D66683 (Del. Super. Jan. 15, 2015) Young, J. (7 pages).

Proffered expert's opinion as to cause of rear-end auto accident would not assist trier of act, as it was not scientific, technical, or specialized. Motion in limine granted.

Practice Areas: Evidence , Scientific Evidence , Expert Witnesses , Relevance

Delaware Superior Court

Vaughn v. Jackerson, DeFAX Case No. D66685 (Del. Super. Jan. 14, 2015) Rocanelli, J. (7 pages).

Defendant's application for certification of interlocutory appeal was untimely and lacked showing that underlying decision addressed unsettled question of law. Order denied application for order certifying appeal from interlocutory order.

Practice Areas: Appellate Law - Civil , Interlocutory Appeal , Timeliness , Medical Malpractice

U.S. District Court of Delaware

In re New Century TRS Holdings, DeFAX Case No. D66671 (D. Del. Dec. 22, 2014) Robinson, J. (7 pages).

Pro se appellant's numerous requests for extension time to prepare opening brief warranted dismissal of appeal for failure to prosecute. Order granting appellee's motion to dismiss appeal.

Practice Areas: Appellate Law - Civil , Timeliness

U.S. District Court of Delaware

Zieger v. Advance America, DeFAX Case No. D66675 (D. Del. Dec. 29, 2014) Robinson, J. (16 pages).

Payday loan customer who opted out of arbitration provision lacked standing to assert consumer class action claim alleging bad faith, unconscionable contract terms and violation of consumer fraud statute. Order granting motion to dismiss with leave to amend as to two counts.

Practice Areas: Consumer Protection , Civil Procedure , Class Actions , Alternative Dispute Resolution , Arbitration (ADR)

U.S. District Court of Delaware

Eppley v. The Univ. of Delaware, DeFAX Case No. D66666 (D. Del. Jan. 12, 2015) Sleet, J. (9 pages).

Defendants were entitled to summary judgment on plaintiffs' claims based on Title IX, negligent misrepresentation and fraudulent inducement arising after university allegedly failed to honor an athletic scholarship agreement.

Practice Areas: Contracts , Fraud (Contracts) , Civil Procedure , Motion Practice

Delaware Supreme Court

Smith v. Grief, DeFAX Case No. D66673 (Del. Jan. 8, 2015) Vaughn, J. (7 pages).

The court affirmed the denial of plaintiff's motion in limine to exclude the testimony of a biomechanical engineer in her personal injury action arising from an automobile accident.

Practice Areas: Evidence , Expert Witnesses , Admissibility , Appellate Law - Civil

Delaware Court of Chancery

Theravectys SA v. Immune Design Corp., DeFAX Case No. 66674 (Del. Ch. Dec. 23, 2014) Noble, V.C. (6 pages).

Defendant in trade secrets law suit was not entitled to responses to supplemental interrogatories regarding matters to which it had already responded, but document production was appropriate with respect to issues that were central to the plaintiff's claims and toward its understanding of third party views.

Practice Areas: Civil Procedure , Discovery , Intellectual Property , Trade Secrets

Delaware Court of Chancery

I/M/O Liquidation of Freestone Ins. Co., DeFAX Case No. D66668 (Del. Ch. Dec. 24, 2014) Laster, V.C. (24 pages).

Bank holding assets of delinquent insurance company in receivership under administration of Delaware Insurance Commissioner had no viable claim of right under earlier custody agreement to refuse Commissioner's demand that assets be returned. Bank's motion for declaratory order establishing its right to retain assets as security against future claims denied.

Practice Areas: Insurance Law , Policy Terms , Bad Faith , Banking and Financial Institutions

Delaware Court of Chancery

Holley v. Nipro Diagnostics Inc., DeFAX Case No. D66667 (Del. Ch. Dec. 23, 2014) Parsons, V.C. (34 pages).

Plaintiff was entitled to partial summary judgment in his advancement action arising out of an SEC investigation into insider trading.

Practice Areas: Securities and Federal Corporate Law , Securities Fraud , White Collar Crime , Banking Crimes , Civil Procedure , Motion Practice

Delaware Court of Chancery

In re Appraisal of Ancestry.com, Inc., DeFAX Case No. D66669 (Del. Ch. Jan. 5, 2015) Glasscock, V.C. (24 pages).

Only the record owner of corporate shares, not the beneficial owner, was required to show that specific shares for which it sought post-merger appraisal had not been voted in favor of the merger. Motion for summary judgment denied.

Practice Areas: Securities and Federal Corporate Law , Shareholder Rights , Mergers and Acquisitions

U.S. District Court of Delaware

Williams v. Christina Sch. Dist., DeFAX Case No. D66664 (D. Del. Dec. 31, 2014) Stark, J. (8 pages).

The court granted defendants' motion to dismiss plaintiff's claims under §1983 following the termination of her employment with a school district, as plaintiff failed to show that she had a constitutionally protected property interest in continued employment.

Practice Areas: Labor and Employment , Hiring/Firing , At-Will Employment

Delaware Supreme Court

Upton v. Division of Family Servs., DeFAX Case No. D66663 (Del. Dec. 11, 2014) Valihura, J. (12 pages).

The family court did not abuse its discretion in its factual finding and did not err in applying the law to the facts in its decision terminating father's parental rights for his three daughters.

Practice Areas: Family Law , Custody and Child Support , Guardianship , Appellate Law - Civil

Delaware Court of Chancery

In the Matter of J.T.M., DeFAX Case No. D66658 (Del. Ch. Dec. 31, 2014) Glasscock, V.C. (9 pages).

The proper standard for imposing guardianship is clear and convincing evidence. Petition for guardianship granted.

Practice Areas: Family Law , Guardianship , Evidence , Burden of Proof

Delaware Court of Chancery

Ridgewood Manor II Inc. v. Del. Manufactured Home Relocation Auth., DeFAX Case No. D66661 (Del. Ch. Dec. 31, 2014) Noble, V.C. (26 pages).

Landlords and tenants of manufactured home communities moved for summary judgment in their action against Delaware Manufactured Home Relocation Authority for improper collection of assessments under the Manufactured Home Owners and Community Owners Act. Motion denied.

Practice Areas: Land Use and Planning , Civil Procedure , Motion Practice , Administrative Law

Delaware Superior Court

Gunn v. McKenna, DeFAX Case No. D66656 (Del. Super. Dec. 23, 2014) Young, J. (10 pages).

Candidate for Kent County Recorder of Deeds was entitled to contest the election results, as he showed "malconduct" pursuant to 15 Del. C. §5941(1), and the court instructed the Department of Elections to conduct a hand recount of the absentee ballots cast in the election to determine the true victor.

Practice Areas: Election and Political Law , Civil Procedure , Standing

Delaware Superior Court

McLeod v. McLeod, DeFAX Case No. D66659 (Del. Super. Dec. 20, 2014) Brady, J. (24 pages).

Plaintiff's claim that opposing counsel should be disqualified because he might be called as a witness to impeach another witness was not supported by clear and convincing evidence and did not target potential testimony necessary to resolution of the litigation. Order denying plaintiff's motions to disqualify counsel, for telephonic conference, to exclude expert testimony, and for order to transport incarcerated plaintiff to court.

Practice Areas: Evidence , Witnesses , Expert Witnesses , Prior Bad Acts

Courts of Common Pleas

Hart v. Eye, DeFAX Case No. D66657 (C.P. New Castle Dec. 11, 2014) Smalls, J. (8 pages).

Prospective buyer's inability to obtain financing after relying in good faith on advice of real estate professionals in making offer did not constitute bad faith warranting seller's refusal to return purchase deposit. Judgment on claim for breach of contract entered in favor of plaintiff/appellant.

Practice Areas: Residential and Commercial Real Estate , Contracts , Breach , Fraud (Contracts)

Courts of Common Pleas

Yates v. Brezial, DeFAX Case No. D66665 (C.P. New Castle Dec. 12, 2014, revised Dec. 16, 2014) Rennie, J. (8 pages).

Plaintiff failed to meet her burden of proving, by a preponderance of the evidence, that her three nieces were civilly liable for assault and battery against her.

Practice Areas: Torts , Intentional Torts , Assault , Battery , Damages

U.S. District Court of Delaware

Mondero v. Lewes Surgical & Medical Assocs., P.A., DeFAX Case No. D66638 (D. Del. Dec. 9, 2014) Thynge, M.J. (23 pages).

Health care employees alleging gender and race discrimination and hostile work environment against their employer and fellow employee failed to state a claim for discrimination against individual defendants, but could amend their complaint for retaliation. Defendants' motions to dismiss granted in part and denied in part.

Practice Areas: Labor and Employment , Discrimination , Age Discrimination , Sex Discrimination , Race Discrimination

Delaware Supreme Court

Vanvliet v. D& B Transp., DeFAX Case No. D66645 (Del. Nov. 20, 2014) Strine, C.J. (3 pages).

Appellant who sought reimbursement under Delaware's Workers' Compensation Act for surgery performed by a non-certified Maryland surgeon was not entitled to such reimbursement in light of the Supreme Court's decision of Wyatt v. Rescare Home Care.

Practice Areas: Social Services Law , Workers