LVI Group Investments, LLC v. NCM Group Holdings, LLC ( 2017 )

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
Date Submitted: June 5, 2017
Date Decided: September 7, 2017
John L. Reed, Esquire Richard D. Heins, Esquire
Ethan H. Townsend, Esquire Peter H. Kyle, Esquire
DLA Piper LLP Ashby & Geddes
1201 North Market Street, Suite 2100 500 Delaware Avenue
Wilmington, DE 19801 Wilmington, DE 19801
Rudolf Koch, Esquire John A. Sensing, Esquire
J. Scott Pritchard, Esquire Potter Anderson & Corroon LLP
Matthew D. Perri, Esquire 1313 North Market Street
Richards, Layton & Finger, P.A. Wilmington, DE 19801
One Rodney Square
920 North King Street
Wilmington, DE 19801
Bradley R. Aronstam, Esquire
Nicholas D. Mozal, Esquire
100 S. West Street, Suite 400
Wilmington, DE 19801
Re: LVI Group Investments, LLC v. NCM Group Holdings, LLC et al.,
Civil Action No. 12067-VCG
Dear Counsel:
In April of 2014, two demolition firms, LVI Group Investments, LLC (“LVI”)
and NCM Group Holdings, LLC (“NCM”) combined to form NorthStar Group
Holdings, LLC (“NorthStar”). This suit was filed by LVI in 2016, accusing NCM,
generally speaking, of committing fraud against LVI in the inducement of the
combination of the entities. Subsequently, NCM made mirror image allegations
against LVI via the Counterclaim at issue in this Letter Opinion.
As part of its Counterclaim, NCM attempts to state a claim of fraud against
Paul Cutrone, former Chief Financial Officer of LVI. Cutrone is not a Delaware
resident. He has moved to dismiss this action against him, asserting that this Court
lacks personal jurisdiction. This Letter Opinion deals with that limited issue. For
the following reasons, I find that this Court lacks personal jurisdiction over Cutrone;
accordingly, his motion to dismiss is granted. My rationale follows.
I. BRIEF BACKGROUND
This matter involves two competing fraud claims between two Delaware
LLCs—LVI and NCM—that merged their businesses into a single entity—
NorthStar (the “Merger”).1 The Counterclaim alleges five counts against the various
Counterclaim Defendants, including four against Counterclaim Defendant Paul
Cutrone and others: Counts I and II for fraud and fraudulent inducement with respect
to LVI’s financial statements and certain representations concerning those
statements in the “contribution agreement” that governs the parties’ respective
ownership in NorthStar; and direct and derivative claims in Counts IV and V for
breach of fiduciary duties owed to LVI or NorthStar.2 Cutrone was a Vice President
1
Interested readers should turn to my previous Letter Opinion in this matter issued on March 29,
2017 for a more in-depth factual recitation. See LVI Grp. Investments, LLC v. NCM Grp. Holdings,
LLC, 2017 WL 1174438 (Del. Ch. Mar. 29, 2017).
2
NCM’s Amended Verified Counterclaim Complaint (the “Counterclaim” or “CC.”) ¶¶ 71–120.
2
and the Chief Financial Officer of LVI, as well as the Chief Financial Officer of
NorthStar.3 Cutrone was also the “Vice-President and CFO” of several LVI
“subsidiaries (including Delaware subsidiaries) and a member of their boards.” 4 He
is also alleged to be an owner of LVI. 5 During his tenure as an officer for LVI and
NorthStar, Cutrone’s offices were in New York, and he has never lived in Delaware. 6
While the Counterclaim fails to allege NCM’s principal place of business, the LVI
entity that merged with NCM was headquartered in Connecticut. 7
In a Letter Opinion issued on March 29, 2017, I denied LVI’s motion to
dismiss with respect to NCM’s fraud claims but granted the motion as to NCM’s
fiduciary duty claims in Counts IV and V.8 I reserved decision on Cutrone’s motion
to dismiss for lack of personal jurisdiction under Court of Chancery Rule 12(b)(2).9
My decision on that issue—personal jurisdiction over Cutrone—follows.
II. ANALYSIS
In examining a motion to dismiss for lack of personal jurisdiction under Court
of Chancery Rule 12(b)(2), I may “rely upon the pleadings, proxy statement,
affidavits, and briefs of the parties in order to determine whether the defendants are
3
Id. ¶ 8.
4
Id.
5
Id.
6
Countercl. Defs. State and Cutrone Opening Br. Ex. 2 (“Cutrone Aff.”) ¶¶ 2, 11–12.
7
Countercl. Defs. State and Cutrone Opening Br. Ex. 1 (the “Certificate of Merger”).
8
LVI Grp. Investments, LLC, 2017 WL 1174438, at *10.
9
Id.3
subject to personal jurisdiction.”10 All reasonable inferences are to be drawn from
the record in favor of the plaintiff. 11 This Court applies a two-step analysis when a
nonresident defendant moves to dismiss under Rule 12(b)(2).12 First, I must
determine if there is a statutory basis for personal jurisdiction; if there is, then I must
determine whether exercising personal jurisdiction violates the Due Process Clause
of the Fourteenth Amendment.13 The party seeking to establish personal jurisdiction
bears the burden of establishing these two requirements. 14 Thus, NCM must “point
to sufficient evidence in the record to support a prima facie case that jurisdictional
facts exist to support the two elements it must prove” with respect to Cutrone.15
NCM advances three grounds to establish personal jurisdiction: (1) Section 18-109,
(2) a conspiracy theory, and (3) Section 3104(c). I address each in turn below.
A. Section 18-109
NCM first argues that Section 18-109 of the Delaware Limited Liability
Company Act provides personal jurisdiction over Cutrone “because Cutrone, while
a manager of a Delaware limited liability company, violated his fiduciary duty to a
10
Sample v. Morgan, 935 A.2d 1046, 1055 (Del. Ch. 2007).
11
Id.12
Maloney-Refaie v. Bridge at Sch., Inc., 958 A.2d 871, 877 (Del. Ch. 2008).
13
Id.14
Fisk Ventures, LLC, v. Segal, 2008 WL 1961156, at *6 (Del. Ch. May 7, 2008).
15
Hartsel v. Vanguard Grp., Inc., 2011 WL 2421003, at *7 (Del. Ch. June 15, 2011) (internal
citations omitted).
4
member of the company and to the company itself.” 16 NCM’s argument here
depends on sufficiently pleading breaches of fiduciary duties by Cutrone in Counts
IV and V,17 which I held earlier it has not.18 Therefore, Section 18-109 does not
establish personal jurisdiction in this matter.
B. Conspiracy Theory
NCM alleges that Cutrone “conspired with his colleagues, including State and
members of LVI’s board, and with LVI to, and did, commit fraud” 19 and argues that
this alleged conspiracy provides personal jurisdiction over Cutrone. 20 Like NCM’s
attempt to premise personal jurisdiction on Section 18-109, this argument can be
disposed of briefly. According to our Supreme Court,
a conspirator who is absent from the forum state is subject to the
jurisdiction of the court, assuming he is properly served under state law,
if the plaintiff can make a factual showing that: (1) a conspiracy to
defraud existed; (2) the defendant was a member of that conspiracy; (3)
a substantial act or substantial effect in furtherance of the conspiracy
occurred in the forum state; (4) the defendant knew or had reason to
know of the act in the forum state or that acts outside the forum state
would have an effect in the forum state; and (5) the act in, or effect on,
the forum state was a direct and foreseeable result of the conduct in
furtherance of the conspiracy.21
16
Countercl. Pl.’s Answering Br. 8. Section 18-109 provides for personal jurisdiction over
managers of LLCs for actions in Delaware “involving or relating to the business of the limited
liability company or a violation by the manager . . . of a duty to the limited liability company.” 6
Del. C. § 18-109.
17
See, e.g., Countercl. Pl.’s Answering Br. 10 (arguing that Count V involves and relates to the
business of NorthStar); id. at 11 (arguing that Count V alleges a breach of fiduciary duty to
NorthStar); id. at 12 (arguing that Count IV satisfies the requirements of Section 18-109).
18
LVI Grp. Investments, LLC, 2017 WL 1174438, at *10.
19
CC. ¶ 8.
20
See Countercl. Pl.’s Answering Br. 18–20.
21
Istituto Bancario Italiano SpA v. Hunter Eng’g Co., 449 A.2d 210, 225 (Del. 1982).
5
This test is construed narrowly; plaintiffs must “assert specific facts, not
conclusory allegations, as to each element.”22
NCM’s attempt to establish personal jurisdiction via a conspiracy theory fails
because “[a] corporation cannot conspire with itself.” 23 NCM alleges a conspiracy
between LVI, LVI’s CFO (Cutrone), LVI’s CEO (State), and LVI board members. 24
As this Court has explained, however, “a corporation generally cannot be deemed to
have conspired with its officers and agents for purposes of establishing jurisdiction
under the conspiracy theory.” 25 NCM, citing a case from the Third Circuit, Johnston
v. Baker,26 argues that this general rule does not apply here because it has pled that
Cutrone acted for “his own personal benefit because he was an LVI owner and was
to become CFO of the new company with substantial compensation,” that is, Cutrone
would become CFO of NorthStar with a “substantial” salary. 27 However, “[c]ourts
interpreting the personal reasons exception of Johnston . . . have read it to mean a
personal animus and/or desire for financial benefit other than one’s corporate
salary.”28 Moreover, “[n]owhere in . . . Johnston is there any suggestion that the
22
Hartsel, 2011 WL 2421003, at *10.
23
Amaysing Techs. Corp. v. Cyberair Commnc’ns, Inc., 2005 WL 578972, at *7 (Del. Ch. Mar. 3,
2005) (quoting Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)).
24
See CC. ¶ 8.
25
Amaysing Techs. Corp., 2005 WL 578972, at *7.
26
445 F.2d 424 (3d Cir. 1971).
27
Countercl. Pl.’s Answering Br. 20.
28
Amaysing Tech. Corp., 2005 WL 578972, at *8 (emphasis added) (internal quotation marks
omitted).
6
desire to protect or enhance one’s salary makes an agent sufficiently independent of
the corporation to be capable of conspiring with it.” 29 I therefore find that personal
jurisdiction cannot be premised on NCM’s conspiracy theory.
C. Section 3104(c)
I turn, now, to NCM’s principal jurisdictional argument raised in briefing: that
statutory jurisdiction is conferred by our long-arm statute, 10 Del. C. § 3104. In the
Counterclaim, NCM proposed that Cutrone is subject to personal jurisdiction
“because he has caused tortious injury in Delaware.” 30 Thus, the Counterclaim
specifically asserts jurisdiction pursuant to Section 3104(c)(3), which provides
personal jurisdiction over any nonresident who “[c]auses tortious injury in the State
by an act or omission in this State.”31 The problem here is that Cutrone has
committed no act or omission in Delaware. NCM thus fails to “establish both
elements of subsection (c)(3): an injury and an act or omission in Delaware.”32
In briefing, NCM changed its theory of jurisdiction from that stated in the
Counterclaim. It did not assert that Section 3104(c)(3) applies; instead, it now relies
on Section 3104(c)(1), which provides for personal jurisdiction over any nonresident
who “[t]ransacts any business or performs any character of work or service in the
29
Id. (quoting Coulbourne v. Rollins Auto Leasing Corp., 392 F. Supp. 1198, 1201 (D. Del. 1975)).
30
CC. ¶ 8.
31
10 Del. C. § 3104(c)(3).
32
Hartsel, 2011 WL 2421003, at *13 (emphasis added).
7
State.”33 Since NCM now relies solely on Section 3401(c)(1), I consider whether
personal jurisdiction exists over Cutrone under that provision, below.34
NCM seeks to establish personal jurisdiction over Cutrone on the ground that
he “transacted business” in Delaware. While, as just described, this argument is at
odds with the stated justifications for personal jurisdiction set out in the
Counterclaim,35 I note that NCM did allege therein that “Cutrone executed and
caused to be filed with the Delaware Secretary of State a certificate of merger in
connection with and to facilitate the Merger between LVI and NCM under Delaware
law.”36 NCM relies on this allegation in arguing for personal jurisdiction in its
Answering Brief. According to NCM, Cutrone’s actions with respect to this
certificate of merger, as well as his management of NCM and NorthStar, constitute
“transacting business” under Section 3104(c)(1). 37
As an initial matter, I note that our Supreme Court has instructed that Section
3104(c) “is to be broadly construed to confer jurisdiction to the maximum extent
33
10 Del. C. § 3104(c)(1).
34
I note that NCM does argue that “Cutrone’s signing of the certificate of merger was one step in
the process of the Merger that is the subject of NCM’s claims and which ultimately caused injury
to NorthStar and NCM, in Delaware.” Countercl. Pl.’s Answering Br. 17. To the extent such
language is NCM’s attempt to invoke Section 3104(c)(3), as I have noted, no act or omission by
Cutrone occurred in Delaware.
35
According to NCM’s Counterclaim, “[t]his Court has personal jurisdiction over Cutrone because
he consented by statute to jurisdiction in connection with his position as CFO of LVI and CFO of
NorthStar, each a Delaware limited liability company and LVI subsidiaries which were also
Delaware companies, and because he caused tortious injury in Delaware.” CC. ¶ 8.
36
Id.
37
Countercl. Pl.’s Answering Br. 15–17.
8
possible under the Due Process Clause.”38 Under Section 3104(c)(1), however, a
plaintiff still must demonstrate that “(1) the nonresident transacted some sort of
business in the state, and (2) the claim being asserted arose out of that specific
transaction.”39
Cutrone, a nonresident of Delaware, was the CFO of LVI and served as the
CFO of NorthStar for a period as well. Contrary to NCM’s argument, our case law
is clear that simply serving as an officer of a Delaware entity, without more, is
insufficient to establish personal jurisdiction under Section 3104(c)(1). For instance,
in Kelly v. McKesson HBOC, Inc.,40 the court noted that Section 3104(c)(1) does not
confer personal jurisdiction over a corporate officer unless “some act . . . actually
occur[s] in Delaware.”41 In other words, out-of-state service as an officer of a
Delaware corporation, or LLC in this case, is insufficient “transaction of business”
here to establish personal jurisdiction absent some act taken by such a manager in
this State.42
38
Hercules Inc. v. Leu Tr. & Banking (Bahamas) Ltd., 611 A.2d 476, 480 (Del. 1992); see also
Chandler v. Ciccoricco, 2003 WL 21040185, at *11 (Del. Ch. May 5, 2003) (noting that any
problems of “liberal construction” of Section 3104(c) “can be policed by application of the
minimum contacts analysis under the due process clause of the Fourteenth Amendment”).
39
Fisk Ventures, LLC v. Segal, 2008 WL 1961156, at *7 (Del. Ch. May 7, 2008) (emphasis added).
40
2002 WL 88939 (Del. Super. Ct. Jan. 17, 2002).
41
Id. at *17.
42
See id. (“Because [the Defendant CFO] did not have any contacts in Delaware, this Court will
not establish personal jurisdiction on the mere fact that he was employed by a Delaware
corporation.”).
9
NCM also argues that Cutrone transacted business in Delaware by helping to
prepare the allegedly false LVI Financial Statements and “obtaining NCM’s
reliance” on them. 43 At Oral Argument, NCM cited Universal Capital Management,
Inc. v. Micco World, Inc. 44 for the proposition that knowingly providing false
statements to a Delaware company is sufficient to establish personal jurisdiction. 45
In that case, the Superior Court held that a defendant “purposefully availed himself
to the laws of Delaware” by “intentionally provid[ing] [p]laintiff with an alleged
incomplete and limited accounting information for [the defendant company].” 46
Critically, however, the Court there was examining whether the relevant defendant
was subject to personal jurisdiction under a conspiracy theory of jurisdiction, rather
than under Section 3104(c)(1).47 Thus, Universal Capital does not support NCM’s
attempt to premise personal jurisdiction on Cutrone’s purported role in preparing
LVI’s allegedly fraudulent financial statements and inducing NCM to rely on them,
done elsewhere than Delaware, as transacting business in this state. I find Cutrone’s
alleged actions with respect to the LVI Financial Statements insufficient to confer
personal jurisdiction on him pursuant to Section 3104(c)(1). I also note that Cutrone
denies, via affidavit, performing any act related to the LVI Financial Statements in
43
Countercl. Pl.’s Answering Br. 16.
44
2011 WL 2347612 (Del. Super. Ct. June 2, 2011).
45
See Oral Arg. Tr. 53:20–23 (Dec. 2, 2016).
46
Universal Capital Mgmt., Inc., 2011 WL 2347612, at *7.
47
Id. at *6–7.
10
Delaware, and for good measure asserts that he did not participate in the decision to
enter into the Merger.48
As mentioned above, however, NCM alleges in the Counterclaim that Cutrone
did “execute[] and cause[] to be filed with the Delaware Secretary of State a
certificate of merger in connection with and to facilitate the Merger between LVI
and NCM under Delaware law.” 49 NCM argues that this action constituted the
“doing of business,” sufficient to invoke statutory jurisdiction. In evaluating
whether a complaint sufficiently alleges facts supporting jurisdiction under the long-
arm statute, I must presume that allegations therein are true, but conclusory
allegations denied by opposing affidavit are not subject to that presumption. 50 Here,
Cutrone does not deny execution of a certificate of merger (the “Certificate”),
although not the certificate pertaining to the merger creating NorthStar. 51 However,
he specifically denies, via affidavit, that he created the Certificate or caused it to be
48
Cutrone Aff. ¶¶ 7–8.
49
CC. ¶ 8.
50
See, e.g., Northside Cmty. Bank v. Friedman, 2013 WL 6091701, at *3 (Del. Ch. Nov. 20, 2013)
(“Proof of jurisdiction-conferring facts may consist of briefs, affidavits, other extrinsic evidence
in the record, and allegations contained in a verified complaint where . . . those allegations have
not been rebutted by an opposing party’s affidavits.”); Hartsel, 2011 WL 2421003, at *7
(“Specifically, when a motion under Rule 12(b)(2) is presented without an evidentiary hearing, as
it is here, the plaintiff's burden is to point to sufficient evidence in the record to support a prima
facie case that jurisdictional facts exist to support the two elements it must prove. In doing so, the
court is not limited to the pleadings and can consider affidavits, briefs of the parties, and the
available results of discovery. Still, allegations regarding personal jurisdiction in a complaint are
presumed true, unless contradicted by affidavit . . . .”).
51
Cutrone Aff. ¶¶ 9–10.
11
filed in Delaware.52 I start with the premise that Cutrone’s transaction of business,
relevant to Delaware jurisdiction, consists of the execution of the Certificate. 53
But the Certificate Cutrone executed did not cause the Merger between LVI
and NCM. Instead, the Certificate concerns a preceding merger consolidating
several LVI entities into “LVI Parent Corp.” (the “Certificate Merger”).54 NCM was
not a party to this transaction, nor does it challenge the propriety of the Certificate
Merger. While the Counterclaim is silent about the Certificate Merger, I conclude
that it created LVI Parent Corp., the LVI entity that shortly thereafter merged with
NCM in the merger at issue here.55 Thus, the Certificate caused a predicate merger
that was an antecedent to, but did not itself effect, the Merger that is the subject of
this litigation.
“The involvement of a defendant in arranging, either directly or through an
agent . . . for the filing of a corporate instrument in Delaware that facilitated
transactions under challenge in litigation . . . has been repeatedly recognized as
sufficient to constitute the transaction of business under § 3104(c)(1).” 56
Nevertheless, this Court has not held that the act of signing a corporate instrument
outside of Delaware, as Cutrone did here, 57 without more, is sufficient to count as
52
Id. ¶ 9.
53
Id.
54
Certificate of Merger.
55
See CC. Ex. A (the “Contribution Agreement”).
56
Sample, 935 A.2d at 1057.
57
Cutrone Aff. ¶ 9.
12
the transaction of business under Section 3104(c)(1).58 More significantly, even if
signing the Certificate—ultimately filed in Delaware—constituted “transacting
business” in this state, the cause of action must arise from that transaction to confer
personal jurisdiction.59 The “arising from” language requires that “the defendant’s
act set in motion a series of events which form the basis for the cause of action before
the court.”60 To confer jurisdiction, the transaction of business must have a “tight
nexus” to the cause of action and must “form a source of the claim.”61 Indeed, “[t]his
court has declined to exercise personal jurisdiction over defendants who were not
meaningfully involved in structuring the underlying transaction or negotiating the
terms of the deal.” 62
As an example of a sufficiently tight nexus, in Sample v. Morgan, fiduciaries
of a Delaware entity allegedly issued a large block of voting stock to themselves at
an unfair price, an action made possible by a certificate amendment lowering the par
58
See Kelly, 2002 WL 88939, at *17 (reasoning that the signing of a registration statement in
California on behalf of a Delaware corporation did “not meet the contacts necessary to establish
personal jurisdiction under 10 Del. C. § 3104(c)(1)”).
59
10 Del. C. § 3104(j) (“When jurisdiction over a person is based solely upon this section, only a
cause of action arising from any act enumerated in this section may be asserted against the person.”
(emphasis added)).
60
Microsoft Corp. v. Vadem, Ltd., 2012 WL 1564155, at *7 (Del. Ch. Apr. 27, 2012) (internal
quotation marks omitted).
61
Sample, 935 A.2d at 1057 n.43 (emphasis added); see also Chandler, 2003 WL 21040185, at
*11 (explaining that the cause of action must have a “nexus to the transaction of business that took
place in the State”).
62
Terramar Retail Ctrs., LLC v. Marion #2-Seaport Tr. U/A/D/ June 21, 2002, 2017 WL
3575712, at *8 (Del. Ch. Aug. 18, 2017).
13
value of the corporation’s shares. 63 This Court explained that the certificate
amendment filed by the defendant law firm was “directly at issue in the claims
against the moving defendants” and, after noting that the law firm advertised itself
as providing “coast-to-coast legal services” and offered advice on Delaware law,
held that the defendant law firm was therefore subject to personal jurisdiction in
Delaware.64 Similarly, this Court in Chandler v. Ciccoricco reasoned that because
filing a “Certificate of Designation of Rights and Preferences” was a necessary act
to issue preferred stock, and certain counts of the plaintiffs’ complaint pertained to
the validity of that preferred stock issuance, a nexus existed between a defendant
filing that certificate and the cause of action sufficient to confer jurisdiction.65
By contrast to the cases discussed above, Cutrone did not file the Certificate
here, and avers he did not cause it to be filed, and neither the Certificate itself nor
the Certificate Merger it effected is at issue in the claims before me. The Certificate
was for a merger that was, I assume, a predicate to the Merger between LVI and
NCM. NCM does not challenge the Certificate Merger itself in any way, and does
not allege that the Certificate or Certificate Merger itself embodies fraud, or caused
the fraud for which it seeks redress. Undoubtedly, there was a nexus between the
Certificate Merger, the Merger between LVI and NCM, and the fraud claims. That
63
Sample, 935 A.2d at 1048.
64
Id. at 1047–48, 1057.
65
2003 WL 21040185, at *11.
14
nexus, however, is not tight, and Cutrone’s act here does not form a source of the
claim. Under those facts, I do not find a sufficient nexus to exist between Cutrone’s
signing the Certificate and the claims before me to support jurisdiction.
Accordingly, I find that Cutrone is not subject to personal jurisdiction under Section
3104(c)(1).66
III. CONCLUSION
For the foregoing reasons, Cutrone’s Motion to Dismiss for lack of personal
jurisdiction is granted. IT IS SO ORDERED.
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
66
Because there is no statutory basis for exercising personal jurisdiction over Cutrone, I need not
reach the question whether exercising personal jurisdiction over him would violate the Due Process
Clause of the Fourteenth Amendment. See, e.g., Abajian v. Kennedy, 1992 WL 8794, at *9 (Del.
Ch. Jan. 17, 1992) (declining to decide “whether sustaining jurisdiction over [a defendant] would
violate due process requirements of the 14th Amendment” because the defendant was “not subject
to personal jurisdiction under Delaware’s long-arm statute”).
15