Joseph Stanco v. Rallye Motors Holding, LLC ( 2019 )

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JOSEPH STANCO, )
)
Plaintiff, )
)
v. ) C.A. No. 2019-0751-SG
)
)
RALLYE MOTORS HOLDING, LLC, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: November 26, 2019
Date Decided: December 23, 2019
John P. DiTomo, Elizabeth A. Mullin, and Emily Bryant-Alvarez of MORRIS,
NICHOLS, ARSHT & TUNNELL LLP, Wilmington, Delaware; OF COUNSEL:
Michael C. Marsh, Ryan Roman, Donnie King, and Chanelle Artiles, of AKERMAN
LLP, Miami, Florida, Attorneys for Plaintiff Joseph Stanco.
Timothy R. Dudderar and Robert J. Kumor, of POTTER ANDERSON &
CORROON LLP, Wilmington, Delaware, Attorneys for Defendant Rallye Motors
Holding LLC.
GLASSCOCK, Vice Chancellor
The Plaintiff brings this Action for entity records under 6 Del. C. § 18-305—
the analog of a DGCL Section 220 action applicable to limited liability companies—
and the entity’s LLC agreement (the “LLC Agreement”). The Plaintiff is the former
Managing Member of the Defendant, Rallye Motors Holding LLC (“Rallye” or the
“Company”). 1 The matter is scheduled for trial on February 27, 2019. Rallye has
moved to dismiss, pointing to language in the LLC Agreement providing that
disputes arising therefrom “shall be venued” 2 in the courts of two counties of the
State of New York. In the alternative, Rallye points to a New York action by a
plaintiff similarly situated to the Plaintiff here, seeking, among other things, to
compel inspection of the same Rallye documents the Plaintiff seeks in this litigation.
Rallye argues that this Action should be dismissed in favor of the first-filed New
York action under the rationale of McWane Cast Iron Pipe Corp. v. McDowell-
Wellman Engineering Co. 3
I find neither argument persuasive; accordingly, the Motion to Dismiss is
denied.
1
I note that the record is inconsistent as to whether the entity’s name has a comma. Because the
entity’s name in the LLC Agreement is “Rallye Motors Holding LLC” I omit the comma. Verified
Compl. for Inspection of Books and Records, D.I. 1 (“Compl.”), Ex. B. (“LLC Agreement”), §
1.1.
2
The modern penchant for conjuring verbs from nouns has created slews of verbs of which our
foremothers could never have dreamed. Despite this widespread practice, I have run across no
frankenverb uglier than “venued.”
3
263 A.2d 281 (Del. 1970).
I. BACKGROUND 4
A. The Parties
Defendant Rallye is a Delaware limited liability company that acts as a
holding company for five automobile dealerships on Long Island, New York. 5
Plaintiff Joseph Stanco is a member of Rallye, and owns 5.5% of Rallye’s
membership units.6
B. Factual Background
Rallye, founded in 1958, is composed of five auto dealerships on Long Island,
New York.7 The Plaintiff began working for the Company around 1980.8 The
Plaintiff first acquired an ownership interest in Rallye in 2000, when one of the
Company’s founders departed, selling a portion of his membership interest to the
Plaintiff. 9 In 2006, the Plaintiff was promoted to President and CEO of Rallye. 10 In
2007, the Plaintiff acquired additional membership units from a departing employee,
bringing him to his current ownership level of 5.5%.11 In 2011, the Plaintiff joined
4
I draw the facts from the Plaintiff’s Verified Complaint for Inspection of Books and Records and
exhibits attached thereto.
5
Compl., ¶ 2.
6
Id. ¶ 3.
7
Id. ¶ 4–5.
8
See id. ¶ 7.
9
Id. ¶ 6.
10
Id. ¶ 7.
11
Id. ¶ 8.
2
Rallye’s Board of Managers and became the Managing Member of the Company. 12
The Plaintiff’s employment at Rallye ended when Rallye fired the Plaintiff without
cause in 2017.13
On August 27, 2019, the Plaintiff demanded inspection of Rallye’s books and
records (the “Demand”) under § 18-305 of Delaware’s LLC Act and § 8.3 of the
LLC Agreement. 14 The Plaintiff seeks to inspect Rallye’s books and records to
evaluate: (1) the status of his ownership interest in Rallye, (2) the value of his
ownership interest in Rallye, (3) the business and financial condition of Rallye, (4)
the performance of Rallye’s management after failing to make distributions to
Stanco and other shareholders, (5) the independence of Rallye’s management, (6)
the propriety of Rallye’s disclosures,15 and (7) the current business being transacted
by Rallye. 16
C. Procedural History
As noted, the Plaintiff made the Demand on August 27, 2019. On September
19, 2019, the Plaintiff filed a Verified Complaint for Inspection of Books and
Records (the “Complaint”). On October 2, 2019, Rallye filed its Motion to Dismiss
12
Id. ¶ 9.
13
Id. ¶ 10.
14
Id. ¶ 11.
15
It is unclear from the Complaint what disclosures the Plaintiff is referring to.
16
Compl., ¶ 12.
3
the Complaint. I heard Oral Argument on the Motion to Dismiss on November 26,
2019 and considered the Motion submitted for decision on that date.
II. ANALYSIS
Rallye has moved to dismiss this action under Chancery Court Rules 12(b)(3)
and 12(b)(6). 17 In considering such a motion:
(i) all well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are well-pleaded if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the nonmoving party; and (iv) dismissal is inappropriate
unless the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof. 18
When reviewing a motion to dismiss, the Court may take into consideration
documents “incorporated into the pleadings by reference and may take judicial
notice of relevant public filings.”19
A. The LLC Agreement Does Not Require the Plaintiff to Bring his Dispute
in New York
The Plaintiff seeks to vindicate his right to books and records under § 8.3 of
the LLC Agreement and 6 Del. C. § 18-305(a). Section 8.3 of the LLC Agreement
provides, in part:
Each Member shall have the right, at all reasonable times during usual
business hours, to audit, examine and make copies of; or extracts from,
17
Ch. Ct. R. 12(b)(3); Ch. Ct. R. 12(b)(6).
18
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (footnotes and internal quotations
omitted).
19
See Fairthorne Maint. Corp. v. Ramunno, 2007 WL 2214318, at *4 (Del. Ch. Jul. 20, 2007)
(citations omitted).
4
the books of account and other financial records of the Company at its
principal place of business. Such right may be exercised through any
agent or employee of a Member designated by such Member or by an
independent certified public accountant designated by such Member.20
6 Del. C. § 18-305(a) provides that:
Each member of a limited liability company, in person or by attorney
or other agent, has the right, subject to such reasonable standards
(including standards governing what information and documents are to
be furnished at what time and location and at whose expense) as may
be set forth in a limited liability company agreement or otherwise
established by the manager or, if there is no manager, then by the
members, to obtain from the limited liability company from time to
time upon reasonable demand for any purpose reasonably related to the
member’s interest as a member of the limited liability company . . . . 21
Rallye, however, argues that the Plaintiff waived his right to bring such an action in
this jurisdiction, via the LLC Agreement. The relevant provision of the LLC
Agreement is § 12.7:
This Agreement, including its existence, validity, construction and
operating effect, and the right of each of the parties hereto, shall be
governed by and construed in accordance with the laws of the State of
Delaware without regard to principles of conflict of laws. Any and all
disputes relating to this Agreement shall be venued in either the
Supreme Court of the State of New York, Nassau County, Commercial
Division and/or the Surrogate’s Court located in New York County. 22
Rallye argues that, as a party to the LLC Agreement, the Plaintiff’s venue for seeking
entity records is limited to these two New York counties. LLCs are, in
20
LLC Agreement, § 8.3.
21
6 Del. C. § 18-305(a).
22
LLC Agreement, § 12.7.
5
contradistinction to corporations, creatures of contract. Because the Plaintiff was
both a member and a manager of Rallye, he is a party to the LLC Agreement.
Nonetheless, there are statutory limits to the freedom of LLCs and their
members to contract. The Plaintiff argues that the venue provision of the LLC
Agreement is not enforceable against him. He points to 6 Del. C. § 18-109(d), which
reads:
In a written limited liability company agreement or other writing, a
manager or member may consent to be subject to the nonexclusive
jurisdiction of the courts of, or arbitration in, a specified jurisdiction, or
the exclusive jurisdiction of the courts of the State of Delaware, or the
exclusivity of arbitration in a specified jurisdiction or the State of
Delaware, and to be served with legal process in the manner prescribed
in such limited liability company agreement or other writing. Except
by agreeing to arbitrate any arbitrable matter in a specified jurisdiction
or in the State of Delaware, a member who is not a manager may not
waive its right to maintain a legal action or proceeding in the courts
of the State of Delaware with respect to matters relating to the
organization or internal affairs of a limited liability company. 23
6 Del. C. § 18-109(d) is worded negatively. It implies, but does not state explicitly
that managing-members may waive their right to a Delaware venue. Here, at the
time the LLC Agreement was entered, the Plaintiff was a manager as well as a
member. At the time this Action was filed, he was “a member who [was] not a
manager.” Under these circumstances, must the Plaintiff be held to have waived his
statutory right to a Delaware venue for books and records?
23
6 Del. C. § 18-109(d) (emphasis added).
6
The statute is, perhaps, ambiguous in this situation. The Company argues that
the purpose of the statute is to prevent oppression of members who have limited (or
no) bargaining power as to the terms of LLC agreements. Accordingly, the
Company advocates that a manager may waive the right to a Delaware venue for
litigation involving the LLC’s internal affairs, in a way binding even if—as here—
he is later removed as a manager. The Plaintiff, on the other hand, argues that the
statute is intended to protect members who wish to litigate internal affairs matters,
by ensuring a forum in Delaware, and that this interest is best vindicated by
construing the ability to waive as of the time the action is filed.
Fortunately, and despite the urging of the parties, I need not decide the matter
by resolving any ambiguity in the statute. Generally, except as limited by contractual
waiver, the members of a Delaware LLC have the right to vindicate proper books
and records demands in this Court. Waivers of rights, to be enforceable, must
encompass a knowledge of the right and the clear expression of the intent to
relinquish the right.24 The language of the LLC Agreement does not clearly evince
a waiver of the right to venue in this Court. The New York venue provision of the
LLC Agreement applies to “[a]ny and all disputes arising out of this Agreement.”
The dispute here is not solely about rights under the LLC Agreement, however; it is
also about a statutory right to entity records. To the extent the Plaintiff meant to
24
E.g. Realty Growth Inv’rs v. Council of Unit Owners, 453 A.2d 450, 456 (Del. 1982).
7
waive his statutory right to bring such an action here, he has not clearly so expressed
it via the LLC Agreement. Moreover, it is clear to me that at the time he entered the
LLC Agreement, the Plaintiff could not have intended to waive his rights to a books
and records demand as a manager. Acting as not only a manager but the Managing
Member of Rallye, he would have access to the Company’s books and records. It is
only because he was removed as manager that he seeks to vindicate his statutory
rights as a member. Reading the LLC Agreement in light of 6 Del. C. § 18-109, I
find that the parties to the LLC Agreement cannot have intended the waiver of
Delaware venue for internal affairs litigation—a waiver enforceable (under the
statute) only against managers—to apply to a member’s statutory action for books
and records.
The Company’s Motion to Dismiss on this ground is denied.
B. McWane Does Not Apply to the Plaintiff’s Claim
A successful motion to dismiss on forum non conveniens grounds requires a
defendant to overtop a difficult, though not insurmountable, standard. Such a
defendant must demonstrate that it would be subject to a high degree of hardship,
should the litigation go forward in Delaware. 25 The Company does not attempt to,
and could not, make such a showing here. Instead, it seeks to dismiss the case under
25
Martinez v. E.I. DuPont de Nemours & Co., 86 A.3d 1102, 1104–1105 (Del. 2014).
8
the McWane rationale. 26 Under McWane, this Court’s discretion is to be freely
exercised in favor of a stay or dismissal where “there is a prior action pending
elsewhere, in a court capable of doing prompt and complete justice, involving the
same parties and the same issues.”27 The Company points out that the intent of
McWane was to advance efficiency, and that a New York action also exists, between
the Company and another member similarly situated to the Plaintiff, seeking in part
similar relief to the document production the Plaintiff seeks here (the “NY Books
and Records Action”).28 In Rallye’s view, in the interests of efficiency the Plaintiff
should thus be dismissed here and required to join the NY Books and Records Action
for the relief he seeks. 29
The sole plaintiff in the NY Books and Records Action, Nicholas Toomey, is
a member of Rallye and owns 5.5% of Rallye’s membership units.30 According to
Rallye, Toomey and the Plaintiff are cohorts, former Rallye employees fired
purportedly for cause in 2017. 31 In November of 2017, Toomey and Stanco filed an
26
McWane Cast Iron Pipe Corp. v. McDowell-Wellman Eng’g Co., 263 A.2d 281 (Del. 1970).
27
Id. at 283.
28
Toomey v. Rallye Motors Holding, LLC, et al., Index No. 613005/2019 (N.Y. Sup. Ct.).
29
I note that part of Defendant’s argument to the court in the New York action is that the LLC
Agreement is void ab initio. Nonetheless, here Defendant is attempting to enforce the Agreement
against the Plaintiff. While this strikes me as raising a judicial estoppel, Plaintiff did not make this
argument, and I therefore do not consider it here.
30
Compl., ¶ 8.
31
Def. Rallye Motors Holding LLC’s Opening Br. in Supp. of its Mot. to Dismiss or Stay, D.I. 19
(“Rallye Op. Br.”), at 1 (“Stanco . . . and his cohort, non-party Nicholas Toomey . . . were fired in
9
action in New York against Rallye for breach of contract (the “NY Breach of
Contract Action”). 32 Toomey then filed a second action in New York, the NY Books
and Records Action. Stanco filed this action the same day. Rallye argues that for
the purpose of a McWane analysis I should view the NY Books and Records Action
in conjunction with the NY Breach of Contract Action filed in 2017 as the operative
“prior action pending elsewhere.” While not a party to the NY Books and Records
Action, the Plaintiff is a party to the NY Breach of Contract Action. The NY Breach
of Contract Action alleges breaches of Stanco’s and Toomey’s employment
agreements and includes a count for accounting to “determine the amount of unpaid
or underpaid distributions that are owed” to Stanco and Toomey. 33 The Company
argues that the matter before me shares a “common nucleus of operative fact[]” with
the NY Breach of Contract Action and thus should be considered to share “the same
issues” with that action and the NY Books and Records Action in a McWane
analysis.34 However, the connection between the NY Breach of Contract Action and
this action is, in my view, insufficient to support my exercise of discretion under
McWane. The NY Breach of Contract Action is a plenary action, the matter here is
2017 for, among other things, gross incompetence and self-dealing . . . against the Company.”). I
note that the Complaint in this matter, by contrast, alleges Stanco was fired “without any cause.”
Compl., ¶ 10.
32
Stanco and Toomey v. Rallye Motors Holding, LLC, Index No. 612155/2017 (N.Y. Sup. Ct.).
33
Rallye Op. Br., at 8–9.
34
Id. at 23–30.
10
a summary books-and-records proceeding. The gravamen of this action is Stanco’s
entitlement to Company documents consistent with his interest as a member, which
to my mind does not share a significant nucleus of facts with the NY Breach of
Contract Action, which concerns Stanco’s contractual employment rights. Thus, I
need consider only whether this action should be dismissed under McWane in favor
of the NY Books and Records Action.
It would, no doubt, be efficient for Rallye to address the claims of the Plaintiff
here in the NY Books and Records Action. McWane, however, seeks to promote
efficient litigation by vindicating a plaintiff’s choice of forum, in the situation where
a party to the action seeks to defeat that choice by later filing another action in a
different jurisdiction. It does not, and in my view should not be, employed to defeat
a plaintiff’s choice of forum in favor of an action in another jurisdiction filed
contemporaneously by a third party, which involves similar issues or relief with
respect to that third party’s rights. Such an action does not “involv[e] the same
parties and the same issues.”
It is true that McWane may apply even if the parties to the two actions are not
completely identical.35 Here, however, the Company seeks to impose the doctrine
on a party seeking to vindicate his rights to books and records as an LLC member,
35
E.g. Brookstone Partners Acquisition XVI, LLC v. Tanus, 2012 WL5868902 at *3–4 (Del. Ch.
Nov. 20, 2012) (noting that identity of parties prong is satisfied where differences are more form
than substance).
11
via a summary action, to force him to litigate with another LLC member seeking to
vindicate that other member’s books and records right in a plenary action in a
different forum. There is no overlap in the parties aside from the common defendant,
nor are the issues necessarily the same. McWane is not—and should not be—that
flexible. Therefore, the Motion to Dismiss under McWane is denied.
III. CONCLUSION
The Defendant’s Motion to Dismiss is denied. An appropriate Order is
attached.
12
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JOSEPH STANCO, )
)
Plaintiff, )
)
v. ) C.A. No. 2019-0751-SG
)
)
RALLYE MOTORS HOLDING, LLC, )
)
Defendant. )
ORDER
AND NOW, this 23rd day of December, 2019, for the reasons set forth
contemporaneously in the attached Memorandum Opinion dated December 23,
2019, IT IS HEREBY ORDERED that the Defendant’s Motion to Dismiss is
DENIED.
/s/ Sam Glasscock III
Vice Chancellor