Jeffrey Norman v. David Elkin

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
Nos. 16-1924 and 16-2164
_____________
JEFFREY M. NORMAN,
Appellant in No. 16-1924
v.
DAVID W. ELKIN; RICHARD M. SHORIN;
ELKIN GROUP INC.; US MOBILCOMM INC.
Appellants in No. 16-2164
_______________
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 1-06-cv-00005)
District Judge: Hon. Leonard P. Stark
_______________
Argued
January 13, 2017
Before: SMITH, Chief Judge, JORDAN, and SHWARTZ,
Circuit Judges.
(Filed: June 13, 2017)
_______________
David A. Felice (Argued)
Bailey & Glasser
2961 Centerville Rd.
Suite 302
Wilmington, DE 19808
Counsel for Appellant/Cross-Appellee
Steven L. Caponi (Argued)
David A. Dorey
Adam V. Orlacchio
Blank Rome
1201 Market St.
Suite 800
Wilmington, DE 19801
Counsel for Appellees/Cross-Appellants
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge
Jeffrey Norman and David Elkin were the only two
shareholders of US MobilComm Inc. (“USM”), a Delaware
company that acquired and sold rights to radio frequencies.
Norman held a minority interest and sought legal relief after
he discovered that Elkin had transferred to another company
the ownership of several frequencies purchased by USM, that
Elkin had treated capital contributions as loans, and that Elkin
had paid himself from USM funds without giving Norman
any return on his minority investment. It was the beginning
of a long and tortuous litigation trail. Despite two juries
having sided with Norman, the verdicts in his favor were
2
overturned. Most of his claims were ultimately held to be
barred by the statute of limitations, after the District Court
rejected his argument that a state court case he had brought to
inspect USM’s books and records pursuant to § 220 of Title 8
of the Delaware Code tolled the statute of limitations. Other
claims were eliminated for insufficient evidence. Norman
now appeals, seeking to restore portions of each of the two
jury verdicts he won and also to allow him to pursue certain
claims that had been foreclosed by the District Court. Elkin
cross-appeals and asks us to affirm on alternative grounds the
several rulings rejecting Norman’s claims.
We conclude that the District Court erred in
concluding that tolling of the statute of limitations is
categorically inappropriate when a plaintiff has inquiry notice
before initiating a books and records action in the Delaware
courts. Accordingly, we will send most of the claims back to
the District Court to determine whether tolling should have
applied and, if so, whether any of the claims are nevertheless
time-barred. We also conclude that the District Court erred
when it vacated the jury’s award of nominal damages for one
of Norman’s breach of contract claims. Finally, we hold that
Norman’s fraud claim was not supported by sufficient proof
of damages and we thus affirm judgment as a matter of law
on that claim on the alternative grounds that Elkin has
proposed.
3
I. FACTUAL BACKGROUND1
In the early 1990s, the FCC announced plans to grant
licenses for the commercialization of 220 megahertz (“MHz”)
radio frequencies. Those frequencies had previously been
available only for non-commercial purposes, so entrepreneurs
anticipated that the newly available frequencies would create
lucrative business opportunities. Such ambitions were
frustrated, however, by technological failures and regulatory
logjams, and investor hopes eventually turned to
disappointment. This case is a consequence of the bursting of
the 220 MHz bubble.
A. The Auction and Sale of Frequencies
Norman and Elkin founded USM in order to acquire,
develop, and sell licenses to 220 MHz frequencies. In 1991-
92, the FCC granted the first wave (Phase I) of 220 MHz
licenses by lottery. Norman’s primary responsibility at USM
was to acquire, aggregate, and manage licenses held by
individual Phase I license holders throughout the country. By
1996, USM had successfully acquired around 40-50 licenses
and entered into agreements to manage over 150 more. At
that point, Norman’s involvement in the day-to-day business
affairs of USM ceased. Elkin, by contrast, continued to
manage the company.
1
Because Norman’s claims were dismissed pursuant to
Elkin’s post-trial motions for judgment as a matter of law, we
must “view[] the evidence in the light most favorable to
[Norman] and giv[e] [him] the advantage of every fair and
reasonable inference[.]” Lightning Lube, Inc. v. Witco Corp.,
4 F.3d 1153, 1166 (3d Cir. 1993).
4
In 1998, the FCC began the second phase of licensing
through a competitive auction. Elkin registered USM for the
auction and USM won the rights to several frequencies.
Those rights were subsequently registered in the name of
another company that Elkin owned, The Elkin Group
(“TEG”). According to Elkin, the involvement of TEG was
necessary because USM did not have the funds to participate
in the auction or bid on any of the licenses without TEG’s
assistance. Elkin also said he wanted to make sure that a
friendly corporation acquired the licenses that overlapped
with those already owned by USM. Norman v. Elkin
(“Norman I”), CIV. A. No. 06-005, 2007 WL 2822798, at *2
(D. Del. Sept. 26, 2007).
Norman closely monitored the FCC’s bidding process
and, a few days after the auction, he e-mailed Elkin asking for
more information about the auction results. He also called the
FCC to inquire into the status of USM’s licenses acquired
through the second phase auction. Some FCC notices
referred to USM as the winning bidder, while other public
documents referred to TEG as the owner of the licenses.
B. Capitalization and the Shareholder Loan
Agreement
Norman owns 25% of the stock of USM and Elkin
owns 75%. When they founded USM, they entered into an
oral agreement to invest a proportional share of capital in the
company to meet a million dollar capital requirement –
Norman promised to invest $250,000 while Elkin promised to
invest $750,000. Despite those promises, disputes over
contributions quickly arose. Norman allegedly only
contributed $200,000 of his $250,000 obligation. Elkin also
5
failed to make his full capital contribution; he initially
furnished around $360,000. Further complicating what was
supposed to be a straightforward capitalization story, Elkin
and Richard Shorin, the Assistant Secretary of USM, felt that
Norman had spent USM’s funds on personal matters and so,
at Elkin’s direction, USM treated those expenditures as
capital outlays and reduced Norman’s capital contribution to
approximately $140,000.
Elkin claimed to believe that he was only required to
maintain a capital contribution proportional to Norman’s
contribution. So he reduced his own contribution target to
$420,000. He did that by causing USM to enter into a
“Shareholder Loan Agreement” sometime between 1995 and
2002. Consistent with that document, USM agreed to treat
any amount that Elkin contributed to the company above
$420,000 as a loan.2 Subsequently, Elkin gave additional
sums to keep USM afloat, and a document listing all of
Elkin’s purported loans (the “Shareholder Loan Schedule”)
showed that Elkin had loaned USM more than $690,000,
including certain capital contributions that were converted
into loans.
In 2000 and 2001, USM sold off its Phase I licenses.
It prioritized repayment of Elkin’s loans and paid him
$615,026, without giving Norman any money. One of the
2
The Shareholder Loan Agreement itself is dated
September 1, 1995, but Elkin could not recall exactly when
he entered into the Agreement, and at trial he testified that it
was agreed to in 1997 and executed in 2000. Other trial
documents provide conflicting dates. The actual date is not
relevant to this appeal.
6
key issues in this case is when Norman knew or should have
known about those payments. He received federal income tax
K-1 forms from USM each year, and in 2000 and 2001 the
forms declared that USM had realized a capital gain. Those
K-1 forms did not state what had been sold, and they did not
list any shareholder loans or distributions. However, in a
deposition, Norman admitted that “a capital gain, by
definition … has to be sale of a license[.]” (App. at 512.)
In the summer of 2002, Norman and Elkin had a
telephone conversation, after not having spoken in a long
time. Elkin said that some licenses had been sold. Norman
described the call as follows:
I logged a call into him and said: Hey, what is
going on with the company? And he was a little
bit evasive as I recall. And then I pointedly
asked him: Has anything been sold? And he
said: Yes. And I said: Well, what? And he goes:
Well, we sold some licenses. And I forget the
cities he even said.
I said: Well, did you take a distribution? And
he said: Yeah. I said: Well, you know, what
about me basically? And he said: Oh, it wasn’t
your turn.
(App. at 860-61.) Norman asked for additional information,
which Elkin never sent. Later, on October 2, 2002, Norman’s
attorney sent a letter (the “October 2002 Letter”) requesting
7
information pursuant to 8 Del. C. § 220.3 Specifically, the
letter requested information regarding “the sale or other
disposition of any assets or stock of [USM] over the past
three (3) years, and the distribution or use of any proceeds of
any such sales or dispositions.” (App. at 228.)
Approximately two months passed and, on
December 3, 2002, Norman received a letter (the “December
2002 Letter”) from Elkin acknowledging that USM had sold
the licenses “it owned.” (App. at 231). The letter included
purchase and sale agreements which revealed that TEG sold
some of the Phase II licenses acquired during the auction.
The letter also included a breakdown of the uses of the
proceeds, including repayment of what were characterized as
shareholder loans, but it significantly understated the amount
paid to Elkin. The Shareholder Loan Agreement was
subsequently included in a letter that USM sent to Norman’s
attorney in October 2003 (the “October 2003 Letter”) in
response to a request for further information. Norman v.
Elkin (“Norman II”), 726 F. Supp. 2d 464, 472 (D. Del.
2010); (App. at 128, 131).
II. PROCEDURAL BACKGROUND
The in-court battles between the parties began on
November 16, 2004, more than a year before the fight became
a federal case. Norman filed suit under 8 Del. C. § 220 in the
3
Section 220 allows a stockholder to request
inspection of the books and records of a corporation and, if
his request is rebuffed, he is entitled to bring an action in the
Delaware Court of Chancery to compel inspection. 8 Del. C.
§ 220(b)-(c).
8
Delaware Court of Chancery to compel Elkin to allow
inspection of USM’s books and records. Elkin vigorously
opposed that proceeding and it dragged on for almost a year,
until October 2, 2005, when the Chancery Court compelled
USM to disclose the requested documents.4
Norman filed the complaint that is the foundation of
this appeal on December 5, 2005. Though he filed it in the
Court of Chancery, the case was, at Elkin’s instigation,
promptly removed to the District Court. Norman raised a
wide variety of tort and contract claims against Elkin,5 USM,
and TEG (collectively, the “Defendants”) including breach of
contract, usurpation of corporate opportunities, conversion,
fraud, breach of fiduciary duties, and unjust enrichment.6
4
Elkin argues unconvincingly that the Chancery
Court’s order in the § 220 action is not part of the record in
this appeal. Norman had offered the order into evidence but
the order was excluded by the District Court. It is,
nonetheless, part of the record. See Morton Int’l, Inc. v. A.E.
Staley Mfg. Co., 343 F.3d 669, 682 (3d Cir. 2003) (explaining
that the record on appeal “includes items admitted into
evidence, but also includes items presented to the district
court and not admitted into evidence” (quoting Waldorf v.
Shuta, 142 F.3d 601, 620 (3d Cir. 1998))).
5
Elkin filed counterclaims, none of which are
pertinent at this point.
6
More precisely, Norman’s claims were: 1) breach of
the oral contract between Norman and Elkin regarding capital
contributions and equity in USM, 2) usurpation of corporate
opportunities by bidding on FCC licenses for TEG rather than
9
With regard to his breach of contract claim, Norman alleged
that he and Elkin entered into an oral contract about the
amount of capital they would contribute and the equity they
would each receive. Norman advanced three theories of
breach: 1) that Elkin had failed to pay him his (Norman’s) pro
rata share of all proceeds, 2) that Elkin had refused to
maintain his (Elkin’s) full capital contribution of $750,000,
and 3) that Elkin had improperly caused USM to enter into
the Shareholder Loan Agreement.7
A. Summary Judgment Opinion (Norman I)
The Defendants eventually moved for summary
judgment, arguing that all of Norman’s claims were barred by
the statute of limitations. Norman I, 2007 WL 2822798, at
USM, 3) breach of fiduciary duty (including the duties of
loyalty, care, and good faith), 4) breach of the duty of
disclosure, 5) conversion and misappropriation of the Phase II
licenses, 6) fraudulent misrepresentation (via the December
2002 Letter), and 7) unjust enrichment. Norman also claimed
that Shorin aided and abetted Elkin’s wrongful conduct, but
the District Court granted Shorin summary judgment on that
claim and it is not part of this appeal. Norman v. Elkin
(“Norman II”), 726 F. Supp. 2d 464, 478-79 (D. Del. 2010).
7
In his amended complaint, Norman listed four bases
for his breach of contract claim. By the time of the first trial,
however, Norman’s position was “that Elkin breached [his]
agreement in [the] three (3) distinct ways,” as discussed
above. (Norman v. Elkin, CIV. A. No. 06-005, Docket Item
(“D.I.”) 61 at p 3.)
10
*3-4. In the course of denying that motion, the District Court
made several rulings relevant to this appeal. It first
determined the applicable statute of limitations. Id. at *3.
Since the suit was brought in Delaware, it applied Delaware’s
procedural law, including the state’s borrowing statute, 10
Del. C. § 8121.8 Norman I, 2007 WL 2822798, at *4. On
that basis, it decided that Delaware law required that
Pennsylvania’s two-year statute of limitations be applied to
all but the breach of contract claim, since Pennsylvania’s
limitations period was shorter than Delaware’s for those non-
contract claims.9 Id. For the breach of contract claim, the
8
That statute provides in relevant part:
Where a cause of action arises outside of this
State, an action cannot be brought in a court of
this State to enforce such cause of action after
the expiration of whichever is shorter, the time
limited by the law of this State, or the time
limited by the law of the state or country where
the cause of action arose, for bringing an action
upon such cause of action.
10 Del. C. § 8121.
9
At the time that Norman filed suit, Elkin and Shorin
were both residents of Pennsylvania and TEG was
incorporated in Pennsylvania. USM’s principal place of
business was also in Pennsylvania. Given the several
connections between the dispute and Pennsylvania, the
District Court concluded that, for purposes of the Delaware
borrowing statute, “[t]he parties do not dispute that … the
conduct underlying the causes of action arose in
11
Court applied Delaware’s three-year limitations period, rather
than Pennsylvania’s four-year period. Id.
The District Court then accepted Norman’s argument
that the statute of limitations for all of the claims was tolled
as a result of Elkin’s alleged wrongdoing and concealment of
facts. Id. at *5. Accordingly, “the statute of limitations
began to run at the time [Norman] knew or had reason to
know of the facts constituting the alleged wrong.” Id. The
Court emphasized that “the date on which [Norman] knew or
should have known the facts constituting his claims is a
material dispute of fact” and therefore concluded that the
claims could not be ruled untimely at the summary judgment
stage. Id.
B. First Trial and Post-Trial Motions (Norman II)
Three of Norman’s nine claims went to trial: breach of
contract, fraud, and conversion. Norman II, 726 F. Supp. 2d
at 468. The District Court did not allow the other claims to
go to the jury and stated that it would reserve judgment as to
whether any of them were viable.10 Id. After a three-day
Pennsylvania.” Norman v. Elkin (“Norman I”), CIV. A. No.
06-005, 2007 WL 2822798, at *4 (D. Del. Sept. 26, 2007).
That conclusion has not been challenged on appeal.
10
The District Court stated that it was “going to
reserve for post-trial briefing the question of whether the
[other] claims … [were] direct or derivative in nature.” (D.I.
129 at p. 2-3.) However, after trial the Court dismissed the
other claims solely on the basis of the statute of limitations.
Norman II, 726 F. Supp. 2d at 468-76. Federal Rule of Civil
12
trial, the jury returned a verdict for Norman and awarded him
$105,756 in compensatory damages and $48,000 in punitive
damages on the fraud claim, $38,000 in compensatory
damages on the conversion claim, and $1 in nominal damages
on the breach of contract claim. Id. The combined verdict
was “equal to $1 more than [Norman’s] 25% share of
distributions.” Norman v. Elkin (“Norman III”), 849 F. Supp.
2d 418, 421 (D. Del. 2012) (citation omitted).
In post-trial motions, Elkin once again argued that
Norman’s claims were barred by the statute of limitations.
Norman II, 726 F. Supp. 2d at 469. The District Court agreed
with that argument with regard to all claims except for the
breach of contract claim. Id. at 468-76. It held that two of
Norman’s three breach of contract theories were not barred –
the one dealing with Elkin’s failure to make pro rata
distributions, and the other with the creation of the
Shareholder Loan Agreement. Id. at 471, 479. But the Court
decided that the breach of contract theory based on Elkin’s
failure to provide his promised capital contribution was time-
barred because Norman had been aware of that failure since
1995.11 Id. at 471.
Procedure 50(b) notes that a post-trial motion for judgment as
a matter of law may “address[] a jury issue not decided by a
verdict” and that the Court may “decid[e] the legal questions
raised by the motion.”
11
In his complaint, Norman framed a single breach of
contract claim, but the verdict form used at the first trial
asked the jury to state, for each of Norman’s three theories of
breach, whether Elkin had breached the alleged contract
dealing with capital contributions and equity ownership. The
13
For the theory of breach based on the pro rata
distribution, the Court concluded, “based on the evidence
adduced at trial, that [Norman] did not learn of [the] …
purported recharacterization of Defendant Elkin’s equity
contributions into shareholder loans … until October 2003.”
Id. Consequently, that theory of breach was held to be timely
asserted. Id.For the theory of breach based on the Shareholder
Loan Agreement, the Court noted that Elkin had not raised a
statute of limitations defense. Id. at 476. The Court also
rejected Elkin’s argument that the breach of contract theory
based on the Shareholder Loan Agreement was merely
duplicative of the other breach of contract theories,
concluding that there was sufficient evidence “on which the
jury could have concluded that an agreement between
[Norman] and [Elkin] existed for [Elkin] to contribute
form then asked the jury to reach a single sum to compensate
Norman for all of the damages he suffered due to a breach
under any of the three theories. In contrast, the verdict form
used at the second trial treated the two remaining breach of
contract theories as if they were separate claims. That form
asked the jury to decide whether the execution of the
Shareholder Loan Agreement constituted a breach of Elkin’s
oral contract with Norman, and asked the jury to determine
damages. It then asked the jury about the failure to make pro
rata distributions and asked the jury to list a separate damages
amount. In his post-trial motion after the second trial, Elkin
argued that the District Court erred in allowing the jury to
consider two separate claims when the amended complaint
had only one. As discussed further herein, we conclude that
Norman was entitled to present two claims to the jury.
14
$750,000 in capital, and that [Elkin] breached that agreement
when he executed the Shareholder Loan Agreement to
convert any funds in excess of $420,000 from capital to
loans.” Id. at 477.
The Court ruled that the fraud claim was time-barred
because Norman had been on notice of the alleged fraud no
later than when he received the October 2003 Letter, which
was outside the two year limitations period. Id. at 472. The
conversion claim was also barred either because “the
existence of publicly available information concerning
[TEG’s] purported ownership demonstrates that [Norman]
was not incapable of learning the facts giving rise to his
conversion and usurpation claims until the § 220 Action,” or
because of the December 2002 Letter. Id. at 473. Norman’s
other claims were held to be time-barred on the basis of a
combination of the December 2002 Letter and the October
2003 Letter, which, the District Court concluded, put him on
inquiry notice. Id. at 470-76. The Court rejected Norman’s
argument that the statute of limitations should have been
tolled when he filed his § 220 action in November 2004. Id.
at 470-73. As the Court saw it, inquiry notice existed before
that action was filed and so § 220 could not be a basis for
tolling. Id. at 472.
In short, the District Court affirmed the jury’s
judgment only as to the breach of contract claim and the
attendant nominal damages. Id. at 479. It therefore entered
an Amended Judgment in July 2010, substantially altering the
jury’s verdict.
15
C. Granting a New Trial (Norman III)
Norman promptly moved to alter or amend the
judgment or for a new trial, arguing that the jury’s verdict of
only $1 in damages should be vacated.12 The Court agreed,
concluding that $1 in damages was “against the clear weight
of the evidence” since the jury’s verdict was plainly
predicated on a finding that Norman did not receive his pro
rata share of the proceeds from the sale of USM’s assets.
Norman III, 849 F. Supp. 2d at 424. A new trial was thus
ordered “limited exclusively to the issue of appropriate
damages for the breach of contract claim.” Id. at 425. Elkin
responded with a motion for reconsideration, challenging the
limited scope of the new trial. The District Court then
changed its order and granted a new trial on the merits of the
breach of contract claim because, the Court concluded, there
were disputed issues of material fact that remained. The
Court also ruled that the statute of limitations could once
again be raised as a defense.
D. Second Trial and Post-Trial Motions (Norman
IV)
The second jury trial was held in December 2014, and
the result was again a verdict in Norman’s favor. The jury
awarded him nominal damages for Elkin’s breach of contract
arising from the recharacterization of capital pursuant to the
Shareholder Loan Agreement, and $73,180.17 for Elkin’s
breach of contract for failing to distribute proceeds from the
12
At this point in the proceedings, the District Judge
who had been handling the case retired and the matter was
reassigned.
16
license sales in a pro rata fashion. The verdict was equal to a
pro rata portion of the amount that Elkin received from USM,
minus Elkin’s claimed loans to USM in excess of $750,000.
The parties again filed a variety of post-trial motions.
Elkin argued that no damages arose as a result of “the mere
act of executing the Shareholder Loan Agreement[.]”
Norman v. Elkin (“Norman IV”), CIV. A. No. 06-005, 2015
WL 4886049, at *2 (D. Del. Aug. 14, 2015). The District
Court agreed and noted that “Norman’s counsel conceded that
he did not present evidence that Norman was damaged by the
execution of the [Shareholder Loan Agreement], independent
of the alleged derivative damages resulting from execution of
the Agreement.” Id. By “derivative damages,” the Court
apparently meant the failure to pay Norman a pro rata share
from the sale of licenses because the Shareholder Loan
Agreement had reclassified some of Elkin’s capital
contributions as loans. The claim of breach based on the
Shareholder Loan Agreement was, in other words, viewed by
the Court as duplicative of the other remaining breach of
contract claim. The Court accordingly entered judgment in
favor of Elkin on the Shareholder Loan Agreement claim.
Elkin also argued once again that the statute of
limitations barred the breach of contract claim that was based
on the failure to make pro rata distributions. Id. This time,
the Court agreed. Id. It reconsidered its prior ruling on this
point because, it said, the evidence presented in the second
trial filled an “evidentiary hole” from the first trial. Id. The
Court concluded that “[t]he evidence now in the record shows
that a reasonable person in Norman’s position would have
had inquiry notice of his claims before December 2, 2002.”
Id. at *3. In reaching that conclusion, the District Court
17
relied on several things: the tax documents (i.e., the K-1’s)
that Norman received in 2001 and 2002, the summer 2002
phone call during which Elkin admitted to taking a
distribution, and the fact that, in the October 2002 Letter,
Norman and his attorney requested additional information
about sales and distributions. Id. Under those circumstances,
the Court decided, “a person would know enough to put him
on notice that he should undertake further inquiry, in order to
determine if a wrong had been committed against him.” Id.
Accordingly, the District Court vacated the jury’s verdict and
entered a final judgment in Elkin’s favor. Norman appealed.
So did Elkin, focusing on the sufficiency of the evidence for
the fraud and conversion claims.
18
III. DISCUSSION13
A. Timeliness of the Claims
On appeal, Norman challenges many of the District
Court’s rulings on the statute of limitations.14 He argues that
13
This case was removed from the Delaware Court of
Chancery, under 28 U.S.C. § 1441, on the basis of diversity
jurisdiction, 28 U.S.C. § 1332(a). We have jurisdiction
pursuant to 28 U.S.C. § 1291. “We exercise plenary review
of an order granting or denying a motion for judgment as a
matter of law and apply the same standard as the district
court.” Lightning Lube, Inc., 4 F.3d at 1166 (3d Cir. 1993)
(citation omitted); cf. Lake v. Arnold, 232 F.3d 360, 365 (3d
Cir. 2000) (“[P]lenary review extends to the District Court’s
choice and interpretation of applicable tolling principles and
its conclusion that the facts prevented a tolling of the statute
of limitations.”). “[A]lthough the court draws all reasonable
and logical inferences in the nonmovant’s favor, we must
affirm an order granting judgment as a matter of law if, upon
review of the record, it is apparent that the verdict is not
supported by legally sufficient evidence.” Lightning Lube,
Inc., 4 F.3d at 1166. As to Elkin’s sufficiency of the evidence
arguments, we likewise “view[] the evidence in the light most
favorable to [Norman]” and will affirm the District Court
only if there “is insufficient evidence from which a jury
reasonably could find liability [against Elkin].” Id.14
Norman does not challenge the judgment entered
against his claim that Elkin breached his contract by failing to
contribute his full capital contribution. Because that issue is
19
the Court applied the wrong statute of limitations and also
that it should have tolled the limitations period. We conclude
that the District Court applied the correct limitations period
but that it erred by applying the wrong standard when
determining whether to toll the limitations period after
Norman filed his § 220 action. Accordingly, we will remand
to allow reconsideration of whether the limitations period
should have been tolled and whether Norman’s claims are
timely.
1. The Limitations Period for the Non-
Contract Claims
Norman claims that Delaware’s longer limitations
period should be applied to his non-fraud claims, particularly
the conversion claim, since, under what is often called the
“internal affairs doctrine,” Delaware law generally applies to
disputes involving Delaware corporations and their
shareholders. See Citigroup Inc. v. AHW Inv. P’ship, 140
A.3d 1125, 1135 (Del. 2016) (explaining that such disputes
are “governed by the law of the state of incorporation
exclusively”). According to Norman, “this would necessarily
include the choice of the relevant statute of limitations.”
(Opening Br. at 52.)
Norman points to no case law in support of the
dubious premise that the internal affairs doctrine requires the
application of Delaware’s statute of limitations to all claims
in every case involving a Delaware-chartered corporation and
not preserved on appeal, it is waived. Kost v. Kozakiewicz, 1
F.3d 176, 182 (3d Cir. 1993).
20
its stockholders. We do not need to consider the full reach of
the internal affairs doctrine to recognize that premise as an
overreach. See McDermott Inc. v. Lewis, 531 A.2d 206, 214
(Del. 1987) (noting that the internal affairs doctrine extends
only to “those matters which are peculiar to the relationships
among or between the corporation and its current officers,
directors, and shareholders”). And, in any event, Norman has
no legitimate cause for complaint about the choice of law
here because the District Court did apply Delaware law,
namely the Delaware borrowing statute, to determine that
application of Pennsylvania’s statute of limitations was
required. See Nat’l Iranian Oil Co. v. Mapco Int’l, Inc., 983
F.2d 485, 494 (3d Cir. 1992) (noting that “the traditional rule
that statutes of limitations are governed by forum law has
been modified by [the borrowing] statute”).15
15
The District Court observed that “[t]he parties do not
dispute that the causes of action arose outside of Delaware.”
Norman I, 2007 WL 2822798, at *4. Under Delaware law,
the question of where a cause of action arose is determined by
reference “to Delaware’s conflict of law rules.” TrustCo
Bank v. Mathews, CIV. A. No. 8374, 2015 WL 295373, at *9
(Del. Ch. Jan. 22, 2015). And for disputes involving the
internal affairs of Delaware corporations, the internal affairs
doctrine does indeed counsel the selection of Delaware’s
substantive law. Citigroup Inc. v. AHW Inv. P’ship, 140 A.3d
1125, 1135 (Del. 2016). Accordingly, Norman might have
argued that some of his causes of action arose in Delaware
rather than Pennsylvania. But he did not. He has not
challenged the District Court’s conclusion – evidently based
on positions taken during the litigation – that his causes of
action arose in Pennsylvania. Instead, he advances the
separate argument that because the “internal affairs doctrine
21
Norman also argues that, because of Elkin’s allegedly
fraudulent self-dealing, the District Court should have
forbidden Elkin from asserting a statute of limitations defense
and should have instead applied the equitable doctrine of
laches. In support, Norman relies on a line of authority
flowing from the Delaware Supreme Court’s decision in
Bovay v. H.M. Byllesby & Co., which held that, in cases
involving corporate fiduciaries engaged in fraudulent self-
dealing at the expense of the corporation, the statute of
limitations for fraud claims will not necessarily apply. 38
A.2d 808, 814 (Del. 1944). We have interpreted Bovay to
provide an exception to the applicable statute of limitations
when a controlling shareholder “derive[s] personal profits
from his manipulation of [a corporation] in violation of his
fiduciary obligations.” Borden v. Sinskey, 530 F.2d 478, 488
(3d Cir. 1976). In such circumstances, “the timeliness of
plaintiffs’ … claims [is] to be determined by the doctrine of
laches.” Cantor v. Perelman, 414 F.3d 430, 439 (3d Cir.
2005). That may be pertinent to some of Norman’s claims.
But, even if the District Court should have applied
laches, that would not have changed the outcome.16 Laches
occupies the entire relationship between a fiduciary and the
stockholder. … even procedural considerations are governed
by Delaware law .” (Opening Br. at 51.) That argument fails
for the reasons just explained.
16
Subsequent cases have called the scope of Bovay
into question and limited its application to particularly
egregious cases. See Halpern v. Barran, 313 A.2d 139, 142
(Del. Ch. 1973) (noting that Bovay “involved particularly
egregious conduct and its application has been consistently
22
ordinarily runs parallel to the statute of limitations, Bovay, 38
A.2d at 815, and extends the limitations period only when
“extraordinary circumstances make it inequitable” to allow
the statute of limitations to operate as a bar, id. (citation
omitted). Delaware courts have concluded that “equity will
not relieve against the bar of the statute [of limitations] in
favor of a party who has been in laches in not using means
within his power to discover the fraud.” Kahn v. Seaboard
Corp., 625 A.2d 269, 276 (Del. Ch. 1993) (quoting Sparks v.
Farmers’ Bank, 3 Del. Ch. 274, 306 (1869)). Accordingly,
“where wrongful self-dealing is alleged,” a claim will not be
barred until “the plaintiff … knew or had reason to know the
facts alleged to give rise to the wrong.” Id. at 276-77 (relying
on Bokat v. Getty Oil Co., 262 A.2d 246, 251 (Del. 1970),
disapproved of on other grounds by Tooley v. Donaldson,
Lufkin & Jenrette, Inc., 845 A.2d 1031 (Del. 2004)). That is
exactly the approach the District Court took. It tolled the
limitations period until Norman should have become aware of
Elkin’s alleged improprieties. Accordingly, there was no
discernible error in its ruling on the timeliness of the non-
breach of contract claims.
2. Section 220 Tolling
Delaware law, embodied in § 220 of Title 8 of the
Delaware Code, allows stockholders to demand the right to
inspect the books and records of a corporation and to seek an
order from the Delaware Court of Chancery compelling such
inspection if a demand is ignored or rebuffed. The courts of
restricted in later decisions”). We need not decide whether
Bovay would apply here.
23
Delaware have, on several occasions, tolled the limitations
period for claims of fiduciary malfeasance while a § 220
action is pending. Sutherland v. Sutherland, CIV. A. No.
2399, 2013 WL 2362263, at *6 n.70 (Del. Ch. May 30, 2013)
(involving self-dealing); Orloff v. Shulman, CIV. A. No. 852,
2005 WL 3272355, at *10 (Del. Ch. Nov. 23, 2005)
(involving fraud and breach of fiduciary duty); Technicorp
Intern. II, Inc. v. Johnston, CIV. A. No. 15084, 2000 WL
713750 at *9 (Del. Ch. May 31, 2000) (involving fraudulent
self-dealing). The District Court, however, concluded that a
Ҥ 220 [a]ction will not operate to toll the statute of
limitations in a situation such as this, where [Norman] had
inquiry notice of his … claim before initiating the § 220
[a]ction.” Norman II, 726 F. Supp. 2d at 472. We have never
before considered the extent of tolling offered by a
stockholder’s resort to a § 220 action, but we are persuaded
that the District Court’s interpretation of Delaware law on this
point was flawed.
Delaware case law does not support a categorical rule
forbidding tolling when a § 220 action is filed after a plaintiff
has inquiry notice. Indeed, the primary opinion relied upon
by the District Court, Technicorp International II, Inc. v.
Johnston, suggests that a § 220 action may operate to toll a
limitations period even when there is inquiry notice. In that
case, the Court of Chancery held that it was “settled Delaware
Law” that the applicable statute of limitations “was tolled
during the pendency of ... [the] § 220 … action[].” 2000 WL
713750, at *9. There is no indication in Technicorp that
inquiry notice should necessarily vitiate tolling. To the
contrary, the shareholder in that case almost certainly had
inquiry notice due to a report from a forensic accounting firm,
id. at *6, and the Chancery Court noted that pursuit of an
24
action under § 220 is “regarded as strong evidence that [a]
plaintiff was aggressively asserting its claims at that time[,]”
id. at *9 n.26 (citation and internal quotation marks omitted).
So Technicorp cuts against the rule adopted by the District
Court.
The District Court’s categorical denial of tolling is also
incompatible with Delaware’s apparent intent to encourage
§ 220 actions as a way to allow stockholders to resolve
disputes with the aid of a streamlined books and records
proceeding. See Cal. State Teachers’ Ret. Sys. v. Alvarez,
CIV. A. No. 7455, 2017 WL 239364, at *3 (Del. Jan. 18,
2017) (noting that “Section 220 proceedings are supposed to
be streamlined and summary”); see also King v. VeriFone
Holdings, Inc., 12 A.3d 1140, 1145 (Del. 2011) (noting that
“Delaware courts have strongly encouraged stockholder-
plaintiffs to utilize Section 220”). The Delaware Supreme
Court has explained, in a different context, that courts should
not “penaliz[e] diligent counsel who has employed [§ 220] …
in a deliberate and thorough manner in preparing a
complaint[.]” Rales v. Blasband, 634 A.2d 927, 934 n.10
(Del. 1993) (applying the “first to file” rule for derivative
litigation); see also Technicorp, 2000 WL 713750, at *9 n.26
(“[A]ccept[ing] … [D]efendants’ time-bar argument would
penalize, not encourage, the use of those important tools.”).
But a rule that automatically forbade tolling once a party had
inquiry notice would do just that. Indeed, if a shareholder has
enough suspicion of wrongdoing to file a successful § 220
action, then there is some probability that the shareholder also
has inquiry notice. See, Sec. First Corp. v. U.S. Die Casting
& Dev. Co., 687 A.2d 563, 567 (Del. 1997) (holding that, to
institute a proper § 220 action to investigate fraud, the
plaintiff must demonstrate “a credible basis to find probable
25
wrongdoing”). The District Court’s categorical exception
would seem to swallow the general principle that tolling may
apply after the filing of a § 220 action, and that ruling thus
cannot stand.17
The filing of a § 220 action does not, however,
automatically toll the applicable limitations period. Delaware
courts have refused to draw such a bright line and have
instead said that “there is no hard and fast rule tolling the
running of the statute of limitations during the pendency of
books and records litigation[,]” but that “[t]he pendency of
such an action, and the relationship between it and the claims
eventually filed, may in some circumstances operate to toll
the limitations period[.]” Sutherland v. Sutherland, 2009 WL
1177047, at *1 (Del. Ch. Apr. 22, 2009). Considerations such
as the existence of “deceitful, bad faith conduct,” Technicorp,
2000 WL 713750, at *7, or evidence that, “without the
information gathered during the [§] 220 action,” suit could
not have been brought, Orloff, 2005 WL 3272355, at *10, are
17
Elkin suggests that tolling should apply to only
equitable rather than legal claims. But Technicorp offers no
support for that conclusion. In that case, the plaintiff sought
$28.5 million dollars in damages in addition to a variety of
equitable remedies. Technicorp Intern. II, Inc. v. Johnston,
CIV. A. No. 15084, 2000 WL 713750, at *1-2 (Del. Ch.
May 31, 2000). The Chancery Court noted that even if some
of the claims were subject to the statute of limitations, the
limitations period would be tolled due to the § 220 action. Id.
at *9. Thus, tolling could apply to both the legal and
equitable claims, were this case still being litigated in a
Delaware court.
26
factors favoring tolling. But such factors do not appear to be
prerequisites to tolling. The parties have not directed us to
any case (apart from the District Court’s opinion here)
refusing to toll the limitations period after a successful § 220
action. It seems, instead, that Delaware law preserves a
court’s discretion to toll or not toll the limitations period on
claims that may be informed by the results of a § 220 action.
The decision to toll is not dependent upon inquiry notice. 18
18
Judge Shwartz has a different perspective on this
point. To her, this test could allow a plaintiff who already has
sufficient facts to bring suit to use the filing of a § 220 action
to avoid promptly proceeding – in effect, to use it as a shield
from the statute of limitations. Judge Shwartz is of the view
that, under Delaware law, a § 220 action tolls the statute of
limitations when the plaintiff could not have filed his
complaint without the information obtained through that
action, see Orloff, 2005 WL 3272355, at *10, or at least could
not have developed his claims without access to the
corporation’s books and records, see Sutherland, 2013 WL
2362263, at *6 n.70, and, by extension, that tolling would be
improper where a plaintiff has sufficient evidence to proceed,
such as where the information acquired through the § 220
action was not necessary for the plaintiff to file his complaint.
To hold otherwise, she believes, could enable a plaintiff to
use a § 220 action to delay filing a lawsuit to gain a tactical
advantage. She notes that because a § 220 action provides a
means for early and expedited discovery, a plaintiff may seek
to use the action for purposes beyond simply determining
whether he has a cause of action. See Rales v. Blasband, 634
A.2d 927, 934 n.10 (Del. 1993) (describing § 220 “as an
information-gathering tool” available to shareholders
investigating the “possibility” of wrongdoing).
27
Courts in our Circuit should proceed with due regard
for the positive role that § 220 actions are meant to play under
Delaware law. That is especially true when, as in this case, a
Delaware court has exercised its judgment and concluded that
a § 220 action has merit.19 See Wolst v. Monster Beverage
Corp., CIV. A. No. 9154, 2014 WL 4966139, at *1 (Del. Ch.
Oct. 3, 2014) (noting that “[a] stockholder invoking her rights
under Section 220 must demonstrate a ‘proper purpose’ for
the inspection” (quoting 8 Del. C. § 220(b))). In such
circumstances, tolling is likely appropriate absent a
countermanding consideration, such as evidence that a
shareholder pursued the § 220 action in bad faith or in order
to stall.
Norman did successfully seek relief under § 220 and
there is no indication that he proceeded in bad faith. In fact,
he can point to valuable information that he acquired through
his § 220 action. For instance, relevant to his fraud claim, he
gained access to the Shareholder Loan Schedule which
contained loan repayment figures that differed from those in
19
In this case, the Court of Chancery found “incredible
sloppiness” and a “complete inattention to the corporate
forms and formalities.” (App. at 342.) And it saw “a credible
basis here for inferring possible mismanagement and
wrongdoing on the part of Mr. Elkin.” (App. at 341.) The
Court expressed doubt that “serious damage” had been done
to Norman, but nevertheless concluded that there was a
sufficient basis to allow Norman access to USM records to
look for signs of wrongdoing. (App. at 342.) Weight must be
given to that judgment when considering the propriety of
tolling.
28
the December 2002 Letter he received from USM. We will
therefore remand to allow the District Court to determine,
consistent with our reasoning above, whether the statute of
limitations was tolled from the initiation of Norman’s § 220
action in November 2004 until the successful completion of it
in October 2005. Cf. Technicorp, 2000 WL 713750, at *9
(indicating that it is the institution of the § 220 action (or
other litigation) “to ascertain the facts involved in the later
suit” that tolls the limitations period).
Because the District Court rejected the argument for
§ 220-based tolling, it has never conclusively resolved
whether Norman’s claims would be timely if tolling were to
apply. It is possible that the District Court may still conclude
that several of the claims were already barred when Norman
filed his § 220 action in November 2004. With regard to the
conversion claim, the Court strongly suggested, but did not
definitively determine, that public records would have put
Norman on notice of the transfer of licenses to TEG in 1998.
Norman II, 726 F. Supp. 2d at 473.20 With regard to the
breach of contract theories, the District Court indicated that
an unspecified combination of the 2000 and 2001 K-1 forms,
the summer 2002 phone call, the December 2002 Letter, and
the October 2003 Letter had put Norman on inquiry notice.
20
The District Court noted “that [Norman] was not
incapable of learning the facts giving rise to his conversion
and usurpation claims” in 1998. Norman II, 726 F. Supp. 2d
at 473. However, it did not definitively determine that
Norman’s notice of the sale was sufficient because it
concluded that the events of 2002, such as the December
2002 letter, were clearly adequate. Id.29
Norman IV, 2015 WL 4886049, at *3. 21 And with regard to
the breach of fiduciary duty claims, the Court decided that
21
Norman argues that the District Court should have
been bound by its earlier decision in Norman II that the
breach of contract claim based on Elkin’s failure to make a
pro rata distribution was timely. But “we have consistently
held” that reconsideration is appropriate when “new evidence
is available … or … the earlier decision was clearly
erroneous and would create manifest injustice[.]” Roberts v.
Ferman, 826 F.3d 117, 126 (3d Cir. 2016) (quoting Pub.
Interest Research Grp. of N.J., Inc. v. Magnesium Elektron,
Inc., 123 F.3d 111, 117 (3d Cir. 1997)). In such
circumstances, a District Court is entitled to reconsider its
decision if it “explain[s] on the record the reasoning behind
its decision to reconsider the prior ruling … [and] take[s]
appropriate steps so that the parties are not prejudiced by
reliance on the prior ruling.” Williams v. Runyon, 130 F.3d
568, 573 (3d Cir. 1997).
The District Court explained that it was re-evaluating
Norman II because the earlier decisions were based “on a
more limited evidentiary record” and there was an
“evidentiary hole in the first trial” that was filled by evidence
provided in the second trial. Norman v. Elkin (“Norman IV”),
CIV. A. No. 06-005-LPS, 2015 WL 4886049, at *3 n.5 (D.
Del. Aug. 14, 2015) (citation omitted from second quotation).
In particular, the October 2002 Letter was part of the record
in the first trial, but the Court in Norman II erroneously
concluded that “[t]he letter sent from [Norman’s] counsel to
Defendant Elkin is not in evidence, and therefore, the Court
cannot consider it.” 726 F. Supp. 2d at 471. The District
Court was therefore entitled to reconsider its decision in light
of the new evidence of the content of the letter and in order to
30
Norman had inquiry notice “by December 2002” but did not
decide whether Norman had notice at an earlier point.
Norman II, 726 F. Supp. 2d at 474-75. The Court also
dismissed, without additional clarification, the declaratory
judgment and unjust enrichment claims, because they were
“based on the same facts as previously addressed in
[Norman’s] other claims[.]” Id. at 476. Since determining
precisely when Norman had inquiry notice is a highly fact-
intensive question, see Cantor, 414 F.3d at 441 (explaining
that determining “when a reasonable person in plaintiffs’
position knew or should have known of the claim” is “a fact
intensive inquiry”), the District Court should address it in the
first instance, with the purpose of determining whether
Norman should benefit from tolling as a result of the filing of
the § 220 action and, if so, whether his claims are timely even
if tolling based on the § 220 action is appropriate.22
correct an erroneous ruling. The Court explained its
reasoning at length on the record and also made efforts to
minimize undue prejudice by allowing both parties to
extensively brief and argue the statute of limitations issue.
Norman IV, 2015 WL 4886049, at *2-3. Accordingly, there
was no error in that regard.
22
As is discussed herein, we conclude that Norman’s
fraud claim can be rejected on alternative grounds.
Therefore, we do not opine on the timeliness of that claim.
Norman’s appellate briefs only lightly touch upon his claims
other than breach of contract, conversion, and fraud. Our
basis for vacatur (the failure to apply the correct test for
tolling in light of § 220) applies fully to Norman’s other
claims, and Norman argued that “the [D]istrict [C]ourt erred
when it held that Norman’s pursuit of his statutory books and
31
B. Breach of Contract via the Shareholder Loan
Agreement
The District Court overturned the jury’s verdict that
Elkin had committed a breach of contract when he caused
USM to enter into the Shareholder Loan Agreement with him.
As the Court saw it, the claim failed because Norman could
not point to any independent damages flowing from the
signing of the Shareholder Loan Agreement.23 Norman, of
course, argues that the Court’s analysis and conclusion are
wrong. In response, Elkin says that Norman waived any such
argument when he conceded before the District Court that
records demands and lawsuit under [8 Del. C. § 220] did not
toll his statute of limitations for all claims[.]” (Opening Br. at
2 (emphasis added).) Therefore, we also vacate the judgment
against Norman’s claims for usurpation of corporate
opportunity, breach of fiduciary duty, aiding and abetting, and
unjust enrichment. The District Court should consider
whether the other claims were in fact timely and should be
put before a jury.
23
See Norman IV, 2015 WL 4886049, at *2 (“At trial,
Norman failed to present evidence from which a reasonable
factfinder, even drawing all reasonable inferences in favor of
Norman, could have found that Norman proved he was
damaged as a result of Elkin’s signing the [Shareholder Loan
Agreement]. At the hearing, Norman’s counsel conceded that
he did not present evidence that Norman was damaged by the
execution of the [Shareholder Loan Agreement], independent
of the alleged derivative damages resulting from execution of
the Agreement.”).
32
there were “no independent damages” flowing from the
signing of the Shareholder Loan Agreement. (App. at 951.)
The two breach of contract claims Norman continues
to press are before us in a peculiar posture. Both stem from
the same oral agreement, and both allegedly led to the same
injury, namely the failure to receive distributions according to
the equity structure of USM. In this case in which the parties
agree on practically nothing, everyone agrees that Norman
sought the same set of damages through the claim of breach
by failure to make pro rata distributions and the claim of
breach by entering the Shareholder Loan Agreement.
The confounding factor is that, procedurally, the pro
rata distribution breach is arguably untimely and has been
objected to, while the Shareholder Loan Agreement breach
might also be untimely but was not objected to as such.
Therefore, the statute of limitations might stand as a bar to the
former claim but not the latter. Norman has endeavored to
use his Shareholder Loan Agreement claim as a way to reach
the pool of damages that existed only derivatively from the
failure to make pro rata distributions, while he sidesteps the
issue of timeliness. This may be what led the District Court
to conclude that Norman was required to prove damages other
than those barred by the statute of limitations in order to
prevail on his breach of contract claim concerning the
Shareholder Loan Agreement.
Assuming it turns out to be the case that the pro rata
distribution claim is time-barred, we agree with the District
Court that Norman should not be able to rely on an earlier
breach of the oral agreement in order to bypass the statute of
limitations and reach the same set of damages that would
33
otherwise be off limits. If Norman knew about the improper
distributions and failed to bring a timely suit, he cannot revive
his claim by asserting that the Shareholder Loan Agreement
ultimately resulted in the same damages, even if Elkin did not
raise a statute of limitations defense with respect to that
earlier breach. Cf. Klehr v. A.O. Smith Corp., 521 U.S. 179,
190 (1997) (concluding in the antitrust and RICO contexts
that a “plaintiff cannot use an independent, new predicate act
as a bootstrap to recover for injuries caused by other earlier
predicate acts that took place outside the limitations period”);
Annulli v. Panikkar, 200 F.3d 189, 197 (3d Cir. 1999),
(applying Klehr and concluding that plaintiffs “cannot rely on
new injuries arising out of predicate acts of racketeering … to
recover for any injuries caused by these ‘earlier predicate acts
that took place outside the limitations period’” (quoting
Klehr, 521 U.S. at 190)), overruled on other grounds by
Rotella v. Wood, 528 U.S. 549 (2000).
That does not mean, however, that Elkin’s breach via
the Shareholder Loan Agreement was not a breach. It was,
and the District Court erred in rejecting the breach of contract
claim regarding the Shareholder Loan Agreement on the
grounds that Norman could not prove anything but nominal
damages. Delaware courts have followed the approach of the
Restatement (Second) of Contracts § 346, which states that
“[t]here are … instances in which loss is caused but recovery
for that loss is precluded because it cannot be proved with
reasonable certainty … . In all these instances the injured
party will nevertheless get judgment for nominal damages[.]”
See Ivize of Milwaukee, LLC v. Compex Litig. Support, LLC,
CIV. A. Nos. 3158, 3406, 2009 WL 1111179, at *12 n.48
(Del. Ch. Apr. 27, 2009) (quoting the Restatement (Second)
of Contracts § 346); Richard A. Lord, Williston on Contracts
34
§ 64:6 (4th ed. 2017) (“An unexcused failure to perform a
contract is a legal wrong. An action will therefore lie for the
breach although it causes no injury”). Even if the damage
from Elkin’s execution of the Shareholder Loan Agreement
was limited to the disavowal of his obligation to contribute
$750,000 in capital and the wrongful recharacterization of
some of his contributions as “loans,” Norman would still at
least be entitled to nominal damages. We therefore conclude
that the District Court erred in vacating the jury’s verdict with
regard to the Shareholder Loan Agreement. At a minimum,
on remand, Norman is entitled to reinstatement of the jury’s
verdict with respect to that breach of contract and to nominal
damages.24
24
Since the District Court concluded that there were
no damages, it did not consider Elkin’s alternative argument
that there was insufficient evidence of an agreement
preventing him from causing the company to execute the
Shareholder Loan Agreement. But in Norman II, the District
Court had already decided that “sufficient evidence was
presented on which the jury could have concluded that an
agreement between [Norman] and Defendant Elkin existed
for Defendant Elkin to contribute $750,000 in capital, and
that Defendant Elkin breached that agreement when he
executed the Shareholder Loan Agreement to convert any
funds in excess of $420,000 from capital to loans.” 726 F.
Supp. 2d at 477. We see no reason to overturn that well-
reasoned ruling.
35
IV. CROSS APPEAL
Elkin filed a cross-appeal and argues that, even if
Norman’s fraud and conversion claims were timely, we can
affirm the District Court’s entry of judgment on those claims
because Norman did not support them with sufficient
evidence. Affirmance on that basis is appropriate “only if,
viewing the evidence in the light most favorable to [Norman]
and giving [him] the advantage of every fair and reasonable
inference, there is insufficient evidence from which a jury
reasonably could find liability [against Elkin].” Lightning
Lube, Inc. v. Witco Corp., 4 F.3d 1153, 1166 (3d Cir. 1993).
Such a “judgment as a matter of law should be granted
sparingly, [but] a scintilla of evidence is not enough to sustain
a verdict of liability.” Id. We conclude that Elkin’s argument
about conversion was inadequately briefed and, accordingly,
has been effectively waived. Elkin’s fraud argument,
however, was fully developed and we agree that under
Delaware law, Norman failed to prove that Elkin’s fraudulent
conduct damaged him.
A. Conversion
For an argument to be preserved on appeal it must be
presented “together with supporting arguments and citations.”
Simmons v. City of Phila., 947 F.2d 1042, 1065 (3d Cir. 1991)
(citation omitted). “It is well settled that if an appellant fails
to comply with these requirements on a particular issue, the
appellant normally has abandoned and waived that issue on
appeal and it need not be addressed by the court of appeals.”
Kost v. Kozakiewicz, 1 F.3d 176, 182 (3d Cir. 1993).
36
Elkin’s argument with regard to conversion is cursory
at best. After stating the legal tests for conversion and
misappropriation, Elkin asserts that “Norman offered no
evidence of any property interest that was convertible” and no
evidence “of any appropriate measure of damages that the
jury could employ to develop a reasonable award[.]” (Ans.
Br. at 77 (internal quotation marks omitted).) The support
offered for that assertion is a reference to a memorandum
filed in the District Court in connection with Elkin’s motion
for judgment as a matter of law. But an attempt to
incorporate by reference arguments made in the District Court
does not satisfy the rules of appellate procedure. See Fed. R.
App. P. 28(a)(8) and (b) (stating that a party’s brief must
contain “the argument” including “contentions and the
reasons for them, with citations to the authorities and parts of
the record on which the [party] relies”); cf. Nagle v. Alspach,
8 F.3d 141, 143 (3d Cir. 1993) (“When an issue is either not
set forth in the statement of issues presented or not pursued in
the argument section of the brief, the appellant has abandoned
and waived that issue on appeal.”). Elkin has thus waived his
argument with respect to the conversion claim.
B. Fraud
Elkin also argues that there was insufficient evidence
to justify the jury’s verdict on the fraud claim. Under
Delaware law, the elements of fraud are:
(1) a false representation of (or concealment of)
a fact; (2) defendant’s knowledge or belief that
the representation was false, or was made with
reckless indifference to the truth; (3) an intent to
induce the plaintiff or to cause plaintiff to
37
refrain from acting; (4) [plaintiff’s] action or
inaction taken in justifiable reliance upon the
representation; and (5) damage to plaintiff as a
result of such reliance.
Yarger v. ING Bank, fsb, 285 F.R.D. 308, 327 (D. Del. 2012).
Importantly, in cases involving both a breach of contract and
an allegation of fraud, damages from the fraud must be pled
“separate and apart from … breach damages.” Cornell
Glasgow, LLC v. La Grange Properties, LLC, CIV. A. No.
N11C-05-016, 2012 WL 2106945, at *9 (Del. Super. Ct.
June 6, 2012); see also Lazard Debt Recovery GP, LLC v.
Weinstock, 864 A.2d 955, 972 (Del. Ch. 2004) (dismissing a
fraud claim for failure “to plead loss causation sufficiently”).
While there may have been sufficient evidence to support all
of the other elements of fraud, there is no evidence in the
record that Norman suffered damages as a result of the fraud
that are separate and apart from the damages alleged for
breaches of contract.
The basis for Norman’s fraud claim was the December
2002 Letter that understated the amount that Elkin paid
himself from USM’s coffers. However, the improper
distributions had already occurred by the time the December
2002 Letter was sent.25 Norman has not presented any
evidence to the contrary.26 Nor has he pointed to any other
25
The only transaction listed on the Shareholder Loan
Schedule after the December 2002 Letter is a loan of $12,000
from Elkin on December 21, 2002.
26
Norman attempts to incorporate by reference his
post-trial briefing in the District Court. Again, that is
38
way that the damages he suffered would have been lessened
had he found out about the full extent of the payments made
to Elkin at the time of the December 2002 Letter rather than
as a result of the October 2003 Letter.
In other words, the damages that Norman suffered
from Elkin’s failure to make pro rata distributions were not
caused by the allegedly fraudulent December 2002 Letter.
Instead, the damages Norman claims he suffered as a result of
the fraud are merely a “rehash” of damages claimed for the
alleged breaches of the oral contract. See Cornell Glasgow,
2012 WL 2106945, at *9 (“Delaware courts have consistently
held that to successfully plead a fraud claim, the allegedly
defrauded plaintiff must have sustained damages as a result of
a defendant’s actions. And the damages allegations may not
simply ‘rehash’ the damages allegedly caused by the breach
of contract.” (internal quotation marks omitted)). Because
Norman did not show “with particularity what [Elkin]
obtained through [his] alleged fraud,” Albert v. Alex. Brown
Mgmt. Servs., Inc., CIV. A. Nos. 762-N, 763-N, 2005 WL
2130607, at *7 (Del. Ch. Aug. 26, 2005), there was no basis
for the jury to find that Elkin’s fraud had damaged Norman.
See ITW Glob. Invs. Inc. v. Am. Indus. Partners Capital Fund
IV, L.P., CIV. A. No. N14C-10-236, 2015 WL 3970908, at *5
(Del. Super. Ct. June 24, 2015) (“Because [the plaintiff] has
pleaded materially identical damages … they fail to separate
the damages incurred by any alleged fraudulent
misrepresentation and any alleged breach of contract … .
Accordingly, [the] Count … for fraud must be dismissed
impermissible. Nagle v. Alspach, 8 F.3d 141, 143 (3d Cir.
1993). And in any event, the brief that he cites does not point
to any specific evidence in the record.
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because it pleads damages that are simply a ‘rehash’ of the
breach of contract damages.”). We will therefore affirm the
District Court’s decision to vacate the fraud judgment and to
grant judgment as a matter of law in Elkin’s favor on that
claim.
V. CONCLUSION
For the foregoing reasons, we will affirm on
alternative grounds the decision to enter judgment in Elkin’s
favor on the claim of fraud. We will vacate the entry of
judgment in Elkin’s favor on Norman’s other claims and will
remand to the District Court to reinstate the award of nominal
damages for the breach of contract claim concerning the
Shareholder Loan Agreement and to determine whether § 220
tolling should apply, and, if so, whether any of the remaining
claims are timely.
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