Skye Mineral Investors, LLC v. DXS Capital (U.S.) Limited
C.A. No. 2018-0059-JRS
Del. Ch.Jul 15, 2021Background
- Plaintiffs Skye Mineral Investors, LLC and Clarity Copper, LLC filed a derivative complaint on behalf of Skye Mineral Partners, LLC against, among others, Sanjiv Noronha and Dr. Stephen Riady, who reside in Singapore.
- Plaintiffs made multiple, unsuccessful attempts at personal service in Singapore consistent with Singapore practice, then moved in Delaware for court-ordered substituted service (email and posting on residence doors).
- The Delaware Court of Chancery granted orders authorizing alternative service; Plaintiffs effected service by the court-ordered substituted means without seeking Singapore court approval.
- Defendants moved to dismiss for insufficient service, arguing Delaware requires compliance with Singapore law (and that substituted means were not permitted under Singapore law); competing expert affidavits on Singapore law were submitted and deposed.
- The Court evaluated the motion under Chancery Rules 12(b)(4)–(5), considered waiver arguments, analyzed 10 Del. C. § 3104(d)(4) (court-directed service), and concluded substituted service was effective; the motion to dismiss was denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Waiver of service/jurisdiction defenses | Plaintiff: No waiver; alternative-service motion implicitly invoked court-directed authority | Defendants: Plaintiffs waived §3104(d)(4) argument; plaintiffs waived by proceeding without foreign-court approval | Court: No waiver by either side; neither had knowingly relinquished rights given the undeveloped foreign-law record |
| Whether §3104(d)(4) is an independent basis for court-directed foreign service | §3104(d)(4) authorizes court-directed service as a standalone means (analogous to Fed. R. Civ. P. 4(f)(3)) | Defendants: §3104(d)(4) should be read narrowly and not displace foreign-law requirements; court order should not supplant foreign procedures | Court: §3104(d)(4) is an independent method to authorize service when reasonably calculated to give notice; courts have broad discretion to do so |
| Adequacy of the substituted means (email + door posting) under §3104(d)(4) and due process/comity concerns | Plaintiffs: Substituted means were reasonably calculated to give actual notice; Singapore law permits court‑authorized electronic/analogous service when personal service impracticable | Defendants: Substituted means conflict with Singapore law and comity; court should require strict compliance with Singapore procedures | Court: Alternative service was justified (traditional means failed); Singapore rules allow court‑authorized analogous methods (including email) where personal service impracticable; substituted service was reasonably calculated and provided actual notice; dismissal denied |
| Whether service was valid under §3104(d)(2) (service per foreign law) | Plaintiffs argued Singapore law permits court-authorized substituted service | Defendants argued plaintiffs failed to comply with Singapore law and thus §3104(d)(2) was not satisfied | Court: Did not decide §3104(d)(2) because §3104(d)(4) independently supported the result |
Key Cases Cited
- Jones v. Flowers, 547 U.S. 220 (2006) (due‑process standard: notice reasonably calculated to apprise interested parties)
- Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306 (1950) (constitutional baseline for notice reasonably calculated under circumstances)
- Rio Properties, Inc. v. Rio International Interlink, 284 F.3d 1007 (9th Cir. 2002) (Fed. R. Civ. P. 4(f)(3) permits court‑directed service, including e‑mail, when appropriate)
- Sample v. Morgan, 935 A.2d 1046 (Del. Ch. 2007) (Delaware long‑arm statute construed broadly to permit jurisdiction consistent with due process)
- Germaninvestments AG v. Allomet Corp., 225 A.3d 316 (Del. 2020) (courts must develop foreign‑law record before applying foreign law to jurisdictional questions)
- Crumplar v. Superior Court ex rel. New Castle Cty., 56 A.3d 1000 (Del. 2012) (federal procedural interpretations are persuasive authority for Delaware rule construction)
- Hercules Inc. v. Leu Trust & Banking (Bahamas) Ltd., 611 A.2d 476 (Del. 1992) (Delaware courts should construe long‑arm jurisdiction to the maximum extent permitted by due process)