710 A.2d 831 | Del. Ch. | 1996
OPINION
1. Issue Presented
Plaintiff, a preferred shareholder of a Delaware corporation, has filed an amended complaint seeking rescission and/or monetary relief in connection with two related transactions of the corporation,
II. Background
In September of 1995, a proxy statement was mailed to the shareholders of Milestone Properties, Inc. (“Milestone”), describing two transactions. In the first transaction, low grade mortgage-backed securities were sold to Milestone for cash and newly issued stock to the seller, Concord Assets Group, Inc. (“Concord”). As it happens, defendants Leonard and Robert Mandor, who also serve
Milestone’s preferred shareholders were excluded from this vote.
III. Foreclosing Plaintiffs Remedy of Rescission
Defendants have asked, by this motion and during oral argument, to preclude plaintiff now from the equitable remedy of rescission should he ultimately prevail on any of his claims. More particularly, defendants claim plaintiffs action has clouded the titles of the commercial properties now held by UPI, effectively preventing UPI from the fiill exercise of rights attendant to property ownership. In support of this portion of its motion,
Plaintiff responds that defendants’ request essentially does no more than assert an affirmative defense of laches. As an affirmative defense, plaintiff argues, laches cannot be properly considered until defendants have answered the complaint. Further, laches requires a factually intensive inquiry into the reasonableness of delay, a process inappropriate for evaluation on a motion to dismiss. In support of this position, plaintiff relies primarily upon Harman v. Masoneilan Int’l, Inc.
A complaint may not be dismissed for alleged failure to state a claim unless it appears to a reasonable certainty that under no state of facts which could be proved would plaintiff be entitled to relief, [citation omitted] The same principle should a fortiorari [sic] apply to a motion to strike the remedy portion of a complaint on the ground that it is barred by laches. In reality, that was the predicate of defendants’ motion in this case.7
Defendants argue Harman is inapposite, because their motion is based upon the impracticability of undoing the transactions, not the unreasonableness of plaintiff’s delay. Defendants further argue decision on the motion is not premature as they rely solely on the facts as pleaded in plaintiff’s amended
The single exception, which defendants relied upon heavily during oral argument, is Meeker v. Bryant.
Any decree rescinding the reverse stock split would, therefore be prejudicial to the present owner of the shares [over whom the Court could not exercise jurisdiction] ... and would be inadequate to the plaintiffs since [that party] could not be compelled to give up its shares without being a party to this action.13
A similar situation exists here. The plaintiffs complaint alleges that Milestone common and preferred shares, and UPI common shares are all publicly traded.
As appealing as it might be to simply find Meeker closer to the facts of this ease than Harman, I decline to do so. Although there are significant differences between Harman and this case, I adopt the standard generally set forth in Harman because I believe that case, decided after Meeker, confronts the issue of remedy dismissal more thoroughly and directly, providing a careful standard for consideration of such an important issue.
Defendants must therefore demonstrate that the facts as alleged in plaintiffs amended complaint, would not entitle him to rescission of the challenged transactions. In effect, assuming all the facts as alleged in the amended complaint to be true, and assuming plaintiff were to prevail on each of his claims, would rescission of the sale and spin-off be an available form of relief? Under the present circumstances, I find it would not.
Two factors must go into the analysis: 1) the current circumstances of the challenged transaction, and 2) whether, the plaintiff would be unfairly prejudiced in some way by determination at this early stage of litigation, that he is foreclosed from obtaining a particular form of relief.
With regard to the circumstances of these transactions, although the particular considerations play out both ways, the balance tips in favor of the defendants, or against undoing the transactions. First, I noté the transactions were completed one full year ago, on October 30, 1995.
As an initial matter, I note that in Har-man, dismissal of plaintiff’s claim for rescission was the necessary first step on the road to dismissal of plaintiffs' complaint. The plaintiffs continuing ability to maintain suit in the court of his choosing, particularly when implicating issues of fairness and corporate governance must be an important consideration in resolution of a motion to preclude an equitable remedy. In this ease, however, plaintiffs choice of forum is not threatened by dismissal of the remedy.
Finally, I note that of the cases relied upon by plaintiff, two stand for the same proposition as Harman, and another expressly refused to address the proposition for which it is cited to me.
IV. Conclusion
Defendants’ Motion to Dismiss the Alternative Claim for Rescission is granted.
. There is disagreement as to whether the events are distinct occurrences or merely two parts of the same transaction. Regardless of the way I may describe them in this opinion, I do not now decide that question.
. Because this is a motion to dismiss, all facts are drawn from plaintiff's Amended Complaint and are assumed to be true.
. The Mandors and Concord own an "insignificant” amount of Milestone preferred stock.
. Presently pending before me is defendants' motion to dismiss all of plaintiff’s claims.
. Del.Supr., 442 A.2d 487 (1982).
. Id. at 502.
. Id.
. See Gaffin v. Teledyne, Inc., Del. Ch., C.A. No. 5786, Hartnett, V.C., 1990 WL 195914 (Dec. 4, 1990), Memo. Op. at 4, aff'd in part and rev'd in part on other grounds, Del.Supr., 611 A.2d 467 (1992); Lynch v. Vickers Energy Corp., Del.Supr., 429 A.2d 497, 501 (1981), overruled on other grounds, Weinberger v. UOP, Inc., Del.Supr., 457 A.2d 701 (1983); Weinberger, 457 A.2d at 714.
. See Arnold v. Society for Sav. Bancorp, Del. Ch., C.A. No. 12883, Chandler, V.C., 1995 WL 408769 (June 30, 1995), Let. Op. at 2, aff'd, Del.Supr., 678 A.2d 533 (1996).
. See Patents Mgmt. Co. v. O'Connor, Del. Ch., C.A. No. 7110, Walsh, V.C., 1985 WL 11576 (June 10, 1985), Let. Op. at 5-6 (plaintiff challenging cash-out merger generally limited to appraisal remedy, and noting rescission of challenged transaction not feasible); In re Tri-Star Pictures, Inc. Litig., Del. Ch., C.A. No. 9477, Jacobs, V.C., 1990 WL 82734 (June 14, 1990), Memo. Op. at 18 (parties concede rescission is "impracticable").
. Del. Ch., C.A. No. 6245, Hartnett, V.C., 1981 WL 7616 (May 12, 1981).
. Id. at 9.
. Id.
. See Am. Cmpl. at ¶¶ 10, 33, 35.
. See generally Zimmerman v. Home Shopping Network, Inc., Del. Ch., C.A. No. 10911, Jacobs, V.C. (Aug. 30, 1990), Memo. Op. at 14-16; Meeker, supra, at 9.
. While it may seem more sensible to reverse the order of these two factors, in my view, examination of the first makes for more informed determination of the second.
. Am. Cmpl. at ¶ 21.
. Am. Cmpl. at ¶ 35.
. See generally Zimmerman, supra, at 14—16 (absent knowledge of fraud or illegality, "shelter rule” protects good faith purchaser of security).
. See Am. Cmpl. alleging, among others, claims for violation of 8 Del. C. § 271, and breach of corporate fiduciary duty.
.See Needham v. Cruver, C.A. No. 12428, Hartnett, V.C., 1993 WL 179336 (May 12, 1993), Mem. Op. at 11; The Travelers Indem. Co. v. North Am. Philips Corp., C.A. No. 12029, Berger, V.C., 1992 WL 210560 (Aug. 26, 1992), Mem. Op. at 6; Avacus Partners, L.P. v. Brian, C.A. No. 11001, Allen, C., 1990 WL 161909 (Oct. 24, 1990), Memo. Op. at 8 n. 8 (declining to address request for dismissal of rescission remedy on motion to dismiss).