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Carlyle Investment Management LLC v. Moonmouth Co., S.A.

Court of Chancery of Delaware, New Castle

August 21, 2014

Carlyle Investment Management, LLC, et al.
Moonmouth Company, S.A., et al.

Submitted: May 20, 2014.

Dear Counsel:

This matter is before the Court on Defendants' Motion for Protective Order and for Reconsideration ("Motion for Reconsideration") as to this Court's May 6, 2014 ruling that Plaintiffs could proceed with general jurisdictional discovery. For the reasons stated in this Letter Opinion, the Motion for Reconsideration is denied.


Plaintiffs served their Complaint in this action on Defendant Plaza Management Overseas S.A. ("Plaza") in late October 2012.[1] On December 18, 2012, Plaza removed this action to the United States District Court for the District of Delaware (the "District Court"). On January 9, 2013, Plaza moved in the District Court to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b)(1), (2), and (6). Defendant Louis J.K.J. Reijtenbagh purportedly was served with the Complaint on January 15, 2013. On April 8, 2013, Reijtenbagh filed his own motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1), (2), (4), (5), and (6).

On August 14, 2013, the District Court concluded that Defendants had removed this case properly, but that the 2006 Moonmouth Subscription Agreement, [2] to which Defendants contend they are not parties, constituted a waiver by Defendants of the right to remove any claim related to that Agreement. The District Court also found that Plaintiffs' claims to enforce the releases to the 2009 Transfer Agreements, to which Defendants also deny being parties, were "related to" the 2006 Moonmouth Subscription Agreement. Based on those findings, the District Court granted Plaintiffs' motion to remand the District Court action to this Court.

On August 15, 2013, Plaza appealed the remand order to the United States Court of Appeals for the Third Circuit. The Third Circuit heard argument on that appeal on June 4, 2014.

After the remand, Defendants filed on December 11, 2013 a Motion to Dismiss the Complaint or to Strike the Complaint or Certain Allegations Therein ("Motion to Dismiss"). Among other things, Defendants' motion argued that neither Plaza nor Reijtenbagh is subject to personal jurisdiction in Delaware. Specifically, Defendants asserted that the Complaint pleads no basis for personal jurisdiction other than consent, and that it pleads no facts that would support a reasonable inference of consent to jurisdiction by either Plaza or Reijtenbagh.[3]

On May 6, 2014, I heard argument on Defendants' Motion to Dismiss and two related motions: (1) a motion by Plaintiffs to strike what they considered an impermissible sur-reply; and (2) Defendants' motion to stay this action pending resolution of the appeal of the remand order to the Third Circuit.[4] For the reasons stated on the record at argument, I denied Plaintiffs' motion to strike the so-called sur-reply, and allowed Plaintiffs to file a written response to it. I granted Defendants' motion for a stay pending the outcome of the outstanding appeal to the Third Circuit from the District Court's order remanding this action to the Court of Chancery, subject to one exception requested by Plaintiffs at the argument.[5] That exception authorized Plaintiffs to proceed with discovery on personal jurisdiction. Defendants have challenged the existence of personal jurisdiction in both this Court and the District Court.

On May 13, 2014, Defendants filed their Motion for Reconsideration regarding the Court's decision to allow Plaintiffs to proceed with jurisdictional discovery. Defendants also requested a protective order barring that discovery. Plaintiffs opposed the motion. I turn next, therefore, to the parties' respective arguments on Defendants' Motion for Reconsideration.


The standard applicable to a motion for reargument under Court of Chancery Rule 59(f) is well-settled. To obtain reargument, the moving party must demonstrate either that the Court overlooked a controlling decision or principle of law that would have a controlling effect, or the Court misapprehended the facts or the law such that the outcome of the decision would be different.[6] It is the moving party's burden to show that "the court's misunderstanding of a factual or legal principle is both material and would have changed the outcome of its earlier decision."[7] Motions for reargument, therefore, must be denied when a party merely restates its prior arguments.[8]

In their motion, Defendants purport to present three questions, the first two of which have several subparts. First, Defendants contend that Plaintiffs waived all rights to discovery on general jurisdiction over them by: "(i) failing to timely request any such discovery; (ii) failing to make any showing of any plausible basis for general jurisdiction; (iii) permitting briefing on the motion to dismiss for lack of [personal] jurisdiction to close without arguing or providing any basis for general jurisdiction; and (iv) allowing the motion to be submitted for decision with no showing of grounds for general jurisdiction." Second, Defendants argue that this Court should reconsider its order granting Plaintiffs' oral request for jurisdictional discovery of Reijtenbagh, because: "(a) Plaintiff's request for jurisdictional discovery and submission of previously undisclosed documentary evidence in support of that request were procedurally improper; and (b) Plaintiff's sole proffered basis for personal jurisdiction is groundless." And, third, Defendants' motion poses the question of whether a protective order should be granted barring jurisdictional discovery.[9]

In my view, however, Defendants' Motion for Reconsideration raises only two issues that warrant further discussion. The first is whether Plaintiffs, by failing to raise the issue of possible jurisdiction under Delaware's long-arm statute, 10 Del. C. ยง 3104(c), have waived that issue. The second is whether, in any event, Plaintiffs should be barred from pursuing discovery related to jurisdiction, because they have ...

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