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Azadian Group, LLC v. TenX Group, LLC

Superior Court of Delaware

November 4, 2019

AZADIAN GROUP, LLC, a Delaware limited liability company, Plaintiff,
v.
TENX GROUP, LLC, a Delaware limited liability company, JAMES V. PUNELLI, individually, and RAYMOND C. JONES, individually, Defendants.

          Date Submitted: September 24, 2019

         Upon Defendants James V. Punelli and Raymond C. Jones 's Motion to Dismiss Denied

          Samuel L. Moultrie, Esquire, Greenberg Traurig, LLP, Wilmington, Delaware, Attorney for Plaintiff.

          Steven T. Margolin, Esquire, Greenberg Traurig, LLP, Wilmington, Delaware, Attorney for Plaintiff.

          Tracy L. Pearson, Esquire, Dunlap, Bennett & Ludwig, PLLC, Wilmington, Delaware, Attorney for Defendants.

          SCOTT, J.

         Before the Court is a Motion to Dismiss from Defendants TenX Group, LLC, James V. Punelli, and Raymond C. Jones. On September 20, 2019, TenX Group, LLC-now known as Panthera Enterprises, LLC-filed a Suggestion of Bankruptcy with this Court. Accordingly, the proceedings against Panthera Enterprises, LLC/TenX Group, LLC are STAYED.

         For the following reasons, Defendants James V. Punelli's and Raymond C. Jones's ("Defendants") motion to dismiss is DENIED.

         Background

         On April 25, 2019, Plaintiff Azadian Group, LLC ("Plaintiff) filed this action against Defendants, alleging breach of contract. On December 20, 2018, the parties entered into a Settlement Agreement. Plaintiff alleges Defendants failed to pay $86, 829.00 on or before January 30, 2019, as required by the Settlement Agreement.

         Parties' Assertions

         On May 23, 2019, Defendants filed this motion to dismiss for insufficient service of process pursuant to Superior Court Rule of Civil Procedure 12(b)(5). Defendants argue that Plaintiff did not properly serve process because process was sent via certified mail when the Settlement Agreement required Plaintiff to serve process via Federal Express. Defendants further argue that the service of process is invalid under Delaware law because there was no signed receipt from Defendants or any person authorized to accept service on behalf of Defendants.

         On June 21, 2019, Plaintiff filed its response to Defendants' motion. Plaintiff argues that Defendants expressly waived their right to complain about service of process in Paragraph 6 of the Settlement Agreement. Plaintiff also points out that Defendants did not argue that they have been prejudiced in any way because they were served via certified mail instead of via Federal Express. Plaintiff further argues that Defendants' argument is moot because Plaintiff served Defendants via Federal Express on June 5, 2019. Finally, Plaintiff contends that Defendants cannot claim that the service of process was insufficient under Delaware law because Plaintiff served Defendants at the address at which they contracted to be served.

         Standard of Review

         A defendant may file a motion to dismiss pursuant to Superior Court Rule of Civil Procedure 12(b)(5) if a plaintiff fails to properly serve process on that defendant. Under Delaware's long-arm statute, 10 Del C. § 3104, service of process may be made "by any form of mail addressed to the person to be served and requiring a signed receipt."[1] Under § 3104, proof of service may be made by affidavit of the individual who made the service.[2] If service is made by mail, proof of service "shall include" either a ...


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