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B&B Financial Services, LLC v. RFGV Festivals, LLC

Superior Court of Delaware

November 7, 2019

B&B FINANCIAL SERVICES, LLC, d/b/a B&B ATM SERVICES, LLC, Plaintiff,
v.
RFGV FESTIVALS, LLC, RED FROG EVENTS LLC and ANSCHUTZ ENTERTAINMENT GROUP, INC., Defendants.

          Submitted: August 9, 2019

         Upon Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6). Granted as to Counts II and III.

          Kara A. Hager, Esquire of Woloshin Lynch & Associates, P.A., Wilmington, Delaware; attorney for Plaintiff.

          Christopher P. Simon, Esquire and David G. Holmes, Esquire of Cross & Simon, LLC, Wilmington, Delaware; attorneys for Defendants.

          ORDER

          WILLIAM L. WITHAM. JR. RESIDENT JUDGE

         Presently before the Court is Defendants RFGV Festivals, LLC, Red Frog Events LLC, and Anschutz Entertainment Group, Inc.'s Motion to Dismiss B&B Financial Services' complaint pursuant to Rule 12(b)(1) and Rule 12(b)(6) of the Delaware Superior Court Rules of Civil Procedure. This motion was previously stayed by the Court on May 2, 2019, in order to give B&B Financial Services an opportunity to regain good standing as a Delaware corporation.[1]

         After considering the parties' arguments and the record, it appears to the Court that:

         FACTUAL AND PROCEDURAL HISTORY

         1. The Plaintiff, B&B Financial Services, LLC d/b/a B&B ATM Services, LLC, (hereinafter "Plaintiff) is a foreign business entity with its principle place of business in Maryland.

         2. Defendant RFGV Festivals, LLC (hereinafter "co-Defendant RFGV") is a foreign business entity with its principle place of business in Illinois.

         3. Defendant Red Frog Events, LLC (hereinafter "co-Defendant Red Frog") is a Delaware business entity with its principle place of business in Illinois.

         4. Defendant Anschutz Entertainment Group, Inc. (hereinafter "co-Defendant Anschutz") is a foreign corporation with its principle place of business in Colorado.[2]

         5. On April 27, 2015, the Plaintiff and co-Defendant RFGV entered into a contract whereby co-Defendant RFGV retained the Plaintiff to provide ATM services for the 2015 and 2016 Firefly Music Festivals (hereinafter "Firefly") held in Dover. The contract further provided that Plaintiff would provide ATM services for the 2015 and 2016 Big Barrel Country Music Festivals (hereinafter "Big Barrel").

         6. Co-Defendant RFGV drafted the contract that also provided a provision stating that co-Defendant RFGV could terminate the contract with the Plaintiff prior to Firefly 2016, with or without cause, by providing the Plaintiff thirty days written notice.[3]

         7. Plaintiff provided ATM services for Firefly and Big Barrel in 2015 per the contract.

         8. On December 30, 2015, the Plaintiff sent co-Defendant RFGV "and/or"[4] co-Defendant Red Frog a proposal for ATM services for events to take place in 2016 including Firefly. Neither co-Defendant responded to Plaintiffs proposal.[5]

         9. The Plaintiff contacted co-Defendant RFGV "and/or" co-Defendant Red Frog again on February 3, 2016 regarding the December 30, 2015 proposal.[6] One of the co-Defendants responded[7] and informed the Plaintiff that either co-Defendant RFGV or co-Defendant Red Frog would provide additional information to Plaintiff regarding its 2016 ATM needs.[8]

         10. Co-Defendant RFGV did not utilize the Plaintiffs ATM services for the 2016 Firefly and allegedly did not satisfy the thirty day notice requirement provided for in the contract.

         11. The Plaintiff initiated this current action naming co-Defendants RFGV, Red Frog, and Anschutz on November 19, 2018.

         12. On February 5, 2019, co-Defendants RFGV and Red Frog sent a letter to Plaintiff stating it was not a company in good standing in Delaware.[9] Under those circumstances, co-Defendants RFGV and Red Frog maintained the Plaintiff could not pursue its litigation.[10]

         13. All co-Defendants filed their present Motion to Dismiss on February 15, 2019. Plaintiff filed its response, in opposition, on March 1, 2015. A hearing was held on April 12, 2019 and based on the parties' arguments, the Court reserved judgment.

         14. On May 2, 2019, the Court stayed the co-Defendants' Motion to Dismiss and found that pursuant to 6 Del. C. § 18-907 and our Supreme Court's decision in Hudson Farms, Inc. v. McGrellis,[11] the Court was not required to dismiss the Plaintiffs action due to its lack of good standing. As a result, the Court granted a thirty day stay of the co-Defendants' Motion to Dismiss. The Court also indicated that if the Plaintiff could obtain good ...


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