B&B FINANCIAL SERVICES, LLC, d/b/a B&B ATM SERVICES, LLC, Plaintiff,
RFGV FESTIVALS, LLC, RED FROG EVENTS LLC and ANSCHUTZ ENTERTAINMENT GROUP, INC., Defendants.
Submitted: August 9, 2019
Defendants' Motion to Dismiss Pursuant to Rule 12(b)(6).
Granted as to Counts II and III.
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
WILLIAM L. WITHAM. JR. RESIDENT JUDGE
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.
considering the parties' arguments and the record, it
appears to the Court that:
AND PROCEDURAL HISTORY
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
Defendant RFGV Festivals, LLC (hereinafter "co-Defendant
RFGV") is a foreign business entity with its principle
place of business in Illinois.
Defendant Red Frog Events, LLC (hereinafter
"co-Defendant Red Frog") is a Delaware business
entity with its principle place of business in Illinois.
Defendant Anschutz Entertainment Group, Inc. (hereinafter
"co-Defendant Anschutz") is a foreign corporation
with its principle place of business in
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").
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
Plaintiff provided ATM services for Firefly and Big Barrel in
2015 per the contract.
December 30, 2015, the Plaintiff sent co-Defendant RFGV
"and/or" co-Defendant Red Frog a proposal for
ATM services for events to take place in 2016 including
Firefly. Neither co-Defendant responded to Plaintiffs
Plaintiff contacted co-Defendant RFGV "and/or"
co-Defendant Red Frog again on February 3, 2016 regarding the
December 30, 2015 proposal. One of the co-Defendants
responded and informed the Plaintiff that either
co-Defendant RFGV or co-Defendant Red Frog would provide
additional information to Plaintiff regarding its 2016 ATM
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.
Plaintiff initiated this current action naming co-Defendants
RFGV, Red Frog, and Anschutz on November 19, 2018.
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. Under those circumstances,
co-Defendants RFGV and Red Frog maintained the Plaintiff
could not pursue its litigation.
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
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, 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