Doberstein v. G-P Industries, Inc.

Plaintiff, Anne L. Doberstein, is an individual who primarily works and resides in

Switzerland. Doberstein also owns a residence located at 103 East Pembrey Drive in

Wilmington, Delaware. In October 2012, Doberstein entered into a contract with G-P (the “Agreement”),

under which G-P agreed to serve as the general contractor on a significant home

renovation project at Doberstein‟s Wilmington residence (the “Project”). On October 17,

2012, Greenplate, on behalf of G-P, prepared the Project‟s estimates and the Agreement.

He estimated that the Project would cost Doberstein a total of $494,498.2 Under the

terms of the Agreement, Doberstein was to provide advance deposits for subcontractors

performing work on the basement as well as for the building permit. Otherwise, the

Agreement did not contemplate Doberstein paying for any renovations before they were

completed or paying subcontractors directly. Instead, G-P was to pay all subcontractors

and to seek reimbursement through its invoices to Doberstein. In addition, G-P agreed to

invoice Doberstein on the first of each month—with the exception of major material

purchases, which were to be invoiced immediately—and to provide a three percent

2 Although they agree that the estimated $494,498 was the initial amount of the Agreement, the parties dispute the final amount covered by the Agreement. Based on the allegations in the Complaint and taking into account the additional $47,662 in supplemental estimates and change orders, I assume for purposes of this motion that the total amount of the Agreement was $542,159. See Compl. ¶ 6.

discount on labor charges when Doberstein paid in cash. G-P began work on the Project

in November 2012. Defendants repeatedly assured Doberstein that the Project would be

completed by the end of 2013.

Doberstein, who lives and works in Switzerland, began making monthly payments

while abroad. On March 14, 2013, G-P sent Doberstein a $1,520 invoice for cabinet

grade plywood. G-P had not yet begun construction on the portions of the Project that

required the plywood, but purchased the plywood early because it was concerned that the

cost would increase. Doberstein paid G-P to purchase the plywood in advance and store

it until needed. Further, in that March 14 invoice and in an April 10, 2013 invoice, G-P

offered Doberstein a three percent reduction on labor if she paid in cash directly to

Greenplate. Doberstein paid a total amount of $33,950 in cash directly to Greenplate

based on those two invoices.

2. Doberstein discovers issues with the Project’s progress

In May 2013, Doberstein traveled from Switzerland to visit the Project site. Upon

arrival, she discovered that little work had been completed, despite the fact that she had

paid Defendants $127,820.10. After Doberstein returned to Switzerland, her interior

designer, Matthew Pearson, spoke with Greenplate about the lack of progress.

Greenplate explained that the Project had been delayed due to a lack of manpower, delays

on other projects, and shuffling employees. He assured Pearson, however, that the

Project still would be completed by the end of 2013.

On or about July 25 and 27, 2013, a neighbor, who also served as the president of

the neighborhood homeowners‟ association, contacted Doberstein regarding the unkempt

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state of her property. The neighbor informed Doberstein that little progress had been

made on the Project in the past several months, even after the meetings Doberstein and

Pearson had with Greenplate. Doberstein contacted Greenplate, demanding action. On

August 9, 2013, Greenplate sent a letter to Doberstein‟s neighbors, explaining that the

Project had been delayed due to weather and manpower issues and stating that “we did

stop working there in early May . . . .”3 Despite halting work on the Project, G-P had sent

Doberstein invoices from May through August for a total amount of $49,500.

Later in August 2013, Pearson began meeting weekly at the Project site with

Greenplate and insisted that G-P prepare a schedule of the work to be done. During those

weekly meetings, Pearson observed three to six workers on the Project at any given time.

Doberstein and Pearson later discovered that the Project was unmanned most of the week

and that the number of workers was increased on days when Greenplate would meet with

one of them.

3. The Project’s completion date gets delayed

In September 2013, Doberstein learned that, contrary to her explicit instructions,

Pearson had not been copied on the invoices sent to her by G-P and Greenplate.

Doberstein reiterated her request for Pearson to be copied on all invoices. Later that

month, during one of their weekly meetings, Greenplate revealed to Pearson that the

Project would not be completed until the end of January 2014. Doberstein did not

respond well to this news. To ameliorate her displeasure, Greenplate told Doberstein that



3 Compl. ¶ 12.

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the Project would be substantially complete by the end of 2013, such that Doberstein

could move in her things. Throughout the rest of 2013, G-P‟s invoicing accelerated in

amount and frequency. By the end of December 2013, Doberstein had paid a total of

$314,434.68 to G-P and Greenplate since the Project‟s inception, representing fifty-eight

percent of the total $542,159 due under the Agreement, though the Project was nowhere

near complete.

In January 2014, Pearson informed Greenplate that the Project had to be

completed by March 1, because Doberstein‟s builders‟ risk insurance policy would expire

on that date. After multiple requests from Pearson, Greenplate finally submitted a

completion schedule, which contemplated a March 1 completion date. Greenplate then

told Doberstein that G-P would need to bill every two weeks rather than monthly. As a

result, Doberstein set up direct wire transfers from her bank account to G-P‟s account.

Between January 1 and February 21, 2014, Doberstein paid an additional $146,930.34 via

wire transfers to G-P. The Project‟s final invoice was issued to Doberstein on February

17, 2014 and was followed by G-P‟s urgent requests for payment over the following few

days.

4. G-P goes out of business

On February 22, 2014, Doberstein, Pearson, Greenplate, and the flooring

subcontractor met to discuss the Project. During the meeting, Greenplate admitted he

would not have the Project complete by March 1, but promised Doberstein it would be

complete by the end of April. Three days later, however, Greenplate fired G-P‟s

employees and sent a letter to Doberstein and at least one other customer informing them

6

that G-P would be abandoning their renovations, because financially, it was unable to

continue in business. The letter stated that G-P‟s financial troubles were due, in part, to

its underbidding of the Project, late payments by customers, and increased costs. In

March, Greenplate and G-P abandoned the Project altogether. In April, Todd Breck,

A.I.A., P.E., of Breckstone Architecture, inspected the Project and estimated that, at the

time, the value of the work in place was approximately $298,272.98. To date, Doberstein

has paid Defendants a total of $461,365.02.

C. Procedural History

On August 2, 2014, Doberstein filed the Complaint against Greenplate and G-P.

On October 2, 2014, Defendants moved to dismiss the Complaint and filed an opening

brief on December 8. On July 10, 2015, after completion of the briefing, I heard oral

argument on that motion. During argument, Doberstein voluntarily dismissed Counts

VII, VIII, and IX of the Complaint.4 This Memorandum Opinion constitutes my rulings

on Defendants‟ motion to dismiss with respect to the Complaint‟s remaining six counts.

D. Parties’ Contentions

Doberstein asserts six remaining counts against Defendants. In Count I, she seeks

to pierce G-P‟s corporate veil and hold Greenplate personally liable for his fraudulent

statements and misrepresentations to her. In Count II, Doberstein avers that Greenplate

and G-P fraudulently concealed their plan to abandon the Project after she had paid in full



4 July 10 Arg. Tr. 7. Count VII was a claim for breach of the implied covenant of good faith and fair dealing, Count VIII a claim for conversion, and Count IX a claim for replevin. See Compl. ¶¶ 71-86.

7

under the Agreement. In Count III, Doberstein alleges Greenplate and G-P intentionally

misrepresented the amount due under various invoices in order to extract unwarranted

payments from her. In Count IV, Doberstein avers that Greenplate and G-P negligently

misrepresented information regarding the status, completion, and billing of the Project.

Count V asserts a claim against G-P for breach of an express contract, which Defendants

do not contest in their motion. Finally, in Count VI, Doberstein alleges that Greenplate

and G-P have been unjustly enriched by the amount they received from her for work they

did not perform on the Project.

Defendants counter, pursuant to Rule 12(b)(6), that Counts I, IV, and VI should be

dismissed for failure to state a claim that would entitle Doberstein to relief. Further,

Defendants argue that if the equitable claims in Counts I, IV, and VI are dismissed under

Rule 12(b)(6), the remaining claims, which are legal in nature, should be dismissed for

lack of subject matter jurisdiction under Rule 12(b)(1). Alternatively, if I do not dismiss

the remainder of the action for lack of subject matter jurisdiction, Defendants assert that

Counts II and III should be dismissed for failure to state a claim upon which relief can be

granted.

II. ANALYSIS

A. Counts I, IV, and VI Must Be Dismissed Under Rule 12(b)(6) for Failure to State a Claim

1. Legal standard

Pursuant to Rule 12(b)(6), this Court may grant a motion to dismiss for failure to

state a claim if a complaint does not assert sufficient facts that, if proven, would entitle

8

the plaintiff to relief. As reaffirmed by the Delaware Supreme Court, “the governing

pleading standard in Delaware to survive a motion to dismiss is reasonable

„conceivability.‟”5 That is, when considering such a motion, a court must “accept all

well-pleaded factual allegations in the Complaint as true, . . . draw all reasonable

inferences in favor of the plaintiff, and deny the motion unless the plaintiff could not

recover under any reasonably conceivable set of circumstances susceptible of proof.”6

This reasonable “conceivability” standard asks whether there is a “possibility” of

recovery.7 If the well-pled factual allegations of the complaint would entitle the plaintiff

to relief under a reasonably conceivable set of circumstances, the court must deny the

motion to dismiss.8 The court, however, need not “accept conclusory allegations

unsupported by specific facts or . . . draw unreasonable inferences in favor of the non

moving party.”9 Moreover, failure to plead an element of a claim precludes entitlement

to relief and, therefore, is grounds to dismiss that claim.10

Generally, the Court will consider only the pleadings on a motion to dismiss under

5 Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 537 (Del. 2011) (footnote omitted). 6 Id. at 536 (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)). 7 Id. at 537 & n.13. 8 Id. at 536. 9 Price v. E.I. duPont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011) (citing Clinton v. Enterprise Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009)). 10 Crescent/Mach I P’rs, L.P. v. Turner, 846 A.2d 963, 972 (Del. Ch. 2000) (Steele, V.C., by designation).

9

Rule 12(b)(6). “A judge may consider documents outside of the pleadings only when: (1)

the document is integral to a plaintiff‟s claim and incorporated in the complaint or (2) the

document is not being relied upon to prove the truth of its contents.”11

2. Count I: piercing the corporate veil

Doberstein claims that, despite Greenplate‟s otherwise limited liability, I should

pierce G-P‟s corporate veil and hold him individually liable for his allegedly fraudulent

conduct. “To state a „veil-piercing claim,‟ the plaintiff must plead facts supporting an

inference that the corporation, through its alter-ego, has created a sham entity designed to

defraud investors and creditors.”12 Specific facts a court may consider when being asked

to disregard the corporate form include: “(1) whether the company was adequately

capitalized for the undertaking; (2) whether the company was solvent; (3) whether

corporate formalities were observed; (4) whether the dominant shareholder siphoned

company funds; and (5) whether, in general, the company simply functioned as a facade

for the dominant shareholder.”13 The decision to disregard the corporate entity

“generally results not from a single factor, but rather some combination of them, and „an

overall element of injustice or unfairness must always be present, as well.‟”14 Most



11 Allen v. Encore Energy P’rs, 72 A.3d 93, 96 n.2 (Del. 2013). 12 Crosse v. BCBSD, Inc., 836 A.2d 492, 497 (Del. 2003) 13 MicroStrategy Inc. v. Acacia Research Corp., 2010 WL 5550455, at *11 (Del. Ch. Dec. 30, 2010) (internal quotation marks and citation omitted). 14 Id. (citing EBG Hldgs. LLC v. Vredezicht's Gravenhage 109 B.V., 2008 WL 4057745, at *12 (Del. Ch. Sept. 2, 2008)).

10

importantly, “because Delaware public policy does not lightly disregard the separate legal

existence of corporations, a plaintiff must do more than plead that one corporation is the

alter ego of another in conclusory fashion in order for the Court to disregard their

separate legal existence.”15

Doberstein contends that her claim for veil-piercing is supported by her allegations

that Greenplate repeatedly communicated false statements to her concerning the work

being done at her property and that she relied on those statements to her detriment. She

alleges that Greenplate and G-P increased the frequency and the amount of their billing

during the last six weeks of the Project, despite the fact that they knew they shortly were

going to abandon it and cease doing business.16 According to Doberstein, because all the

requisite elements of fraud are present, she has alleged a sufficient basis for disregarding

the corporate identity of G-P and holding Greenplate personally liable. I disagree.

The case law governing veil-piercing requires me to consider whether the

individual defendant—i.e., Greenplate—abused the corporate form and, through that

abuse, perpetrated fraud on an innocent third party—i.e., Doberstein. It is not enough to

allege, as Doberstein does, that Greenplate made fraudulent statements about his progress

toward completing his contractual obligations. Those types of allegations may or may

not support a claim for fraud, but Greenplate‟s wrongful acts must be tied to the



15 Id. 16 Compl. ¶¶ 41-42.

11

manipulation of the corporate form in order to make veil-piercing justifiable on grounds

of equity. No such nexus is alleged here.

The Complaint alleges that Greenplate knew that G-P was going out of business

and, therefore, induced Doberstein to make accelerated payments from January 1 to

February 21, 2014, to extract as much money from her as possible. Doberstein has not

pled, however, that Greenplate siphoned funds from G-P to himself during those last six

weeks and thereby used the corporate form to shield those funds and himself from

liability once G-P went out of business.17 Absent such allegations, the Complaint states,

at most, a claim for fraud against G-P due to actions taken by Greenplate on its behalf.18

Because Doberstein failed to allege that Greenplate utlized G-P as a sham entity to

defraud her, Count I must be dismissed for failure to state a claim.



17 Although not discussed in the briefs, Doberstein alleges in the Complaint that Greenplate had her make direct payments to him in cash on two separate occasions in March and April 2013, Compl. ¶ 17, well before Greenplate allegedly knew of G-P‟s eventual demise. Although this allegation raises questions about Greenplate possibly siphoning off company funds, the Complaint does not plead facts satisfying the other four elements under MicroStrategy or demonstrating that an element of injustice or unfairness related to the corporate form of G-P was present during the March-April 2013 time period. The decision to disregard the corporate entity “generally results not from a single factor, but rather some combination of them, and „an overall element of injustice or unfairness must always be present, as well.‟” MicroStrategy Inc., 2010 WL 5550455, at *11. Although Doberstein‟s allegations as to her two payments to Greenplate may establish a direct claim against him for fraud, they are insufficient, standing alone, to state a claim for piercing the corporate veil. 18 I express no opinion as to whether Doberstein might have a claim directly against Greenplate for fraud.

12

3. Count IV: negligent misrepresentation

Negligent misrepresentation—also known as “equitable fraud”—“is separate

from, and broader, than common law fraud,”19 such that “generally whatever amounts to

common law fraud also amounts to equitable fraud.”20 “[T]o claim equitable fraud, „the

plaintiff need not show that a statement was made with knowledge that it was false or in

reckless disregard of the truth,‟”21 as this Court generally “has not required a showing of

scienter, „reflecting its willingness to provide a remedy for negligent or innocent

misrepresentation.‟”22 Yet, “[e]quitable fraud is not available in every case or to every

plaintiff. It requires special equities, typically the existence of some form of fiduciary

relationship, such as that between a director and stockholder or a trustee and cestui que

trust, although other circumstances might be cited.”23

Doberstein contends that because she contracted with G-P to complete renovation

work at her property while she was living abroad, she was “relying” on Defendants in a

special way and, therefore, can bring this claim for equitable fraud. I do not find this

19 Airborne Health, Inc. v. Squid Soap, LP, 984 A.2d 126, 143 (Del. Ch. 2009). 20 Narrowstep Inc. v. Onstream Media Corp., 2010 WL 5422405, at *13 (Del. Ch. Dec. 22, 2010). 21 Airborne Health, Inc., 984 A.2d at 144 (citing DONALD J. WOLFE, JR. & MICHAEL A. PITTENGER, CORPORATE AND COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY § 2.03[b][1], at 2-33 (2009)). 22 Narrowstep Inc., 2010 WL 5422405, at *13 (quoting Airborne Health, Inc., 984 A.2d at 144). 23 Id. (citing U.S. West, Inc. v. Time Warner, Inc., 1996 WL 307445, at *24 (Del. Ch. June 6, 1996) (Allen, C.)).

13

argument persuasive. Sophisticated24 contractual parties who bargain at arm‟s length

generally do not qualify for the kind of equitable protection that the negligent

misrepresentation doctrine envisions in this regard.25 The “special equities” that can

provide a basis for equitable fraud are relationships more akin to fiduciary duties or

trustee relationships. In this case, Doberstein entered into a contract for a major home

renovation. Even though she was living abroad, Doberstein still periodically checked in

on the progress of that Project. Moreover, Doberstein alleges that her designer, Pearson,

was located in the vicinity of the property, monitored the progress of Defendants‟ work

more closely, and reported back to her.26 Nothing in the Complaint suggests that the

relationship between Doberstein and Defendants was anything but a typical contractual

relationship. The obligations owed to Doberstein, therefore, were contractual in nature,

and her remedy for breaches of those obligations can be obtained through an action

sounding in contract. As a result, the Complaint fails to state a claim for negligent

misrepresentation.

4. Count VI: unjust enrichment

Unjust enrichment is the “„unjust retention of a benefit to the loss of another, or

the retention of money or property of another against the fundamental principles of

24 Although there is no indication in the Complaint that Doberstein herself was a sophisticated party as to the subject matter of the Agreement, the assistance she received throughout the relevant period from Pearson likely qualifies her as such. 25 Id.; see also Osram Sylvania Inc. v. Townsend Ventures, LLC, 2013 WL 6199554, at *15 (Del. Ch. Nov. 19, 2013). 26 See, e.g., Compl. ¶¶ 6-11; Pl.‟s Answer Br. 3.

14

justice or equity and good conscience.‟”27 Unjust enrichment, or “quasi-contract,”

developed “as a theory of recovery to remedy the absence of a formal contract.”28 When

a complaint alleges an express, enforceable contract that controls the parties‟ relationship,

a claim for unjust enrichment will be dismissed because the “contract is the measure of

plaintiffs‟ right.”29

Defendants contend that because Doberstein pleads a breach of the Agreement in

Count V, that contract is the measure of her rights. That is, because there is no

independent basis upon which the unjust enrichment claim could proceed, it should be

dismissed. Doberstein responds that her unjust enrichment claim is pled in the alternative

to the breach of contract claim and that all the elements of unjust enrichment have been

pled.

“A claim for unjust enrichment is not available if there is a contract that governs

the relationship between parties that gives rise to the unjust enrichment claim.”30

Doberstein has not identified any factual basis for her unjust enrichment claim

independent of the allegations relating to her breach of contract claim. Indeed, in her

brief, Doberstein states that she “has lost on the deal given that she paid the full amount

due under the [Agreement], $494,498.00, only to be left with an [un]inhabitable home



27 Kuroda v. SPJS Hldgs., L.L.C., 971 A.2d 872, 891-92 (Del. Ch. 2009). 28 Choupak v. Rivkin, 2015 WL 1589610, at *20 (Del. Ch. Apr. 6, 2015). 29 Wood v. Coastal States Gas Corp., 401 A.2d 932, 942 (Del. 1979). 30 Kuroda, 971 A.2d at 891.

15

. . . .”31 Thus, by her own assertions, the unjust enrichment claim relies on the same

damages as the breach of contract claim. In those circumstances, I conclude that Count V

cannot be maintained, because the Agreement provides the measure of Doberstein‟s

rights here. Thus, Doberstein‟s unjust enrichment claim also must be dismissed under

Rule 12(b)(6).

B. The Remaining Counts Must be Dismissed Under Rule 12(b)(1) for Lack of Subject Matter Jurisdiction

1. Legal standard

The Court of Chancery will dismiss an action under Rule 12(b)(1) “if it appears

from the record that the Court does not have subject matter jurisdiction over the claim.”32

The plaintiff “bears the burden of establishing this Court‟s jurisdiction, and where the

plaintiff‟s jurisdictional allegations are challenged through the introduction of material

extrinsic to the pleadings, he must support those allegations with competent proof.”33



31 Pl.‟s Answer Br. 23. 32 AFSCME Locals 1102 & 320 v. City of Wilm., 858 A.2d 962, 965 (Del. Ch. 2004) (internal citation omitted). 33 Yancey v. Nat’l Trust Co., 1993 WL 155492, at *6 (Del. Ch. May 7, 1993) (internal citation omitted).

16

This Court is one of limited jurisdiction.34 It can acquire subject matter

jurisdiction over a case in three ways: (1) an invocation of an equitable right;35 (2) a

request for an equitable remedy when there is no adequate remedy at law;36 or (3) a

statutory delegation of subject matter jurisdiction.37 This Court “will not exercise subject

matter jurisdiction where a complete remedy otherwise exists but where plaintiff has

prayed for some type of traditional equitable relief as a kind of formulaic „open sesame‟

to the Court of Chancery.”38



34 The issue of subject matter jurisdiction is so crucial that it may be raised at any time before final judgment. See Appoquinimink Educ. Ass’n v. Appoquinimink Sch. Dist., 2003 WL 1794963, at *3 n.24 (Del. Ch. Mar. 31, 2003). 35 See 10 Del. C. § 341 (“The Court of Chancery shall have jurisdiction to hear and determine all matters and causes in equity.”); Christiana Town Ctr. LLC v. New Castle Cty., 2003 WL 21314499, at *3 (Del. Ch. June 6, 2003) (“Equitable rights are rights that have traditionally not been recognized at common law. The most common example of equitable rights in this court are fiduciary rights and duties that arise in the context of trusts, corporations, other forms of business organizations, guardianships, and the administration of estates.”); Azurix Corp. v. Synagro Techs., Inc., 2000 WL 193117, at *2 (Del. Ch. Feb. 3, 2000). 36 10 Del. C. § 342 (“The Court of Chancery shall not have jurisdiction to determine any matter wherein sufficient remedy may be had by common law, or statute, before any other court or jurisdiction of this State.”); Christiana Town Ctr., 2003 WL 21314499, at *3 (“Equitable remedies . . . may be applied even where the right sued on is essentially legal in nature, but with respect to which the available remedy at law is not fully sufficient to protect or redress the resulting injury under the circumstances.”) (internal quotation marks omitted). 37 See Candlewood Timber Gp., LLC v. Pan Am. Energy, LLC, 859 A.2d 989, 997 (Del. 2004). 38 Christiana Town Ctr., 2003 WL 21314499, at *3 (quoting IBM Corp. v. Comdisco, Inc., 602 A.2d 74, 78 (Del. Ch. 1991)).

17

The party seeking a court‟s intervention bears the burden of establishing the

court‟s subject matter jurisdiction,39 and the court may consider evidence outside the

pleadings in resolving that issue.40 Further, “[i]n deciding whether or not equitable

jurisdiction exists, the Court must look beyond the remedies nominally being sought, and

focus upon the allegations of the complaint in light of what the plaintiff really seeks to

gain by bringing his or her claim.”41 In other words, “the court must address the nature

of the wrong alleged and the available remedy to determine whether a legal, as opposed

to an equitable remedy, is available and sufficiently adequate.”42

Further, “[t]he Court of Chancery . . . routinely decides controversies that

encompass both equitable and legal claims.”43 “[I]f a controversy is vested with equitable

features which would support Chancery jurisdiction of at least part of the controversy,



39 Maloney-Refaie v. Bridge at Sch., Inc., 2008 WL 2679792, at *7 (Del. Ch. July 9, 2008) (quoting Ropp v. King, 2007 WL 2198771, at *2 (Del. Ch. July 25, 2007)). 40 Ct. Ch. R. 12(b)(1); Sloan v. Segal, 2008 WL 81513, at *6 (Del. Ch. Jan. 3, 2008) (citing Simon v. Navellier Series Fund, 2000 WL 1597890, at *5 (Del. Ch. Oct. 19, 2000)); see also Maloney-Refaie, 2008 WL 2679792, at *7 (citing NAMA Hldgs., LLC v. Related World Mkt. Ctr., LLC, 922 A.2d 417, 429 n.15 (Del. Ch. 2007)). 41 Candlewood Timber Gp., 859 A.2d at 997; see also Diebold Computer Leasing, Inc. v. Commercial Credit Corp., 267 A.2d 586, 588 (Del. 1970). 42 IMO Indus., Inc. v. Sierra Int’l, Inc., 2001 WL 1192201, at *2 (Del. Ch. Oct. 1, 2001). 43 Nicastro v. Rudegeair, 2007 WL 4054757, at *2 (Del. Ch. Nov. 13, 2007) (citing WOLFE & PITTENGER, supra note 19, § 2-4 (supp. 2006) (“It is not at all unusual for cases properly within the subject matter jurisdiction of the Court of Chancery to involve both legal and equitable claims.”)).

18

then the Chancellor has discretion to resolve the remaining portions of the controversy as

well.”44 “Once the Court determines that equitable relief is warranted, even if subsequent

events moot all equitable causes of action or if the court ultimately determines that

equitable relief is not warranted, the court retains the power to decide the legal features of

the claim pursuant to the cleanup doctrine.”45

2. Counts II, III, and V: legal claims

Defendants contend, and Doberstein does not dispute, that Counts II, III, and V of

her Complaint are legal claims. Moreover, the harms for which Doberstein seeks relief in

the case of each of these claims can be remedied by money damages. Thus, there is no

basis on which this Court could assert subject matter jurisdiction over one or more of

these claims independently of the claims asserted in the other counts. If any of

Doberstein‟s equitable claims were well-pled, I would have had discretion to resolve

these legal claims under the so-called “cleanup doctrine.”46 Because I do not see a

colorable equitable hook in any of the equitable claims Doberstein advanced in Counts I,

IV, and VI, however, I do not consider it appropriate for this Court to retain jurisdiction

44 Getty Ref. & Mktg. Co. v. Park Oil, Inc., 385 A.2d 147, 149 (Del. Ch. 1978) (emphasis added). 45 Prestancia Mgmt. Gp. v. Va. Heritage Found., II LLC, 2005 WL 1364616, at *11 (Del. Ch. May 27, 2005) (internal quotation marks omitted) (quoting Beal Bank SSB v. Lucks, 2000 WL 710194, at *2 (Del. Ch. May 23, 2000)). 46 Darby Emerging Mkts. Fund, L.P. v. Ryan, 2013 WL 6401131, at *6 (Del. Ch. Nov. 27, 2013) (“[I]f a controversy is vested with equitable features which would support Chancery jurisdiction of at least part of the controversy, then the Chancellor has discretion to resolve the remaining portions of the controversy as well.”).

19

over this action. For that reason, and without expressing any opinion as to the merits of

any of the remaining claims, I grant Defendants‟ motion to dismiss for lack of

jurisdiction as to Counts II, III, and V.

For the foregoing reasons, Defendants‟ motion to dismiss for failure to state a

claim as to Counts I, IV, and VI is granted under Rule 12(b)(6). I also grant Defendants‟ motion to dismiss Counts II, III, and V for lack of subject matter jurisdiction under Rule 12(b)(1). Counts I, IV, and VI are dismissed with prejudice. As to Counts II, III, and V, Plaintiff may file within 60 days of the date of this Memorandum Opinion and Order a written election to transfer this action to an appropriate court for hearing and determination. If no such written election is filed within 60 days, this action will be dismissed without prejudice.