Red Oak Fund, L.P. v. Digirad Corporation, et al.
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COURT OF CHANCERY OF THE STATE OF DELAWARE JOHN W. NOBLE VICE CHANCELLOR 417 SOUTH STATE STREET DOVER, DELAWARE 19901 TELEPHONE: (302) 739-4397 FACSIMILE: (302) 739-6179 July 5, 2013 Elizabeth M. McGeever, Esquire Prickett, Jones & Elliott, P.A. 1310 N. King Street Wilmington, DE 19801 Re: John M. Seaman, Esquire Abrams & Bayliss LLP 20 Montchanin Road, Suite 200 Wilmington, DE 19807 Red Oak Fund, L.P. v. Digirad Corporation, et al. C.A. No. 8559-VCN Date Submitted: July 3, 2013 Dear Counsel: Plaintiff Red Oak Fund, L.P. ( Red Oak ) has moved for leave to file a SurReply Brief in Opposition to Defendants Motion to Dismiss. Red Oak s apparent purpose is to place before the Court certain documents obtained from Defendants during discovery in this summary proceeding under 8 Del. C. ยง 225. Motions to dismiss, of course, are tested on the well-pleaded allegations of the Complaint.1 Red Oak has not amended (and is not seeking to amend) its complaint. The Court could consider the proffered documents, but that would 1 See Ct. Ch. R. 12(b)(6); Fisk Ventures LLC v. Segal, 2008 WL 1961156, at *1 (Del. Ch. May 7, 2008). Red Oak Fund, L.P. v. Digirad Corporation, et al. C.A. No. 8559-VCN July 5, 2013 Page 2 involve matters outside the pleadings and would, in effect, convert the motion to dismiss into one for summary judgment2 a development that would result in delay. Based on the Court s assumption that Red Oak does not want to delay this matter, its motion for leave is denied. If the Court misapprehends Red Oak s scheduling objectives, it will entertain a timely application to treat the submission of additional materials as converting Defendants motion into one for summary judgment. By accepting the Defendants opposition to Red Oak s motion, the Court notes that the Defendants have reminded it that, for purposes of considering a motion to dismiss, it must accept the truth of the well-pleaded allegations of Red Oak s Complaint. IT IS SO ORDERED. Very truly yours, /s/ John W. Noble JWN/cap cc: Register in Chancery-K 2 See, e.g., In re Santa Fe S holders Litig., 669 A.2d 59, 69 (Del. 1995).
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