Tanyous v. Banoub

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COURT OF CHANCERY OF THE STATE OF DELAWARE 417 SOUTH STATE STREET DOVER, DELAWARE 19901 TELEPHONE: (302) 739-4397 FACSIMILE: (302) 739-6179 JOHN W. NOBLE VICE CHANCELLOR April 26, 2012 George H. Seitz, III, Esquire Seitz, Van Ogtrop & Green, P.A. 222 Delaware Avenue, Suite 1500 Wilmington, DE 19899-0068 Re: Via LexisNexis File & Serve and First Class Mail Mr. Medhat Banoub Ms. Mariam Banoub 30 Jonathan Drive Newark, DE 19702-6103 Tanyous v. Banoub C.A. No. 3402-VCN Date Submitted: January 24, 2012 Dear Mr. and Mrs. Banoub and Mr. Seitz: A Court Rule 5(g)(4) is being filed. The Defendants have sought leave to file a counterclaim. The Plaintiffs oppose that request and seek dismissal of the counterclaim, primarily because several of the claims date back a decade and, thus, should be time-barred. The Plaintiffs seek an accounting regarding the operations of Happy Child World from Tanyous v. Banoub C.A. No. 3402-VCN April 26, 2012 Page 2 viewed as a setoff in the nature of an affirmative defense. Defen In light of the -represented litigants, a certain leniency should be extended to them with regard to pleading standards. That would bring them within the scope of the last sentence of Court of Chancery Rule 8(c) which authorizes the Court to treat a counterclaim which perhaps should have been designated as a defense as if it had been properly designated. Litigating facts that occurred a decade ago is not something anyone should aspire to. The Plaintiffs, however, are seeking to do that; no real reason has been Defendants. From the inherent nature of an accounting, the absence of the prejudice that the Plaintiffs might otherwise suffer militates against preclusion Tanyous v. Banoub C.A. No. 3402-VCN April 26, 2012 Page 3 based on the doctrine of laches.1 for leave to assert a counterclaim is granted.2 An implementing order accompanies this letter. When we last gathered, there were extended discussions regarding how this matter should proceed. Mr. Seitz indicated that his clients were interested in moving for summary judgment on a number of, perhaps five, issues. Although I am somewhat skeptical, given the nature of this case and its history, that summary judgment is a procedural device likely of success, I will not deny Mr. Seitz the opportunity to seek that relief on behalf of his clients. I ask that Mr. Seitz and the Defendants confer to propose a schedule for any submittals that remain necessary if that is the course of conduct chosen. If Mr. Seitz decides not to pursue summary judgment, I request that he advise Chambers. April 24, 2012, that this matter be assigned to a Master. For several reasons, that 1 See Petroplast Petrofisa Plasticos S.A. v. Ameron Intern. Corp., 2011 WL 2623991, at *14 (Del. Ch. July 1, 2011) laches defense, a defendant must show that: (1) the plaintiff had knowledge of his claim; (2) he delayed unreasonably in bringing that claim; and (3) 2 Leave to amend is generally freely granted. Ct. Ch. R. 15(a). Denial is appropriate if the claim to be asserted would fail for any of the reasons set forth in Court of Chancery Rule 12(b)(6). This would typically include a time-bar. Tanyous v. Banoub C.A. No. 3402-VCN April 26, 2012 Page 4 req matter has an extended and convoluted history. Any reassignment would most part, fact intensive. Because any decision reached by a Master would be subject to de novo review, not only of her conclusions of law but also of her findings of fact,3 the possibility of repetitive and inefficient proceedings seems too likely. I also may be unpersuaded that any further discovery would be productive, but I cannot make that decision at this point. I also note that there may be a fully complied with, and discovery which has not yet been served. Very truly yours, /s/ John W. Noble JWN/cap cc: Register in Chancery-K 3 See DiGiacobbe v. Sestak s findings-both factual and legal-is de novo. ). standard of review for a