Morgan T. Zurn, Vice Chancellor

Date Submitted: November 10, 2021

David E. Wilks, Esquire Wilks Law LLC

William M. Lafferty, Esquire Morris Nichols Arsht & Tunnell LLP

Richard L. Renck, Esquire Duane Morris LLP

Samuel T. Hirzel, Esquire Heyman Enerio Gattuso & Hirzel LLP

Raymond J. DiCamillo, Esquire Richards, Layton & Finger, P.A.

Daniel B. Rath, Esquire Landis Rath & Cobb LLP

John Sensing, Esquire Potter Anderson & Corroon LLP

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Dear Counsel:

This letter opinion resolves the remaining motions to dismiss that I did not grant at oral argument on November 10, 2021. For the reasons set forth below, I conclude that this Court lacks personal jurisdiction over Rainbow Medical Ltd. ("Rainbow Medical") and Fischer Behar Chen Well Orion & Co. ("Fisher Behar"). Their motions to dismiss are granted.

I. BACKGROUND

On Rainbow Medical and Fischer Behar's motions to dismiss (the "Motions"), I draw the following facts from Plaintiffs' amended complaint (the "Amended Complaint") and the documents integral to it. I limit my recital of the facts to those necessary to resolve the pending Motions. In considering those Motions under Court of Chancery Rule 12(b)(2), I "may consider the pleadings, affidavits, and any 2 discovery of record." I accept the facts in the Amended Complaint as true, and draw all inferences in favor of Plaintiffs.

A. Nano-Retina, Its Investors, And Its Financing

Nano-Retina, Inc. ("Nano-Retina" or the "Company") is a Delaware corporation with its principal place of business in Herzliya, Israel. It develops advanced nanotechnology devices intended to restore functional vision to blind individuals. Rainbow Medical is an Israeli corporation with a principal place of business in Herzliya, Israel. Rainbow Medical incorporated Nano-Retina in 2009;under an operational services support agreement (the "Operational Services Agreement"), Rainbow Medical officers and employees provide management services to Nano-Retina for a fee. Fischer Behar is Nano-Retina's Israeli counsel, and advised Nano-Retina regarding its response to Plaintiffs' books and records 3 demand and certain other transactions at issue. Fischer Behar also served as counsel to Rainbow Medical.

Nano-Retina has been financed through convertible loan agreements. In 2012, Plaintiffs invested in Nano-Retina via a convertible loan agreement; in 2014, their debt converted to common stock. Rainbow Medical also invested in Nano-Retina via convertible loan agreements, and is currently Nano-Retina's controlling stockholder. Plaintiffs assert several of Nano-Retina's convertible loan agreements had identical conversion terms, but have been inconsistently enforced.Specifically, Plaintiffs assert a 2014 loan between Nano-Retina and Carlyle KFT ("Carlyle") with Rainbow Medical as a signatory (the "Carlyle Loan") was not converted as it should have been under the agreement's terms. Plaintiffs claim that 4 other investments joined to that loan and its conversion terms were converted, and that the disparate application of those terms is a breach of fiduciary duty.

Plaintiffs also take issue with two events in Nano-Retina's recent history. In August 2020, Rainbow Medical and Carlyle presented a term sheet to Nano-Retina's board of directors for a proposed financing (the "Carlyle Financing"). The board approved the Carlyle Financing in September 2020, but the proposal was withdrawn in March 2021. In 2020, Tikcro Technologies Ltd. ("Tikcro") "expressed serious interest in exploring" a reverse merger with Nano-Retina (the "Tikcro Proposal").The board rejected the Tikcro Proposal in October 2020.

B. Plaintiffs Investigate And Litigation Ensues.

On November 23, 2020, Plaintiffs Douglas Altabef and Ardyn Halter (the "220 Plaintiffs") submitted a books and records demand, seeking seventeen categories of documents for eleven purposes including investigating the Carlyle 5 Loan, the Carlyle Financing, and the Tikcro Proposal. On December 14, the 220 Plaintiffs filed a books and records action in this Court pursuant to 8 Del. C. § 220 (the "220 Action"). Represented by Delaware counsel, Nano-Retina produced documents in response (the "220 Production"). Fischer Behar communicated with the 220 Plaintiffs' Delaware counsel "and took positions on Delaware law" to facilitate Nano-Retina's 220 Production.

The 220 Plaintiffs requested an affidavit from Nano-Retina certifying the completeness of the Company's 220 Production. Defendant Yossi Cohen signed the affidavit as "the Chief Financial Officer of Nano-Retina, Inc.," and Fischer Behar witnessed the affidavit. Cohen is Rainbow Medical's CFO and provides CFO services to Nano-Retina under the Operational Services Agreement, but is not 6 formally Nano-Retina's CFO. Assured by the affidavit, the 220 Plaintiffs dismissed the 220 Action on February 5, 2021.

On February 9, Plaintiffs initiated this plenary action. Plaintiffs allege Nano-Retina: (i) did not enforce the Carlyle Loan and other loans; (ii) wrongly authorized payments under the Operational Services Agreement; (iii) wrongly retained Fischer Behar; (iv) wrongly approved the now-withdrawn Carlyle Financing; and (v) did not adequately consider the Tikcro Proposal. Rainbow Medical, Carl Zeiss AG, Fischer Behar, and Carlyle moved to dismiss Plaintiffs' initial complaint for lack of personal jurisdiction. 7

On June 16, 2021, Plaintiffs filed an Amended Complaint, adding Carl Zeiss Venture Beteilingungsgesellschaft mbH ("Carl Zeiss Venture") as a defendant.Plaintiffs also added allegations accusing Cohen, Rainbow Medical, Fischer Behar, Carlyle, and Ki Corporation Limited ("Ki") of conspiracy to cover up the failure to convert the Carlyle Loan withholding from the 220 Production, or destroying, documents associated with the loans that joined the Carlyle Loan.

Rainbow Medical, Carl Zeiss AG, Carl Zeiss Venture, Fischer Behar, Carlyle, and Ki (collectively, the "Entity Defendants") all moved to dismiss for lack of personal jurisdiction. The parties briefed the Entity Defendants' motions, and the Court heard oral argument on November 10, 2021. I granted the motions by Carlyle, Ki, Carl Zeiss AG, and Carl Zeiss Venture, and took Rainbow Medical and Fischer Behar's Motions under advisement. 8

II. ANALYSIS

Courts can only adjudicate cases in which they have personal jurisdiction over the parties. "Because a motion under Rule 12(b)(2) presents factual and legal questions, a court cannot grant it 'simply by accepting the well pleaded allegations of the complaint as true, because the pleader has no obligation to plead facts that show the amenability of the defendant to service of process.'" When a defendant moves to dismiss under Rule 12(b)(2), the plaintiffs have the burden to show a prima facie case of personal jurisdiction over a nonresident defendant by demonstrating "specific facts," and not "rely[ing] on mere conclusory assertions." "While such a showing is frequently made on the basis of documentary evidence and affidavits, and sometimes deposition or live testimony, in appropriate circumstances, a plaintiff also may make the necessary prima facie showing using only the facts alleged in the complaint." 9

State courts can exercise personal jurisdiction over a nonresident entity defendant by either general jurisdiction or specific jurisdiction. In both cases, Delaware courts apply a two-prong analysis to determine whether plaintiffs have satisfied their burden. First, courts consider whether the defendant has sufficient contacts for jurisdiction in view of Delaware's long-arm statute, 10 Del. C. § 3104."Second, [courts] must 'evaluate whether subjecting the nonresident to jurisdiction in Delaware violates the Due Process Clause of the Fourteenth Amendment (the so-called 'minimum contacts' requirement).'"

A. This Court Does Not Have Personal Jurisdiction Over Rainbow Medical.

Plaintiffs' Amended Complaint includes a single paragraph explaining why this Court has personal jurisdiction over Rainbow Medical: 10

Defendant Rainbow Medical is a company organized under the laws of Israel. Rainbow Medical is the largest stockholder of Nano-Retina, holds a majority of the seats on the Nano-Retina board, shares key officers with the Company and, together with its sister organizations in the Kirsh web of entities, Carlyle and Ki Corp., controls Nano-Retina. Rainbow Medical filed Nano-Retina's certificate of incorporation in Delaware (likely with the assistance of Fischer Behar) and, according to the Company's financial statements, claims Nano-Retina as a "subsidiary." By virtue of the foregoing, Rainbow Medical is the controlling stockholder of Nano-Retina and this Court can exercise jurisdiction over Rainbow Medical under 10 Del. C. § 3104 and the alter ego/conspiracy theory of jurisdiction.

Plaintiffs go on to allege a conspiracy among several defendants, including Rainbow Medical and Fischer Behar, to withhold documents in the 220 Production as a means to cover up prior breaches of fiduciary duty. In briefing, Plaintiffs argue the 220 Production is a Delaware act that supports specific jurisdiction. Plaintiffs also contend Rainbow Medical is the alter ego of Nano-Retina, a Delaware corporation, and therefore this Court can properly exercise personal jurisdiction over it.

Plaintiffs' answering brief in opposition to the Entity Defendants' motions (the "Answering Brief") developed additional theories. It introduces Rainbow 11 Medical's incorporation of Nano-Retina as another Delaware act supporting jurisdiction. Plaintiffs also argue for the first time in briefing that this Court has general jurisdiction over Rainbow Medical, "a holding company whose business is to form, incorporate, control and operate Delaware companies." Each of Plaintiffs' theories fails.

1. This Court Does Not Have General Jurisdiction Over Rainbow Medical.

General jurisdiction "grants authority to a state's courts to 'assert[] jurisdiction over a nonresident defendant on the basis of wholly unrelated contacts with the forum.'" In Daimler AG v. Bauman, the United States Supreme Court explained that courts can only exercise general jurisdiction over an entity defendant if the entity has one of a "limited set of affiliations with [the] forum [to] render [the] defendant amenable to all-purpose jurisdiction." Three forms of affiliation subject an entity defendant to general jurisdiction: (i) it is incorporated in the forum; (ii) it has its principal place of business in the forum; or (iii) its forum contacts "are so 12 continuous and systematic as to render [it] essentially at home" there. Rainbow Medical is not incorporated in Delaware and does not have its principal place of business here; it is an Israeli corporation that operates in Israel. Recognizing this, Plaintiffs rely on the third Daimler theory to assert general jurisdiction on the grounds that Rainbow Medical is effectively at home in Delaware. 13

In Genuine Parts Co. v. Cepec, the Delaware Supreme Court examined Daimler's discussion of this third avenue to general jurisdiction, which highlighted Perkins v. Benguet Consolidated Mining Co. as "the textbook case of general jurisdiction appropriately exercised over a foreign corporation that has not consented to suit in the forum." The defendant in Perkins was a company incorporated under the laws of the Philippines. "[The defendant] ceased its . . . operations during the Japanese occupation of the Philippines in World War II; its president moved to Ohio, where he kept an office, maintained the company's files, and oversaw the company's activities." The United States Supreme Court held the Ohio courts could exercise general jurisdiction over the defendant without offending due process because Ohio was the corporation's principal, if temporary, place of business. This "exceptional case" for exposing a foreign corporation to suit based on unrelated contacts requires a foreign corporation's "affiliations with the State [to be] so continuous and 14 systematic as to render [it] essentially at home in the forum State." It is a high bar that requires far more than doing business in the State. And from a practical perspective, "[a] corporation that operates in many places can scarcely be deemed at home in all of them."

In attempting to clear Daimler's high bar, Plaintiffs argue Rainbow Medical is at home in Delaware based on two Delaware cases that preceded Daimler.Plaintiffs argue that under these cases, Rainbow Medical is "at home" in Delaware because it directly or indirectly incorporated seven Delaware entities over twelve years. Plaintiffs assert "[t]he formation and operation of multiple Delaware 15 entities . . . is a recognized persistent course of conduct in Delaware sufficient to support general jurisdiction."

In ALTECH Industries, Inc. v. Al Tech Specialty Steel Corp., the United States District Court for the District of Delaware held that a defendant holding company engaged in a "persistent course of conduct in Delaware" where the "vast majority of [the defendant's] 82 subsidiaries [were] Delaware corporations formed, merged, or acquired under Delaware law" and the defendant, either personally or through an agent, "utilized the benefits of the Delaware corporation law" through merging its Delaware subsidiaries and filing various corporate documents in Delaware.Specifically, the defendant: (i) "incorporated at l[e]ast 35 subsidiaries in Delaware" over the course of seven years, (ii) amended certificates of incorporation for "at least 5 others," (iii) "regularly employ[ed] the Delaware corporation law to merge its subsidiaries," (iv) "through its agent, Corporation Trust Company, has filed and recorded all documents in Delaware necessary to consummate the mergers," and (v) "retained Delaware counsel to examine and advise with respect to the Delaware take-over statute." The District Court found "[t]hese activities considered in their 16 totality," under the then-prevailing standard, "comprise[d] a persistent course of conduct in Delaware [as] required by Section 3104(c)(4)."

In Saltz v. Brantley Management Co., Ohio resident and "serial incorporator" Robert Pinkas had a "decades long business" of forming nearly two dozen companies in Delaware. Two of those entities, for which he served as a board member, managed a series of private equity investment funds. "Pinkas has created several of these investment funds, and he has made several payments to Delaware's Secretary of State and the CT Trust Corporation to create these entities and to keep them alive." The defendant propped up each fund with two newly-formed Delaware limited partnerships, with a third Delaware entity serving as a general partner. The Superior Court held the defendant's decades-long scheme of forming Delaware companies and using them "to manage his other Delaware companies' 17 investments and generate fees" was "a persistent course of conduct through which the non-resident defendant create[d] a general presence in Delaware" that subjected the defendant to the Court's general personal jurisdiction.

Plaintiffs make their "at home" argument for the first time in their Answering Brief, accompanied by exhibits but not by any sworn affidavits. Plaintiffs have failed to demonstrate Rainbow Medical is "effectively at home" in Delaware. Rainbow Medical did not, as in Daimler's paradigmatic example of Perkins, effectively make a new home in a location other than its principal place of business.On the contrary, Rainbow Medical keeps an Israeli office and oversees its investments and the activities of its portfolio companies from Israel. Rainbow Medical's Israeli personnel manage its investments under agreements like the 18 Operational Services Agreement and the "Inter-Company Services Agreement," through which Rainbow Medical provides research, development, and operational support services to Nano-Retina and other portfolio companies. Rainbow Medical is at home in Israel, and so cannot be at home in Delaware.

Focusing on ALTECH and Saltz, their constitutional analyses predate Daimler's narrower standard and recognition that the "essentially at home" theory is for the "exceptional case." Saltz asked only whether the defendant had "purposefully established 'minimum contacts, '" and ALTECH asked only if a particular defendant "should reasonably have anticipated" defending a particular action. Both metrics are more lax than the Daimler standard, which requires nonresident defendants to have affiliations with a forum that are "so 'continuous and systematic' as to render [the defendant] essentially at home in the forum State." 19

Even assuming ALTECH and Saltz remain good law, Plaintiffs have failed to show that Rainbow Medical resembles the defendants in those cases. When evaluating general jurisdiction over a defendant with portfolio companies incorporated in different fora, Delaware courts have considered the proportion of entities in Delaware as compared to other jurisdictions. Plaintiffs point to seven of Rainbow Medical's portfolio companies. Two of those were incorporated before Rainbow Medical existed, and so their incorporation cannot be attributed to Rainbow Medical. The five Delaware entities Rainbow Medical formed represent a minority 20 of Rainbow Medical's investments, which are primarily in Israel. Two of these Delaware entities were voided and dissolved in 2013 and 2015, respectively, thereby leaving only three remaining channels of contact between Rainbow Medical and Delaware. These three corporations stand in contrast to the investment fund 21 scheme built on a scaffold of twenty-two Delaware entities in Saltz or the thirty-five entities in ALTECH. Incorporating five discrete Delaware portfolio companies, managed from Israel alongside other ventures in Israel, does not rise to the level of a "persistent course of conduct" to render Rainbow Medical "essentially at home" in Delaware.

Rainbow Medical is not "an exceptional case" with "continuous and systematic" Delaware affiliations that make it at home here, despite its foreign incorporation and principal place of business. Plaintiffs have failed to show a prima facie case of general jurisdiction. 22

2. This Court Does Not Have Specific Jurisdiction Over Rainbow Medical.

Plaintiffs also assert this Court has specific jurisdiction over Rainbow Medical. Plaintiffs argue Rainbow Medical was part of a conspiracy that affords specific jurisdiction. Alternatively, Plaintiffs claim this Court can exercise specific jurisdiction over Rainbow Medical under alter ego and ancillary jurisdiction theories.

To establish jurisdiction via a conspiracy, Plaintiffs must make a factual showing for each of the following five elements: (1) a conspiracy to defraud existed; (2) the defendant was a member of that conspiracy; (3) a substantial act or substantial effect in furtherance of the conspiracy occurred in Delaware; (4) the defendant knew or had reason to know of the Delaware act or that the non-Delaware acts would have an effect in Delaware; and (5) the act in, or effect on, Delaware was a direct and foreseeable result of the conduct in furtherance of the conspiracy. A plaintiff 23 properly alleges a conspiracy by asserting the existence of: "(1) two or more persons; (2) an object to be accomplished; (3) a meeting of the minds between or among such persons relating to the object or course of action; (4) one or more unlawful acts; and (5) damages as a proximate result thereof."

Specific jurisdiction requires that the claim arise out of a Delaware act. A conspiracy is not an independent jurisdictional hook: there must still be an anchoring Delaware act. "[T]he 'conspiracy theory' merely provides a framework with which to analyze a foreign defendant's contacts with Delaware." 24

In order to harmonize the conspiracy theory of jurisdiction with the United States Supreme Court's restructuring of personal jurisdiction, we must presume that the requirement that the conspiracy accomplish a "substantial act or effect" in the forum correlates with the Supreme Court's mandate that the defendant engage in forum-related conduct that is directly related to the specific claims at issue in the lawsuit.

Delaware's long-arm statute identifies several potential such acts:

As to a cause of action brought by any person arising from any of the acts enumerated in this section, a court may exercise personal jurisdiction over any nonresident, or a personal representative, who in person or through an agent:

(1) Transacts any business or performs any character of work or service in the State; [or]

. . . (3) Causes tortious injury in the State by an act or omission in this State[.]

Plaintiffs point to two Delaware acts by Rainbow Medical to anchor their conspiracy theory of personal jurisdiction: Nano-Retina's incorporation, and the 220 Production. Rainbow Medical incorporated Nano-Retina in 2009, three years before Plaintiffs invested and five years before they were stockholders.Incorporation may be a jurisdictionally significant act if it is part of a wrongful scheme, but Plaintiffs do not allege that. There is no nexus between Nano-Retina's 2009 incorporation and any of Plaintiffs' claims. 26

Plaintiffs' Answering Brief also asserted the deficient 220 Production was a jurisdictionally significant act under Section 3104(c)(1). In considering this argument, I first assume the 220 Production is, indeed, a Delaware act. I will also assume for the purposes of this analysis only that the 220 Production was deficient and should have included the missing loan documents. Even with these two favorable assumptions, Nano-Retina's 220 Production is not a jurisdictionally significant act that can anchor conspiracy jurisdiction over Rainbow Medical.

First, Plaintiffs attempt to impute Nano-Retina's 220 Production to its foreign stockholder, Rainbow Medical. (Readers should recall that Nano-Retina is the victim of the conspiracy, not a conspirator; Plaintiffs must impute Nano-Retina's 220 Production to a conspirator in order for the 220 Production to anchor conspiracy jurisdiction.) The Delaware long-arm statute extends personal jurisdiction over nonresident defendants who take Delaware acts "through an agent." Cohen signed 27 the affidavit of completeness the 220 Plaintiffs requested for Nano-Retina's 220 Production. He was Rainbow Medical's CFO, and provided financial services to Nano-Retina under the Operational Services Agreement and signed the affidavit indicating that role with Nano-Retina. Plaintiffs theorize Cohen signed the affidavit as Rainbow Medical's agent, not as Nano-Retina's.

While it is undisputed that Cohen wore two hats, "Delaware law respects corporate separateness." Action Cohen took facially on behalf of Nano-Retina, in a contractually compensated role, is not automatically imputed to Rainbow Medical merely because Cohen was also a Rainbow Medical officer. Plaintiffs have 28 offered nothing to substantiate their theory that Cohen was acting as Rainbow Medical's agent when he signed the Nano-Retina affidavit. Plaintiffs have not met their burden in response to Rainbow Medical's challenge; at this stage, Nano-Retina's 220 Production cannot be imputed to Rainbow Medical to anchor its conspiracy against Nano-Retina.

More fundamentally, Plaintiffs' claims do not arise out of a conspiracy to withhold documents, so that conspiracy cannot afford specific jurisdiction. While the missing loan documents may be evidence relating to Plaintiffs' claims, they are not the "source" of Plaintiffs' claims. Rather, the conspirators' alleged wrongs occurred before and inspired the 220 demand. After receiving the 220 Production 29 and affidavit of completeness, Plaintiffs dismissed the 220 Action and filed the plenary action. Plaintiffs did not argue Nano-Retina's 220 Production was deficient as part of a conspiracy until their Amended Complaint, and did not assert it anchored jurisdiction until their Answering Brief. On these facts, missing 220 documents do not serve as a jurisdictional hook for the very wrongs that inspired the demand. This Court does not have personal jurisdiction over Rainbow Medical under Section 3104 based on a conspiracy theory of personal jurisdiction. 30

Plaintiffs also assert this Court has specific jurisdiction over Rainbow Medical because it is the alter ego of Nano-Retina. To prevail, Plaintiffs must show the following:

(1) that the out-of-state defendant over whom jurisdiction is sought has no real separate identity from a defendant over whom jurisdiction is clear based on actual domicile or satisfaction of Delaware's long-arm statute; and (2) the existence of acts in Delaware which can be fairly imputed to the out-of-state defendant and which satisfy the long-arm statute and/or federal due process requirements.

The Amended Complaint falls well short of pleading the alter ego theory. There are no allegations that support an inference that Rainbow Medical is a "sham" 31 or that it "exist[s] for no other purpose than as a vehicle for fraud." To the contrary, Plaintiffs describe Rainbow Medical as "an Israeli company that invests in medical device companies, including Nano-Retina." Rainbow Medical invests in and supports several other companies separate and apart from Nano-Retina, as described above. Plaintiffs' limited allegation speculating that "Nano-Retina was effectively functioning as the alter-ego of Rainbow Medical and Carlyle" is not well pled. Plaintiffs argue in their Answering Brief that Rainbow Medical is Nano-Retina's alter ego because of their overlapping board members and management personnel, and Rainbow Medical's role "suppl[ying] Nano-Retina with clinical, regulation and business development support." This argument disregards both Rainbow Medical's contractual relationship with Nano-Retina and the entities' presumptive corporate separateness. As explained, Rainbow Medical has actual 32 Israeli operations. Plaintiffs "must do more than plead that [Rainbow Medical] is [Nano-Retina's] alter ego . . . in conclusory fashion in order for the Court to disregard their separate legal existence."

Plaintiffs dedicate one paragraph to their final argument that "the Court may exercise ancillary jurisdiction and adjudicate all claims as a matter of fairness and efficiency" "to the extent the Court determines that one of more of [Plaintiffs'] claims is not directly tied to the jurisdictional act[.]" The Court may exercise its discretionary ancillary jurisdiction over a nonresident defendant on a claim where it would not have personal jurisdiction over that nonresident defendant, if that claim is sufficiently related to a different claim against the nonresident defendant over which the Court does have personal jurisdiction. Ancillary jurisdiction is inapplicable 33 here as this Court does not have personal jurisdiction over Rainbow Medical in any capacity.

Because there is no statutory basis for specific jurisdiction over Rainbow Medical, I need not reach the second question under the Due Process Clause of the Fourteenth Amendment.

Finally, I decline to order jurisdictional discovery. "Where the plaintiff's claim is not clearly frivolous, the . . . court should ordinarily allow discovery on jurisdiction in order to aid the plaintiff in discharging that burden." "[I]f the plaintiff identifies a non-frivolous nexus connecting the defendant to Delaware, a court 'should allow some discovery for the limited purpose of' confirming that link. But the word 'non-frivolous' is critical." "If the proffered jurisdictional tie lacks a legal or factual basis, jurisdictional discovery on it will be denied as futile." 34 Though uncommon, courts do require plaintiffs to attempt to make a prima facie showing of personal jurisdiction when plaintiffs' "assertion of personal jurisdiction lacked the minimal level of plausibility needed to permit discovery to go forward." Plaintiffs have not met this relatively light burden. The lack of facts in Plaintiffs' complaint and Amended Complaint make any claim of personal jurisdiction over Rainbow Medical frivolous and unworthy of jurisdictional discovery.

B. This Court Does Not Have Personal Jurisdiction Over Fischer Behar.

Plaintiffs press their conspiracy jurisdictional theory for Fischer Behar as well. Plaintiffs assert Fischer Behar's role assisting Nano-Retina in its 220 Production, and witnessing its affidavit of completeness, are Delaware acts by counsel in furtherance of a conspiracy. For the reasons I have explained, the 220 Production fails to anchor Plaintiffs' alleged conspiracy in Delaware because it lacks a nexus to Plaintiffs' cause of action and does not form a source of the claim. 35 Plaintiffs also allege Fischer Behar emailed with and wrote letters to Plaintiffs' Delaware counsel regarding the 220 Production, but communications with Delaware counsel, without more, are not jurisdictionally significant acts.

Nor have Plaintiffs pled facts that support exercising personal jurisdiction over counsel as part of a conspiracy. In Sample v. Morgan, a "highly unusual case," this Court exercised personal jurisdiction over counsel defendants who "directly transacted business in Delaware for purposes of § 3104(c)(1)" because they "engaged in concerted activity . . . to entrench and enrich the Top Managers at the unfair expense of [the company] and its stockholders" by "prepar[ing] and sen[ding] the Certificate Amendment to CSC in Delaware for filing with the Secretary of State" as an element of the entrenchment scheme. This is far from that case: 36 Plaintiffs allege only that Fischer Behar advised on the 220 Production and witnessed the affidavit of completeness. While Plaintiffs also allege Fischer Behar advised Nano-Retina "[i]n connection with various transactions or proposed transactions," it has not alleged "acts or omissions in this State" to satisfy a finding of conspiracy jurisdiction under Section 3104(c)(3).

At bottom, Plaintiffs have failed to make a prima facie case that Fischer Behar committed a Delaware act that formed the source of Plaintiffs' claims. Consequently, this Court cannot exercise personal jurisdiction over Fischer Behar under Section 3104. I cannot exercise ancillary jurisdiction over Fischer Behar because this Court does not have personal jurisdiction over Fischer Behar in any capacity. As above, I need not determine whether exercising personal jurisdiction over Fischer Behar would violate Due Process. And in the absence of "factual allegations that suggest with reasonable particularity the possible existence of the 37 requisite contacts" between Fischer Behar and Delaware, I find that jurisdictional discovery is futile.

III. CONCLUSION

The Motions are GRANTED. Plaintiffs and the defendants who answered the Amended Complaint shall confer and submit a stipulated scheduling order and discovery plan.

Sincerely,

Morgan T. Zurn, Vice Chancellor 38