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denying reargument and stating, as to one of the movant's contentions, that "[t]his argument was rejected in the Opinion, albeit implicitly"
Summary of this case from Neurvana Med., LLC v. Balt U.S., LLCOpinion
C.A. No. 11774-CB
01-13-2017
IAC SEARCH, LLC, Plaintiff, v. CONVERSANT LLC (f/k/a VALUECLICK, INC.), Defendant
ORDER DENYING PLAINTIFF'S MOTION FOR REARGUMENT
WHEREAS, on November 30, 2016, the Court issued a memorandum opinion (the "Opinion") dismissing Counts I and III of the Complaint for failure to state a claim for relief;
See IAC Search, LLC v. Conversant LLC, 2016 WL 6995363 (Del. Ch. Nov. 30, 2016). Capitalized terms not defined herein have the same meaning as used in the Opinion.
WHEREAS, Count III of the Complaint asserts that ValueClick breached Section 3.27 of the Agreement, which provides that ValueClick and the Transferred Group complied in all material respects with the Third Party Contract, by engaging in email marketing in violation of Section 2.2(a) of the Third Party Contract;
WHEREAS, on December 7, 2016, IAC filed a motion for reargument under Court of Chancery Rule 59(f) concerning the dismissal of Count III (the "Motion"), to which ValueClick filed an answer in opposition on December 14, 2016;
IT IS HEREBY ORDERED, this 13th day of January, 2017, that:
1. "A motion for reargument under Court of Chancery Rule 59(f) will be denied unless the court has overlooked a controlling decision or principle of law that would have controlling effect, or the court has misapprehended the law or the facts so that the outcome of the decision would be different." A motion for reargument is not a mechanism to "relitigate claims already considered by the court," or to make new arguments. IAC thus bears "a heavy burden on a Rule 59 motion."
Those Certain Underwriters at Lloyd's, London v. Nat'l Installment Ins. Servs., Inc., 2008 WL 2133417, at *1 (Del. Ch. May 21, 2008).
In re ML/EQ Real Estate P'ship Litig., Consol., 2000 WL 364188, at *1 (Del. Ch. Mar. 22, 2000) (Strine, V.C.).
Am. Legacy Found. v. Lorillard Tobacco Co., 895 A.2d 874, 877 (Del. Ch. 2005); see also inTeam Assocs., LLC v. Heartland Payment Sys., Inc., 2016 WL 6819734, at *2 (Del. Ch. Nov. 18, 2016) ("A party may not present a new argument for the first time in a motion for reargument. Thus, the argument is waived, and the motion for reargument is denied."); Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 975581, at *1 (Del. Ch. Mar. 4, 2010) (argument not raised at any point before motion for reargument waived); Oliver v. Boston Univ., 2006 WL 4782232, at *1 (Del. Ch. Dec. 8, 2006) (internal quotations omitted) ("[N]ew arguments that have not previously been raised cannot be considered for reargument."); Filasky v. Von Schnurbein, 1992 WL 187619, at *1 (Del. Ch. July 29, 1992) (same).
ML/EQ, 2000 WL 364188, at *1.
2. IAC advances essentially two grounds for reargument. For both grounds, IAC improperly seeks to rehash arguments the Court already considered and rejected in its Opinion, or to raise new arguments IAC failed to raise before.
3. First, IAC suggests it satisfied Delaware's notice pleading standard for Count III simply by referencing the Third Party Contract as the basis for a breach of Section 3.27 of the Agreement and that it did not need to specify a particular provision of the Third Party Contract that allegedly was breached. This argument was rejected in the Opinion, albeit implicitly. To be explicit, when asserting a claim for breach of an express provision of a contract, which in this case ultimately turned on the terms of the Third Party Contract, a plaintiff at least must identify a provision of the relevant contract that allegedly was breached and provide a basic explanation why a breach occurred in order to show that the pleader is entitled to relief and to state a reasonably conceivable claim. Otherwise, the defendant is not fairly placed on notice of the nature of the plaintiff's claim and is left to guess in the dark.
See Motion ¶¶ 4-6.
4. Second, IAC asserts that "the Third Party Contract's prohibition of email marketing would be evident to any party familiar with the Third Party (such as ValueClick), its contractual practices and internet search advertising in general." In support of this argument, IAC relies on Section 2.2(e) of the Agreement, certain defined terms used in that provision, and Sections 2.3 and 3.2 of the Agreement. Critically, however, IAC never identified any of these provisions or attempted to explain their relevance with respect to Count III either in its Complaint, during briefing, or at argument. In other words, IAC is now seeking—improperly—to advance new arguments in support of Count III that it failed to make before and thus waived.
Motion ¶ 11.
Motion ¶¶ 12-20.
IAC only referenced Section 2.3 with respect to Count IV of the Complaint, which asserts a claim for Breach of Section 3.27 of the Agreement as to the Third Party's policies and procedures. See Am. Compl. ¶ 92; Def.'s Ans. Br. 42 (citing Compl. ¶¶ 91-95); Tr. at 77-78, 103 (Sep. 20, 2016).
5. The sole provision of the Third Party Agreement identified in the Complaint as relevant to Count III was Section 2.2(a). For the reasons explained in the Opinion, the Court concluded that IAC failed to show it is reasonably conceivable that Section 2.2(a) prohibited email marketing. With respect to the Court's analysis of Section 2.2(a), the Motion does not identify any controlling decision or any principle of law that would have a controlling effect that the Court overlooked, or any law or facts that the Court misapprehended such that the outcome of the decision would have been different.
See Am. Compl. ¶ 84; Def. Ans. Br. 42 (citing Compl. ¶¶ 82-90).
See IAC, 2016 WL 6995363, at *9. --------
6. For reasons stated above, the Motion is denied.
/s/_________
Chancellor Dated: January 13, 2017