Whittington  v. Dragon Group LLC, C.A. No. 2291-VCP (Del. Ch. Feb. 11, 2011).

Issue Addressed:

Should the Court of Chancery grant a Motion for a Second Amendment to an Answer and Counterclaim in this almost decade-long saga involving many court decisions and a tortuous procedural history with appeals to the Delaware Supreme Court and back twice.  See many prior summaries of decisions in this long-running internecine battle, which provide the backstory,  here.

Overview of Court’s Reasoning

Based on Chancery Rule 15(a), the Court denied the motion for three main reasons:

i)    Too late.  They could have argued in the alternative at beginning of this case, but are just raising a new issue for the first time now.

ii)    Futile:  The Supreme Court’s latest decision in this case creates a “bright line test” that creates “a contract under seal” simply by placing the word “seal” next to a signature on a contract, regardless of any contrary intent to form contract under seal. Thus, their new argument would fail if allowed.

iii)    Prejudice – Plaintiff has been waiting five years to have the Court hear this specific case on the merits.