IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

APPLIANCE RECYCLING CENTERS OF AMERICA, INC. ,

Plaintiff,

v. RECLEIM LLC,
Defendant. ) ) ) ) ) C.A. No. N 18 C

- 08

- 272 EMD ) ) ) ) ) )
Submitted: December 1 , 2020 Decided: March 29 , 2021 Upon Defendant’s Motion to Dismiss

GRANTED
Geena Khomenko George, Esquire, The Law Office of Geena Khomenko George LLC , Wilmingto n, Delaware , M ichael H. Rosenthal , Esquire, Lur ie & Broudy LLC, Exton, Pennsylvania. Attorney s for Plaintiff App liance Recycling Center s of America, Inc.
Trav is S. Hunter, E squire, Alexandra M. Ewing, Es quire, Richards , Layton & Fin ger, P.A. , Wilmington, Delaware. Attorney s for Defendant Recl eim LLC

. D AVIS, J.
I. IN TRODUCTION
This civil action aris es out of a contract. Plaintiff A p pliance Recycling Centers of America, Inc. (“ ARCA ”) ha s brought a sin gle breach of contract claim a gainst Defendant
Recl eim, LLC (“ Recleim ”) for breach of contract

. ARCA alleges that Recleim solicited
ARCA’s customer in violation of the agreement between the parties. ARCA alleges that
Recleim solicited ARCA’s customer when Recleim’s subcontractor file d a lawsuit agains t
ARC A for violations of the Lanham Act

.2

Upon motion, the Court dismissed ARCA ’ s in iti al c omplaint with leave to file an amended compl aint

. ARCA filed its amended comp laint (the “ Amended Complaint ” ) on February 26, 2019

. Reclei m ha s filed a motion to dismiss the A mended C omplaint (the “ Present Motion”)

. Recleim contends that ARCA did not correct fun damental fla ws with ARCA ’ s breach of contract
claim

. In support, Recleim makes four arguments: (i) the Amended Complaint pleads no fac ts regarding Recleim ’ s involvement with a separate suit (the “ Key Action ” ) filed by Key Recycling , LLC ( “ Key ” ) against ARCA; (ii) ARCA fails to p r operly plead a breach of contract agains t Rec leim ; (iii) ARCA fails to plead damages; and (iv) the Noerr

- Pen ni ngton doctrine bars
ARCA from interfering with Key ’ s right to bring suit against ARCA

. For the reas ons set forth below, the Pres ent Mot ion is DENIED

. The Court, however,
will ini tially limit discovery to the issue of whether Key acted a s Recleim ’ s age nt when filing the Key Action. After that limited discovery is complete, the Court will readdress the issue of

agency. II. BACKGROUND
A. F ACTUAL B ACKGROUND
Recleim is a Delaware limited liability c ompany 1 that provides rec ycling , resource
recovery , and disposal of refrigerators , air conditioning units and other large appliances

. 2
Recleim has its princ ipal place of business in Atlanta, Georgia. 3 ARCA is a Minnesota corporation with its principal place of business in Minneapol is, MN. 4 ARCA is also a

co mp etitor o f Recleim

.

1 Am. Compl. ¶ 2. 2 Id

. ¶ 11

. 3 Id

. ¶ 2. 4 Id

. ¶ 1.3

O n August 14, 2017, Recleim and ARCA entered into an asset purchase agreement ( the “Letter Agreement”), pursuant to which Recleim acquired some of the assets of ARCA ’s subsidiary

. 5 Paragraph 6 of t he Letter Agree ment has a non

- solicitation pr ovision :
Non

- Solicitation Agreement

. Recleim and Recleim PA, jointly and severally, coven ant and agree that, for three years following the Closing Date, they will not individually or collectively solicit customers of ARCA for th e purpose of providing or selling refrigerator recycling services. 6
On December 12 , 2017, ARCA filed a complaint wi th this Court 7 arguing that Recleim had violated “Section 6 of the Letter Agreement by soliciting ARCA’s customers.” 8 On March 28, 2018, Re cleim and ARCA entered i nto a settlement agreement (the “Settlement Agreement”)

. 9 Under the Settl ement Agreement, ARCA granted Recleim and its “agents, and representatives” a release from,

... any and all actions, causes of action, suits, disputes, delays, trespasses, dama ges, li abilities, claim s, proceedings and demands of every kind and character, direct and indirect, known or unknown, individual or class asserted or unasserted, fixed or contingent, accrued or unaccrued in law or in equity, actionable in any jurisdiction worldwi de that [ ARCA] n ow ha [s] , had at any time h eretofore, or hereafter may have against [ Recleim and its agents and representatives], or any of them, resulting from, arising out of, or relating to Recleim’s purchase of [ARCA’s subsidiary ] including with out lim itation . . . an y claims or causes of actio n that were asserted or could have been asserted against [ Recleim and its agents and representatives] in the Delaware Action [Case No. N17C

- 12

- 155 ALR]

. . . . 10
ARCA and R e cl eim exp res sly released all known and u nknow n claims. 11

5 Id

. ¶ 3, Ex. B

. 6 Id

. ¶ 3, Ex. B at ¶ 6. 7 Case No. N17C

- 12

- 155 ALR. 8 Am. Com pl. ¶ 6. 9 Id

. ¶ 7 ; see also De f. Mot. to Dism iss at Ex. 2

. Although not a n exhib it to the Amended Complaint, ARCA pleads the existence of the existence of the settlement as part of its allegat ion s in the Ame nded Complaint. 10 Settlement Agreemen t at ¶ 4. 11 Id

. at ¶ 4. 1.4

In 2016, Recleim and ARCA bid on a project for PECO Energy Co. (“PECO”)

. 12

R ecleim bid on the project with a subcontractor Key , LLC (“Key ”)

. Key is a Pennsylvania LLC with its principal place of business in Po ttstown, PA. PECO awarded ARC A the project. According to the Amended Complaint, Rec leim subsequently contacted Key and

a ut hori zed Ke y (as R ecleim ’ s agent) to file suit against ARCA. 13 Then, o n April 18, 2018, Key
sued ARCA in th e United States Distric t Court for the Eastern Dis trict of Pennsylvania (the “Key Action”)

. 14 In the Key Action, Key argued that A RCA violated the Lanham Act

. Specifically, Key alleged that ARCA engaged in anti

- competitive behavior because ARCA deceived
customers and underbid competito rs in recycling projects by failing to comply with federal environmental regulations in its disposal of appliances. 15 Key noted that ARCA had misrepresented to PECO that it complied with environmental regulations in order to win its bid. 16 The Key Action su rvived ARCA’s motion to dismiss. 17 ARCA subsequently prevailed at trial i n the Key Action. 18
ARCA contends tha t Key has a “ well

- established ” agen cy relationship with Rec leim prior to filing the Key Action. 19 The Amended Complaint alleges that Rec leim auth ori zed Key

to file the Ke y Action. 20 ARCA claims that the Key Action is Rec leim ’ s attempt to disrupt
ARCA ’ s business relationship with PECO and cause PECO to disco ntinue using ARCA ’ s services. 21

12 Am. Compl. ¶ 7. 13 I d

. ¶ 9. 14 See Id

. ¶ 9 , Ex. C

. 15 Se e Id ., Ex. C at ¶¶ 38

– 77. 16 Id. 17 Key Recycling, LLC v. Appliance & Recycling Ctrs. of Am ., 2018 WL 4615856, at *5 (E.D. Pa.). ARCA has advised the Cour t that ARCA prevai led in the Ke y Action. 18 D .I. No. 42. 19 Am. Compl. ¶ 14. 20 Id

. ¶ 13. 21 I d

.5

The Amended Complaint makes multiple all ega tions regarding the principal

- agent
rela tionship between Key and Recleim. 22 ARCA contends that the Key Ac ti on is a “ so licitation ”
und er the terms of the A greement beca use the Key Action is “

... an effort to gain business from
PECO at ARCA ’ s expense. ” 23
B. P ROCEDURAL B ACKGROUND ARCA filed a complaint ag ainst Recleim on September 1, 2017 (the “Co mplaint”). 24 ARCA alleges that Recleim breached the Letter Agreement by soliciting PECO through Key,
R ecleim ’ s agent

. ARCA argues that Recleim solicite d PECO because its agent Key filed a lawsuit against ARCA so t hat PECO would terminate ARCA’ s contract and award the contract to Recleim and Key. Finally, ARCA argues that it is entit led to damages , attorney s ’ fees under the Letter Agreement, and requests a trial by a jur y. Recle im mov ed to dismiss (t he “ O riginal M otion ” ) the Com pl a int o n N o v e m b e r 1 , 2018

. 25 O n December 3 , 2018, ARCA filed their opposition to the O riginal Motion

. 26 On
Dece mber 14, 2018, Recleim f iled a re ply. 27 The Court held a hearing on the Ori ginal Motion on
Fe bruary 4, 2019

. 28 At the end of the hearing, the Court granted the Origi nal Motion wit hout

p rejudice

. 29 T he Court gave ARC A twen ty ( 20) days to am end the Complaint. 30
O n February 26, 2019, AR CA filed the Amended Complaint

. 31 I n the Amended Complaint, ARCA makes additional a gency allegations, demands a jury trial , and withdraws its
demand for att orney s ’ fees under the Letter Agreement. Recl ei m f iled the Pr esent Moti o n on

22 Id

. ¶¶ 9, 13

- 1 4, 1 6

- 17, and 19. 23 Id

. ¶ 18. 24 D.I. No. 1. 25 D.I. No. 8 26 D.I. No. 15

. 27 D.I. No. 16

. 28 D.I. No. 21. 29 D.I. No. 22. 30 D.I. No. 42. 31 D.I. No. 23.6

April 1, 2019

. 32 Rec leim raises essentia l l y the same arguments it made in the Ori ginal Mo tion.
O n May 1 0, 2019, ARCA filed their opposition to the O riginal Motion . On May 28, 2019 , Recleim f iled a re ply. 33 The part ies then aske d the Court to stay any f ur ther action on the Present
Motion until the conclusion of the Key Action

. 34 The Co urt stay ed action on the Pr esent Motion

on July 16, 2019. 35 On July 7, 2020, A RCA ’ s counsel informed the Court that ARCA prevailed in the Key
action trial

. 36 ARCA did not pr ovide wh e ther any discovery in the K ey Action uncovered a principal

- agent relationsh ip betw e en Reclaim and Ke y, or that the Ke y Action was determi ned to
be a shame lawsuit. 37 ARCA did not ask for fur ther br iefing. ARCA just asked the Court to lift
the s ta y an d issue a ruling on the Present Motion. 38 On November 30, 2020, the Court lifte d the

st ay and took the Present Motion unde r advisement. 39
III. S TANDARD OF REVIEW Upon a motion to dismiss, the C ourt (i) acce pts all well

- pleaded factual allega tions as true, (ii) accepts even vague allegations as well

- pleaded if they give the opposing part y notice of the claim, (iii) dra ws all reasonable inferences in favor of the non

- moving party, and (iv) only
di smisses a cas e where the plaintiff would not be entitled to recover under any reasonably
conceivable set of circumstances. 40 However, the court must “ignore conclusory allegatio ns that lack specific supporting factual allegations.” 41

32 D.I. No. 28. 33 D.I. No. 32. 34 D. I. No. 35. 35 D .I. N o. 36. 36 D.I. No. 42. 37 Id

. 38 Id

. 39 D.I. No. 43. 40 See Centr

al Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC , 227 A.3d 53 1, 536 (Del. 2011); Doe v. Cedars Academy, No. 09C

- 09

- 136, 2010 WL 5825343, at *3 (Del. Supe r. Oct. 27 , 2010). 41 Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998).7 IV. DISCUSSION
A. AR CA HAS , AT THIS TIME , SUFFI CIENTLY PLE D A BREACH OF THE L ETTER A GREEMENT . Both pa rties agree that the Settlement Agreement disclaims liability for Recleim’s
conduct before March 2018. At issue here is only the activity after the S ettlement A greement.
At the motion to dismi ss stage, a plaintiff must “plead[] facts that support an inference of agency.” 42 Actual authority is authority which a principal expressly or implicitly gra nts to a n agent. 43 Apparen t authority is authority which a principal knowingly or negligently permits an agent to exercise, or which the p rincipal holds the agent out as possessing. 44 “ In order to hold a defendant liable under apparent authority, a plaintiff must sho w reliance on in dicia of authority originated by principal, and such reliance must have been reasonable. ” 45 The Court will deny the
Present Motion be cause, at this early stage, ARCA has ple d a claim for breach of contract. The
Court understands Recleim ’ s arguments but f inds, for now, that Reclaim takes too narrow a position on defining Recleim and solicitation. Recleim argues that t he Letter Agreement’s non

- solicitation clause binds only “Recleim and Recleim PA,” not their agents or other related pa rties. I n addition, Recl eim argues that
ARCA has not pleaded f

acts alleging any agency relationship between Recleim and Key.
Recleim c ites several cases, which discuss agency relationships between parent and subsidiary companies to support its c ontention.
In res p onse, ARCA argue s that whether an agency relationship exists is a question of fac t
that the Court should not decide at the mot ion to dismiss stage. 46 ARCA argues that Key is

42 Eni Holdings v

. Kbr Group Holdings , 2013 WL 618326 a t *13 (Del. Ch. Sept. 27, 2013). 43 Billops v. Magness Constr. Co. , 391 A.2d 196, 197 ( Del .1978)

. 44 Henders on v. Chantry, 2002 Del

. Ch . LEXIS 14, at *14, 2002 WL 244692 ( Del

. Ch . Feb. 5, 20 02). 45 Billops, 391 A.2d at 198. 46 Fisher v. Townsend, Inc. , 695 A.2d 53, 61 (Del. 1997 ).8

Recleim’s agent because Key and Recleim have worked together for a long peri od of ti me. In addition, ARCA argues that Key , in the Ke y Ac tion, desc ri be d its elf as in a n agency relationship
with Recleim becaus e Key state d that 1) Recleim is uniquely situat ed to service PECO, and 2 ) Key would have provided services to PECO as part of Recleim’s b id to PECO. 47 Finally , ARCA alleges that Recl eim authorized Key , as it s agent, to file the Key A ction

. 48
The Cour t find s that, at this stage of the proceedings, ARCA has s ufficiently plead facts to suppo rt an inference that Key is Recleim’s age nt. Delaware follows the Restate ment (Second) of Agency 49 in determining whether two parties have formed a principal and agen t rela tionship.
One of the factors listed in the Restatement is “wh ether or not the parties believe they are creating the relation of master and servant.” 50 The fac tual record has not been developed on this issue. The Amended Complaint does make several agency allegations th at would sa ti sfy the
standard

. The Court admits it is somewhat unpersuaded by ARCA ’ s claims regarding the agency rela tionship. Key identifies itself as a “supporting participant” to Recleim’s bid to PECO in the Key Action , rather than as an age nt. In addition, Recleim never he ld itself out a s Key ’ s principal. ARCA did not p le ad any fact supporting an indicium of control tha t Recleim exerts
over Ke y. Finally, ARCA and Key engage d in discovery in the K ey Action, but ARCA does not allege any facts discovered in that litigation that show Recleim and no t Key was th e actual party

in

- interest. In similar cases, courts have dismissed claims of agency re lationships where the

47 Am. Compl. ¶¶ 11, 12. 48 Id

. ¶ 9. 49 Restatement (Second) of Agency § 220 ( 1958). 50 Id.9

plaintiff alleged that a single contractual provision showed control. 51 Ho wever, the ex istence of

an agency relationship is a factual issue

. The Court finds, for now, that ARCA has suffic iently plead the existence of an agency relationship be tween Key and R ecleim as to the filing of the Key Action. Rec leim argues that
the L ette r A g reement only applies to Recleim and Re cleim P A . However, a co rpo ration like
Rec leim can not avoi d responsibility under the Letter Agreement by using an agent

. A

c o r poration is an artificial being

. 52 As such, a corporation can only act through its age nts

. 53 At this stage of the action, ARCA has plea d agency and put Rec leim on notice of the claim.
ARCA also argues that it has sufficiently pleaded a claim for a brea ch of the non

solicitation provision of the Letter Agreement. ARCA argues that Black’s L a w D ic tionary defines “solicit” to mean “an attempt or effort to gain business.” Key, acting as Recleim’s agent,
has purpor ted ly solicited PECO because Key has attempted to gain AR CA ’s business with PECO. Specifically, ARCA argues that in the Key Complaint , Key alleged that ARCA violated environmental regulations and misrepresented its services to PECO, so that the court would order ARCA to stop providing its services to PECO. Then, K ey and Recl eim would be able to gain
PECO’ s business. In response, Reclei m argues that fili ng a lawsuit is not solicitation. Recleim cites several cases that have followed narrow interpretations of restrictive covenants to avoid restricting p arties’ con tr actual free dom. 54 In addition, Recleim arg ues that the non

- solicitation

p rovision only prohib its Recleim from soliciting ARCA’s customers “ for the purpose of

51 See WaveDivision Holdings, LLC v. Highland Capital Mgmt., L.P., 49 A.3d 1168 , 1177 (Del. 2012) (finding that a plaintiff did not sufficiently allege an agency relatio nship when the plaintiff cited a single provision in a contract indicating control). 52 In re Dole Food Co. , Inc. St ockholder Litig. , 11 0 A.3d 1257, 1261 (Del. Ch. 20 15). 53 See E. Shore Nat ural Gas Co. v. Glasgow Shopping C tr

. , 200 7 W L 3112476, at *3 (Del. Super. Oct. 3, 2007). 54 See, e.g. , Concord Steel, Inc. v. Wilm. Steel Pro cessing Co

. , 2008 WL 902406, at *6 (Del. Ch.) (“Delaware courts construe restrictive covenan ts narrowly as written.”).10

providing or selling refrigerator recycling services .” Recleim argues that the Key Action was file d to prevent PECO from violating the law, r ather than to stop ARCA from selling its recycling services. Finally, Recleim argues that the Noerr

- Pennington doctrine allow s Key to exercise its right to file an action in front of a court.
The Noerr

- Pennington doctrine was established by the U.S. Supreme Court in two
antitrust ca ses
. 55 The doctrine hol ds “ that liability cannot be imposed for damage caused by inducing legislative, administrative, or judicial action.” 56 In the Noerr and Pennington cases, the
U.S. S u preme Court found that the First Am endment allowed competitors to infl uence government actio n regardless of their motive. For example, competitors could file an action against one another for violations of federal laws, even if the competitors’ motive in filing the

ac tion was anti

- competiti ve or unethical. The Supreme Cour t limited its fin ding by stating that influencing government action is impermissible when it “is a mere sham to cover what is actually nothing more than attempt to interfe re directl y with the bus iness relationships of a competitor

. ” 57 A litigant must ma k e more than conclus ory allegations that an opposing party has
filed sham litigation against the litigant. 58 This is important to protect the opposing party’s rights to petiti on the go ve rnment

. 59 Cour ts have also extended the application of the Noerr

- Penningt on doctrine from business competitors only filing claims based on federal laws to business

55 Established by the U.S. Supr eme Court in two cases

- Eastern R.R. Preside nt's Conference v. Noerr Motor Freight, Inc. (“Noerr”), 365 U.S . 127, 81 S. Ct. 5 23, 5 L.Ed.2d 464 (1961) and United Mine Workers of America v. Pennington , 381 U.S. 657, 85 S. Ct. 1585 , 14 L.Ed.2d 626 (“Pennington” ) (1965). 56 Brownsville Golden Age Nursing H ome, Inc. v. Wells , 839 F.2d 155, 160 (3d Cir. 1988). 57 Noerr, 365 U.S. at 144, 81 S. Ct. at 533. 58 See id. 59 City of Newark v. Delmarva Power & Light Co., 497 F. Sup p. 323, 325 (D. Del. 1980) ( “The Court applied the sham e xception to the Noerr

- Pennington doctrine in California Motor Transport Co. v. Trucking Unlimited , 404 U .S. 508, 92 S. Ct. 60 9, 30 L.Ed.2d 642 (1972). It was alleged in this case that a group of truck ing companies had engaged i n a joint campaign of administ rative and judicial harassment to prevent a rival corporation from obtaining operating rights. The Cour t ru led that this beh avior was not a genuine attempt to influence government policy, but rather a conspiracy to deny compet itors meaningful access to the agencies and courts. 404 U.S. 515

- 16 , 9 2 S

. C t

. a t 6 1 4 . In reaching this conclusion, the Court noted a vari ety of other form s of unethical conduct that would corrupt the adjudicatory process, and whi ch would go unprotected fro m antitrust liability: perjury , misrepresentation, fraud, bribery, and so on. 404 U.S. at 512

- 13, 92 S. Ct. at 612

- 613.”).11

competitors filing claims based on state common law claims. 60 In a footnote, the Co urt of
C han cery ap plied the Noerr

- Pennington doctrine

. 61 In this case, Key filed a claim against ARC A for violating the federal Lanham Act. The
Lanham Act of 1946 allows competitors to file suits against one anot her for deceptive practices
or breaches of ot her law s t o pre vent unfair competition

. Specifically, Key alleged that ARCA
made misrepresentation s that it followed federal environmental regulations, even though employees of Key personally observed A RCA disregarding the requirements in the regu lations.
ARCA h as n ot pl eaded any facts that suggest that the Key Action is sham litigatio n. In fact, the
K ey Action survived a motion to dismiss and pro ceeded to trial

. Key may be protected by the Noerr

- Pennington doctrine because Key has a First
Ame ndment right to file the Key Action, regardless of Key’s motive in filing the suit. Ho wever , ARCA is not filing suit against K ey. ARCA is contending that Key (which may be protected by
the Noe rr - Pennington doct rin e) acted as an agent to disru pt A RCA ’ s b u siness relationship w ith
PECO so that Rec leim could solic it PECO. In essence, ARCA alleges Recl eim and Key

co nspired to co m mit a breach of c ontract claim. Rec leim is not protected by the N oerr Pennington doctrin e for actions in violation of the Letter Agre ement.
The Court t herefore finds that R ecleim ’ s defi nition of solicitation is too narrow. The
Court d oes not find that , as a matter of law, ARCA ’ s the ory of sol icitation t h rough the K ey Action is barr ed. The Court will, at this stage , allow ARCA to proceed on its the ory of
solicitation

.

60 Id. (“G iven t he constitutional basis of the Noerr Pennington doctrine it is apparent that activity which it shields from federal an titrust liability is also prot ected from claims based on state common law. To hold otherwise would be to permit state common law to super sede the right to petition created by the First Amendment and applied to the states by the F ourteenth Amendment.”). 61 S alem Church (Delaware) Assocs. v. New Castle City , 2006 WL 4782453, at *13 (Del. Ch. Oct. 6, 2006) ( finding that the Court of Ch anc ery wo uld not inquire into officials ulterior motives in enacting a state regulation because the r egulation bolstered environ mental and traffic safety )

.12

A. ARCA IS NOT E NTITLED TO A J URY T RIAL
ARCA is not ent itled to a t rial by jury or attorney’s fees under the Letter Agreement

. I n The Dat a Centers, LLC v. 1 743 H oldings LLC , 62 the Court granted a plaintiff's motion to strike a jury demand because the jury waiver provision was clear and unambiguous and applied to the alleg ations at issue in the case

. The Letter Agreement has a section entitled : WAIVER O F JUR Y TRIAL

. THE PARTIES HERETO IRREVOCABLY WAIVE THEIR RESPECTIVE RIGHTS T O TRIAL BY JURY O F ANY CAUSE OF ACTION, CLAIM , COUNTERCLAIM OR C ROSS

- COMPLAINT IN ANY ACTION OR OTHER PROCEEDING BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY OR PARTIES WITH RESPECT TO ANY MATTER ARISING OUT OF , OR IN ANY WAY CONNECTED WITH OR RELATED TO T HIS AGREEMENT OR ANY PORTION OF THIS A GRE EMENT, WHE THER BASED UPON CONTRACTUAL , STATU TORY, T ORTIOUS OR OTHER THE ORIES OF LIABILITY , EACH PARTY HERETO REPRESENTS TH AT IT HAS CONSULTED WITH COUNSEL REGARDING THE MEANING AND EF FECT OF THE FOR EGOING WAIVER OF ITS RIGHT TO A J URY TRIAL. 63
This “ Waiver of J u ry Trial ” section clearly and unambig uously states that the parties waive th eir right to a jury t rial as to any c laim arising out of, or in any way connected with or related to the Letter Agreement.
ARCA’s cl aims arise out of the Letter Agreement because ARCA claims that Recleim
solicited PEC O in vi olation of paragraph 4 of the Letter Agreement. Moreover, ARCA d id not

eve n address the waiver of the jury trial in opposing Rec leim ’ s motions to dismiss. The Cou rt,
there fore, hold s that ARCA waived its right to a jury trial on the L etter Agreeme nt

. V. CONCLUSION For the foregoing reasons, the Court DENIES the Present Motion. The Court, how ever, is con cerned that notice plea di ng here coul d lead to costly litigati on that consist of a “ fishing expedi tion. ” Accordingly, the Court will initially lim it the scope of dis covery under Civil Rule

62 2015 WL 6662107, at *7 (Del. Super. Oct. 27, 2015). 63 Am. Compl., Ex. B at ¶ 7.d.13

26(b)(1)

. For ninety ( 90) days ( “ Phase I ” ) from the date of this deci sion, t he Court will al low
di scovery ONLY on the issu e of whether Key act ed as Rec leim ’ s agent in filing the Key Action.
A t the end of Phase I , the parties shall notif y the Court an d the Court will hold a h earing o n the
status of discovery , and on the issue of Key ’ s purpor ted agency relationship with R ecleim when filing the Key Action

. The Court STRIKES ARCA ’ s jury trial demand.
IT IS SO ORDER ED
Da te d: March 29 , 202 1 Wilmington, Delaware 

## /s/ Eric M. Davis Eri c M. Davis , Judge

cc: File&ServeExpress