IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JOHN J. MACK, 

Plaintiff,

v.

REV WORLDWIDE, INC., a Delaware 

corporation,

Defendant.

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C.A. No. 2019-0123-MTZ

MEMORANDUM OPINION

Date Submitted: October 12, 2020

Date Decided: December 30, 2020

William M. Kelleher and Phillip A. Giordano, GORDON, FOURNARIS & 

MAMMARELLA, P.A., Wilmington, Delaware; Robert A. Giacovas, Lainie E. 

Cohen, and Jacob A. Englander, LAZARE POTTER GIACOVAS & MOYLE LLP, 

New York, New York, Attorneys for Plaintiff. 

Raymond W. Cobb, O’HAGAN MEYER LLP, Wilmington, Delaware; Kevin M. 

O’Hagan and Shane M. Bradwell, O’HAGAN MEYER LLP, Chicago, Illinois, 

Attorneys for Defendant.

ZURN, Vice Chancellor.
1

A plaintiff generally has substantial discretion over its choice of venue. But

that discretion may be limited by a valid forum selection clause.1 If a forum selection 

clause validly limits a plaintiff to a single forum, that clause renders a court that 

otherwise has jurisdiction into an improper venue for the plaintiff to sue.2 In the 

present case, the defendant has moved to dismiss for improper venue, contending 

that two of the plaintiff’s claims are subject to valid forum selection clauses

mandating adjudication in courts of other states. The plain language of the relevant 

agreements forecloses Delaware courts from hearing those claims, and the plaintiff 

has failed to demonstrate that enforcement of those clauses would be unreasonable 

or unjust under the circumstances. Those claims must be dismissed pursuant to 

Court of Chancery Rule 12(b)(3). 

I. BACKGROUND3

Plaintiff John Mack is a shareholder and noteholder of Defendant Rev 

Worldwide, Inc. (“Rev” or “Defendant”). Plaintiff lent Defendant funds through a 

series of notes and corresponding security agreements. Defendant juggled its debt 

 

1 Scanbuy, Inc. v. NeoMedia Techs., Inc., 2014 WL 5500245, at *4 (Del. Ch. Oct. 31, 2014); 

Troy Corp. v. Schoon, 2007 WL 949441, at *3 (Del. Ch. Mar. 26, 2007).

2 Simon v. Navellier Series Fund, 2000 WL 1597890, at *6 (Del. Ch. Oct. 19, 2000).

3 These facts are drawn from the Amended and Supplemental Verified Complaint filed on 

February 28, 2020 and the documents integral to it. Docket Item (“D.I.”) 28 [hereinafter 

“Am. Compl.”]. Citations in the form of “Ex. ––” refer to exhibits attached and integral to 

the Amended Complaint.
2

held by private noteholders and its debt held by a commercial lender through terms 

and procedures that repeatedly subordinated Plaintiff beneath the commercial lender. 

Plaintiff contends Defendant’s recent juggling act was improper and that Defendant 

has defaulted on Plaintiff’s debt. Plaintiff seeks relief in this Court, but Plaintiff’s

contractual arrangement with Defendant includes forum selection clauses that 

preclude this Court from hearing Plaintiff’s claims. 

A. Plaintiff Invests In Defendant And Executes Notes And

Security Agreements.

Plaintiff has been a stockholder of Defendant since August 2011. On 

December 12, 2012, Defendant entered into a Loan Agreement with Silicon Valley 

Bank (“SVB”), borrowing at least $1.5 million (the “Loan Agreement”). Thereafter, 

Plaintiff joined SVB as a creditor and noteholder of Defendant. Between 2013 and 

2015, Plaintiff loaned Defendant a total of $2.5 million through a series of 

transactions, investing alongside other noteholders in each series. Plaintiff and 

Defendant documented Plaintiff’s loans via six Subordinated Secured Convertible 

Promissory Notes and Subordinated Secured Convertible Line of Credit Notes 
3

(collectively, the “Notes”),

4

each of which was accompanied by a corresponding 

security agreement (collectively, the “Security Agreements”).5 

Aside from differences in principal, each Note contains substantially identical 

terms, and each Security Agreement contains identical terms. Under the Security 

Agreements, Defendant covenanted to refrain from disposing of, restricting, or 

otherwise encumbering Defendant’s collateral without Plaintiff’s prior written 

consent, except as otherwise provided in the Notes.6 And of import here, each 

Security Agreement is governed by Delaware law and incorporates by reference the 

forum selection clause in its corresponding Note:

Governing Law. This Agreement and the Loan Agreement and any 

claim, controversy, dispute or cause of action (whether in contract or 

tort or otherwise) based upon, arising out of or relating to this 

Agreement and the transactions contemplated hereby and thereby shall 

be governed by, and construed in accordance with, the laws of the State 

of Delaware. The other provisions of Sections JURISDICTION and 

WAIVER OF JURY TRIAL of the [corresponding Note] are 

incorporated herein, mutatis mutandis, as if a part hereof.7

 

4 Exs. B, E–I.

5 Ex. C. Only the Security Agreement appearing at Exhibit C has been provided to the 

Court, and the parties have proceeded on the assumption that all Security Agreements take 

the same form and include the same terms.

6 See id. § 6(d).

7

Id. § 17.
4

In turn, each Note provides that it is governed by Delaware law,8and contains the 

following “Jurisdiction” provision, or forum selection clause, in favor of Texas 

courts:

Jurisdiction. EACH PARTY IRREVOCABLY AND 

UNCONDITIONALLY AGREES THAT IT WILL NOT 

COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF 

ANY KIND WHATSOEVER AGAINST ANY OTHER PARTY IN 

ANY WAY ARISING FROM OR RELATING TO THIS 

AGREEMENT AND ALL CONTEMPLATED TRANSACTIONS, 

INCLUDING, BUT NOT LIMITED TO, CONTRACT, EQUITY, 

TORT, FRAUD AND STATUTORY CLAIMS, IN ANY FORUM 

OTHER THAN THE US DISTRICT COURT FOR THE WESTERN 

DISTRICT OF TEXAS IN AUSTIN, TEXAS OR THE COURTS OF 

THE STATE OF TEXAS SITTING IN TRAVIS COUNTY, TEXAS, 

AND ANY APPELLATE COURT FROM ANY THEREOF. EACH 

PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS 

TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND 

AGREES TO BRING ANY SUCH ACTION, LITIGATION OR 

PROCEEDING ONLY IN US DISTRICT COURT FOR THE 

WESTERN DISTRICT OF TEXAS IN AUSTIN, TEXAS OR THE 

COURTS OF THE STATE OF TEXAS SITTING IN TRAVIS 

COUNTY, TEXAS. EACH PARTY AGREES THAT A FINAL 

JUDGMENT IN ANY SUCH ACTION, LITIGATION OR 

PROCEEDING IS CONCLUSIVE AND MAY BE ENFORCED IN 

OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN 

ANY OTHER MANNER PROVIDED BY LAW.9

In addition, each Note permits amendment or waiver of its terms upon 

majority vote of Plaintiff’s fellow noteholders:

 

8 See Ex. B § 10(h); Ex. E § 10(h); Ex. F § 11(h); Ex. G § 10(h); Ex. H § 11(J); Ex. I § 

10(h).

9 Ex. B § 10(J); Ex. E § 10(J); Ex. F § 11(J); Ex. G § 10(J); Ex. H § 11(J); Ex. I § 10(J).
5

Waiver and Amendment. Any provision of this Note may be amended, 

waived or modified upon the written consent of the Company and a 

Majority in Interest of Investors. Notwithstanding the foregoing, the 

written consent of Investor shall be required to reduce the principal 

amount of this Note without Investor’s written consent, or reduce the 

rate of interest of this Note without Investor’s written consent.10

And under each Note, “‘Majority in Interest of Investors’ shall mean, as of any date, 

investors holding more than 50% of the aggregate outstanding principal amount of 

the Notes on such measurement date.”

11

B. Plaintiff Executes The Subordination Agreement, And 

Defendant Capitalizes On Plaintiff’s Secondary Position To 

SVB.

In view of Defendant’s obligations to SVB, the Security Agreements and 

Notes are expressly subject to the terms and conditions of a Subordination 

Agreement between Plaintiff, several of Defendant’s other creditors, and SVB 

(the “Subordination Agreement”).12 Pursuant to the Subordination Agreement, 

Plaintiff agreed to take a secondary security interest in Defendant’s collateral behind 

SVB until Defendant paid SVB in full under the Loan Agreement. 

The Subordination Agreement is governed by California law and contains a 

forum selection clause in favor of California courts:

 

10 Ex. B § 10(b); Ex. E § 10(b); Ex. F § 11(b); Ex. G § 10(b); Ex. H § 11(b); Ex. I § 10(b).

11 Ex. B § 6(l); Ex. E § 6(i); Ex. F § 7(j); Ex. G § 6(l); Ex. H § 7(j); Ex. I § 6(l).

12 Ex. D.
6

This Agreement shall be governed by and construed in accordance with 

the laws of the State of California, without giving effect to conflicts of 

laws principles. Creditor and Bank submit to the exclusive jurisdiction 

of the state and federal courts located in Santa Clara County, California 

in any action, suit, or proceeding of any kind, against it which arises 

out of or by reason of this Agreement.13

Although Defendant was not a formal party to the Subordination Agreement, 

it defines “Borrower” as Defendant and contains multiple provisions detailing 

Defendant’s payment obligations to Plaintiff and SVB and Plaintiff and SVB’s rights 

to collect on Defendant’s collateral in event of default.

14

 Accordingly, Defendant 

signed the Subordination Agreement, evidencing that “[t]he undersigned [Borrower] 

approves of the terms of this Agreement.”15

Plaintiff alleges that Defendant exploited Plaintiff’s status behind SVB, 

established by the Subordination Agreement, by twice amending the Loan 

Agreement to extend the SVB loan’s maturity date and further subordinate

Plaintiff’s Notes. First, with Plaintiff’s knowledge and consent, Defendant entered 

into an Amended and Restated Loan and Security Agreement with SVB on February 

1, 2014 (the “2014 Loan Agreement”). The 2014 Loan Agreement matured four 

years from execution, extending Plaintiff’s status as a secondary subordinated 

creditor until February 2018. As alleged, under the Security Agreements, any further 

 

13 Id. § 15.

14 Id. at 1, Recital A.

15 Id. at 7, Signature Page.
7

subordination of Plaintiff’s secured interests beyond that date would require his 

consent. Full satisfaction of Defendant’s obligations to SVB pursuant to the 2014 

Loan Agreement would prioritize Defendant’s obligations to Plaintiff under the 

Notes and Security Agreements. 

But in 2017, when full satisfaction under the 2014 Loan Agreement was 

imminent, Defendant again extended its obligations to SVB—this time, without 

Plaintiff’s knowledge or consent. On December 21, 2017, Defendant entered into a 

Second Amended and Restated Loan and Security Agreement with SVB for an 

additional line of credit in the amount of $1 million (the “2017 Loan Agreement”). 

The 2017 Loan Agreement purports to amend and replace the 2014 Loan Agreement;

to extend the SVB loan’s maturity date and Plaintiff’s status as a secondary 

subordinated creditor until June 1, 2021; and to foreclose Plaintiff from collecting 

under the Notes and Security Agreements before that date. 

C. Plaintiff Commences This Action; Thereafter, Defendant 

And A Majority In Interest Of Investors Approve And 

Execute The Amendment And 2019 Note.

Defendant has not paid any interest or principal under any of the Notes on the 

grounds that the 2014 and 2017 Loan Agreements permissibly extended Plaintiff’s 

subordinated status. Plaintiff contends Defendant has defaulted. On February 15, 

2019, Plaintiff filed a verified complaint commencing this action (the “Initial 
8

Complaint”).16 Relevant to this Motion, Count III of the Initial Complaint alleged

that Defendant breached the Security Agreements by entering into the 2017 Loan 

Agreement without Plaintiff’s knowledge and consent.17 

On April 17, Defendant moved to dismiss “pursuant to Court of Chancery 

Rules 12(b)(3), and 12(b)(6)” (the “Initial Motion”).18 Defendant argued that Count 

III should be dismissed pursuant to Rule 12(b)(3) because the Subordination 

Agreement contains a forum selection clause in favor of California and “Plaintiff’s 

claims in Count III related to breaches of the Security Agreements are all based upon 

the Subordination Agreement.”19 The parties fully briefed the Initial Motion as of 

July 17.20

With this litigation underway, on October 25, Defendant’s counsel sent 

Plaintiff’s counsel three documents affecting Plaintiff’s pending claims: (1) a Note 

Amendment Notice (the “Amendment Notice”);21 (2) an Amendment to Secured 

Convertible Promissory Notes (the “Amendment”);22 and (3) a Subordinated 

Secured Convertible Promissory Note in the amount of $2.5 million, reflecting the 

 

16 D.I. 1.

17 Id. ¶¶ 49–56.

18 D.I. 3.

19 D.I. 6 at 11 (internal quotation marks omitted).

20 D.I. 7; D.I. 9.

21 Ex. J.

22 Ex. K.
9

total amount of the debt owed to Plaintiff under the Notes (the “2019 Note”).23 In 

the accompanying correspondence, Defendant’s counsel explained,

We are amending and restating the secured convertible notes . . . As 

part of the change, we are granting additional interest (1% and 2% 

points) for noteholders that agree to the amendment on or before 

October 31, 2019. Moreover, please know that if a majority in interest 

of the noteholders approve the amendment, the amended note will apply 

to ALL noteholders, regardless of whether they have consented.24

The Amendment Notice explained that the 2019 Note would effectuate the following 

“proposed” changes to the existing Notes: 

 

23 Ex. L.

24 Am. Compl. ¶ 44.
10

The “2019 Note” amends and replaces the Oct. 2013, Dec. 2013 and 

July 2014 series (the “Original Notes”) which had expired on May 31, 

2015, creating a single uniform note which expires on October 1, 2021.

The 2019 Note is binding as to an Investor upon such investor signing 

it. In addition, provided that the majority in interest of the noteholders 

for each series consents, the change will apply to all noteholders.

The Board has authorized the 2019 Note for $20 million.

Section 1: Neither interest nor principal are reduced. The section 

incorporates an incentive for investors who approve and sign the 

Amendment and the Note on/before October 31, 2019 . . . . For 

Investors that do not sign the Amendment and Note on/before October 

31, 2019, the interest remains the same as in the Original Notes: 8% 

per annum compounded annually. 

. . .

Section 10: Clarifies that the 2019 Note continues to be subordinated 

to the Designated Senior Debt held by Silicon Valley Bank.25

The Amendment Notice afforded Plaintiff four business days to review and 

determine whether to execute the accompanying final Amendment and 2019 Note. 

On October 31, the last day to accept the Amendment and 2019 Note, Plaintiff 

informed Defendant “that he could not and would not agree to such amendment, and 

that he believed that this ill-conceived corporate action should be rescinded, and to 

the extent it is not rescinded, [he] objected, did not consent, and reserved all of his 

rights.”26 On December 20, Defendant notified Plaintiff that as of November 1, the 

 

25 Ex. J.

26 Am. Compl. ¶ 62.
11

requisite majority of noteholders had agreed to the Amendment and 2019 Note. 

Defendant contends that with the consent of the “simple majority of all 

noteholders,”27 the 2019 Note and Amendment bind Plaintiff, waive Defendant’s 

prior default under the Notes, and provide for a new maturity date of October 1, 

2021. Defendant afforded Plaintiff another opportunity to consent to the 2019 Note, 

which he rejected. 

Defendant has issued nearly $14.5 million in notes. Approximately $3.7 

million, or 26 percent, of that debt is held by officers of Defendant (the “Related 

Parties”). Plaintiff alleges that the majority vote in favor of the Amendment and 

2019 Note was secured only through the consent of the Related Parties, and that 

Defendant would have been unable to obtain the requisite vote from a majority of 

the “disinterested” noteholders alone.28 

The Amendment explains that it and the 2019 Note spring from the Notes’ 

“Amendment and Waiver” provisions, which permit amendment upon consent of 

the Majority in Interest of Investors.

29 Correspondingly, the Amendment’s recitals 

explain that “all of the Original Notes subject to this Amendment may be amended, 

waived or modified upon the written consent of the Company and a Majority in 

 

27 Id. ¶ 58; see also id. ¶ 60.

28 Id. ¶¶ 59, 60.

29 See Ex. K at 1, §§ 2(c), 4(a); see also Ex. L §§ 1, 2, 13(m).
12

Interest of Investors (the ‘Requisite Consent’),” and that “the Company and the 

parties hereto, which constitute the Requisite Consent, desire to replace, amend and 

restate the Original Notes, unifying them into a single Amended and Restated 

Secured Convertible Promissory Note (2019 Edition) (the ‘2019 Note’).”30 The 

Amendment further states that “[i]f an investor has not subscribed this Amendment 

and the 2019 Note on or before October 31, 2019,” then “this note should be binding 

and effective as to such investor either because investor consented to this Note after 

such date or because a Majority in Interest of Investors has decided to amend, restate 

and unify the Original Notes with the 2019 Note.”31 It goes on to explain that the 

Amendment and 2019 Note become effective upon receipt of the Majority in Interest 

of Investors’ consent:

Effectiveness of Amendment. As to the amendment and restatement of 

the Original Notes, this Amendment shall be effective as to each party 

hereto as of the latter date of execution by Investor or Company, and 

as to each other patty under the Original Notes, upon the execution of 

this Amendment by the Company and a sufficient number of parties to 

constitute the Requisite Consent. Additional parties hereto 

nonetheless may be added after the effectiveness hereof.32 

The 2019 Note mirrors the Notes through several provisions. It contains an 

identical “Waiver and Amendment” provision: 

 

30 Ex. K at 1, Recitals.

31 Id. § 2(c).

32 Id. § 4(a).
13

Any provision of this Note may be amended, waived or modified upon 

the written consent of the Company and a Majority in Interest of 

Investors. Notwithstanding the foregoing, the written consent of 

Investor shall be required to reduce the principal amount of this Note 

without Investor’s written consent, or reduce the rate of interest of this 

Note without Investor’s written consent.33

The 2019 Note also defines “Majority in Interest of Investors” in the same manner

as the Notes.34 And, like the Notes and Security Agreements, the Amendment and 

2019 Note are governed by Delaware law and provide for exclusive jurisdiction in 

the Texas courts.35 The 2019 Note’s forum selection clause is identical to that of the 

Notes, excerpted above.36 

D. Plaintiff Files The Amended Complaint.

On January 17, 2020, in view of the Amendment and 2019 Note, Plaintiff 

sought leave to file an amended complaint.37 Defendant stipulated to Plaintiff doing 

so,38 and Plaintiff filed an Amended and Supplemental Verified Complaint on 

February 28 (the “Amended Complaint”).

39

 The Amended Complaint asserts five 

 

33 Ex. L § 13(b).

34 Id. § 8(h) (“‘Majority in Interest of Investors’ shall mean, as of any date, investors 

holding more than 50% of the aggregate outstanding principal amount of the Notes on such 

measurement date.”).

35 Ex. K § 4(d), (f); Ex. L § 13(h), (j).

36 Ex. L § 13(j).

37 D.I. 24.

38 D.I. 27.

39 See generally Am. Compl.
14

claims against Defendant. In addition to the four claims asserted in the Initial 

Complaint, the Amended Complaint added a claim to address Defendant’s postcomplaint conduct. Relevant here, Count III of the Amended Complaint is identical 

to Count III of the Initial Complaint and alleges Defendant breached the Security 

Agreements by entering into the 2017 Loan Agreement with SVB.40 Count V, added 

in response to the Amendment and 2019 Note, seeks a declaratory judgment that the

Amendment and 2019 Note are invalid in view of the Security Agreements.41 

Plaintiff brings Claims III and V solely in his capacity as a noteholder. 

On March 13, Defendant moved to dismiss, arguing that Counts III and V 

must be dismissed pursuant to Rule 12(b)(3) in view of the forum selection clauses 

contained in the relevant agreements (the “Motion”).

42

 Specifically, Defendant 

contends that (1) Count III must be dismissed because the Security Agreements and 

Notes’ forum selection provisions mandate adjudication in Texas, or in the 

alternative, the Subordination Agreement’s forum selection clause mandates 

adjudication in California; and (2) Count V must be dismissed because the 

Amendment and 2019 Note’s forum selection clauses mandate adjudication in 

Texas. 

 

40 Id. ¶¶ 79–86.

41 Id. ¶¶ 96–101.

42 D.I. 29; D.I. 33.
15

The parties fully briefed the Motion as of June 22.43 I heard argument on 

September 16,

44 and took the Motion under advisement with respect to Counts III 

and V on October 12 after receiving supplemental briefing.

45

 

II. ANALYSIS

“The proper procedural rubric for addressing a motion to dismiss based on a 

forum selection clause is found under Rule 12(b)(3), improper venue.”46 When 

addressing a motion under Rule 12(b)(3), “the court is not shackled to the plaintiff’s 

complaint and is permitted to consider extrinsic evidence from the outset.”

47

In Ingres Corp. v. CA, Inc., the Delaware Supreme Court held that “where 

contracting parties have expressly agreed upon a legally enforceable forum selection 

clause, a court should honor the parties’ contract and enforce the clause, even if, 

absent any forum selection clause, the [common law] principle might otherwise 

 

43 D.I. 33; D.I. 37; D.I. 40.

44 D.I. 44; D.I. 53. The Motion has been resolved with respect to Counts I, II, and IV of 

the Amended Complaint. At argument, I converted the Motion with respect to Counts I, 

II, and IV to a motion for summary judgment and ordered corresponding submissions. I 

also stayed the Motion with respect to Count I based on the statute of limitations. See D.I. 

53.

45 D.I. 51; D.I. 52.

46 Sylebra Cap. P’rs Master Fund, Ltd. v. Perelman, 2020 WL 5989473, at *9 

(Del. Ch. Oct. 9, 2020) (quoting In re Bay Hills Emerging P’rs I, L.P., 2018 WL 3217650, 

at *4 (Del. Ch. July 2, 2018)).

47 Id. (quoting In re Bay Hills, 2018 WL 3217650, at *4).
16

require a different result.”48 Such clauses “are presumptively valid and should be 

specifically enforced unless the resisting party clearly show[s] that enforcement 

would be unreasonable and unjust, or that the clause [is] invalid for such reasons as 

fraud and overreaching.”49 

Accordingly, the Court subjects presumptively valid forum selection clauses 

“to as-applied review . . . in real-world situations to ensure that they are not used 

unreasonably and unjustly.”50 The Court “should assess the reasonableness of a 

forum selection clause on a case-by-case basis.”51 To escape the reach of a forum 

selection clause on grounds that it is unreasonable or unjust, the avoiding party 

“bears a heavy burden to demonstrate that enforcement here would place it at an 

unfair disadvantage or otherwise deny it its day in court.”52

 

48 8 A.3d 1143, 1145 (Del. 2010) (citing M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 

15 (1972)); see also Nat’l Indus. Gp. (Hldg.) v. Carlyle Inv. Mgmt. L.L.C. (Carlyle II), 67 

A.3d 373, 381 (Del. 2013).

49 Sylebra, 2020 WL 5989473, at *10 (alteration in original) (quoting Ingres, 8 A.3d at 

1146).

50 Boilermakers Local 154 Ret. Fund v. Chevron Corp., 73 A.3d 934, 957 (Del. Ch. 2013) 

(alterations and internal quotation marks omitted) (quoting Ingres, 8 A.3d at 1146); see 

also id. at 941 (“Under Bremen and its progeny, like our Supreme Court’s recent Carlyle

decision, as-applied challenges to the reasonableness of a forum selection clause should be 

made by a real plaintiff whose real case is affected by the operation of the forum selection 

clause. If a plaintiff faces a motion to dismiss because it filed outside the forum identified 

in the forum selection clause, the plaintiff can argue under Bremen that enforcing the clause 

in the circumstances of that case would be unreasonable.” (footnote omitted)).

51 Ingres, 8 A.3d at 1146.

52 Sylebra, 2020 WL 5989473, at *11 (alterations and internal quotation marks omitted) 

(quoting Cap. Gp. Cos., Inc. v. Amour, 2004 WL 2521295, at *6 (Del. Ch. Nov. 3, 2004)).
17

If that party fails to carry this burden, “[a] valid forum selection clause must 

be enforced.”53 “The enforcement of a forum selection clause is the act of confining 

the litigation to the chosen forum. Such enforcement action may take various forms. 

For example, the court may dismiss or stay the case, if it is not the forum chosen in 

the forum selection clause . . . .”54 

Consistent with this framework, the forum selection clauses at issue here “are 

considered presumptively, but not necessarily, situationally enforceable.”

55

 Plaintiff 

has failed to carry his heavy burden of demonstrating that enforcement would be 

unjust or unreasonable upon as-applied review. Counts III and V must therefore be 

dismissed pursuant to Rule 13(b)(3).

A. Count V Is Dismissed Pursuant To Rule 12(b)(3).

Defendant contends that Count V, which seeks a declaratory judgment that 

the Amendment and 2019 Note are invalid, must be dismissed. The Amendment 

and 2019 Note both contain forum selection clauses that provide the Texas courts 

with exclusive jurisdiction over any action or proceeding “in any way arising from 

or relating to th[ose] agreement[s] and all contemplated transactions.”56 Under 

 

53 Carlyle II, 67 A.3d at 381.

54 Carlyle Inv. Mgmt. L.L.C. v. Nat’l Indus. Gp. (Hldg.) (Carlyle I), 2012 WL 4847089, at 

*6 (Del. Ch. Oct. 11, 2012) (footnotes omitted), aff’d, Carlyle II, 67 A.3d 373 (Del. 2013).

55 Boilermakers, 73 A.3d at 957.

56 Ex. K § 4(f); Ex. L § 13(j).
18

Delaware law, the forum selection clauses in the Amendment and 2019 Note are 

presumptively valid and must be enforced unless Plaintiff demonstrates that 

enforcement would be unreasonable and unjust, or that the clause itself is invalid for 

fraud or overreaching.57 Plaintiff asserts two broad arguments he believes render 

enforcement of the clauses unjust and unreasonable in this instance. Each falls short. 

1. Plaintiff Consented To The Forum Selection 

Clauses In The Amendment And 2019 Note.

Plaintiff argues that the Court should not enforce the clauses in the 

Amendment and 2019 Note because he did not execute or otherwise consent to those 

documents and therefore is not bound by their terms. But this Court has recognized 

that where a party has freely and voluntarily agreed to a contractual scheme in which 

his will may be superseded and subsumed by the will of his counterparties, he has 

consented to a forum selection clause imposed through that scheme.

58

 In the absence 

of more direct authority, I look to cases interpreting forum selection bylaws, as 

Delaware law views such bylaws as “contractual”59 and enforces them “in the same 

way [Delaware] enforces any other forum selection clause.”60

 

57 See, e.g., Sylebra, 2020 WL 5989473, at *9–10.

58 See id. at *10–11; Boilermakers, 73 A.3d at 954–58.

59 Boilermakers, 73 A.3d at 939, 940.

60 Sylebra, 2020 WL 5989473, at *9–10 (alteration in original) (quoting Boilermakers, 73 

A.3d at 940); accord Boilermakers, 73 A.3d at 957 (“[B]ecause bylaws are interpreted 

using contractual principles, the bylaws will also be subject to scrutiny under the principles 

for evaluating contractual forum selection clauses . . . adopted by our Supreme Court . . . . 
19

In Boilermakers Local 154 Retirement Fund v. Chevron Corp., thenChancellor Strine considered the plaintiffs’ claim that forum selection bylaws were 

“contractually invalid, and therefore c[ould not] be enforced like other contractual 

forum selection clauses . . . because they were unilaterally adopted by the 

[defendant] boards using their power to make bylaws.”61 The plaintiffs “argue[d] 

that this method of adopting a forum selection clause is invalid as a matter of contract 

law, because it does not require the assent of the stockholders who will be affected 

by it.”62 The Court rejected the plaintiffs’ position: 

That plaintiffs did not vote on the bylaws at the time of their adoption 

is not relevant to the question of whether the bylaws are valid or 

contractually binding under Delaware law. Like any other bylaw,

which may be unilaterally adopted by the board and subsequently 

modified by stockholders, these bylaws are enforced according to their 

terms. Thus, they will be enforced just like any other forum selection 

clause.63

 

The forum selection bylaws will therefore be construed like any other contractual forum 

selection clause and are considered presumptively, but not necessarily, situationally 

enforceable.”).

61 Boilermakers, 73 A.3d at 938.

62 Id. at 955.

63 Id. at 958 (citing Carlyle II, 67 A.3d at 381–82); see also id. at 957 (“[A] corporation’s 

bylaws are part of an inherently flexible contract between the stockholders and the 

corporation under which the stockholders have powerful rights they can use to protect 

themselves if they do not want board-adopted forum selection bylaws to be part of the 

contract between themselves and the corporation. And, as noted, precisely because forum 

selection bylaws are part of a larger contract between the corporation and its stockholders, 

and because bylaws are interpreted using contractual principles, the bylaws will also be 

subject to scrutiny under the principles for evaluating contractual forum selection clauses 

. . . adopted by our Supreme Court.” (footnotes omitted)).
20

In reaching this conclusion, the Court turned to fundamental principles of corporate 

and contract law, reasoning that “the bylaws of a Delaware corporation constitute 

part of a binding broader contract among the directors, officers, and stockholders 

formed within the statutory framework of the DGCL” and that “[t]his contract is, by 

design, flexible and subject to change in the manner that the DGCL spells out and 

that investors know about when they purchase stock in a Delaware corporation.”64 

By purchasing stock, the “stockholders contractually assent to be bound by bylaws 

that are valid under the DGCL—that is an essential part of the contract agreed to 

when an investor buys stock in a Delaware corporation.”

65 And “[w]here . . . the 

certificate of incorporation has conferred on the board the power to adopt bylaws

[without stockholder approval] . . . the stockholders have assented to that new bylaw 

being contractually binding.”

66

 “Such a change by the board is not extra-contractual 

simply because the board acts unilaterally; rather it is the kind of change that the 

 

64 Id. at 939; accord Sylebra, 2020 WL 5989473, at *10; City of Providence v. First Citizens 

BancShares, Inc., 99 A.3d 229, 233, 240 (Del. Ch. 2014), superseded on other grounds by 

statute, 8 Del. C. § 115.

65 Boilermakers, 73 A.3d at 958; accord id. at 940 (“In other words, an essential part of the 

contract stockholders assent to when they buy stock in [the defendant company] is one that 

presupposes the board’s authority to adopt binding bylaws consistent with 8 Del. C. § 109. 

For that reason, our Supreme Court has long noted that bylaws, together with the certificate 

of incorporation and the broader DGCL, form part of a flexible contract between 

corporations and stockholders, in the sense that the certificate of incorporation may 

authorize the board to amend the bylaws’ terms and that stockholders who invest in such 

corporations assent to be bound by board-adopted bylaws when they buy stock in those 

corporations.”).

66 Id. at 958.
21

overarching statutory and contractual regime the stockholders buy into explicitly 

allows the board to make on its own.”

67

 And under that same contractual scheme, 

“[s]tockholders likewise agree that a requisite majority of other stockholders may 

adopt bylaws with which they do not agree. A dissenting stockholder can no more 

object to the authority of a board to adopt a bylaw than it could object to the requisite 

majority of stockholders adopting a bylaw.”68 Finally, Boilermakers looked to 

United States Supreme Court precedent that “reinforce[ed] the conclusion that forum 

selection bylaws are, as a facial matter of law, contractually binding.”

69

 

This Court has applied Boilermakers to conclude that protesting plaintiffs still 

effectively consented to a forum selection bylaw. In Sylebra Capital Partners 

Master Fund, Ltd. v. Perelman, Vice Chancellor Slights considered the plaintiff’s 

contention that the plaintiff’s inability to sell its shares precluded its consent to the 

subject forum selection bylaw.70 Invoking Boilermakers, the Court concluded that 

“[t]his argument rests on a flawed reading of Delaware law,” as “[t]he ability of a 

board of directors of a Delaware corporation to adopt binding bylaws is an essential 

 

67 Id. at 956.

68 Id. at 956 n.99.

69 Id. at 957 (considering Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 594–95 

(1991), which held that a forum selection provision was reasonable and enforceable even 

though it was not negotiated).

70 Sylebra, 2020 WL 5989473, at *10.
22

part of the contract stockholders assent to when they buy stock,”

71 and “upon 

investing in the Company, [the plaintiff] knew that it was subject to” certain 

contractual restrictions in the company’s articles of incorporation and bylaws.72

And in City of Providence v. First Citizens BancShares, Inc., Chancellor 

Bouchard addressed whether it would be “unjust” to apply a forum selection bylaw 

“because the stockholders of [the company] effectively lack[ed] the ability to repeal 

it” because of the presence of a controlling stockholder.73 While recognizing that 

Boilermakers did not squarely address such an as-applied challenge, the Court 

reasoned that while “a board-adopted forum selection bylaw, much like any boardadopted bylaw, is subject to the most direct form of attack by stockholders who do 

not favor them”

74—repeal by majority vote—neither the DGCL nor Boilermakers

“mandate that a board-adopted forum selection bylaw can be applied only if it is 

realistically possible that stockholders may repeal it.”

75

“[T]hat there is currently a 

controlling stockholder who may favor a board-adopted forum selection bylaw . . .

 

71 Id. (quoting Boilermakers, 73 A.3d at 940, and citing City of Providence, 99 A.3d at 

240).

72 Id. at *11.

73 City of Providence, 99 A.3d at 241.

74 Id. (alterations and internal quotation marks omitted) (quoting Boilermakers, 73 A.3d at 

954).

75 Id.
23

does not make it per se unreasonable to enforce the bylaw.”

76

 Such a plaintiff may 

still avoid the forum selection bylaw by demonstrating that its enforcement is 

unreasonable because it would be inequitable to require the parties to litigate in the 

chosen forum.77 

While this case does not involve a forum selection bylaw, Boilermakers, 

Sylebra, and City of Providence refute Plaintiff’s contention that the forum selection 

clauses in the Amendment and 2019 Note are invalid because he did not consent to 

those specific agreements. Just as stockholders assent to an “overarching statutory 

and contractual regime” that “explicitly allows the board to make [changes] on its 

own”78 and that permits “a requisite majority of other stockholders [to] adopt bylaws 

with which they do not agree,”79 Plaintiff assented to the Notes’ contractual 

 

76 Id.

77 Id. at 242 (“Reaching this conclusion does not leave minority stockholders of controlled 

corporations without recourse. Schnell [v. Chirs-Craft Industries, Inc., 285 A.2d 437, 439 

(Del. 1971), which held that “inequitable action does not become permissible simply 

because it is legally possible,”] is a powerful lens through which this Court evaluates the 

as-applied validity of forum selection bylaws. In the appropriate case, a foreign forum 

selection bylaw may not withstand Schnell scrutiny. For reasons previously discussed, 

however, Providence has not convinced me that it would be inequitable here to require 

Providence to litigate the claims asserted in the Merger Complaint in the United States 

District Court for the Eastern District of North Carolina or in a North Carolina state 

court.”).

78 Boilermakers, 73 A.3d at 956.

79 Id. at 956 n.99.
24

framework, which explicitly recognizes that dissenting noteholders will be bound by 

amendments adopted by a Majority in Interest of Investors. 

On six occasions between 2013 and 2015, Plaintiff executed Notes containing 

the same “Waiver and Amendment” provision.80 Plaintiff agreed that the Notes 

“may be amended, waived or modified upon the written consent of the Company 

and a Majority in Interest of Investors.”81 Under that clear contractual framework, 

Plaintiff “assent[ed] to not having to assent to” amendments adopted by a 

Majority in Interest of Investors.

82

 The Amendment and 2019 Note indicate that 

they, including their forum selection clauses, were enacted by just this mechanism.83 

Plaintiff’s argument that he must have consented to the Amendment and 2019 Note, 

or had the opportunity to negotiate their terms, for their provisions to bind him “is 

an interpretation that contradicts the plain terms of the contractual framework” he 

agreed to via the Notes.84 

 

80 See Ex. B § 10(b); Ex. E § 10(b); Ex. F § 11(b); Ex. G § 10(b); Ex. H § 11(b); Ex. I § 

10(b).

81 See, e.g., Ex. B § 10(b).

82 See Boilermakers, 73 A.3d at 956. Plaintiff does not argue that use of the Notes’ “Waiver 

and Amendment” provisions itself was a wrongful means of adopting the Amendment and 

2019 Note: he makes no meaningful challenge that the process renders enforcement of 

their forum selection clauses unjust or unreasonable. And having notice of this contractual 

process, he cannot disavow it now. See Shute, 499 U.S. at 595 (stating that it is reasonable 

to enforce a forum selection clause where the complaining party had notice of it).

83 Ex. K at 1, §§ 2(c), 4(a); Ex. L §§ 1, 2, 13(m); see also Ex. J.

84 Boilermakers, 73 A.3d at 956.
25

As recognized in Boilermakers and Carnival Cruise Lines, Inc. v. Shute, a 

forum selection clause may be reasonable although it was not subject to negotiation, 

absent evidence of fraud or overreaching with respect to the clause.85 Plaintiff was 

on notice of the amendment process via the Notes; presumably could have chosen 

to reject that process by foregoing his debt investment; received final versions of the 

Amendment and 2019 Note that included the forum selection clauses at issue; and 

was aware that his fellow noteholders may consent to those documents such that 

they would become binding on Plaintiff. The forum selection clauses in the 

Amendment and 2019 Note are not invalid simply because they lack Plaintiff’s 

specific and contemporaneous consent or buy-in.

Plaintiff also resists being bound by the Notes’ contractual scheme because 

the Majority in Interest of Investors includes Defendant’s Related Parties, and 

because the resulting Amendment and 2019 Note foreclosed Plaintiff from 

recouping his investment as originally anticipated. Plaintiff contends that nothing 

in the Amendment and 2019 Note “prevents Rev from using the purported majority 

(which includes related parties) to further extend the October 2021 maturity date to 

avoid ever having to pay back the investors (just as the extension of the SVB line of 

credit has accomplished).”86 

 

85 See Shute, 499 U.S. at 594–95; Boilermakers, 73 A.3d at 956–58.

86 Am. Compl. ¶ 61.
26

But in City of Providence, the Court enforced a unilaterally imposed forum 

selection bylaw over an investor’s complaint that his vote would be continually 

subsumed by the vote of an interested majority stockholder.

87

 Under that principle, 

neither the Related Parties’ vote nor its adverse effect on Plaintiff renders the forum 

selection clause invalid. As City of Providence instructs, Plaintiff cannot point to an 

interested vote to avoid the forum selection clause’s effect. Rather, he must meet 

his heavy burden of demonstrating that it would be inequitable to require the parties 

to litigate in the chosen forum.

88

 

Accordingly, like the plaintiffs in Boilermakers, City of Providence, and 

Sylebra, I conclude that Plaintiff implicitly consented to the forum selection clauses 

in the Amendment and 2019 Note, which favor the Texas courts. 

2. Plaintiff Has Failed To Otherwise Demonstrate 

That Enforcement Of Those Clauses Would Be 

Unreasonable Or Unjust.

I now turn to Plaintiff’s argument that litigating the validity of the 2019 Note 

in Texas “would not only be an undue burden on Plaintiff, but on the judicial system

as well.”89 Plaintiff contends that this Delaware action “likely cannot proceed 

without a determination of the validity of the Amendment and 2019 Note first,” and 

 

87 See City of Providence, 99 A.3d at 240–42.

88 See id. at 242.

89 D.I. 37 at 44.
27

“[t]o force [Plaintiff] to take this claim to Texas for adjudication, thus stalling these 

proceedings indefinitely, would undermine the Court’s ability to control its own 

docket.”90

Plaintiff has failed to demonstrate that litigation in Texas would be unduly 

burdensome on him. “Mere inconvenience or additional expense is not the test of 

unreasonableness. In light of present day commercial realities, a forum clause 

should control absent a strong showing that it should be set aside.”91 Such a clause

“is unreasonable only when its enforcement would, under the circumstances then 

existing, seriously impair the plaintiff’s ability to pursue his cause of action.”92

Plaintiff has not argued that he would be unreasonably disadvantaged by litigating 

Count V in Texas. Plaintiff only cites delay and inconvenience in prosecuting the 

rest of his claims in Delaware. Those concerns fail to overcome the Amendment 

and 2019 Note’s Texas forum selection clauses. 

Plaintiff’s concern for this Court’s docket and judicial economy is also 

unpersuasive. “Delaware courts have held that, if there is a forum selection clause 

 

90 Id. (emphasis in original).

91 Ingres, 8 A.3d at 1146 n.9 (quoting HealthTrio, Inc. v. Margules, 2007 WL 544156, at 

*3 (Del. Super. Jan. 16, 2007)).

92 Id. (quoting Elia Corp. v. Paul N. Howard Co., 391 A.2d 214, 216 (Del. Super. 1978)); 

see also id. (stating that the clause “should be respected as the responsible expression of 

the intention of the parties so long as there is no proof that its provisions will put one of 

the parties to an unreasonable disadvantage and thereby subvert the interests of justice” 

(quoting Cent. Contr. Co. v. Md. Cas. Co., 367 F.2d 341, 345 (3d Cir. 1966))).
28

in a contract, even when venue where the suit is filed is proper, the court should 

decline to proceed when the parties freely agreed that litigation should be conducted 

in another forum.”

93 “So long as there is nothing unreasonable in such a provision 

there is no basis for viewing it as an affront to the judicial power, which must be 

stricken down.”94 With these principles in mind, “judicial economy requires 

selection of the proper forum at the earliest possible opportunity.”95 

Plaintiff’s lost luxury of adjudicating related claims in a single proceeding 

falls short of an affront to the judicial power. Taking his claim to Texas may pose 

the risk that this action is stayed pending adjudication in that court. But that risk of 

delay is insufficient to overcome this Court’s obligation to afford forum selection 

clauses substantial weight. Plaintiff has not shown that enforcement would be 

unreasonable, so Delaware law mandates that I dismiss Count V. 

 

93 Id. at 1145 n.8 (quoting HealthTrio, Inc., 2007 WL 544156, at *3); see also Outokumpu 

Eng’g Enters. v. Kvaerner EnviroPower, Inc., 685 A.2d 724, 733 (Del. Super. 1996)

(explaining that forum selection clauses are entitled to “substantial weight”); Elia Corp.,

391 A.2d at 216 (“[E]ven though venue is proper where suit is filed and a court of 

competent jurisdiction exists, that court should decline to proceed with the cause when the 

parties have freely agreed that litigation shall be conducted in another forum and where 

such agreement is not unreasonable at the time of litigation.”).

94 Ingres, 8 A.3d at 1145 n.8 (quoting Cent. Contr. Co., 367 F.2d at 345).

95 Simon, 2000 WL 1597890, at *5 & n.22 (holding that a motion to dismiss based on a 

forum selection clause should be handled via Rule 12(b)(3) because “judicial economy 

requires selection of the proper forum at the earliest possible opportunity” (quoting 

Frietsch v. Refco, Inc., 56 F.3d 825, 830 (7th Cir. 1995))).
29

3. Plaintiff Cannot Dislodge The Forum Selection 

Clauses By Attacking The Validity Of The 

Instruments Containing Them.

In the absence of a specific argument that the forum selection clauses are 

unreasonable as applied, Plaintiff alleges that the Amendment and 2019 Note are 

invalid, claiming that they were wrongfully procured by the vote of interested 

investors and tainted by suspect timing. Plaintiff argues that because Count V

alleges that the Amendment and 2019 Note are invalid, this Court should not enforce 

their forum selection clauses. 

But this argument is contrary to settled Delaware law. In Carlyle Investment 

Management L.L.C. v. National Industries Group (Holding), this Court considered 

an argument that the agreement at issue was “void in its entirety, and that the forum 

selection clause is void too.”96 The Court rejected the argument, even if the 

agreement was, in fact, invalid: 

 

96 Carlyle I, 2012 WL 4847089, at *7.
30

Under Delaware and federal law, a party cannot escape a valid forum 

selection clause . . . by arguing that the underlying contract was 

fraudulently induced or invalid for some reason unrelated to the forum

selection . . . clause itself. Instead, the party must show that the forum 

selection clause itself is invalid. If the forum selection clause, standing

alone, is found to be valid, the court that has jurisdiction over the 

dispute is to decide whether the contract is enforceable. Delaware has 

embraced the same approach because it sensibly prevents a party from 

making an end-run around an otherwise enforceable forum selection 

provision through an argument about the enforceability of other terms 

in the contract.97

The Delaware Supreme Court affirmed and adopted this reasoning on appeal: “[i]f 

the forum selection clause, standing alone, is found to be valid, the court having 

jurisdiction over the dispute is to decide whether the contract is enforceable or 

void ab initio.”

98

 Accordingly, this Court cannot adjudicate the overall validity of 

the Amendment and 2019 Note in the face of presumptively valid forum selection 

clauses therein, in the absence of facts clearly demonstrating that the enforcement of 

the clauses themselves, rather than the contracts as a whole, is unjust or 

unreasonable. 

 

97 Id. at *10 (alterations, footnotes, and internal quotation marks omitted) (quoting Ashall 

Homes Ltd. v. ROK Ent. Gp. Inc., 992 A.2d 1239, 1248 (Del. Ch. 2010)).

98 Carlyle II, 67 A.3d at 380; accord Sylebra, 2020 WL 5989473, at *13 (“Moreover, even 

if [plaintiff] had attempted to plead that the Reincorporation Merger was procured by fraud, 

that would be irrelevant in determining whether the Forum Selection Bylaw itself was 

procured by fraud. If the Forum Selection Bylaw is valid and enforceable in its own right, 

then whether there was fraud associated with the Reincorporation Merger . . . is a matter 

for the Nevada court to decide.”).
31

Nor can this Court assess the adequacy of the vote resulting in the Amendment 

and 2019 Note. To warrant this Court’s attention, the avoiding party’s arguments 

must focus on the forum selection clause itself, not the transaction at large.99 Absent 

well-pled facts explaining how Defendant and the Related Parties “have advanced 

their self-interests by having the claims in the [Amended] Complaint adjudicated in 

those courts instead of a Delaware court,” Plaintiff’s allegations that the Amendment 

and 2019 Note wrongfully depend on the vote of interested Related Parties do not 

foreclose enforcement of the forum selection clauses.100 

Neither does the allegedly suspect timing of the vote, Amendment, and 2019 

Note. Plaintiff has alleged that “the 2019 Note and Amendment were Rev’s 

improper, eleventh hour attempt to erase its existing default under the Notes and 

 

99 See City of Providence, 99 A.3d at 240–41 (holding that enforcement of a forum selection 

clause is not unreasonable or inequitable per se because it was adopted in connection with 

a self-interested or improperly-motivated transaction, and that the avoiding party must 

demonstrate that enforcement is unreasonable because the alleged interestedness pertains 

to the forum selection clause itself); see also Carlyle I, 2012 WL 4847089, at *10 (holding 

that arguments regarding invalidity must go to the forum selection clause itself, not the 

agreement generally).

100 See City of Providence, 99 A.3d at 241; see also Sylebra, 2020 WL 5989473, at *12 

(“As the Defendants properly note, in determining whether a stockholder has met his 

burden to demonstrate unreasonableness in Delaware, the fundamental inquiry is whether 

the stockholder has alleged well-pled facts calling into question the integrity of the court 

chosen in the forum selection bylaw, or explained how the defendants have advanced their 

self-interests by having the claims adjudicated in those courts instead of a Delaware court. 

Sylebra has not alleged, likely because it cannot allege, either fact.” (alterations and 

internal quotation marks omitted) (quoting City of Providence, 99 A.3d at 241)).
32

moot Plaintiff’s pending claims.”101 But City of Providence and Sylebra instruct that 

suspect timing in imposing a forum selection clause does not render it unenforceable. 

Facing a similar argument in City of Providence,

102 Chancellor Bouchard turned to 

the contractual scheme the plaintiff agreed to; an “essential part” of that contract was 

the presupposition that the board could adopt a binding forum selection bylaw 

without a stockholder vote.103 Thus, the stockholder should hold the “reasonable 

expectation” that the board could adopt such a bylaw at any time, subject to an asapplied challenge.104

 Sylebra adopted the same logic: “a stockholder in a Delaware 

corporation gives consent to be bound by current and future bylaws when it buys 

stock. Whether or not the alleged wrongdoing comes before or after the adoption of 

a forum selection bylaw is irrelevant in determining the reasonableness or overall 

 

101 D.I. 37 at 43; see also Am. Compl. ¶ 48 (“Assuming the Amendment were legitimate, 

the Company would no longer be in default on Mack’s Notes and the accompanying 

Security Agreements that form the basis for Mack’s claims against Rev as stated in the 

original Verified Complaint.”); id. ¶ 49 (“Though, by the stroke of a pen, Rev was 

attempting to extinguish Mack’s right to recovery of his investment and moot several 

claims of this lawsuit, no notice was made to this Court (even though oral argument on 

Rev’s motion to dismiss the extant complaint was scheduled for February 12, 2020).”).

102 See City of Providence, 99 A.3d at 238 (“Providence contends that the timing of the 

Board’s adoption of the Forum Selection Bylaw—simultaneous with the adoption of the 

merger agreement—renders applying the bylaw to dismiss the Merger Complaint 

unreasonable.”); id. at 240 (“Providence argues that enforcing the Forum Selection Bylaw 

against it would be unjust because the Board’s adoption of the Bylaw, which occurred 

simultaneously with the announcement of the unfair [proposed merger], goes well beyond 

its reasonable expectations.” (alterations and internal quotation marks omitted)).

103 Id. at 240.

104 Id.
33

enforceability of the bylaw.”

105

 Plaintiff has failed to demonstrate that the suspect 

timing renders enforcement of the Amendment and 2019 Note’s forum selection 

clauses unreasonable or unjust. Nor has Plaintiff demonstrated that the timing of the 

vote and 2019 Note forecloses adjudication of his claims. 

To paraphrase Carlyle, for now, what is important is that the parties agreed 

that issues arising from or related to the Amendment and 2019 Note would be 

determined by the Texas courts.106 The fact that Plaintiff may have a claim to 

invalidate the Amendment and 2019 Note does not render their forum selection 

provisions unenforceable by this Court. That Defendant and the Related Parties 

adopted the Amendment and 2019 Note “on an allegedly ‘cloudy’ day . . . rather 

than on a ‘clear’ day is immaterial given the lack of any well-pled allegations” in 

Plaintiff’s complaint demonstrating impropriety with respect to the chosen forum.107 

The subject forum selection clauses “merely regulate[] where the [noteholder] may 

file suit, not whether the [noteholder] may file suit or the kind of remedy that the 

[noteholder] may obtain.”108 Accordingly, the conduct of Defendant and the Related 

Parties in approving the Amendment and 2019 Note “will not be absolved from 

 

105 Sylebra, 2020 WL 5989473, at *11 (footnotes omitted).

106 See Carlyle I, 2012 WL 4847089, at *10.

107 City of Providence, 99 A.3d at 241.

108 Id. (quoting Boilermakers, 73 A.3d at 952).
34

judicial review.”

109

 That review simply must occur in a Texas court. Count V is 

dismissed.110

B. Count III Is Dismissed Pursuant To Rule 12(b)(3).

With respect to Count III, Defendant contends the claim must be dismissed in 

view of one of two forum selection clauses: the Notes’ forum selection clauses in 

favor of Texas, which are explicitly incorporated by reference in the Security 

Agreements; or the Subordination Agreement’s forum selection clause in favor of 

California, as the Security Agreements are subject to the Subordination Agreement. 

In response, Plaintiff raises two arguments. Procedurally, Plaintiff asserts that 

Defendant waived any improper venue defense based on the Notes and Security 

Agreements’ forum selection clauses because Defendant did not raise those specific 

clauses in support of the Initial Motion under Rule 12(b)(3). Substantively, Plaintiff 

argues that Defendant cannot invoke the forum selection clause in the Subordination 

Agreement because Defendant was not a formal party to it. Neither of Plaintiff’s 

arguments preclude dismissal. Count III cannot be adjudicated in Delaware. 

 

109 Id.

110 Defendant also argued that Count V should be dismissed for failure to state a claim 

under Rule 12(b)(6). In view of my determination under Rule 12(b)(3), I do not reach that 

issue.
35

1. Defendant Did Not Waive Its 12(b)(3) Defense 

And Therefore May Invoke The Forum 

Selection Provisions In The Notes And Security 

Agreements.

Defendant’s Motion contends Count III must be dismissed based on the Texas 

forum selection clause in the Notes and incorporated by reference into the Security 

Agreements. Defendant did not present this argument in the Initial Motion; the 

Initial Motion sought dismissal based only on the Subordination Agreement’s 

California forum selection clause, contending that “Plaintiff’s claims in Count III 

related to breaches of the Security Agreements are all based upon the Subordination 

Agreement.”111 According to Plaintiff, because Count III of the Amended 

Complaint is identical to Count III of the Initial Complaint, Defendant could have 

asserted the Security Agreement and Notes’ Texas forum selection clause as the 

basis for the Rule 12(b)(3) defense in its Initial Motion, but failed do so and therefore 

waived it. 

At bottom, Plaintiff contends Court of Chancery Rule 12 requires a 

defendant’s first motion to assert not just a Rule 12(b)(3) defense, but also all 

potential arguments in support, and forecloses the defendant from asserting new or 

more expansive arguments after an amended complaint has been filed. Plaintiff 

provides no authority for his view that failure to raise a specific ground for the 

 

111 D.I. 6 at 10 (internal quotation marks omitted).
36

defense constitutes waiver of that ground. Nor has the Court found any. Rather, 

Rule 12’s plain language, its underlying policy, and the practicalities of pleading and 

motion practice lead to the conclusion that Defendant did not waive its Rule 12(b)(3) 

defense based on the Texas forum selection clause. 

“[U]nder Delaware law, a waiver is found where a party had actual or 

constructive notice of a known right, and that the party voluntarily and intentionally 

relinquished that known right.”112 Court of Chancery Rule 12 codifies when a 

defendant waives certain defenses. The plain language of Rule 12 deals with raising 

and waiving the defense generally. Rule 12 does not mention, let alone mandate, 

that the movant raise every specific ground for the defense or waive those arguments. 

Under Rule 12(h)(1), the improper venue defense is waived if it is not raised 

in the initial motion or responsive pleading. That Rule provides, in pertinent part: 

A defense of lack of jurisdiction over the person, improper venue, 

insufficiency of process, or insufficiency of service of process is waived 

(A) if omitted from a motion in the circumstances described in 

paragraph (g), or (B) if it is neither made by motion under this rule nor 

included in a responsive pleading or an amendment thereof permitted 

by Rule 15(a) to be made as a matter of course.113

Rule 12(g) in turn states: 

 

112 Ashall Homes Ltd., 992 A.2d at 1247 (alterations, footnotes, and internal quotation 

marks omitted) (quoting Danvir Corp. v. City of Wilm., 2008 WL 4560903, at *7 (Del. Ch. 

Oct. 6, 2008)); see also E. Hedinger AG v. Brainwave Sci., LLC, 363 F. Supp. 3d 499, 506 

(D. Del. 2019) (“Waiver is the intentional relinquishment or abandonment of a known 

right.” (alterations and internal quotation marks omitted) (quoting United States v. Olano, 

507 U.S. 725, 733 (1993))).

113 Ct. Ch. R. 12(h)(1).
37

If a party makes a motion under this rule but omits therefrom any 

defense or objection then available to the party which this rule permits 

to be raised by motion, the party shall not thereafter make a motion 

based on any of the defenses or objections so omitted except as 

provided in subparagraph (h)(2) hereof on any of the grounds there 

stated.114

Under these provisions, Rule 12 requires an improper venue defense be raised 

by a timely Rule 12 motion or, if no motion is filed, in the first responsive 

pleading.115 The defendant “[i]s required to expressly raise the defense of lack 

[venue] no later than her answer” in order to give the opposing party “sufficient 

notice of the Rule 12(b)([3]) defense.”116 If the defendant “fail[s] to expressly raise 

a lack of [venue] defense in a timely manner,” then the defense is waived.117

In applying these provisions, it is important to keep in mind that they “are 

designed to prevent a litigant from using a series of motions as a dilatory tactic,”

118

 

114 Ct. Ch. R. 12(g).

115 Plummer v. Sherman, 861 A.2d 1238, 1243–44 (Del. 2004); see also Jones v. Peek, 

2009 WL 3334913, at *3 (Del. Super. Oct. 14, 2009) (“Rule 12(h) imposes a higher 

sanction with respect to the failure to raise the specific defenses of lack of personal 

jurisdiction, improper venue, insufficiency of process, and insufficiency of service of 

process. If a party filed a pre-answer motion but fails to raise one of the defenses 

enumerated above, the party waives the omitted defense and cannot subsequently raise it 

in his answer or otherwise.” (emphasis omitted) (quoting Myers v. Am. Dental Ass’n, 695 

F.2d 716, 720 (3d Cir. 1983))).

116 Plummer, 861 A.2d at 1244.

117 Id.

118 Id. at 1243.
38

to “direct[] a party to take timely action on answers or motions,”

119 and “to expedite 

litigation and encourage disputes to be resolved on their merits.”120 Failure to timely 

raise the defense results in waiver because delay often results in prejudice, and 

“[p]rejudice is the touchstone for determining whether [a] right . . . has been 

waived.”121 The Court therefore considers whether the opposing party was on notice 

of the defense and whether the opposing party had sufficient opportunity to 

respond.122

 

119 Jones, 2009 WL 3334913, at *2.

120 Tuckman v. Aerosonic Corp., 394 A.2d 226, 232 (Del. Ch. 1978) (“The purpose for 

[Rule 12(h)] is to expedite litigation and encourage disputes to be resolved on their 

merits.”); see also Myers, 695 F.2d at 720–21 (stating that Rule 12 is crafted “to afford an 

easy method for the presentation of defenses but at the same time prevent their use for 

purposes of delay,” and that “[t]he [analogous] federal rules single out four defenses which 

must be raised by the defendant’s initial responsive pleading in order to be preserved,” 

which “reflects a strong policy against tardily raising defenses that go not to the merits of 

the case but to the legal adequacy of the initial steps taken by the plaintiff in his litigation, 

namely . . . his choice of forum for the action,” and “benefits the court as well as the 

opposing party by requiring a litigant to raise certain technical objections, the basis of 

which should be apparent from the outset of the action, before the litigation has moved 

forward”).

121 E. Hedinger AG, 363 F. Supp. 3d at 506 (quoting Hoxworth v. Blinder, Robinson & Co., 

Inc., 980 F.2d 912, 925 (3d Cir. 1992)) (analyzing whether defendant waived its right to 

invoke an arbitration clause).

122 Cf. Myers, 695 F.2d at 720–21 (holding that defendant could not “amend” its pleading 

to broaden its lack of personal jurisdiction defense raised in an initial motion to dismiss 

because “the defense of personal jurisdiction was not raised before the district court until

after argument and after the court rendered its decision on the motion,” and suggesting that 

the result may have been different if “a pre-answer motion was amended or supplemented

prior to argument before the district court” so as to afford the opponent an opportunity to 

respond (emphasis in original)).
39

This Court’s briefing rules and practices mitigate the risk of unfair surprise 

from new or unreasonably expanded arguments. It is well settled that arguments 

that were not raised in an opening brief and are beyond the scope of matter asserted 

in a responsive brief are deemed waived.123 Thus, considering this common law 

principle and Rule 12, on a typical motion to dismiss, the defendant must raise the 

improper venue defense to preserve it and avoid waiver under Rule 12. The 

defendant then bears the burden of asserting all grounds supporting the defense in 

his opening brief, filed either contemporaneously with or shortly after the motion. 

At that point, substantive arguments not briefed are deemed waived. 

Synthesizing the plain text of Rule 12, its policies, and the coordinating 

common law on waiver of arguments, I conclude that because Defendant timely and 

“expressly raise[d]” its 12(b)(3) defense in response to the Initial Complaint and 

again in response to the Amended Complaint, Defendant gave Plaintiff “sufficient 

 

123 See, e.g., Emerald P’rs v. Berlin, 726 A.2d 1215, 1224 (Del. 1999) (holding that plaintiff 

waived arguments by failing to raise them in its opening brief); Murphy v. State, 632 A.2d 

1150, 1152 (Del. 1993) (explaining that “[t]he failure to raise a legal issue in the text of the 

opening brief generally constitutes a waiver of that claim on appeal” (footnote omitted));

Franklin Balance Sheet Inv. Fund v. Crowley, 2006 WL 3095952, at *4 (Del. Ch. 

Oct. 19, 2006) (explaining that, “under the briefing rules, a party is obliged in its motion 

and opening brief to set forth all of the grounds, authorities and arguments supporting its 

motion” and “should not hold matters in reserve for reply briefs,” which “should consist of 

material necessary to respond to the answering brief”); In re Asbestos Litig., 2007 WL 

2410879, at *4 (Del. Super. Aug. 27, 2007) (noting that it is “well-settled in Delaware” 

that a legal issue not raised in an opening brief is generally deemed waived and “[m]oving 

parties must provide adequate factual and legal support for their positions in their moving 

papers in order to put the opposing parties and the court on notice of the issues to be 

decided”).
40

notice” of the defense and the defense is preserved.124 Defendant’s Initial Motion,

like the instant Motion, raised a 12(b)(3) defense against Count III. Specifically, 

Defendant argued that Count III must be dismissed in view of the Subordination 

Agreement’s forum selection clause. Thereafter, the parties fully briefed the issue.

Plaintiff had ample opportunity to respond to Defendant’s specific Rule 12(b)(3) 

arguments on the Initial Motion. If the Court had adjudicated the Initial Motion, 

Defendant would have been held to those arguments alone and would not have been 

permitted to invoke the forum selection provisions of the Security Agreements and 

Notes. 

But the Court did not adjudicate the Initial Motion because Plaintiff elected to 

file the Amended Complaint. The Amended Complaint renewed Defendant’s 

opportunity to raise the 12(b)(3) defense, along with its supporting arguments.125 

Defendant repeated its 12(b)(3) defense and, perhaps perceiving that it had missed 

an opportunity on the Initial Motion, asserted an additional argument in support: the 

Security Agreements’ forum selection provision, which explicitly incorporates the 

Notes’ forum selection clauses by reference. Defendant gave Plaintiff “sufficient 

 

124 Plummer, 861 A.2d at 1244.

125 Cf. Dunfee v. KGL Hldgs. Riverfront, LLC, 2018 WL 5619705, at *1–2 (Del. Super. Ct. 

Oct. 30, 2018) (considering whether a “successive Rule 12(b)(6) motion” raising new 

ground for the motion was “a violation of Rule 12(g) and Rule 12(h)(2),” concluding it 

was, but stating that if plaintiff failed an amended complaint, then defendant “shall be 

permitted to file another motion to dismiss pursuant to 12(b)(6) regarding those amended 

complaints” inclusive of the grounds raised in the improper motion).
41

notice” of the defense and its supporting basis.

126

 Plaintiff had every opportunity to 

respond in briefing and at argument, and did so in full voice. 

Nothing in Rule 12’s plain language foreclosed Defendant’s course of 

conduct. In Defendant’s Initial Motion, Defendant fulfilled its “duty” “to appear 

and raise his objections” in a timely manner under Rule 12.127 Defendant did not 

waive its Rule 12(b)(3) defense by refining it after Plaintiff filed his Amended 

Complaint. Plaintiff has not argued nor demonstrated that Defendant used motion 

practice or other presentation of the Rule 12 defenses for purposes of delay or as a 

dilatory tactic.

128

 And most importantly, Plaintiff has failed to articulate how he has 

been prejudiced by Defendant’s decision to assert the Security Agreements’ forum 

selection provision as a basis for the Rule 12(b)(3) defense. I cannot discern any 

such prejudice. Defendant did not waive its grounds for its Rule 12(b)(3) defense 

by timely raising them and fully briefing them in response to the Amended 

Complaint. 

 

126 Plummer, 861 A.2d at 1244.

127 Jones, 2009 WL 3334913, at *2 (quoting U.S. ex rel. Combustion Sys. Sales, Inc. v. E. 

Metal Prod. & Fabricators, Inc., 112 F.R.D. 685, 686 (M.D.N.C. 1986)).

128 See Plummer, 861 A.2d at 1243; Myers, 695 F.2d at 720.
42

2. Multiple Forum Selection Clauses Require 

Dismissal of Count III.

Count III alleges that Defendant breached the Security Agreements. 

Defendant argues that Count III must be dismissed because the Security Agreements

expressly adopt and incorporate the Notes’ forum selection clauses, which provide 

for exclusive jurisdiction in the U.S. District Court for the Western District of Texas 

in Austin, Texas or the courts of the State of Texas sitting in Travis County.129 

Defendant alternatively argues that Count III must be dismissed because the Security 

Agreements and their corresponding Notes are expressly subject to the terms and 

conditions of the Subordination Agreement, which contains a forum selection clause 

subjecting disputes arising from and related to it “to the exclusive jurisdiction of the 

state and federal courts located in Santa Clara County, California in any action, suit, 

or proceeding of any kind, against it which arises out of or by reason of this 

Agreement.”130 Those clauses “are presumptively valid and should be specifically 

enforced unless the resisting party clearly show[s] that enforcement would be 

 

129 See Ex. B § 10(J); Ex. E § 10(J); Ex. F § 11(J); Ex. G § 10(J); Ex. H § 11(J); Ex. I § 

10(J).

130 Ex. D § 15.
43

unreasonable and unjust, or that the clause [is] invalid for such reasons as fraud and 

overreaching.”131

Plaintiff has not argued or demonstrated that enforcing either the Texas or 

California forum selection provision would be unreasonable or that those provisions 

were procured by fraud or overreaching. And nothing suggests that enforcement 

“would place [Plaintiff] at an unfair disadvantage or otherwise deny it its day in 

court.”132 Thus, the forum selection provisions divest this Court of jurisdiction to 

hear Count III. 

Plaintiff does argue that Defendant cannot invoke the Subordination 

Agreement’s forum selection clause because, although Defendant is named as 

“Borrower” under that agreement and signed it, Defendant is not a formal party to 

the agreement “by and between the [C]reditors . . . and Silicon Valley Bank.”133

Evaluating this argument would require this Court to substantively interpret the 

Subordination Agreement, even though its forum selection clause clearly gives 

California courts exclusive jurisdiction over that task.134 This Court would be 

 

131 Sylebra, 2020 WL 5989473, at *10 (alterations in original) (quoting Ingres, 8 A.3d at 

1146).

132 Id. at *11 (alterations and internal quotation marks omitted) (quoting Cap. Gp. Cos., 

Inc., 2004 WL 2521295, at *6).

133 Ex. D at 1.

134 The Subordination Agreement is expressly governed by California law. Ex. D. § 15. 

“When a contract contains a forum selection clause, this court will interpret the forum 

selection clause in accordance with the law chosen to govern the contract.” Ashall Homes 
44

required to consider the import of Defendant being named as “Borrower” under the 

Subordination Agreement, its provisions discussing the parties’ rights and 

obligations with respect to Borrower, and the effect of Borrower’s executing the 

Subordination Agreement.135 Considering these issues and interpreting the 

 

Ltd., 992 A.2d at 1245. “It is telling, however, that neither party has cited to [California] 

law—the law for which they bargained—in its briefing on this motion.” Id. at 1246. “That 

illustrates a basic problem with adjudicating this dispute in Delaware: this court does not 

have—and cannot pretend to have—the same knowledge of [California] law . . . as the 

courts of [California].” Id. 

135 A California court very well might decide that the Defendant could invoke the 

Subordination Agreement’s forum selection clause against Plaintiff. Under Delaware law, 

which is consistent with the laws of many other jurisdictions, a non-signatory has standing 

to invoke and enforce a forum selection clause where it is “closely related to one of the 

signatories such that the non-party’s enforcement of the clause is foreseeable by virtue of 

the relationship between the signatory and the party sought to be bound.” Ashall Homes 

Ltd., 992 A.2d at 1249 (quoting BNY AIS Nominees Ltd. v. Quan, 609 F. Supp. 2d 269, 275 

(D. Conn. 2009), and citing Holland Am. Line Inc. v. Wärtsilä N. Am., Inc., 485 F.3d 450, 

456 (9th Cir. 2007) (holding that where the alleged conduct of the non-parties is closely 

related to the contractual relationship, a range of transaction participants, parties and nonparties, should benefit from and be subject to forum selection clauses), and then citing 

Ishimaru v. Fung, 2005 WL 2899680, at *17–18 (Del. Ch. Oct. 26, 2005) (holding that a 

non-signatory subsidiary could enforce the arbitration provision in an agreement executed 

by its parent company), among other cases). A non-signatory is closely related if “(1) [the 

party] receives a direct benefit from the agreement; or (2) it was foreseeable that [the party] 

would be bound by the agreement.” Neurvana Med., LLC v. Balt USA, LLC, 2019 WL 

4464268, at *4 (Del. Ch. Sept. 18, 2019) (quoting Weygandt v. Weco, LLC, 2009 WL 

1351808, at *4 (Del. Ch. May 14, 2009)). “In evaluating whether a non-signatory received 

a direct benefit for the purpose of the closely-related test, Delaware courts have deemed 

both pecuniary and non-pecuniary benefits sufficient to satisfy the test.” Id. “[T]he 

foreseeability inquiry seeks to foreclose an end-run around an otherwise enforceable forum 

selection provision. On this basis, cases have applied the foreseeability inquiry to bind a 

range of transaction participants who did not sign the relevant agreement.” Id. at *5 

(alterations, footnotes, and internal quotation marks omitted) (first quoting Ashall Homes 

Ltd., 992 A.2d at 1248, and then quoting Weygandt, 2009 WL 1351808, at *5 n.26). It 

appears likely that under Delaware law, Defendant would satisfy both the direct-benefit 

and foreseeability tests such that it would have standing to invoke the Subordination 

Agreement’s forum selection clause although it was not a formal party to that agreement. 
45

Subordination Agreement would strip the parties of their bargain and improperly 

impose this Court on the power of the chosen forum. “[A]t this stage in the 

analysis—where this court is to decide whether it can exercise jurisdiction over a 

dispute, and not to decide the outcome of the dispute itself—coming to a conclusion 

as to whether” Defendant may invoke the Subordination Agreement would be 

improper, as that analysis exceeds a strictly jurisdictional determination and requires 

more extensive contractual interpretation.

136

 Plaintiff’s argument must be rejected 

because the forum selection clause tasks California courts with interpreting the 

Subordination Agreement.

137

My analysis stops at concluding that Delaware is not the place for Count III. 

I do not reach where that claim should be heard. Plaintiff’s presentation of Count 

III to this Court is thwarted by two dueling mandatory forum selection clauses 

providing for exclusive venue in other jurisdictions.

138 Because the Security 

Agreements’ “Governing Law” provision explicitly incorporates the Notes’ forum 

selection clauses,139 that task is arguably the “exclusive” province of Texas courts.140 

 

136 See Ashall Homes Ltd., 992 A.2d at 1248.

137 See id. at 1247.

138 The parties have not argued that any of the forum selection clauses at play are permissive 

rather than mandatory.

139 Ex. C § 17.

140 E.g., Ex. B § 10(J); Ex. E § 10(J); Ex. F § 11(J); Ex. G § 10(J); Ex. H § 11(J); Ex. I § 

10(J).
46

And in the same breath, because the Security Agreements are “subject to” the 

Subordination Agreement,141 that task is arguably the “exclusive” province of 

California courts.142 

“For a forum selection clause to be strictly binding, the parties must use 

express language clearly indicating that the forum selection clause excludes all other 

courts before which those parties could otherwise properly bring an action.”

143

 “If 

the contractual language is not crystalline, a court will not interpret a forum selection 

clause to indicate the parties intended to make jurisdiction exclusive.”144

Delaware cases interpreting conflicting forum selection clauses generally 

involve one in favor of Delaware and the other in favor of a foreign court. And in 

those instances, the Court has determined that the conflicting language is not 

“crystalline” in indicating exclusive jurisdiction in a non-Delaware court.145 This 

 

141 Ex. C at 1.

142 Ex. D § 15.

143 Troy Corp., 2007 WL 949441, at *2 (internal quotation marks omitted) (quoting 

Prestancia Mgmt. Gp., Inc. v. Va. Heritage Found. II, LLC, 2005 WL 1364616, at *7 (Del. 

Ch. May 27, 2005)).

144 Id. (internal quotation marks omitted) (quoting Prestancia Mgmt. Gp., Inc., 2005 WL 

1364616, at *7); accord Duff v. Innovative Discovery LLC, 2012 WL 6096586, at *11 (Del. 

Ch. Dec. 7, 2012).

145 Troy Corp., 2007 WL 949441, at *2.
47

case is a variation on that theme: the Court is faced with conflicting, mandatory 

forum selection clauses, but neither regards Delaware as a proper venue. 

The parties clearly and expressly contracted to select a venue other than 

Delaware. All agreements that allegedly bear on Count III—the Notes, Security 

Agreements, and Subordination Agreement—establish the parties’ common 

understanding that the claim cannot be heard in Delaware, and a “reasonable person 

in the position of either party would have no expectations inconsistent with the 

contract language.”146 In this case, the language of the relevant agreements is 

“crystalline” that Count III is the province of a foreign court.147

Accordingly, any conflict between the forum selection clauses in the Security 

Agreements and Notes on the one hand, and the forum selection clause in the 

Subordination Agreement that the Security Agreements and Notes incorporate on 

the other, is not for this Court to resolve. This Court would have to interpret the 

Subordination Agreement together with the Security Agreements and Notes to 

reconcile their conflicting forum selection clauses, but that interpretation has been 

assigned to other courts.148 The parties must ask a court facially designated to hear 

 

146 Duff, 2012 WL 6096586, at *11 (quoting Eagle Indus., Inc. v. DeVilbiss Health Care, 

Inc., 702 A.2d 1228, 1232 (Del. 1997)).

147 Troy Corp., 2007 WL 949441, at *2; Duff, 2012 WL 6096586, at *11.

148 See Duff, 2012 WL 6096586, at *12 (“Delaware law holds that where a contract 

incorporates another contract by reference, the two contracts will be read together as a 

single contract.”).
48

Count III to determine which forum selection clause governs the dispute. Doing so 

“give[s] effect to the terms of private agreements to resolve disputes in a designated 

judicial forum out of respect for the parties’ contractual designation.”149 

Accordingly, Count III is dismissed. 

III. CONCLUSION

The Motion is GRANTED and Counts III and V of the Amended Complaint 

are DISMISSED. The parties shall submit an implementing order within twenty 

days of this decision. 

 

149 Troy Corp., 2007 WL 949441, at *2 (quoting Prestancia Mgmt. Gp., Inc, 2005 WL 

1364616, at *7).