COURT OF CHANCERY 

OF THE 

STATE OF DELAWARE

LORI W. WILL

VICE CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

September 5, 2023

T. Brad Davey, Esquire

Mathew A. Golden, Esquire

Potter Anderson & Corroon, LLP

1313 North Market Street, 6th Floor

Wilmington, Delaware 19801

Stephen B. Brauerman, Esquire

Bayard, P.A.

600 North King Street, Suite 400

Wilmington, Delaware 19801

Paul D. Brown, Esquire

Joseph B. Cicero, Esquire

Chipman Brown Cicero & Cole LLP

1313 North Market Street, Suite 5400

Wilmington, Delaware 19801

RE: Sal Gilbertie, et al. v. Dale Riker, et al.,

C.A. No. 2020-1018-LWW

Dear Counsel:

I have reviewed the plaintiffs’ Motion for Voluntary Dismissal of Claims 

With Prejudice (the “Motion”). The Motion presents the latest twist in a longrunning dispute involving current and former officers of Teucrium Trading, LLC. 

The legal saga began in 2019 when defendant Dale Riker—Teucrium’s former 

CEO—filed a books and records action in this court. It proceeded through 

threatened litigation in New York, the present action brought by Teucrium and 

certain of its officers against Riker and his spouse (Teucrium’s former CFO), a 
C.A. No. 2020-1018-LWW

September 5, 2023

Page 2 of 5

separate derivative action filed by Riker (that is now consolidated with this action), 

and an advancement action.1

In this plenary suit, I have issued rulings on a motion to dismiss the 

complaint,2a motion to dismiss counterclaims,3a motion for reconsideration,4and a 

motion to dismiss amended counterclaims.5 A subset of claims against Riker and 

certain counterclaims remain. In the advancement action, I recently resolved crossmotions for summary judgment in favor of the Rikers.

6

 That decision led the 

plaintiffs to have a change of heart. They now seek to “dismiss their claims with 

prejudice, without conditions, and without impacting Mr. Riker’s remaining two 

counterclaims.”7

1 See C.A. No. 2019-0314-AGB (Del. Ch.); C.A. No. 2021-0561-LWW (Del. Ch.); C.A. 

No. 2022-1030-LWW (Del. Ch.). For clarity, I refer to Dale Riker as “Riker” and to Dale 

and Barbara Riker together as the “Rikers.”

2 Dkts. 71, 74. 

3 Dkts. 115, 116.

4 Dkt. 123.

5 Dkts. 137, 146, 147.

6 C.A. No. 2022-1030-LWW (Del. Ch. June 13, 2023) (TRANSCRIPT). An interlocutory 

appeal of that ruling was refused. See C.A. No. 2022-1030-LWW, Dkts. 56, 59.

7 Pls.’ Mot. for Voluntary Dismissal with Prejudice (Dkt. 156) ¶ 7.
C.A. No. 2020-1018-LWW

September 5, 2023

Page 3 of 5

The Rikers, however, oppose the Motion unless I impose a series of conditions

that largely relate to the advancement action.

8

 They ask that any order granting the 

Motion also: (1) order Teucrium to advance the Rikers’ fees; (2) order the plaintiffs, 

jointly and severally, to pay fees incurred from any re-do of discovery necessitated 

by the dismissal; and (3) hold that the Rikers are “deemed wholly successful on the 

merits or otherwise with respect to the claims asserted against them in this action.”9

Court of Chancery Rule 41(a)(2) provides for voluntary dismissal with court 

approval:

[A]n action shall not be dismissed at the plaintiff’s instance save 

upon order of the Court and upon such terms and conditions as 

the Court deems proper. If a counterclaim has been pleaded by 

a defendant prior to the service upon defendant of the plaintiff’s 

motion to dismiss, the action shall not be dismissed against the 

defendants’ objection unless the counterclaim can remain 

pending for independent adjudication by the Court. Unless 

otherwise specified in the order, a dismissal under this paragraph 

is without prejudice.10

None of the conditions proposed by the Rikers are proper.

8 Rikers’ Resp. to Pls.’ Mot. for Voluntary Dismissal with Prejudice (Dkt. 158) (“Rikers’ 

Resp.”) ¶ 9.

9

Id. ¶¶ 10, 17, 20; [Proposed] Order Conditionally Granting Pls.’ Mot. for Voluntary 

Dismissal of Claims with Prejudice (Dkt. 158).

10 Ct. Ch. R. 41(a)(2) (emphasis added); see also In re Marriott Hotel Props. II Ltd. P’ship 

Unitholders Litig., 1997 WL 589028, at *6 (Del. Ch. Sept. 17, 1997) (explaining that a 

motion under Rule 41(a)(2) is “directed to the sound discretion of the Court”).
C.A. No. 2020-1018-LWW

September 5, 2023

Page 4 of 5

First, the advancement action is (obviously) a separate matter. If Teucrium is 

in violation of my summary judgment ruling, then the Rikers can seek appropriate 

relief in that proceeding. They have not done so.

Second, I decline to order the plaintiffs to bear joint and several liability for 

Riker’s discovery costs as a condition to dismissal. One would expect that the scope 

of discovery would narrow with the dismissal of the plaintiffs’ remaining claims. 

Riker asserts that granting the Motion shortly before the deadline to substantially 

complete document production is prejudicial because he will need to proceed by 

filing subpoenas rather than under previously served document requests.11 But

Teucrium’s advancement obligations and the Fitracks procedure I imposed in the 

advancement action can resolve the payment of any such discovery costs.

Third, it would be inappropriate to provide an advisory opinion on whether 

the Rikers have been successful in this action. The Rikers admittedly seek to 

“streamline [their] eventual indemnification request.”12 But they must raise whether 

they are entitled to indemnification at the appropriate time, in the appropriate action.

Indeed, none of the Rikers’ arguments amount to “plain legal prejudice.”13 In 

assessing whether a defendant faces such prejudice, the court considers “(1) the 

11 Rikers’ Resp. ¶ 18.

12 Id. ¶ 10.

13 Draper v. Gardner Defined Plan Tr., 625 A.2d 859, 863 (Del. 1993).
C.A. No. 2020-1018-LWW

September 5, 2023

Page 5 of 5

defendant[’s] effort and expense in preparation for trial; (2) excessive delay and lack 

of diligence on the part of the plaintiff in prosecuting the action; (3) insufficient 

explanation for the need to take a dismissal; and (4) [if] a motion for summary 

judgment has been filed by the defendant.”

14

 The Rikers have not meaningfully 

argued that they can establish any of these factors. 

Nor could they. The plaintiffs have committed not to refile their claims 

elsewhere.15 There is no effort by the plaintiffs to dismiss this action in favor of a 

different action. And Riker’s counterclaims remain pending for adjudication by this 

court, with all defenses preserved. As to matters concerning advancement, the 

Rikers’ separate action remains pending.

Accordingly, the Motion will be granted without condition, pursuant to a 

separate order.

Sincerely yours,

/s/ Lori W. Will

Lori W. Will

Vice Chancellor

14 Id. at 864.

15 Cf. West v. Access Control Related Enters., LLC, 296 A.3d 378, 386-87 (Del. 2023) 

(affirming the denial of a motion for voluntary dismissal where substantial trial preparation 

had occurred in Delaware and claims would be dismissed with prejudice and potentially 

refiled elsewhere).