COURT OF CHANCERY

OF THE

SAM GLASSCOCK III

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

Date Submitted: May 28, 2019

Date Decided: August 8, 2019

Geoffrey G. Grivner, Esquire

Buchanan Ingersoll & Rooney PC

919 North Market Street, Suite 1500

Wilmington, DE 19801

Michael P. Kelly, Esquire

Daniel M. Silver, Esquire

Alexandra M. Joyce, Esquire

McCarter & English, LLP

Renaissance Centre

405 North King Street, 8th Floor

Wilmington, DE 19801

David A. Dorey, Esquire

Adam V. Orlacchio, Esquire

Blank Rome LLP

1201 N. Market Street, Suite 800

Wilmington, DE 19801

Re: Murphy Marine Services of Delaware, Inc. et al. v. GT USA 

Wilmington, LLC and GT USA, L.L.C., 

C.A. No. 2018-0664-SG 

Dear Counsel:

This state has but one general commercial port, the Port of Wilmington, which 

is located on the Christina River where it enters the Delaware River, just below the 

City of Wilmington. The Port has deep-water access to the Atlantic Ocean, and 

caters to oceangoing commercial vessels. It is owned by the State of Delaware. This 

matter involves the State’s recent privatization of management of the Port of 

Wilmington. The entity that Delaware has chosen to provide that management, 
2

Defendant GT USA, LLC (“GT USA”) has created a subsidiary, GT USA 

Wilmington, LLC (“GT Wilmington”), to conduct operations at the Port. GT 

Wilmington entered a contract with Murphy Marine Services of Delaware, Inc.

(“Murphy Marine”), a Delaware corporation that has provided stevedoring service 

at the Port for many years. Under the contract between GT Wilmington and Murphy 

Marine, the former would purchase the latter, at a price to be set by a third party. 

The contract has not been consummated, and Murphy Marine has sued GT 

Wilmington, alleging breach. That cause of action has withstood a Motion to 

Dismiss, and is proceeding toward trial.

In the same suit, Murphy Marine sued GT Wilmington’s parent company, GT 

USA. That entity also moved to dismiss. In its Amended Complaint, I note, Murphy 

Marine pleads causes of action arising only from breach of the contract with GT 

Wilmington. It seeks declaratory and equitable relief for that breach. It does not, 

however, plead a cause of action under which GT USA, which is not a party to the 

contract, can be liable for any breach by GT Wilmington. Therefore, GT USA must 

be dismissed from this matter. My reasoning is below.
3

I. BACKGROUND

For purposes of this Letter Opinion, I summarize only the facts pled that are 

relevant to my decision.1 The State of Delaware entered into an agreement with 

Defendant GT USA to partially privatize management of the Port of Wilmington; 

for that purpose, GT USA formed GT Wilmington.

2

 Murphy Marine provides 

stevedore services at the Port of Wilmington.3 GT Wilmington offered to purchase 

Murphy Marine “so that the Port could continue to provide critical stevedoring 

services without interruption after the change in control” at the Port.4 Because the 

parties were unable to agree on a value for Murphy Marine, they decided to engage 

an accounting firm to determine Murphy Marine’s fair market price.5 Accordingly, 

on July 3, 2018, GT Wilmington and Murphy Marine engaged KPMG LLP 

(“KPMG”) to conduct a pricing analysis.6 Shortly thereafter, on July 6, 2018, GT 

Wilmington and Murphy Marine memorialized their agreement in a Binding Letter 

Agreement (“BLA”).7 

 

1 At this Motion to Dismiss stage, I accept all well-pled facts in the Amended Complaint as true. 

See Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 536 (Del. 2011).

2 Am. Compl. ¶¶ 24–25.

3

Id. ¶ 23.

4

Id. ¶ 24.

5

Id. ¶¶ 27–29.

6

Id. at Ex. B.

7

Id. at Ex. A.
4

Murphy Marine alleges that after KPMG issued its initial pricing analysis, the 

Defendants became angry and criticized KPMG’s methodologies.8 GT Wilmington 

did not accept the pricing as final and binding. Rather than finalizing its pricing 

analysis, KPMG withdrew from the engagement.9

On September 7, 2018, Murphy Marine and its shareholders brought this 

action for specific performance and declaratory judgment. Murphy Marine asserted

that by failing to honor the valuation in KPMG’s initial pricing analysis, GT USA 

and GT Wilmington breached the BLA and the covenant of good faith and fair 

dealing.10 It sought a declaratory judgment that the Defendants are bound by 

KPMG’s pricing analysis, as well as specific performance to enforce the BLA 

(including KPMG’s pricing analysis).11 After various motion practice, Murphy

Marine amended its complaint on January 8, 2019. The Amended Complaint pleads 

the same three counts: breach of the BLA, breach of the implied covenant of good 

faith and fair dealing, and declaratory judgment.12

The Defendants moved to dismiss the Amended Complaint on January 23, 

2019. I held oral argument on the Motion on May 28, 2019. In a bench decision, I 

denied the Motion to Dismiss as to Defendant GT Wilmington because at this stage, 

 

8

Id. ¶¶ 39–52.

9

Id. ¶ 52.

10 Compl. ¶¶ 57–72.

11 Id. ¶¶ 57–75.

12 See Am. Compl. ¶¶ 58–76.
5

there are issues of fact that must be developed.13 This Letter Opinion addresses only 

whether the Motion to Dismiss must be granted as to Defendant GT USA.

II. ANALYSIS

On a motion to dismiss, this Court assumes the truth of the facts asserted in 

the complaint and draws all inferences in the plaintiff’s favor.14 Nevertheless, a 

motion to dismiss will be granted “if a complaint does not allege sufficient facts that, 

if proven, would entitle the plaintiff to relief.”15

Here, the three counts Murphy Marine pleads in its Amended Complaint all 

relate to the BLA: breach of the BLA, breach of the duty of good faith and fair 

dealing inherent in the BLA, and declaratory judgment that the Defendants are 

bound by KPMG’s pricing analysis, in accordance with the BLA. The BLA, 

however, is between only two parties: Murphy Marine and GT Wilmington.16 

Although GT USA is named as a defendant in this action, it was not a signatory to 

the BLA. The KPMG engagement letter, also, was between KPMG, Murphy 

Marine, and GT Wilmington—not GT USA.17 

 

13 See May 28, 2019 Oral Argument Tr., at 55:12–57:18.

14 See Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 536 (Del. 

2011).

15 Kilcullen v. Spectro Scientific, Inc., 2019 WL 3074569, at *3 (Del. Ch. July 15, 2019).

16 Am. Compl., at Ex. A.

17 Id. at Ex. B.
6

Under basic contract law, a party cannot be held to a contract without its 

assent. “A nonparty ordinarily has no rights under [a] contract”;

18 correspondingly, 

it also has no obligations. Murphy Marine has pled no facts, and articulated no 

theory, under which GT USA can be held liable for breach of the BLA, to which it 

is a stranger. Because all of Murphy Marine’s claims in this matter relate to the 

BLA, and because GT USA was not a party to the BLA, GT USA must be dismissed 

as a defendant. 

GT USA and GT Wilmington are separate entities, each able to bind itself to 

contractual duties. Murphy Marine chose to contract with GT Wilmington and not 

GT USA; likewise, GT USA chose not to contract with Murphy Marine. Our law of 

contracts recognizes the separate nature of entities and the choice of the contracting 

parties. Nonetheless, at oral argument, counsel for Murphy Marine advanced two 

theories under which it argues GT USA can be liable here. First, Murphy Marine

alleges that GT Wilmington was acting as a mere agent of GT USA (or the reverse; 

I confess that I do not clearly understand this argument).19 In the alternative, Murphy 

Marine submits that employees of GT USA interfered with the contractually-bound

parties’ abilities to execute the BLA.20

 

18 Kronenberg v. Katz, 872 A.2d 568, 605 n.74 (Del. Ch. 2004).

19 May 28, 2019 Oral Argument Tr., at 45:20–47:10.

20 Id. at 46:10–21.
7

Both arguments contain the same fatal flaw. The Amended Complaint 

contains no facts supporting agency theory, nor does it plead a cause of action based 

on agency. Likewise, Murphy Marine could have pled (but did not plead) intentional 

interference with contract, and facts to support that tort. At oral argument, counsel 

for Murphy Marine orally sought leave to amend the Complaint.21 Such amendment, 

however, is precluded by Rule 15(aaa).

22

III. CONCLUSION

For the reasons above, the Motion to Dismiss GT USA is granted. To the 

extent the foregoing requires an order to take effect, IT IS SO ORDERED.

Sincerely,

/s/ Sam Glasscock III

Vice Chancellor

 

21 Id. at 53:16–19.

22 Ct. Chan. R. 15(aaa).