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: November 11, 2016

Date Decided: January 9, 2017

Enrique Santos

P.O. Box 971

Rockville, MD 20848

Allan S. Kullen

7723 Groton Road

Bethesda, MD 20817

Re: Enrique Santos v. Allen S. Kullen, C.A. No. 9960-MZ

Dear Litigants:

Before me are Mr. Santos’ Exceptions to the Final Report and Order of Master 

Zurn together with a brief in support of those exceptions and a response by an 

interested party named as a Defendant in the Complaint but apparently never served, 

Allan S. Kullen. The parties are pro se, but I note that Mr. Santos is an attorney 

licensed to practice in several jurisdictions. The background of this matter is as 

follows:

The case was filed in July 2014 seeking equitable relief with respect to legal 

fees that Mr. Santos alleged he was entitled to from named, but unserved, Defendants 

Kullen and Todd Allan Printing Company, Inc. (“TAPCO”).

According to Santos’ brief, he seeks “imposition of a constructive trust (a) on 

assets previously held by TAPCO which were transferred [fraudulently] to [another 

entity] KCP [Communications, Inc.] and (b) [on] promissory notes and security 
2

interests arising from these transfers.”

1

 Since the Summer of 2014, no meaningful 

progress has been made in this matter. On June 15, 2016, Master Zurn wrote to Mr. 

Santos:

This matter has been open for almost two years with 

substantially no activity since the original filing in July,

2014. No proof of service on the defendants has been filed 

with the Court. The Court has twice requested you 

advance this matter. Please file a status update within 30 

days of the date of this letter. For those defendants who 

are not debtors in pending bankruptcy actions, please also 

file a proof of service and a stipulated case scheduling 

order showing how this matter will be moving forward.2

On July 7, Mr. Santos replied:

The Court has requested a status update in this matter. In 

my previous status report I informed the Court that an 

involuntary bankruptcy petition was filed on November 

13, 2015 against defendant KCP Communications, Inc.—

whereupon the automatic stay in bankruptcy cases went 

into effect. . . . The petitioning creditors who placed the 

debtor into Chapter 11 proceedings were Allan S. Kullen 

and Diane K. Kullen Revocable Trust, both also 

defendants in this matter. . . . The Court has further 

requested Plaintiff to file proof of service and a stipulated 

case scheduling order. I am unable to do so because 

service has not been made.3

On July 13, Master Zurn again wrote to Mr. Santos:

On June 15, 2016, I directed you to file proof of service 

and a stipulated case scheduling order showing how this 

matter will be moving forward with regard to defendants 

 

1 Pl’s Opening Br. 5.

2 Dkt. No. 13.

3 Dkt. No. 15.
3

who are not debtors in pending bankruptcy actions. You 

responded on July 7, 2016, that you could not do so 

because you had not served those defendants. Allow me 

to clarify: you are to advance this matter by serving those 

defendants and filing proof of that service and a joint 

scheduling order within 30 days. Failure to do so will be 

considered failure to prosecute and failure to comply with 

a court order, and will subject this case to dismissal under 

Rule 41(e).4

The record does not reflect that Mr. Santos made a response to this Court’s 

letter order of July 13, 2016 (the “Letter Order”). On August 19, 2016, Master Zurn 

issued an order dismissing for failure to prosecute under Rule 41(e) (the “Master’s

Order”). Santos takes exception to this Order.

In his brief in support of his Exceptions, Santos mistakenly argues that the 

Master abused her discretion in this matter. Unfortunately, in light of judicial 

efficiency, that standard does not apply. Under our Supreme Court’s decision in 

DiGiacobbe v. Sestak5a Vice Chancellor or Chancellor of this Court must review 

decisions of the Master de novo.

6

 I have undertaken such a review in this matter.

In his brief and Exceptions, Santos argues that the Letter Order, together with 

the Master’s June 15, 2016 letter, constitute an abuse of discretion. The Letter Order

directed Santos to provide service of process on the non-bankruptcy defendants 

within thirty days, and to file a form of case scheduling order. Santos argues that 

 

4 Dkt. No. 14.

5

743 A.2d 180 (Del. 1999).

6

Id. at 184.
4

“[t]o serve six non-debtor defendants could not be accomplished in 30 days, even in 

the best of circumstances. . . . But to then expect that a joint scheduling order from 

all parties could be produced within the same 30 days was very highly improbable, 

if not an impossibility.”

7

 He calls the directive in the Letter Order a “hyperaccelerated time table” and suggests that it is abusive to him.8

I find Santos’ argument nonsensical, and note that he failed to attempt to 

comply with the Letter Order; therefore, his argument as to “abuse” by the Master 

rings hollow.

More substantively, Santos points out that he filed brief status reports in this 

matter together with suggestions of bankruptcy, indicating some prosecution took 

place; he also argues that, in his view, bankruptcy law precluded him from 

complying with the Letter Order. I need not address these concerns, however. 

According to Santos, at the time this matter was dismissed, a mirror image action 

was pending in Maryland state court. The only relief Santos seeks on exception is 

that the Master’s Order dismissing his action here be made without prejudice, so that 

he can prosecute his case in the Maryland state court. The record does not indicate 

that Santos made the Master aware of the pendency of this Maryland action. In 

consideration of the Master’s time and busy schedule, and in light of the requirement 

 

7 Pl’s Opening Br. 18–19.

8

Id. at 19.
5

of DiGiacobbe that I conduct a de novo review here, I decline to return this matter 

to the Master for her consideration of the pendency of the Maryland action.

As Santos now acknowledges, this action should be dismissed. A dismissal 

with prejudice removes the ability of the Maryland court to apply its own standards 

of case management to this glacially-paced litigation. It seems to me, under the 

peculiar facts here, including the Plaintiff’s belated representation that an identical 

action was pending in Maryland at the time this Court considered a dismissal for 

failure to prosecute, that interests of comity require a dismissal without prejudice, to 

allow the Maryland court to apply whatever notions of case management it finds 

appropriate. Therefore, the Exceptions are denied, but the Master’s Order is 

modified to provide that the dismissal is without prejudice to the pending Maryland 

action. Nothing in this Letter Opinion should be read as a finding that Santos has 

appropriately litigated in Maryland; that is a matter purely for the Maryland courts.

An appropriate order accompanies this Letter Opinion.

 

Sincerely,

/s/ Sam Glasscock III

Vice Chancellor
6

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ENRIQUE SANTOS, :

:

Plaintiff, :

:

v. : C.A. No. 9960-MZ

:

ALLAN S. KULLEN, et al., :

:

Defendants. :

DISMISSAL FOR FAILURE TO PROSECUTE

WHEREAS, Master Zurn dismissed this matter in a Final Report and Order under Rule 

41(e) of the Rules of the Court of Chancery, on August 19, 2016 and, 

WHEREAS, the Plaintiff has taken exception to that Report and Order; and

WHEREAS, upon de novo review, the Exceptions are DENIED but; 

WHEREAS, the Plaintiff alleges that a pending action exists and existed in Maryland state 

court at the time of the Court’s August 19, 2016 Order; and

WHEREAS, the interests of comity under the particular facts here make it appropriate for 

the Maryland courts to apply their own case management standards to that pending Maryland 

action;

NOW, THEREFORE, this matter is dismissed, without prejudice to the Plaintiff’s right to 

prosecute any pending litigation.

DATED:________________________

/s/ Sam Glasscock III

Vice Chancellor