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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

WILLIAM WEST,

 

 Plaintiff, 

 

 v.

ACCESS CONTROL RELATED 

ENTERPRISES, LLC; LLR EQUITY 

PARTNERS, IV, L.P.; LLR EQUITY 

PARTNERS PARALLEL IV, L.P.;

SETH LEHR, an individual;

DAVID STIENES, an individual;

GREG CASE, an individual;

ROBERT CHEFITZ, an individual; and

JOSEPH GRILLO, an individual.

 

 Defendants. 

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Submitted : January 19, 2021

Decided: January 26, 2021

ORDER DENYING CERTIFICATION

OF INTERLOCUTORY APPEAL

(1) Plaintiff William West has moved for an order certifying an interlocutory 

appeal to the Delaware Supreme Court. The determination of whether to certify an 

interlocutory appeal lies within the discretion of the Court and is analyzed under the 

criteria set forth in Supreme Court Rule 42(b). Rule 42(b)(i) states: “No 

interlocutory appeal will be certified by the trial court or accepted by this Court 
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unless the order of the trial court decides a substantial issue of material importance 

that merits appellate review before final judgment.” Rule 42(b)(ii) admonishes: 

“Interlocutory appeals should be exceptional, not routine, because they disrupt the 

normal procession of litigation, cause delay, and can threaten to exhaust scarce party 

and judicial resources. Therefore, parties should only ask for the right to seek 

interlocutory review if they believe in good faith that there are substantial benefits 

that will outweigh the certain costs that accompany an interlocutory appeal.” 

(2) Assuming that the gating requirement of Rule 42(b)(i) has been satisfied, 

an application also must meet one or more of the eight factors set forth in Rule 

42(b)(iii). Rule 42(b)(iii) counsels: “After considering these factors and its own 

assessment of the most efficient and just schedule to resolve the case, the trial court 

should identify whether and why the likely benefits of interlocutory review outweigh 

the probable costs, such that interlocutory review is in the interests of justice. If the 

balance is uncertain, the trial court should refuse to certify the interlocutory appeal.” 

(3) In this action, Plaintiff filed a Motion to Maintain Transfer Order and to 

Dismiss Without Prejudice. The Court held argument on December 9, 2020.

(4) At the conclusion of the hearing, this Court issued its findings on the 

record. In sum, the Court held that it had considered the interests of comity and 

judicial economy, and that the related case pending in California was on appeal, with 
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no trial date in the near future. The Court’s findings in the January 20, 2020

transcript were incorporated by reference, including Delaware’s strong interest in 

governing Delaware LLCs. The Court discussed the juxtaposition of the Superior 

Court and the Court of Chancery with regard to jury trials and the adjudication of 

legal and equitable issues. The Court already had found that the parties had agreed 

to a forum selection clause. Ultimately, the Court denied the Motion to Dismiss, 

without prejudice. The Motion to Transfer to the Court of Chancery previously had 

been mooted because the fiduciary duty claims had been voluntarily dismissed.

(5) Plaintiff argues that interlocutory appeal pursuant to Supreme Court Rule 

42(b) is justified because all eight factors in Rule 42(b)(iii) have been met.

(6) Defendants oppose certification of the interlocutory appeal. Defendants 

argue, inter alia, that Plaintiff filed this case in Superior Court in 2017, and 

repeatedly resisted transfer to the Court of Chancery. Plaintiff now seeks to litigate 

in California, and is relying on the California court’s misapprehension that Plaintiff 

cannot obtain a jury trial in Delaware.

(7) Denial of a motion to dismiss is not ordinarily a decision of substantial and 

material importance sufficient to justify interlocutory appeal.1 This is particularly 

appropriate when the order denies voluntary dismissal from the forum originally 

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In re Tesla Motor, Inc., 2018 WL 2006678, at *1 (Del. Ch.).
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chosen by the plaintiff and litigation has been proceeding for several years. The 

Court holds that its findings, as set forth at the conclusion of the December 9, 2020 

hearing, do not meet any of the Rule 42(b)(iii) factors. 

THEREFORE, Plaintiff has failed to demonstrate that any of the eight 

criteria set forth in Delaware Supreme Court Rule 42(b)(iii) require that the Court 

exercise its discretion to certify interlocutory appeal. The Application for 

Certification of an Interlocutory Appeal is hereby DENIED.

IT IS SO ORDERED.

/s/ Mary M. Johnston

The Honorable Mary M. Johnston