IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

OPTIMISCORP, a Delaware 

corporation, ALAN MORELLI, and 

ANALOG VENTURES, LLC,

Plaintiffs,

v.

JOHN WAITE, WILLIAM ATKINS, 

GREGORY SMITH, and WILLIAM 

HORNE,

Defendants.

)

)

)

)

)

)

)

)

)

)

)

)

)

)

)

C.A. No. 8773-VCP

MEMORANDUM OPINION

Submitted: October 22, 2014 

Decided: January 28, 2015

Anthony W. Clark, Esq., Douglas D. Herrmann, Esq., Amy C. Huffman, Esq., 

SKADDEN, ARPS, SLATE, MEAGHER & FLOM LLP, Wilmington, Delaware; 

Attorneys for Plaintiffs OptimisCorp, Alan Morelli, and Analog Ventures, LLC.

Stephen P. Brauerman, Esq., Vanessa R. Tiradentes, Esq., Sara E. Bussiere, Esq.,

BAYARD, P.A., Wilmington, Delaware; Attorneys for Defendants John Waite, William 

Atkins, and Gregory Smith.

Bruce E. Jameson, Esq., Eric J. Juray, Esq., PRICKETT, JONES & ELLIOTT, P.A., 

Wilmington, Delaware; Attorneys for William Horne.

PARSONS, Vice Chancellor.
1

Before the Court are the plaintiffs‟ motion to amend the complaint and the 

defendants‟ related motion in limine to exclude allegedly undisclosed causes of action. In 

short, the defendants moved for summary judgment, and the plaintiffs responded with 

evidence that the defendants do not believe fairly was pled or disclosed during discovery. 

Following argument on the motions for summary judgment, the plaintiffs moved to 

amend their complaint and the defendants sought to exclude the purportedly new 

allegations and claims. For the reasons that follow, the plaintiffs‟ motion to amend is 

denied and the defendants‟ motion in limine is granted in part and denied in part.

I. BACKGROUND

Plaintiff OptimisCorp (“Optimis” or the “Company”) is a healthcare technology 

and service provider. Plaintiff Alan Morelli founded Optimis in 2006 and has been the 

CEO and chairman of the board ever since. Morelli also is the managing member of 

Plaintiff Analog Ventures, LLC (“Analog,” and together with Optimis and Morelli, 

“Plaintiffs”), a company that owns a significant percentage of Optimis‟s stock. Overall, 

Morelli directly or indirectly controls almost 7.4 million Optimis shares.

1

Defendants John Waite, William Atkins, and Gregory Smith (the “Director 

Defendants”) served on the Optimis board from June 2007 until their resignations on 

June 25, 2013. Waite also served as the Company‟s Chief Operating Officer from 2009 

until June 25, 2013. The Director Defendants became associated with Optimis after they 

 

1

There is no apparent indication in the record as to what percentage ownership 

these 7.4 million shares represent. 
2

had sold their company, Rancho Physical Therapy, Inc. (“Rancho”), to Optimis. As a 

result of that sale, the Director Defendants acquired nearly eight million shares of 

Optimis stock. 

Defendant William Horne (together with the Director Defendants, “Defendants”) 

started as a consultant to Optimis in 2006. From January 2008 until May 2013, he served 

as the company‟s Chief Financial Officer. Horne owns slightly less than 170,000 shares 

of Optimis stock.

On August 5, 2013, Plaintiffs filed their Verified Complaint (the “Complaint”)

alleging that Defendants: (1) breached their fiduciary duties; (2) violated a stockholder 

agreement to which they were, and are, parties; (3) tortiously interfered with the 

Company‟s contracts and business relations; and (4) generally attempted an unlawful 

takeover of Optimis by, among other things, using the pretext of purportedly false sexual 

harassment allegations made by Tina Geller, an Optimis physical therapist. Roughly a 

year later, after substantial discovery, the Director Defendants and Horne separately

moved for summary judgment. The briefing on those motions exceeded 280 pages. I 

heard argument on the motions for summary judgment on September 8, 2014, and by 

Order entered on the same day as this Memorandum Opinion, I deny both motions. 

The crux of the current dispute relates to arguments made during the briefing on 

summary judgment. In connection with their opposition briefs, on August 24, 2014, 

Plaintiffs filed three affidavits, one each from Stephen Levine, Helene Fearon, and 

Catherine Gentry. The Fearon and Levine affidavits, which are almost identical, aver

facts that Plaintiffs rely on to support their allegations that Defendants were involved in a 
3

conspiracy along with Joe Godges, George Rohlinger, Jeanine Gunn, Fearon, Levine, and 

others to undermine Morelli. Those affidavits also allegedly support Plaintiffs‟ tortious 

interference claims by detailing the circumstances of what the parties have called the 

“Fearon Rescission.”2 Of particular note, Plaintiffs entered into Confidential Cooperation 

and Release Agreements with Fearon and Levine on May 2 and May 11, 2014, 

respectively, but the affidavits first appeared as exhibits to Plaintiffs‟ opposition briefs in 

late August. The Gentry affidavit purports to support Plaintiffs‟ allegations of continued 

interference with Rancho. 

Intimately intertwined with resolution of the summary judgment motions are 

Plaintiffs‟ motion to amend the complaint (the “Motion to Amend”) and Defendants‟ 

joint motion in limine to exclude undisclosed causes of action (“Defendants‟ Motion in 

Limine”). Plaintiffs moved to amend on September 10, 2014, primarily to allege the 

existence of additional co-conspirators, and Defendants filed their Motion in Limine on 

September 26. The Motion in Limine represents, in effect, a further opposition to the 

Motion to Amend and both parties relied, in part, on arguments made in their respective

summary judgment briefs regarding the motions to amend and in limine. After full 

briefing on the latter two motions, the Court heard oral argument on October 22. 

 

2

Tim Fearon, Helene‟s husband, owned FearonPT, a physical therapy company. 

He sold that company to Optimis in September 2010 in a stock purchase 

agreement (“SPA”). Under the terms of the SPA, Tim Fearon could rescind the 

transaction anytime before midnight on December 21, 2012. He ultimately did so, 

allegedly at the urging and encouragement of Defendants. Plaintiffs allege that 

Defendants‟ actions regarding the Fearon Rescission constituted tortious 

interference.
4

Because of the close relationship between the summary judgment motions and the 

related motions to amend and to exclude undisclosed causes of action, I considered it 

most efficient to resolve the latter motions first. This Memorandum Opinion, therefore,

constitutes my ruling on Plaintiffs‟ Motion to Amend and Defendants‟ Motion in 

Limine.

3

 In considering the motions at issue, the Court extensively reviewed the items in 

the discovery record to which the parties cited in their briefs. All told, this required 

review of over a thousand pages of material in addition to the already substantial briefing 

on the several pending motions in this case. 

II. STANDARDS OF REVIEW

Because Plaintiffs filed their Motion to Amend after the scheduled date for 

completion of fact discovery and after briefing and argument on comprehensive motions 

for summary judgment, the pending motions require me to consider the intersection of the 

principles of notice pleading and the rules governing discovery. Considerations of that 

nature were important in deciding whether to allow the requested amendment of the 

Complaint.

 

3

In a separate Order being entered this same date, I deny Defendants‟ motions for 

summary judgment. I also note that Defendants argued that the Motion to Amend 

should be denied as futile because none of the claims would survive a Rule 

12(b)(6) motion to dismiss. Defendants raised similar arguments in their summary 

judgment briefing. I do not consider those arguments persuasive, and that 

contributed to my decision to deny the motions for summary judgment. This

Memorandum Opinion focuses almost entirely on Plaintiffs‟ timeliness, the 

prejudice to Defendants, and Plaintiffs‟ actions during discovery.
5

A. Notice Pleading

A complaint must contain sufficient facts to place the opposing party on notice of 

the claims asserted and the basis for relief.4 This pleading standard is “minimal.”5 The 

Court must “accept even vague allegations in the Complaint as „well-pleaded‟ if they 

provide the defendant notice of the claim.”6 

B. Amendment of Pleadings

Court of Chancery Rule 15 governs motions for leave to amend. After a 

responsive pleading has been filed, as it was long ago in this case, a party may amend its 

pleading “only by leave of Court or by written consent of the adverse party; and leave 

shall be freely given when justice so requires.”

7

 Courts have interpreted this provision to 

allow for liberal amendment in the interest of resolving cases on the merits.8 “A motion 

to amend may be denied, however, if the amendment would be futile, in the sense that the 

 

4 Ct. Ch. R. 8(a) (“A pleading . . . shall contain (1) a short and plain statement of the 

claim showing that the pleader is entitled to relief and (2) a demand for judgment 

for the relief to which the party deems itself entitled.”).

5 Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.3d 531, 536 

(Del. 2011). 

6

Id.

7 Ct. Ch. R. 15(a).

8

See, e.g., Those Certain Underwriters at Lloyd’s, London v. Nat’l Installment Ins. 

Servs., Inc., 2008 WL 2133417, at *7 (Del. Ch. May 21), aff’d, 962 A.2d 916 (Del. 

2008); Franklin Balance Sheet Inv. Fund v. Crowley, 2006 WL 3095952, at *3 

(Del. Ch. Oct. 19, 2006).
6

legal insufficiency of the amendment is obvious on its face.”9 That is, the motion may be 

denied if the proposed amendment immediately would fall to a Rule 12(b)(6) motion to 

dismiss.10 Leave to amend also may be denied if there is a showing of substantial 

prejudice, bad faith, dilatory motive, or repeated failures to cure by prior amendment.

11

 

Ultimately, a motion for leave to amend is left to the sound discretion of the trial court.12

In the specific circumstances of this case, I also consider Court of Chancery Rule 

15(aaa) relevant by analogy. Plaintiffs filed their motion to amend after conclusion of the

briefing and argument on Defendants‟ motions for summary judgment. While this 

procedural posture technically falls outside the scope of Rule 15(aaa),13 I consider the 

theory underlying the rule instructive. “The purpose of the rule is to minimize situations 

 

9 NACCO Indus., Inc. v. Applica Inc., 2008 WL 2082145, at *1 (Del. Ch. May 7, 

2008).

10 See St. James Recreation, LLC v. Rieger Opportunity P’rs, LLC, 2003 WL 

22659875, at *5 (Del. Ch. Nov. 5, 2003).

11 See, e.g., Nat’l Installment Ins. Servs., Inc., 2008 WL 2133417, at *7; NACCO 

Indus., Inc, 2008 WL 2082145, at *1; Crowley, 2006 WL 3095952, at *3.

12 See, e.g., Nat’l Installment Ins. Servs., Inc., 2008 WL 2133417, at *7 (citing Bokat 

v. Getty Oil Co., 262 A.2d 246, 251 (Del. 1970)); NACCO Indus., Inc., 2008 WL 

2082145, at *1.

13 Cf. Stern v. LF Capital P’rs, LLC, 820 A.2d 1143, 1147 (Del. 2003) (construing 

Rule 15(aaa) to preclude a plaintiff, after responding to a motion to dismiss, from 

dismissing the case pursuant to Rule 41(a) and re-filing the case, despite the fact 

that Rule 15(aaa) did not mention Rule 41(a) at the time, nor did Rule 41(a) then 

reference Rule 15(aaa)). Rule 15(aaa) later was amended in conformance with the 

reasoning of the Stern decision.
7

where this Court must adjudicate multiple motions to dismiss in the same action.”14 

Here, granting the motion to amend would expand the scope of the issues the parties and 

the Court would have to face at trial, not to mention the difficulties it may have created 

for Defendants in the final stages of discovery. The trial in this action will begin on 

February 6, 2015. Accordingly, I am reluctant to afford Plaintiffs, who delayed moving 

to amend until after the conclusion of briefing and argument on motions for summary 

judgment, the full benefit of the liberal standards generally governing amendment of 

pleadings, especially when the amendments they seek relate directly to the issues 

addressed in the summary judgment motions and pose problems in terms of fair notice. 

C. Discovery

The “purpose of discovery is to advance issue formation, to assist in fact 

revelation, and to reduce the element of surprise at trial.”15 Interrogatories are one 

method of discovery, and parties served with interrogatories must answer them fully and 

truthfully.16 Additionally, Court of Chancery Rule 26(e) requires supplementation of 

discovery responses in certain instances. As relevant here, Rule 26(e) provides that: 

(1) A party is under a duty seasonably to supplement the 

response with respect to any question directly addressed to 

 

14 Crowley, 2006 WL 3095952, at *3.

15 Levy v. Stern, 687 A.2d 573 (Table), 1996 WL 118160, at *2 (Del. 1996) (citing 

Buchanan Serv., Inc. v. Crew, 122 A.2d 914 (Del. Super. 1956)).

16 Ct. Ch. R. 33(b)(1) (“Each interrogatory . . . shall be answered separately and fully

in writing under oath, unless it is objected to, in which event the objecting party 

shall state the reasons for objection and shall answer to the extent the interrogatory 

is not objectionable.”).
8

(A) the identity and location of persons having knowledge of 

discoverable matters . . . .

(2) A party is under a duty seasonably to amend a prior 

response if the party obtains information upon the basis of 

which (A) the party knows that the response was incorrect 

when made, or (B) the party knows that the response though 

correct when made is no longer true and the circumstances 

are such that a failure to amend the response is in substance a 

knowing concealment.

With these concepts in mind, I turn to the merits of Plaintiffs‟ Motion to Amend and 

Defendants‟ Motion in Limine.

III. ANALYSIS

At the outset, I note some of the procedural backdrop in this case. Plaintiffs filed 

their Complaint on August 5, 2013. Along with the Complaint, Plaintiffs moved for a 

preliminary injunction and for expedited treatment. Although I denied the motion to 

expedite, I made clear to the parties that I intended this action to proceed relatively 

promptly,17 and, to that end, that I expected “strict adherence to the requirements of the 

Court of Chancery rules.”18 The initial scheduling order established October 15, 2013 as 

the deadline for Plaintiffs to amend their Complaint, with trial scheduled for June 17-20, 

2014. A second scheduling order, granted on March 19, 2014, moved the trial date to 

August 25-28, 2014. A third scheduling order granted on June 5, 2014, again postponed

the trial date, this time to October 20-23, 2014. On October 9, being confronted with a 

 

17 Mot. to Expedite Arg. Tr. 72 (Aug. 16, 2013).

18 Id. at 71. During argument on the motion to expedite, I also observed as to 

Plaintiffs‟ Complaint that the “claims, to my mind, are fairly nebulous.” Id. at 67.
9

flurry of pre-trial motions, including the two motions currently before me, I rescheduled 

the trial yet again, to February 6-13, 2015. Thus, after Plaintiffs originally moved to 

expedite this matter, after repeatedly rescheduling the trial date, and nearly eleven months 

after the relevant deadline for amending the Complaint expired, this Court was faced in 

September and October 2014 with a motion to amend the Complaint and a related motion 

to exclude undisclosed causes of action.

19

Plaintiffs‟ proposed Amended Complaint, in addition to making several changes in

the substantive allegations, sets forth new independent counts for civil conspiracy and

aiding and abetting, and adds to each of the breach of contract counts an allegation of

breach of the implied covenant of good faith and fair dealing. In moving to amend, 

Plaintiffs also maintained, essentially in the alternative, that an amendment is 

unnecessary here because the claims set forth in the proposed Amended Complaint 

adequately were pled in the initial Complaint.20 Defendants argue that the proposed

amendments are futile because they cannot survive a motion to dismiss and also that the 

Court should deny the amendments in the exercise of its discretion for reasons such as 

untimeliness. Defendants‟ Motion in Limine to exclude undisclosed causes of action 

redoubles their efforts to defeat the Motion to Amend and also seeks to exclude certain

 

19 I heard argument on these two motions, among others, on October 22, 2014.

20 Pls.‟ Mot. to Am. 4 (“Plaintiffs‟ proposed amendments simply clarify the claims 

which plaintiffs have pursued and continue to pursue in connection with this 

litigation.”).
10

evidence, including documents that Defendants assert were produced too late to be 

considered at trial.21 

A. The Discovery Record

The Complaint alleges three categories of wrongs by Defendants: (1) undermining 

Morelli‟s authority and frustrating the Company‟s strategic plans; (2) seizing control of 

Rancho; and (3) blocking the Company‟s efforts to obtain financing.22 The Complaint 

explicitly uses the term “conspiracy” only once.

23

 The overall tenor of the Complaint, 

however, evinces an overarching theory of a conspiracy by Defendants to oust Morelli 

and take control of Optimis.24 Paragraph 16, which mentions a conspiracy, illustrates this 

point:

Thus, starting in 2010, just two years into the partnership with 

Morelli to which they freely agreed—and after opting not to 

exercise their rescission rights to unwind the transaction—and 

despite their contractual promise that Morelli would have 

complete control for seven years, the Rancho Defendants 

decided that, rather than forthrightly raise their concerns with 

the Board, they would secretly prepare to mount a hostile 

takeover of the Company. The Rancho Defendants began a 

campaign to undermine Morelli and his software development 

strategy, recruited Joseph Godges—a director and employee 

 

21 Aside from the specific holdings in this Memorandum Opinion, I reject 

Defendants‟ arguments about untimely document production. The most recent 

rescheduling of the trial has provided Defendants sufficient time to review the 

disputed categories of documents.

22 Compl. ¶ 3.

23 Id. ¶ 16. 

24 The Complaint repeatedly uses phrases such as “secret plan,” “secret plot,” and 

“coup attempt.” Id. ¶¶ 16, 17, 23-25, 27, 30, 32.
11

of the Company who Morelli had learned was moonlighting 

in violation of his employment agreement with the Company 

and was holding Godges accountable to the Company for his 

breaches—to their cause, and entered into a secret plot to 

seize control of OptimisCorp, in breach of their contract with 

Morelli (and the other stockholders) and in breach of their 

fiduciary duties to the Company and all of its stockholders. 

In February 2012, the Rancho Defendants also enlisted 

defendant Horne—who had been involved in a clandestine 

romantic affair with Morelli‟s ex-wife for several years—to 

join their unlawful conspiracy.25

Thus, a good argument can be made that Defendants were on notice from the early stages 

of this litigation that Plaintiffs were alleging a conspiracy of some sort.26 Counsel for 

Plaintiffs directly stated as much in June 2014 at the argument on Horne‟s motion to 

compel.27 Furthermore, to the extent that the Complaint alleged a conspiracy, it also 

alleged aiding and abetting. If the two concepts are not conterminous in the corporate

context,28 then aiding and abetting is the narrower of the two and fairly is encompassed 

within the overarching conspiratorial allegations in the Complaint.

 

25 Id. ¶ 16.

26 As discussed below, Horne‟s interrogatories show that he understood the 

Complaint to be alleging some form of conspiracy. Because Defendants 

coordinated their discovery, I find that all Defendants were on notice.

27 Defs.‟ Mot. to Compel Arg. Tr. 49 (Plaintiffs‟ counsel: “You don‟t have to be an 

actor in every element of the conspiracy to be liable for all of the harm of the 

conspiracy. And that‟s exactly the situation which we‟re alleging here.”).

28 See, e.g., Malpiede v. Townson, 780 A.2d 1075, 1089 n.82 (Del. 2001) (noting 

overlap between the two theories and collecting cases); Allied Capital Corp. v. 

GC-Sun Hldgs., L.P., 910 A.2d 1020, 1038-39 (Del. Ch. 2006).
12

The controversy over whether to allow Plaintiffs‟ proposed amendments to the 

Complaint relates closely to how the parties conducted discovery in this case. The real 

source of contention appears to involve the following questions: (1) Who were the 

members of the conspiracy? (2) What were the predicate bad acts of the conspiracy? and 

(3) When did the conspiracy terminate, if ever? The relevant standard in Delaware is 

notice pleading. Plaintiffs need not plead every fact supporting their case, nor must they 

plead a legal theory per se. In the context of conspiracy, however, answers to the 

foregoing questions become vitally important. “The benefit to a plaintiff of establishing a 

civil conspiracy claim is that all conspirators will be vicariously liable for the acts of coconspirators in furtherance of the conspiracy.”

29

 Consequently, both the number and 

identity of the actors and the duration of the conspiracy dramatically will affect the scope 

of this case and the potential liability of Defendants. I therefore address next each of the

three questions identified above.

1. Who are the members of the alleged conspiracy?

The proposed Amended Complaint does not seek to add any additional defendants. 

It does identify, however, several potential co-conspirators who were not fairly disclosed 

in the original Complaint or discovery. Beyond the four named Defendants, the original 

Complaint identified only Joe Godges as another co-conspirator. Thus, Defendants 

received adequate notice that Godges was an alleged co-conspirator. The only other 

individuals identified in the original Complaint are Tina Geller and Terry Doherty. The 

 

29 Allied Capital Corp., 910 A.2d at 1036.
13

language of the Complaint is broad enough to suggest that Geller may have been a 

member of the conspiracy,

30 but Plaintiffs have not pressed that position. Beyond these 

specifics, the Complaint includes only vague additional language suggesting that others 

were, or may have been, involved in some unspecified manner.31

Discovery enables the parties to uncover the factual bases for the allegations in a

complaint. Contention interrogatories usefully advance this purpose. In this case, both 

sets of Defendants served such interrogatories on Plaintiffs.32 Plaintiffs responded to the 

Director Defendants‟ Interrogatories and Horne‟s Interrogatories on January 14, 2014, 

and February 1, 2014, respectively.

Horne specifically asked that Plaintiffs: “Identify every fact you contend supports 

your allegations in paragraph 16 of the Verified Complaint,” with specific reference to 

the conspiracy. Plaintiffs responded by identifying George Rohlinger as an additional coconspirator. Without specifically naming anyone else not mentioned in the Complaint, 

 

30 E.g., Compl. ¶ 20 (“[T]he Rancho Defendants, Horne and others acting at their 

direction . . . bribed Geller into cooperating in an investigation against Morelli by 

offering her a raise and other perquisites.”).

31 E.g., id. ¶ 17 (“[D]efendants solicited and indoctrinated key employees—including 

several officers who directly reported to Morelli—and consultants of the Company 

to oppose Morelli and his initiatives by telling them that the Rancho Defendants 

were working on a plan to oust him from the Company.”); id. ¶ 20 (“ . . . the 

Rancho Defendants, Horne and others . . . ”); id. ¶ 22 (“Waite and others contacted 

certain of the other directors and stockholders . . . and offered them lucrative 

employment contracts, stock options and other valuable inducements . . . .”).

32 Plaintiffs‟ responses to the Director Defendants‟ Interrogatories and Horne‟s 

Interrogatories will be cited as “DD.I. Resp. [#]” and “H.I. Resp. [#],” 

respectively.
14

Plaintiffs‟ response three times used the phrase: “Defendants, individually and working 

with other employees, consultants, stockholders, business partners, and third parties 

. . . .”

33

 In defending against a claim for conspiracy, few facts are more important than 

the identity of the members of the conspiracy. Yet, Plaintiffs‟ response to Horne‟s 

Interrogatory 5 fails to mention anyone new except Rohlinger. Based on the position 

Plaintiffs took in opposing Defendants‟ motion for summary judgment—namely, their 

contention that the conspiracy involved at least three other individuals—it is difficult to 

see how Plaintiffs‟ answer “fully”34 responded to the interrogatory, which asked for 

“every fact.” 

Through their proposed Amended Complaint, Plaintiffs seek to include Helene 

Fearon, Stephen Levine, George Rohlinger, and Jeanine Gunn as co-conspirators, in 

addition to the individuals listed in the original Complaint. Fearon, Levine, and Gunn are 

all new additions, not fairly indentified as co-conspirators during discovery. I conclude, 

therefore, that Plaintiffs should not be permitted to amend their Complaint to allege, or to 

assert at trial on the basis of the original Complaint, that these individuals are coconspirators. 

In that regard, I find unpersuasive Plaintiffs‟ argument that Fearon, Levine, and 

Gunn were fairly disclosed as co-conspirators because their names were mentioned 

elsewhere in the discovery record. For instance, Fearon and Gunn were identified, along 

 

33 H.I. Resp. 5; see also DD.I. Resp. 1.

34 Ct. Ch. R. 33(b)(1).
15

with fifty-two other people or entities, as individuals with knowledge of the allegations in 

the Complaint.35 But, someone having knowledge of those allegations is not necessarily 

a co-conspirator. Morelli, for example, is identified as a knowledgeable individual; yet,

no one would contend that he was a member of the alleged conspiracy. Levine was not

included in the list of persons with relevant knowledge, but he was listed as one of 

twenty-four or more employees who were “solicited and indoctrinated” by Defendants.36 

There is no basis in the existing record for inferring that everyone identified as an 

employee who was “solicited and indoctrinated” was a member of the conspiracy. 

A plaintiff claiming a conspiracy must prove: “(1) the existence of a confederation 

or combination of two or more persons; (2) that an unlawful act was done in furtherance 

of the conspiracy; and (3) that the conspirators caused actual damage to the plaintiff.”37 

It does not follow, as a matter of fact or logic, that an employee who was “solicited and 

indoctrinated” necessarily agreed, for example, to be part of a conspiracy to achieve an 

unlawful purpose. Plaintiffs knew how to name different sets of individuals in response 

to different interrogatories; they cannot pick and choose among those lists at this late 

stage in the proceeding to expand the scope of their claim for conspiracy by adding new 

 

35 DD.I. Resp. 14; H.I. Resp. 36.

36 H.I. Resp. 6. Plaintiffs‟ answer to Horne‟s Interrogatory 6 also cross-references 

their response to Horne‟s Interrogatory 5.

37 Allied Capital Corp., 910 A.2d at 1036.
16

co-conspirators.

38

 This is especially true where nothing in the discovery indicates that a 

new co-conspirator engaged in an allegedly wrongful act beyond the acts in which one or 

more of the co-conspirators named in the original Complaint allegedly engaged.

2. What bad acts allegedly were committed as part of the conspiracy?

Identifying the bad acts that were committed as part of the conspiracy remains 

difficult. The record is murky as to exactly what purported wrongs underlie several of 

Plaintiffs‟ theories. The Complaint identified the three categories of wrongs already 

mentioned. Plaintiffs‟ responses to Defendants‟ interrogatories further fleshed out some 

of the allegations in the Complaint. Both sets of Defendants asked specifically for an 

identification of the contracts or business relationships with which Defendants allegedly 

interfered. Plaintiffs listed, “among other things,” eleven contracts or business 

relationships, and stated that “[o]ther instances of interference may be identified as 

discovery progresses.”

39

 In the circumstances of this case, Defendants contend that they 

did not receive fair notice in discovery of certain acts recently identified in Plaintiffs‟ 

opposition to summary judgment.

 

38 Compare H.I. Resp. 6 (name every key employee Defendants solicited and 

indoctrinated: “employees include” twenty-four people), with H.I. Resp. 13 (name 

everyone comprising the “others” referenced in ¶ 20 of the Complaint as “acting at 

the[] direction [of the Director Defendants]” in connection with Geller‟s claim: 

listing seven people), with H.I. Resp. 18 (name everyone comprising the “others” 

referenced in ¶ 22 of the Complaint as having acted with Defendant Waite in 

connection with the alleged vote buying scheme: listing “at least” six people).

39 DD.I. Resp. 2; H.I. Resp. 20. 
17

In their effort to defeat summary judgment as to the tortious interference claims,

Plaintiffs pointed to the following items or entities of relevance here40: (1) the Fearon

Rescission; (2) Bank of the Internet (“BofI”); (3) Physical Therapy Provider Network 

(“PTPN”); (4) the Distance Swim Challenge; (5) solicitation of Rancho‟s referral 

contracts by the Director Defendants, as employees of All-Star Physical Therapy; and (6)

improper use of Rancho‟s confidential information. I find that Plaintiffs adequately 

identified the alleged tortious interference with BofI, PTPN, and the Distance Swim 

Challenge in their discovery responses. Therefore, I need not discuss those matters 

further. Any issues relating to continued interference with Rancho are addressed in 

Section III.A.3 infra.

The Fearon Rescission41 was not identified in the original Complaint or in the 

interrogatories as a contract or business relationship with which Defendants interfered. 

The Fearon Rescission was identified, however, by Morelli during the first day of his 

deposition on April 29, 2014, as one of three rescissions for which Defendants allegedly 

are responsible.

42 It is a close call whether the relevant excerpt from Morelli‟s deposition

placed Defendants on notice that Plaintiffs would be pursuing tortious interference claims 

 

40 This list excludes events relating to the alleged “coup,” such as the Geller sexual 

harassment investigation, the contested renewal of the employment agreements by 

the Directors Defendants, and the Stockholders Agreement. Those matters have 

been in this case from the beginning. 

41 See supra note 2.

42 The other rescissions were the Sovereign rescission and the Schreir PT rescission. 

Morelli Dep. 162-73, 249-50.
18

relating to the Fearon Rescission. Plaintiffs cited no other portion of the record as

disclosing the Fearon Rescission. 

The Company‟s other deponents appear not to have alluded to the Fearon 

Rescission at all. Indeed, the depositions of Laurent O‟Shea undermine Plaintiffs‟ 

position. O‟Shea was the Company‟s 30(b)(6) witness and a member of Optimis‟s

board‟s independent committee. Defendants deposed him on two days: May 1 and July 

30, 2014. On the second day, O‟Shea was asked whether, other than the items identified 

in the Company‟s response to the Director Defendants‟ Interrogatory 2, he was “aware of 

any business or contractual relationship with which [the Director Defendants] have 

interfered.”43 O‟Shea could not recall anything beyond what was listed in the 

interrogatories, with the exception of a company called WorkWell, and O‟Shea knew 

almost nothing about what happened with WorkWell.44 This answer by Optimis‟s 

30(b)(6) witness is telling in at least two respects. First, the Company settled with Fearon 

and Levine on May 2 and May 11, 2014, respectively. Accordingly, the Company must 

have been aware of the Fearon Rescission by the second day of O‟Shea‟s deposition.

Second, on the first day of his deposition, O‟Shea was asked whether he had come into 

possession of any information that would “alter or change the answers given in” response 

 

43 O‟Shea Dep. 346-47.

44 Id. at 349-50, 355-56.
19

to Horne‟s Interrogatories, and he stated that the Company had received a lot of 

information that “would add to” but not change the Company‟s answers.45 

When asked about the various instances of tortious interference, O‟Shea stated that 

most of the interference occurred before he joined the Optimis board and that the most 

knowledgeable person would be Morelli. The tortious interference claims are a 

significant part of this case. Despite admitting a general lack of knowledge about the 

instances of alleged tortious interference and despite identifying Morelli as the person 

who would know the most about the tortious interference claims, O‟Shea did not discuss 

these items with Morelli before being deposed or, apparently, otherwise seek to inform 

himself as to those matters.

46

 Having designated O‟Shea as its 30(b)(6) witness, Optimis

had a duty to prepare him appropriately.47 To the extent O‟Shea or Optimis failed to do 

so, Optimis is responsible for the consequences of his testimony and apparent lack of 

preparation.48

 

45 Id. at 75. 

46 Id. at 349.

47 See generally DONALD J. WOLFE, JR. & MICHAEL A. PITTENGER, CORPORATE AND 

COMMERCIAL PRACTICE IN THE DELAWARE COURT OF CHANCERY § 6.06[c]

(2008) (describing process, procedure, and responsibilities involved in Rule 

30(b)(6) depositions). See also Fitzgerald v. Cantor, 1999 WL 252748, at *3 

(Del. Ch. Apr. 5, 1999) (“In the course of preparation . . . the organization must 

ensure that before testifying the witness [is] aware of the organization‟s full 

knowledge of the matters on which [he] will testify and any relevant information 

reasonably available to the organization.”).

48 Ct. Ch. R. 30(b)(6). See generally Highland Select Equity Fund, L.P. v. Motient 

Corp., 906 A.2d 156, 166 & nn.47-48 (Del. Ch. 2006) (describing the expectations 
20

Brian Wing also is an Optimis Director and was deposed on July 21, 2014. He 

serves on both the board‟s independent committee and its special committee.49 Although 

not entirely clear from the depositions, the special committee apparently was responsible 

for dealing with the earlier action filed under 8 Del. C. § 225, which involved a number 

of the same parties to this action.50 The independent committee, on the other hand, deals 

with subject matter relevant to this lawsuit. Wing also verified the Complaint in this 

action. As such, one would expect Wing to be a knowledgeable witness. Generally, 

however, he could not answer a number of relevant questions and appears to have 

received a substantial amount of his information solely from discussions with counsel, as 

to which Plaintiffs claimed privilege.

51

Having considered all the circumstances, I have decided to exclude the Fearon 

Rescission from this case. Plaintiffs were aware of the Fearon Rescission when Morelli 

testified about it on April 29, 2014, at the absolute latest. Plaintiffs also settled with 

Fearon and Levine shortly thereafter. Notwithstanding these facts, O‟Shea could not 

provide much, if any, relevant information about the tortious interference claims or 

 

of a Rule 30(b)(6) witness and noting that a “designee under Rule 30(b)(6) is 

expected to inform himself as to the entity‟s knowledge, and to testify to the limits 

of the designation”).

49 O‟Shea Dep. 260-61; Wing Dep. 98.

50 Morelli v. Waite, Civ. A. No. 8001-VCP.

51 For example, Wing could not identify any facts about Paragraphs 16, 17, or 23 of 

the Complaint beyond his communications with counsel, as to which Optimis‟s 

counsel directed him not to answer on privilege or work product grounds. Wing 

Dep. 64-68, 80.
21

identify the Fearon Rescission as a relevant contract in his capacity as a Rule 30(b)(6) 

witness.52 Any relevant knowledge Wing may have had apparently came from the 

lawyers and was not disclosed in his deposition. In addition, Plaintiffs did not list the 

Fearon Rescission as an item of tortious interference in their interrogatory responses or 

supplement those responses in that regard before they responded to Defendants‟ motion 

for summary judgment in late August 2014. Under these circumstances, I find that 

Defendants did not receive fair notice that Plaintiffs were pursuing a claim based on the 

Fearon Rescission. Plaintiffs‟ effective concealment of the settlements Optimis entered 

into with Fearon and Levine in May 2014, and the extent of Fearon‟s apparent firsthand 

knowledge of the Fearon Rescission reflected in her belated affidavit, further supports

excluding that incident from this case.

3. What is the temporal scope of the alleged conspiracy?

Defendants, in their Motion in Limine and at argument, vigorously argued against 

allowing claims that post-date Defendants‟ employment with Optimis, which had ended 

 

52 See Highland Select Equity Fund, 906 A.2d at 166 n.47 (“„[P]roducing a person 

who knows nothing about the subject matter of the litigation is the functional 

equivalent of having spurned the deposition altogether. Consequently, Rule 

30(b)(6) can be violated when a corporate party literally sends a human being to 

the deposition but the person is unequipped to participate meaningfully in the 

deposition.‟”) (quoting JAMES WM. MOORE ET AL., MOORE‟S FEDERAL PRACTICE

30.72 (3d ed. 2006)). O‟Shea may have been able to participate meaningfully in 

other parts of his 30(b)(6) deposition, but that issue is not before me. The problem 

here stems primarily from his testimony regarding the tortious interference claims.
22

by June 25, 2013.

53

 I conclude, however, that the original Complaint adequately alleged 

ongoing interference with the Company and that Plaintiffs reiterated that position in their 

responses to Defendants‟ interrogatories. Notwithstanding this conclusion, I grant 

Defendants‟ Motion in Limine as it relates to striking the affidavits of Fearon, Levine, 

and Catherine Gentry for purposes of Defendants‟ motion for summary judgment on the 

ground that they amounted to unfair surprise and were not consistent with the rules of 

discovery or this Court‟s scheduling orders.54 Plaintiffs produced all three of the 

affidavits challenged in the Motion in Limine—Fearon, Levine, and Gentry—well after 

the August 1, 2014 cutoff for fact discovery.55

The Complaint repeatedly references ongoing harm to Optimis. For example, 

Paragraph 5 begins: “Therefore, in order to restrain defendants from continuing to harm 

 

53 I note, for completeness, that Defendants appear to have accepted as fairly within 

this case a brief period in May and June 2013 after Horne was terminated during 

which the Director Defendants continued their employment. 

54 Gentry is the Director of Marketing and Network Operations for Rancho, a 

company related to Optimis. Thus, she appears to have been under the control of 

Optimis at all relevant times. Nevertheless, Gentry was not identified in Plaintiffs‟ 

interrogatories as a person with knowledge of matters asserted in the Complaint. 

See infra notes 62-64 and accompanying text.

55 A scheduling order is an order of the Court that serves important purposes. IQ 

Hldgs., Inc. v. Am. Commercial Lines Inc., 2012 WL 3877790, at *2 (Del. Ch. 

Aug. 30, 2012) (“Scheduling orders and discovery cutoffs further these important 

purposes and policies [of discovery] by ensuring that parties provide discovery in 

a timely fashion, thereby avoiding trial by surprise and the prejudice that results 

from belated disclosure.”).
23

the Company . . .”

56 Later in the same sentence, Plaintiffs request that the Court “restrain 

any further misconduct by” Defendants.

57

 Additionally, the Complaint includes three 

separate counts for injunctive relief—Counts I, III, and V—requesting that I enjoin 

further breaches of fiduciary duty, breaches of the Stockholders Agreement, and tortious 

interference, respectively. 

As to Count I, I note that neither Horne nor the Director Defendants continued to 

work for Optimis in a fiduciary capacity during the pendency of this lawsuit. As such, 

the only basis for Count I appears to be a theory based on some sort of continuing wrong 

to Optimis based on an action taken by one or more of the named Defendants while 

employed. Here, Count I seems premised on alleged unfair competition by the Director 

Defendants based on confidential information they obtained while still employed at 

Rancho and took with them, or, at least, remembered and ultimately misused after they 

left Rancho.

58

 Horne‟s Interrogatory 32 specifically asked whether breaches of fiduciary 

duty by Horne were ongoing when the Complaint was filed and whether those alleged 

breaches continued as of the date of Plaintiffs‟ response. Plaintiffs responded that 

breaches were ongoing and cited “Defendants‟ ongoing efforts to interfere with the 

 

56 Compl. ¶ 5.

57 Id.

58 See Triton Constr. Co. v. E. Shore Elec. Servs., Inc., 2009 WL 1387115, at *15 

(Del. Ch. May 18, 2009) (“An agent has a duty not to use or communicate 

confidential information of the principal for the agent‟s own purposes or those of a 

third party. This duty includes a prohibition on the use of the principal‟s 

confidential information in competition with the principal.”) (footnote omitted). 
24

company‟s business and the efforts of OptimisCorp to obtain financing and settle the 

false claims with Geller.”59 Similarly, Count III requests an injunction for continuing 

breaches of the Stockholders Agreement, and Count V asks the Court to enjoin alleged 

continuing tortious interference. Overall, the Complaint makes clear that Plaintiffs seek 

relief for ongoing wrongs.

The depositions also included questions related to any evidence of continuing 

violations by Defendants.

60

 On the second day of Morelli‟s deposition, for example, he 

was asked: “What, if any, specific instances of interference occurred after [the Director 

Defendants] were no longer officers or directors of OpimisCorp, or employees?”61 

Morelli responded with a laundry list of interference by the Director Defendants relating 

to practically everyone involved with Optimis or Rancho. Thus, based on the Complaint, 

the interrogatories, and the depositions, I reject Defendants‟ argument that they did not 

receive adequate notice that Plaintiffs are, and have been, alleging wrongs by Defendants 

that post-date their employment with Optimis or Rancho. 

The Gentry Affidavit is another matter entirely. Plaintiffs did not identify Gentry

in discovery as a person knowledgeable about the matters asserted in the Complaint.62 

Unlike Levine, she is not listed anywhere else in the interrogatory responses either. In 

 

59 H.I. Resp. 32.

60 E.g., Morelli Dep. 200-13, 288-99; O‟Shea Dep. 144-45.

61 Morelli Dep. 479.

62 DD.I. Resp. 14.
25

fact, Gentry‟s name surfaces only a handful of times in the depositions, all in the context 

of a passing reference to her position as the Director of Marketing.

63

 Defendants

otherwise were not apprised of the fact that Gentry was a potential witness with relevant

knowledge. Based on the evidence they belatedly attempted to introduce through 

Gentry‟s affidavit, I find that Plaintiffs failed to satisfy their obligation seasonably to

supplement their interrogatory responses under Rule 26(e)(1)(A).

64

 As a sanction for that

failure, the Gentry affidavit will be stricken from the record and Plaintiffs may be

precluded from calling Gentry as a witness at trial.

B. Additional Factors Influencing This Decision

1. It remains impossible to determine who all the alleged members of the 

conspiracy are.

As previously mentioned, the number and identity of the members of a conspiracy 

dramatically affect the scope and mechanics of a case. Between the Complaint and their 

interrogatory responses, Plaintiffs fairly identified six members of the alleged conspiracy

here: the named Defendants (John Waite, William Atkins, Gregory Smith, and William 

Horne), George Rohlinger, and Joe Godges. The proposed Amended Complaint seeks to 

add as co-conspirators at least Helene Fearon, Stephen Levine, and Jeanine Gunn. 

Granting the amendment, therefore, would make each of the named Defendants 

potentially liable for the actions of these three new actors whether or not any of the 

 

63 Atkins Dep. 84; Kreille Dep. 36; Waite Dep. 298, 331, 486.

64 Ct. Ch. R. 26(e)(1)(A) (“A party is under a duty seasonably to supplement the 

response with respect to any question directly addressed to (A) the identity and 

location of persons having knowledge of discoverable matters . . . .”).
26

named Defendants was involved in those actions. Moreover, if I were to grant the motion 

to amend, it still would not be clear who else allegedly is a member of the conspiracy, 

because the proposed Amended Complaint repeatedly refers generally to defendants “and 

their co-conspirators,” and to the latter category as including “others.” 

In the proposed Amended Complaint, the phrase “and others” appears at least six 

times.65 Most troubling are the instances alleging acts in furtherance of the alleged 

conspiracy and naming Defendants, the new actors, and then including the phrase “and 

others,”66 or some similar variant.67 Plaintiffs‟ proposed amendments would leave open 

the possibility of their adding new co-conspirators even after the trial date already has 

been rescheduled three times. Plaintiffs‟ witnesses have been no more informative in 

terms of pinning down the alleged participants in the conspiracy. Morelli identified 

sixteen potential co-conspirators.

68

 O‟Shea made a blanket accusation with virtually no 

supporting details that all twenty-four individuals listed in Plaintiffs‟ response to Horne‟s 

Interrogatory 6 were members of the conspiracy, in addition to the named Defendants.69 

 

65 Proposed Am. Compl. ¶¶ 4, 17, 20, 22, 64, 68.

66 Id. ¶ 17 (“They—along with Fearon, Levine, Rohlinger, Gunn, Godges and others 

. . .”).

67 Id. ¶ 18 (“Waite and his co-conspirators . . .”); id. ¶ 20 (“ . . . defendants and their 

co-conspirators . . .”).

68 Morelli Dep. 14-18, 29-35, 48-49, 150-51 (listing Defendants, Godges, Geller, 

Laura Brys, Gunn, Jessica Eastman, Doherty, James Lynch, Chuck Speraza, 

Ashraf Abdelhamid, Robert Johnson, Rohlinger, and Robert Wilbanks).

69 O‟Shea Dep. 80.
27

In sum, Defendants face a proposed eleventh-hour Amended Complaint asserting a 

conspiracy composed of at least nine members and the possibility of “others,” sworn 

statements by Morelli as to a sixteen-member conspiracy, and conclusory deposition 

testimony from O‟Shea as to a twenty-eight-member conspiracy. At this late stage, it is 

unreasonable and inexcusable that the conspiracy remains so amorphous and ill-defined. 

I conclude, therefore, that granting Plaintiffs‟ motion to amend would be highly 

prejudicial to Defendants and deprive them and this Court of the ability to try this case in 

an orderly and fair way.

70

 For example, Defendants might assert new counterclaims in 

conjunction with their answers to an amended complaint. The timing and other 

circumstances that gave rise to Plaintiffs‟ Motion to Amend and Defendants‟ Motion in 

Limine also persuade me that it would be inappropriate and inequitable to address these 

problems by entertaining the possibility of yet another postponement of the trial.

2. Plaintiffs’ arguments that “Defendants knew all along” are unconvincing.

Plaintiffs argue that Defendants can claim no unfair surprise as to the matters 

currently before me. According to Plaintiffs, because this was Defendants‟ conspiracy, 

they knew all along the identities and actions of their co-conspirators. This argument is 

circular and presumes what Plaintiffs must prove at trial. The burden is on Plaintiffs to 

 

70 The proposed Amended Complaint also alleges breaches of the implied covenant 

of good faith and fair dealing. I will permit those claims to be included in the trial 

of this matter. As noted during the September 8, 2014 argument on the motions 

for summary judgment, I consider the allegations regarding a breach of the 

implied covenant to be fairly within the scope of the original Complaint. Mots. for 

Summ. J. Arg. Tr. 51. Accordingly, an amendment to the Complaint is not 

required on that issue.
28

support their claims and prove them by a preponderance of the evidence; the burden is 

not on Defendants to prove they were not members of a conspiracy. Additionally, 

Plaintiffs possess, and have possessed throughout this case, a significant amount of the 

information at issue, largely because of the imaging of Optimis‟s computers that was 

done in connection with the Section 225 Action.71 Thus, I reject Plaintiffs‟ argument that 

Defendants have suffered no prejudice because they allegedly knew the disputed 

information all along. To the contrary, Plaintiffs must prove at trial the existence and 

composition of the alleged conspiracy, and they were required to provide Defendants fair 

notice of the nature and scope of their conspiracy claims during the pre-trial proceedings. 

3. Plaintiffs’ “supplementation” was untimely.

On September 5, 2014, Plaintiffs “supplemented” their interrogatory responses by 

incorporating all information raised in their summary judgment opposition briefs and 

supporting documents.

72

 Those supporting documents include the Fearon, Levine, and 

Gentry affidavits. As noted, Rule 26(e) requires parties “seasonably” to amend or

supplement interrogatory responses in certain specified circumstances. Delaware case 

law provides sparse guidance on the meaning of the term “seasonably.” Black‟s Law 

 

71 See supra note 50.

72 Defs.‟ Mot. to Exclude Untimely Evidence and Previously Undisclosed Causes of 

Action at Trial, Exs. C-D (“Plaintiffs amend and supplement their objections and 

responses with the information contained in Plaintiffs‟ Brief in Opposition to [the 

Director Defendants‟] Motion for Summary Judgment . . . Plaintiffs‟ Brief in 

Opposition to Defendant William Horne‟s Motion for Summary Judgment, and all 

documents filed therewith.”).
29

Dictionary defines “seasonable” as: “Within the time agreed on; within a reasonable 

time.”73 Here, the parties did not agree on a time frame for supplementation. Thus, I 

interpret “seasonably” to mean within a reasonable time.

Court of Chancery Rule 26(e)(2) requires amendment to a prior discovery 

response if “the party knows that the response was incorrect when made” or “the party 

knows that the response though correct when made is no longer true and the 

circumstances are such that a failure to amend the response is in substance a knowing 

concealment.” Horne‟s Interrogatory 5 requested that Plaintiffs: “Identify every fact that 

you contend supports your allegations in paragraph 16 of the Verified Complaint that the 

[Director] Defendants „began a campaign to undermine Morelli and his software 

development strategy [and that] the [Director] Defendants also enlisted defendant Horne 

. . . to join their unlawful conspiracy.‟” At the argument on the Motion to Amend and 

various motions in limine on October 22, 2014, Plaintiffs pointed to this interrogatory as 

evidence that Defendants understood that the Complaint alleged a conspiracy.74 

Plaintiffs‟ lengthy response to Horne‟s Interrogatory 5 described generally a 

broad-ranging conspiracy involving other unnamed individuals. Besides the named 

Defendants, it identified only Rohlinger specifically. Throughout this Memorandum 

Opinion, I have stressed the importance of timely identifying co-conspirators, because the 

 

73 BLACK‟S LAW DICTIONARY 1470 (9th ed. 2009).

74 Mot. to Amend Arg. Tr. 30 (“That was his questioning. He wanted to know what 

were the facts.”). As noted previously, Paragraph 16 of the Complaint contains 

the only use of the term “conspiracy.”
30

addition of a new co-conspirator adds potential liability for all other co-conspirators for 

actions taken by the new co-conspirator in furtherance of the conspiracy. Depending on 

when Plaintiffs came into possession of the information specifically identifying the other 

alleged co-conspirators addressed in this Memorandum Opinion, their response either 

was “incorrect when made” or else became no longer correct. Accordingly, Plaintiffs had 

a duty to seasonably supplement their interrogatory responses to disclose the identities of 

all co-conspirators once Plaintiffs became aware of the identity of additional purported 

co-conspirators. Because of the effect on liability of adding co-conspirators, I find that 

Plaintiffs‟ failure to supplement their interrogatory responses with the identities of the 

other alleged co-conspirators amounted in substance to a “knowing concealment” within 

the meaning of Rule 26(e)(2). 

Plaintiffs knew about the involvement of Fearon and Levine by at least April 

2014, and settled with them in May 2014. From at least that point onward,75 Plaintiffs 

had a duty to supplement their interrogatory responses within a reasonable time. 

Pursuant to the third scheduling order entered on June 5, 2014, fact discovery closed on 

August 1, 2014. There is no bright-line rule as to when supplementation is seasonable. 

 

75 Plaintiffs may have been aware of Fearon and Levine‟s alleged co-conspirator 

status much earlier. The Fearon Rescission occurred in December 2012. As 

Plaintiffs repeatedly emphasized, Morelli noted the Fearon Rescission in his April 

29, 2014 deposition, several days before Optimis settled with Fearon. In the case 

of Plaintiffs‟ settlement with Tina Geller, another source of controversy in this 

case, the negotiations appear to have lasted from roughly May 30, 2013, until 

December 2, 2013. Even assuming the Company‟s negotiations with Fearon and 

Levine were completed much more quickly, I conclude that Plaintiffs had a duty to 

supplement promptly after the May 2014 settlements. 
31

Given the crucial manner in which conspiracy law affects liability and the likely impact 

of adding new co-conspirators on the scope of discovery, however, Plaintiffs had to have 

supplemented their interrogatory responses before the close of discovery to meet the 

“seasonably” requirement. Three full months of discovery remained after the May 2014 

settlements. Wherever the outer limits of seasonable supplementation lay, Plaintiffs‟ 

September 5 supplementation falls significantly outside of those bounds. I consider the 

Fearon, Levine, and Gentry affidavits equally untimely to the extent Plaintiffs might rely 

on them or their summary judgment briefs as the equivalent of the required 

supplementation. 

4. Summary

The original Complaint adequately placed Defendants on notice of the existence of 

an alleged conspiracy, wrongs that could amount to aiding and abetting, and breach of 

contract claims that would include a breach of the implied covenant of good faith and fair 

dealing. Those claims are in this case. During discovery, however, Plaintiffs did not

identify adequately the members of the conspiracy or all of the wrongful acts committed 

as part of the conspiracy. Based on Plaintiffs‟ failure seasonably to supplement their 

discovery responses and undue delay in revealing additional alleged members of the 

conspiracy, the substantial prejudice those actions have caused to Defendants in terms of 

time, expense, inconvenience, and the difficulty in preparing for trial, and the prejudice 

Defendants will continue to suffer if I grant Plaintiffs leave to file their proposed 

Amended Complaint, I hold as follows:
32

(1) The conspiracy, as originally pled and fairly disclosed in discovery, is 

limited in terms of co-conspirators to John Waite, William Atkins, Gregory Smith,

William Horne, Joe Godges, and George Rohlinger. Any wrongful acts proven to have 

been committed by one or more of those co-conspirators in furtherance of the conspiracy 

may be attributed to the four named Defendants;

(2) Plaintiffs may not add additional co-conspirators to the alleged conspiracy 

or seek to impose liability on Defendants on a theory of conspiracy or aiding and abetting 

for any acts that are not currently disclosed in the record of this action or that do not 

involve actions of one or more of the alleged co-conspirators identified in Paragraph (1) 

above;

(3) Any and all claims based on the Fearon Rescission are excluded from this 

case;

(4) Plaintiffs adequately have pled and disclosed claims relating to Defendants‟ 

conduct after their employment with Optimis ended to the extent indicated in this 

Memorandum Opinion; and 

(5) Catherine Gentry‟s affidavit is stricken from the record and, because of 

Plaintiffs‟ failure to comply with the discovery rules with regard to Gentry, Plaintiffs may 

be prohibited from calling her as a witness at trial. 
33

IV. CONCLUSION

For the foregoing reasons, Plaintiffs‟ Motion to Amend is denied and Defendants‟ 

Motion in Limine is granted in part and denied in part to the extent indicated in this 

Memorandum Opinion. 

IT IS SO ORDERED.