SELENA E. MOLINA

MAGISTRATE IN CHANCERY

COURT OF CHANCERY

OF THE

STATE OF DELAWARE

 LEONARD L. WILLIAMS JUSTICE CENTER

 500 NORTH KING STREET, SUITE 11400

 WILMINGTON, DE 19801-3734

Final Report: January 29, 2024

Date Submitted: October 23, 2023

Jason C. Powell, Esquire Aaron E. Moore, Esquire

Thomas J. Reichert, Esquire Marshall Dennehey Warner 

The Powell Firm, LLC Coleman & Goggin

1813 North Franklin Street 1007 North Orange Street, Suite 600

Wilmington, DE 19802 Wilmington, DE 19899

Joseph H. Huston, Jr., Esquire

Stacy A. Scrivani, Esquire

Stevens & Lee, P.C.

919 North Market Street, Suite 1300

Wilmington, DE 19801

Re: Dan Nestor v. Karen Poore, Ellen Donahue, and Creative Planning, 

LLC, C.A. No. 2022-0066-SEM

Dear Counsel:

This report addresses the entity defendants’ motions to dismiss for failure to 

state a claim. For the reasons that follow, I find the plaintiff failed to provide 

adequate notice of, or plead sufficient factual predicate to support, the claims against 

the entity defendants. The entity defendants should, thus, be dismissed from this 

action. 
Dan Nestor v. Karen Poore, Ellen Donahue and Creative Planning, LLC,

C.A. No. 2022-0066-SEM

January 29, 2024

Page 2 of 7

I. BACKGROUND

This decision follows my May 31, 2023 final report (the “First Report”), 

which provides the background, and definitions, on which I rely.1

In the First Report, in pertinent part, I stayed my ruling on the arbitration 

arguments pending further inquiry and briefing and declined to address the 

arguments for dismissal under Court of Chancery Rule 12(b)(6) until that

jurisdictional gating exercise was complete.2 But, after I resolved a dispute about 

how that exercise would proceed, the moving parties mooted the issue.

3 On October 

16, 2023, the remaining members of the CFG Defendants withdrew their argument 

that the Arbitration Agreement renders the Court without subject matter 

jurisdiction.4 MMLIS followed suit on October 23, 2023, advising that it withdrew 

its motion to compel arbitration.5

 Thus, on October 24, 2023, I took all remaining 

portions of the Motions under advisement. 

This is my final report. 

1 Docket Item (“D.I.”) 46.

2 Id.

3 See D.I. 47, 49.

4 D.I. 50.

5 D.I. 51.
Dan Nestor v. Karen Poore, Ellen Donahue and Creative Planning, LLC,

C.A. No. 2022-0066-SEM

January 29, 2024

Page 3 of 7

II. ANALYSIS 

CFG and MMLIS (the “Entity Defendants”) seek dismissal of all claims

against them for failure to state a claim under Court of Chancery Rule 12(b)(6). The 

standard of review under Court of Chancery Rule 12(b)(6) is settled: 

(i) all well-pleaded factual allegations are accepted as true; (ii) even 

vague allegations are “well-pleaded” if they give the opposing party 

notice of the claim; (iii) the Court must draw all reasonable inferences 

in favor of the non-moving party; and [(iv)] dismissal is inappropriate 

unless the “plaintiff would not be entitled to recover under any 

reasonably conceivable set of circumstances susceptible of proof.”6

Applying this standard, I find the Complaint fails to provide notice to the Entity 

Defendants of the claims against them and fails to support a reasonably conceivable 

theory of respondeat superior liability.

Initially, Nestor’s practice of group pleading makes it difficult to discern 

which of Nestor’s eight (8) counts are pled against the Entity Defendants. “Although 

group pleading is not prohibited under Delaware law, it is generally disfavored.”7

 

Such disfavor supports dismissal when the group pleading leaves the defendants 

unable to discern the claims pled against them.8

6 Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (citations omitted).

7 In re Swervepay Acq., LLC, 2022 WL 3701723, at *9 (Del. Ch. Aug. 26, 2022) (cleaned 

up).

8 Id. at *10 (finding group pleading failed to support imputing conduct of one defendant 

to others).
Dan Nestor v. Karen Poore, Ellen Donahue and Creative Planning, LLC,

C.A. No. 2022-0066-SEM

January 29, 2024

Page 4 of 7

Here, Nestor’s group pleading injects ambiguity into the Complaint. For 

example, the Complaint defines “Defendants” as the Entity Defendants plus the 

individual defendants, Poore and Donahue. Then, in Nestor’s first count, Nestor 

pleads that “Defendants” owed fiduciary duties to him and breached them. Yet 

Nestor concludes his first count with a specific reference to the Entity Defendants, 

averring the Entity Defendants should be liable as employers. Other counts continue 

this group pleading, alleging misconduct by “Defendants,” collectively, while 

purporting to incorporate by reference the earlier employer-liability language. 

Reviewing the Complaint as a whole, I find Nestor’s use of group pleading fails to 

provide the Entity Defendants sufficient notice of the claims purportedly pled 

against them.

Additionally, and insufficient notice aside, Nestor fails to plead sufficient 

factual predicate supporting the Entity Defendants’ purported liability. Nestor seeks 

to hold the Entity Defendants liable under the theory of respondeat superior. 

Thereunder, an “employer is subject to liability for torts committed by employees 

while acting within the scope of their employment.”9 An employee acts within the 

scope of their employment if “(1) it is of the kind he is employed to perform; (2) it 

9 Verrastro v. Bayhospitalists, LLC, 208 A.3d 720, 724 (Del. 2019) (quoting Restatement 

(Third) of Agency § 2.04; citing Restatement (Second) of Agency § 219 (1958)).
Dan Nestor v. Karen Poore, Ellen Donahue and Creative Planning, LLC,

C.A. No. 2022-0066-SEM

January 29, 2024

Page 5 of 7

occurs within the authorized time and space limits; (3) it is activated, in part at least, 

by a purpose to serve the master; and (4) if force is used, the use of force is not 

unexpectable by the master.”10 Thus, to state a claim for the Entity Defendants’ 

liability Nestor needed to plead factual predicate making it reasonably conceivable 

that the challenged actions of Poore and Donahue were within the scope of their 

employment with the Entity Defendants. Nestor failed to do so.

The Complaint provides that Poore and Donahue “are business partners 

working together within [the Entity Defendants] to provide services to clients in a 

variety of areas including offering financial services of [MMLIS].”11 And, Nestor’s

“information was obtained and utilized by [Poore and Donahue] as part of their 

relationship with [MMLIS] and in reliance on the expertise that is provided by their 

employment with [MMLIS].” 12 Further, “while in their employment with [the 

Entity Defendants], [Poore and Donhue] attempted to blackmail [Nestor], 

threatening to distribute incriminating/sensitive photographs and/or videos of 

[Nestor] if he takes any action to protect his rights.”13 Finally, Nestor pleads that 

10 Hecksher v. Fairwinds Baptist Church, Inc., 115 A.3d 1187, 1200 (Del. 2015) (quoting 

Restatement (Second) of Agency §228)).

11 D.I. 22 ¶ 10.

12 Id.

13 Id. ¶ 13. 
Dan Nestor v. Karen Poore, Ellen Donahue and Creative Planning, LLC,

C.A. No. 2022-0066-SEM

January 29, 2024

Page 6 of 7

Poore and Donahue “as part of their employment with [the Entity Defendants]

agreed to, and did in fact, act as Plaintiff’s financial advisor from 1998 and rendered 

services on Plaintiff’s behalf. [MMLIS] or its predecessors in interest were an active 

participant in the services rendered during this time period.”14 

These averments fail to support a reasonably conceivable claim that the 

alleged bad acts by Poore and Donahue were within the scope of their employment

with the Entity Defendants. At most, Nestor pleads merely that Poore and Donahue 

were employed by the Entity Defendants and their challenged conduct happened 

while so employed. Nestor’s conclusory allegations that conduct was “within the 

scope of” such employment are unsupported and insufficient to withstand the 

Motions. With an unsupported theory of liability and lack of sufficient notice from 

disfavored group pleading, Nestor’s claims against the Entity Defendants should not 

survive the pleadings and the Entity Defendants should be dismissed from this 

action. 

III. CONCLUSION

For the above reasons, I find that the remaining portions of the Motions should

be granted. The claims against the Entity Defendants should be dismissed, leaving 

14 Id. ¶ 44.
Dan Nestor v. Karen Poore, Ellen Donahue and Creative Planning, LLC,

C.A. No. 2022-0066-SEM

January 29, 2024

Page 7 of 7

Donahue as the sole remaining defendant. This is my final report and exceptions 

may be filed under Court of Chancery Rule 144. The stay of exceptions to the First 

Report is hereby lifted. 

Respectfully submitted,

/s/ Selena E. Molina

Magistrate in Chancery