IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

FERNANDO CWILICH GIL, 

individually and on behalf of RUSE 

LABORATORIES CORP.,

Plaintiff,

v.

BENJAMIN PAUL GLEITZMAN,

REPLICANT SOLUTIONS, INC.,

Defendants,

and

RUSE LABORATORIES CORP.,

Nominal Defendant.

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C.A. No. 2022-0173-BWD

FINAL REPORT

Final Report: March 4, 2024

Date Submitted: February 2, 2024 

Andrew S. Dupre, Brian R. Lemon, and Stephanie H. Dallaire, MCCARTER & 

ENGLISH, LLP, Wilmington, Delaware; Attorneys for Plaintiff Fernando Cwilich 

Gil and Nominal Defendant Ruse Laboratories Corp.

Michael A. Weidinger and Megan Ix Brison, PINCKNEY, WEIDINGER, URBAN 

& JOYCE, LLC, Wilmington, Delaware; OF COUNSEL: Elizabeth Sandza,

SANDZA LAW, PLLC, Washington, D.C.; Attorneys for Defendant Benjamin Paul 

Gleitzman.

Elena C. Norman, Daniel M. Baker, and Alex B. Haims, YOUNG CONAWAY 

STARGATT & TAYLOR, LLP, Wilmington, Delaware; OF COUNSEL: Ben Au, 

ORRICK, HERRINGTON & SUTCLIFFE LLP, Santa Monica, California; Ariel 

Winawer, ORRICK, HERRINGTON & SUTCLIFFE LLP, San Francisco, 

California; Sarah Shyy, ORRICK, HERRINGTON & SUTCLIFFE LLP, Irvine, 

California; Attorneys for Defendant Replicant Solutions, Inc.

DAVID, M.
1

Plaintiff Fernando Cwilich Gil (“Plaintiff”) and defendant Benjamin 

Gleitzman are the co-founders and sole directors, officers, and stockholders of 

nominal defendant Ruse Laboratories Corp. (“Ruse” or the “Company”). In 

February 2022, Plaintiff initiated this action, asserting claims against Gleitzman for 

breach of fiduciary duty; seeking a declaration that a certificate of dissolution filed 

on behalf of Ruse is void or invalid; and requesting the appointment of a receiver for 

the Company. 

In June 2023, Plaintiff filed a second amended complaint. The amended 

pleading adds a claim against Gleitzman for breach of an assignment agreement 

under which Gleitzman assigned his rights in “Company Inventions” to Ruse; a 

claim against a new defendant, Replicant Solutions, Inc. (“Replicant”), for tortious 

interference with that assignment agreement; and a request for declaratory relief 

arising from those claims. 

This final report resolves Gleitzman and Replicant’s (“Defendants”) motions

to dismiss those newly added claims as time-barred under the applicable statutes of 

limitations. For the reasons explained below, I recommend that the Court dismiss 

the tortious interference claim and otherwise deny the motions to dismiss.
2

I. BACKGROUND1

A. Plaintiff and Gleitzman Assign Their Rights In Company 

Inventions To Ruse. 

In 2014, Plaintiff Fernando Cwilich Gil and defendant Benjamin Paul 

Gleitzman co-founded Ruse, a Delaware corporation, “to develop various 

technology-based projects.” SAC ¶ 13. Plaintiff, “an artist and creative director 

working with technology,” and Gleitzman, “a software engineer and manager,” are 

each fifty percent stockholders of Ruse. Id. ¶¶ 15-16. Plaintiff serves as Ruse’s 

CEO and President, and Gleitzman serves as Ruse’s Secretary. Id. ¶¶ 1, 26-27.

On April 6, 2014, Plaintiff and Gleitzman each executed a Confidential 

Information and Invention Assignment Agreement (the “Assignment Agreement”)

in which they agreed that, while employed by the Company, they would disclose and 

assign all rights in any patents to Ruse:

Assignment of Company Inventions. I agree that I will promptly make 

full written disclosure to the Company, will hold in trust for the sole 

right and benefit of the Company, and hereby assign to the Company, 

or its designee, all my right, title and interest throughout the world in 

1 The following facts are taken from the Corrected Verified Second Amended Complaint 

(the “Second Amended Complaint”) and the documents incorporated by reference therein. 

Corrected Verified Second Am. Compl. [hereinafter, “SAC”], Dkt. 67. See Freedman v. 

Adams, 2012 WL 1345638, at *5 (Del. Ch. Mar. 30, 2012) (“When a plaintiff expressly 

refers to and heavily relies upon documents in her complaint, these documents are 

considered to be incorporated by reference into the complaint[.]” (citation omitted)).
3

and to any and all Company Inventions2 and all patent, copyright, 

trademark, trade secret and other intellectual property rights therein. 

SAC, Ex. A [hereinafter, “Assign. Agt.”] § 4(d) (emphasis added). The Assignment 

Agreement is governed by California law. Id. § 12(a). 

B. Gleitzman Invents Technology While Working For Atomic and 

Replicant.

The Complaint alleges that “in 2014 and 2015, Ruse did work for Atomic, a 

venture capital fund and technology incubator, and its CEO Jack Abraham.” SAC 

¶ 37. “In mid-2017, Gleitzman began exploring the possibility of Ruse again 

working with Atomic on an outgoing robocalling technology project.” Id. ¶ 38. 

“After seeking and obtaining [Plaintiff]’s consent, Gleitzman and Ruse began 

2 The Assignment Agreement defines “Inventions” to include:

discoveries, developments, concepts, designs, ideas, know how, 

improvements, inventions, trade secrets and/or original works of authorship, 

whether or not patentable, copyrightable or otherwise legally protectable[]

[which] . . . includes, but is not limited to, any new product, machine, article 

of manufacture, biological material, method, procedure, process, technique, 

use, equipment, device, apparatus, system, compound, formulation, 

composition of matter, design or configuration of any kind, or any 

improvement thereon.

Assign. Agt. § 4(c). “Company Inventions” are defined to include “any and all Inventions 

that [Gil or Gleitzman, respectively,] may solely or jointly author, discover, develop, 

conceive, or reduce to practice during the period of the Relationship, except as otherwise 

provided in Section 4(g) below.” Id. “Relationship” is defined as “[a]ny such employment 

or consulting relationship between the parties hereto, whether commenced prior to, upon 

or after the date of this Agreement . . . .” Id. § 1.
4

working on an Atomic company known as ‘Replicant.’” Id. ¶ 39. According to the 

Complaint,

Gleitzman was not able to exploit the opportunity in Replicant alone, 

but rather required the use of Ruse’s resources, assets and frequent 

collaborators to help him develop Replicant’s code, design, content,

product and brand. Ruse’s work for Atomic on Replicant was typical. 

[Plaintiff] focused mostly on the creative and product side, such as 

experimenting with how the technology could be used while refining 

its concept and design; Gleitzman worked primarily on code 

development and financial management. Gleitzman and [Plaintiff] also 

organized and recruited freelance coders to assist Gleitzman in code 

development for Replicant.

Id. ¶¶ 40-41. Plaintiff alleges that Ruse completed its work for Replicant without 

executing a contract with Atomic or Replicant, expecting that “Gleitzman would 

negotiate the best possible equity deal for Ruse.” Id. ¶¶ 42-43. But instead, 

“Gleitzman secured a personal equity interest in Replicant in exchange for the work 

performed by Ruse and accepted a salaried position as [Replicant’s] Chief Technical 

Officer.” Id. ¶ 44.

In June and August 2017, Atomic filed with the United States Patent and 

Trademark Office (“USPTO”) two provisional patent applications (the “Provisional 

Applications”) based on technology developed in collaboration with Gleitzman (the 

“‘038 Technology”). See SAC, Exs. C, D. Although Gleitzman developed the ‘038 
5

Technology with Replicant, the Provisional Applications listed only Abraham as the 

inventor and Atomic as assignee. Id. ¶¶ 48-49; see also id., Exs. C, D.

3

On June 22, 2018, Atomic filed a non-provisional patent application (the 

“‘453 Application”) based on the Provisional Applications and the ‘038 Technology, 

again identifying only Abraham as the inventor. SAC ¶ 50; see also id., Ex. E at 1. 

Although the ‘453 Application did not include Gleitzman as an inventor, on 

February 27, 2020, Gleitzman and Replicant recorded an assignment agreement

through which Gleitzman purported to assign his rights under the ‘453 Application 

to Replicant (the “Replicant Assignment Agreement”). SAC, Ex. G. Then, on 

March 5, 2020, Replicant filed a request with the USPTO to update the ‘453 

Application (the “2020 Update”), seeking to “correct[] . . . the inventorship of the 

above referenced application to add inventor Benjamin Gleitzman” and “update the 

Applicant and Assignee information” to identify Replicant, instead of Atomic, as the 

applicant and assignee. SAC ¶ 51; see also id., Ex. F at 1. 

3 On February 14, 2018, Plaintiff caused Ruse to enter into an Independent Contractor 

Agreement with Atomic (the “ICA”). SAC ¶ 58; see also id., Ex. H. Under the ICA, Ruse 

agreed that, for one year, “work product . . . developed by [Ruse] in connection with [its] 

Services . . . shall . . . remain the sole and exclusive property of [Atomic].” SAC, Ex. H 

¶ 7(b). The Complaint alleges that Plaintiff was “fraudulently induced” into executing the 

ICA “without disclosure that Gleitzman invented the technology underlying the ‘038 Patent 

. . . .” SAC ¶ 58. 
6

On June 23, 2020, the USPTO issued Patent ‘038, based on the ‘038 

Technology as reflected in the Provisional Applications and the ‘453 Application, to 

Replicant (the “‘038 Patent”). SAC ¶ 52. 

C. Replicant Files And Then Abandons The ‘314 Application.

On June 24, 2020, Replicant filed another patent application (the “‘314 

Application”), listing six inventors, including Gleitzman. SAC, Ex. I; see also id.

¶¶ 59, 62. The ‘314 Application is not based on the ‘038 Technology, but other 

“technology that was invented, in part, by Ruse.” SAC ¶¶ 60-61. According to the 

Complaint, “Replicant recently abandoned the ‘314 Application,” “rob[bing] Ruse 

of its ability to protect exclusivity in the intellectual property identified in the ‘314 

Application . . . .” Id. ¶ 64. 

On November 10, 2020, Gleitzman filed a certificate of dissolution for Ruse. 

Id. ¶¶ 106-108.

D. Procedural History 

On February 22, 2022, Plaintiff initiated this action through the filing of a 

Verified Complaint for Breach of Fiduciary Duties (the “Initial Complaint”). 

Verified Compl. for Breach of Fiduciary Duties [hereinafter, “Initial Compl.”], Dkt. 

1. The Initial Complaint named only Gleitzman as a defendant and alleged six

counts, asserted derivatively on behalf of Ruse: 
7

• Count One sought a declaratory judgment that the dissolution of Ruse was 

void or invalid; 

• Count Two alleged that Gleitzman breached his fiduciary duties by taking a 

salary and equity interest in Replicant that belonged to Ruse; 

• Count Three alleged that Gleitzman was unjustly enriched by keeping the 

salary and equity interest for himself; 

• Count Four alleged that Gleitzman breached his fiduciary duties by canceling 

potential contracts for Ruse; 

• Count Five alleged that Gleitzman breached his fiduciary duties by shutting 

down Ruse; and 

• Count Six sought the appointment of a trustee or custodian. 

On March 14, 2022, Plaintiff filed a Verified Amended Complaint (the “First 

Amended Complaint”). Dkt. 16. On March 28, 2022, Gleitzman moved to dismiss

the First Amended Complaint and filed an Answer and Counterclaims (the 

“Counterclaims”). Dkts. 20-21. On May 16, 2022, Plaintiff answered and moved 

to dismiss Count One of the Counterclaims. Dkts. 33-34. On September 26, 2020, 

Vice Chancellor Glasscock, to whom this action was assigned, denied the parties’ 

motions to dismiss. Dkt. 57. 
8

On June 22, 2023, with leave of Court, Plaintiff filed a Verified Second 

Amended Complaint (the “Second Amended Complaint”).

4

 Dkt. 63. The Second 

Amended Complaint adds Replicant as a defendant and alleges three new counts, 

asserted derivatively on behalf of Ruse: 

• new Count Six seeks a declaratory judgment that Ruse is an assignee of the 

‘038 Patent and an order of specific performance directing Defendants to take 

steps necessary to list Ruse as an assignee on the ‘038 Patent;

• Count Seven alleges that Gleitzman breached the Assignment Agreement by 

(1) failing to assign the ‘038 Patent to Ruse and (2) failing to disclose the ‘038 

Patent and the ‘314 Patent Application to Ruse; and

• Count Eight alleges that Replicant tortiously interfered with the Assignment 

Agreement. 

E. The Motions to Dismiss

On July 24, 2023, Replicant and Gleitzman moved to dismiss Counts Six, 

Seven, and Eight of the Second Amended Complaint (the “Motions to Dismiss”). 

Dkts. 74, 77.

5

 The Court heard oral argument on February 2, 2024. Dkt. 101.

4 On July 10, 2023, Plaintiff filed a Corrected Verified Second Amended Complaint, which 

is the operative complaint. Dkt. 67.

5 On August 23 and 24, 2023, Defendants filed opening briefs in support of the Motions to 

Dismiss. See Def. Replicant Solutions, Inc.’s Op. Br. In Supp. Of Mot. To Dismiss Pl.’s 
9

II. ANALYSIS

A. Standard of Review

Defendants move to dismiss Counts Six (declaratory judgment), Seven

(breach of the Assignment Agreement), and Eight (tortious interference with the 

Assignment Agreement) of the Second Amended Complaint as time-barred under

the applicable statutes of limitations.

When reviewing a motion to dismiss under Court of Chancery Rule 12(b)(6), 

Delaware courts “(1) accept all well pleaded factual allegations as true, (2) accept 

even vague allegations as ‘well-pleaded’ if they give the opposing party notice of 

the claim; [and] (3) draw all reasonable inferences in favor of the non-moving party

. . . .” Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 

Corrected Verified Second Am. Compl. [hereinafter, “ROB”], Dkt. 84; Def. Benjamin 

Gleitzman’s Mot. To Dismiss Count Seven And Joinder In Replicant Solutions, Inc.’s Op. 

Br. In Supp. Of Its Mot. To Dismiss Count Six Of Pl.’s Corrected Verified Second Am. 

Compl. [hereinafter, “GOB”], Dkt. 86. On October 6, 2023, Plaintiff filed a Combined 

Opposition to Defendants’ Opening Briefs in Support of Motions to Dismiss Counts VI, 

VII, and VIII of Verified Second Amended Complaint. Pl.’s Combined Opp’n To Defs.’ 

Op. Brs. In Supp. Of Mots. To Dismiss Counts VI, VII, And VIII Of Verified Second Am. 

Compl. [hereinafter, “AB”], Dkt. 90. On October 23, 2023, Replicant and Gleitzman filed 

reply briefs in further support of the Motions to Dismiss. See Def. Replicant Solutions, 

Inc.’s Reply Br. In Supp. Of Mot. To Dismiss Pl.’s Corrected Verified Second Am. Compl.

[hereinafter, “RRB”], Dkt. 95; Reply Br. In Supp. Of Def. Benjamin Gleitzman’s Mot. To

Dismiss Count Seven And Joinder In Replicant Solutions, Inc.’s Reply Br. In Supp. Of Its 

Mot. To Dismiss Count Six of Pl.’s Corrected Verified Second Am. Compl. [hereinafter, 

“GRB”], Dkt. 96.

This action was reassigned to me on August 8, 2023. Dkt. 83.
10

535 (Del. 2011). “[T]he governing pleading standard in Delaware to survive a 

motion to dismiss is reasonable ‘conceivability.’” Id. at 537.

Dismissal under Rule 12(b)(6) is appropriate when it is clear from the face of 

the complaint that the claims are barred by the applicable statute of limitations. See

Pomeranz v. Museum P’rs, L.P., 2005 WL 217039, at *2 (Del. Ch. Jan. 24, 2005) 

(“When it is clear from the face of the [c]omplaint . . . that plaintiffs’ tolling theories 

fail even to raise a legitimate doubt about the time the claims accrued, dismissal is 

appropriate if the claims were filed after the applicable limitations period expired.”

(alterations in original) (internal citation and quotation marks omitted)); In re Dean 

Witter P’ship Litig., 1998 WL 442456, at *3 (Del. Ch. July 17, 1998) (“[I]t is well 

settled that where the complaint itself alleges facts that show that the complaint is 

filed too late, the matter may be raised by [a] motion to dismiss.” (internal citation 

omitted), aff’d, 725 A.2d 441 (Del. 1999)).

“Statutes of limitations exist at law and serve to bar claims brought after the 

limitations period set forth in the statute has expired.” Kraft v. WisdomTree Invs., 

Inc., 145 A.3d 969, 974-75 (Del. Ch. 2016). “Statutes of limitations traditionally do 

not apply directly to actions in equity, although courts of equity may apply them by 

analogy in determining whether a plaintiff should be time-barred under the equitable 

doctrine of laches.” Id. at 975. 
11

Counts Seven (breach of the Assignment Agreement) and Eight (tortious 

interference with the Assignment Agreement) assert legal claims for which Plaintiff 

seeks both legal and equitable relief. Where a plaintiff brings a legal claim seeking 

legal relief in the Court of Chancery, the statute of limitations applies. Id. at 983.6

 

Where a plaintiff brings a legal claim seeking equitable relief, the Court will apply 

the statute of limitations by analogy “with at least as much and perhaps more 

presumptive force given its quasi-legal status and will bar claims outside the 

limitations period absent tolling or extraordinary circumstances.” Id. at 984. The 

parties here agree that resolution of the Motions to Dismiss turns on application of 

the applicable statutes of limitations and tolling doctrines.

B. The Motion To Dismiss Count Seven For Breach Of The 

Assignment Agreement Is Denied. 

In Count Seven, Plaintiff alleges that Gleitzman breached the Assignment 

Agreement by (1) purporting to assign his rights in the ‘038 Patent to Replicant 

instead of Ruse and (2) failing to promptly disclose his rights relating to the ‘038 

Patent and the ‘314 Patent Application.

6 This Court has acknowledged that “extraordinary circumstances may provide an 

exception to the strict application of statutes of limitations for purely legal matters, separate 

and apart from the application of tolling doctrines,” but the parties have not argued any 

such “extraordinary circumstances” exist in this case. Kraft, 145 A.3d at 983.
12

As explained below, the Court cannot conclude from the pleadings that claims 

premised on either theory of breach are time-barred.

1. Breach Of The Assignment Agreement For Failure to Assign

a. What Is The Presumptive Limitations Period?

Plaintiff’s contract claims arise under California law. See Assign. Agt. 

§ 12(a). “At common law, the law of the forum supplies the limitations period.” 

CHC Invs. LLC v. FirstSun Cap. Bancorp, 2020 WL 1480857, at *4 (Del. Ch. Mar. 

23, 2020), aff’d, 241 A.3d 221 (Del.). To prevent a plaintiff from shopping for a 

forum with the longest limitations period, however, Delaware has modified the 

common law by adopting a “Borrowing Statute,” which provides:

Where a cause of action arises outside of [Delaware], an action cannot 

be brought in a court of [Delaware] to enforce such cause of action after 

the expiration of whichever is shorter, the time limited by the law of 

[Delaware], or the time limited by the law of the state or country where 

the cause of action arose, for bringing an action upon such cause of 

action.

10 Del. C. § 8121. The Borrowing Statute minimizes forum shopping incentives 

“‘by instructing a Delaware court to compare the limitations period that would apply 

under Delaware law and the law of the foreign jurisdiction[,]’ and apply the shorter 

of the two.” CHC Invs., 2020 WL 1480857, at *4. 

In Saudi Basic Industry Corporation v. Mobil Tanbu Petrochemical 

Company, the Delaware Supreme Court crafted an exception to the Borrowing 

Statute. 866 A.2d 1 (Del. 2005). The plaintiff in that case, a Saudi Arabian 
13

corporation, filed a declaratory judgment action against its joint venture partners in 

Delaware Superior Court, and one of the defendants responded with counterclaims. 

The plaintiff moved to dismiss the counterclaims as time-barred, arguing that the 

Borrowing Statute required application of Delaware’s three-year limitations period 

rather than Saudi Arabia’s “eternal” limitations period. Id. at 14-16. The Superior 

Court denied the motion, and the Supreme Court affirmed, explaining that the 

Borrowing Statute does not apply where its application would “subvert[] the 

statute’s fundamental purpose, by enabling [the plaintiff] to prevail on a limitations 

defense that would never have been available to it . . . in the jurisdiction where the 

cause of action arose.” Id. at 17-18.

After Saudi Basic, there remains some “‘uncertainty as to when [the] 

[B]orrowing [S]tatue applies,’” and “Delaware courts applying its holding have 

adopted different approaches resulting in inconsistent outcomes.” CHC Invs., 2020 

WL 1480857, at *5 (footnote omitted) (quoting TrustCo v. Mathews, 2015 WL 

295373, at *7 (Del. Ch. Jan. 22, 2015)). One approach interprets Saudi Basic as

holding that the Borrowing Statute does not apply whenever the Delaware 

limitations period is shorter than the limitations period of the foreign jurisdiction 

where the claim arose. See, e.g., Bear Stearns Mortg. Funding Tr. 2006-SL1 v. EMC 

Mortg. LLC, 2015 WL 139731, at *8 (Del. Ch. Jan. 12, 2015) (declining “to apply 

the Borrowing Statute when its operation would bar a claim that would be timely 
14

under the law governing the claim”). A narrower approach “interprets Saudi Basic

to hold that the plain language of the borrowing statute governs unless the party 

asserting the underlying claim was forced into a Delaware forum.” CHC Invs., 2020 

WL 1480857, at *8 (adopting “a narrow interpretation of Saudi Basic” under which

“the court first applies the plain language of [the] borrowing statute[]”; “[i]f 

Delaware’s limitations period applies, the court next determines whether the party 

asserting the underlying claim was forced to file in Delaware[,]” and if so, “then the 

court applies the foreign limitations period”).

The statute of limitations for a breach of contract claim is three years in 

Delaware, or four years in California. See 10 Del. C. § 8106(a); Cal. Civ. Proc. Code 

§ 337(a). The parties’ briefing did not identify Saudi Basic, or advocate for a broad 

or narrow reading of that authority under the facts alleged. Instead, the parties

assume the Borrowing Statute applies and Delaware’s shorter, three-year statute of 

limitations governs. As discussed below, the result is the same either way.

b. When Did The Claim Accrue?

Count Seven alleges that Gleitzman breached the Assignment Agreement by 

failing to assign the ‘038 Patent to Ruse. Plaintiff contends that claim accrued on 

June 23, 2020, when the USPTO issued the ‘038 Patent. Gleitzman argues, instead, 

that the claim accrued on June 22, 2018, when Atomic filed the 453 Application 
15

based on the ‘038 Technology, or, at the latest, on December 27, 2018, when the 453 

Application was published. Plaintiff has the better argument.

A claim accrues on the date of the wrongful act. Under Delaware or California 

law,7 “[f]or breach of contract claims, the wrongful act is the breach, and the cause 

of action accrues at the time of breach.” Meso Scale Diagnostics, LLC v. Roche 

Diagnostics GmbH, 62 A.3d 62, 77 (Del. Ch. 2013) (citation and internal quotation 

marks omitted); see also Bd. of Trustees of Leland Stanford Junior Univ. v. Roche 

Molecular Sys., Inc., 583 F.3d 832, 846 (Fed. Cir. 2009) (“‘A contract cause of 

action does not accrue until the contract has been breached.’” (quoting Spear v. 

California State Auto. Ass’n, 831 P.2d 821 (Cal. 1992), aff’d, 563 U.S. 776 (2011))). 

“Breach is defined as a ‘[f]ailure, without legal excuse, to perform any promise 

which forms the whole or part of a contract.’ To determine the accrual date, 

7 The limitations analysis is governed by whichever law applies under the Borrowing 

Statute. See Bear Stearns, 2015 WL 139731, at *12 (“Assuming that the Borrowing 

Statute called for applying Delaware’s shorter statute of limitations period, then 

Delaware’s rules about the operation of that shorter period, including when claims accrue, 

also applied.”); see also Frombach v. Gilbert Assocs., Inc., 236 A.2d 363, 366 (Del. 1967) 

(“[T]he borrowed statute [of limitations] is accepted with all its accoutrements . . . .”); de 

Adler v. Upper N.Y. Inv. Co., 2013 WL 5874645, at *13 n.149 (Del. Ch. Oct. 31, 2013) 

(explaining that “‘accoutrements,’ such as claim accrual and tolling doctrines,” are 

accepted with the borrowed statute of limitations); Delargy v. Hartford Accident and 

Indemnity Co., 1986 WL 11562, at *2 (Del. Super. Oct. 8, 1986) (same). Again, the result 

here is the same under either Delaware or California law.
16

therefore, courts must examine the language of the contract.” Meso, 62 A.3d at 77

(alteration in original) (internal citation and footnote omitted).

Here, Gleitzman promised in the Assignment Agreement to “assign to the 

Company . . . all [his] right, title and interest . . . in and to any and all Company 

Inventions and all patent . . . rights therein.” Assign. Agt. § 4(d). He could not have

breached his contractual obligation to assign the ‘038 Patent to Ruse before the 

patent was issued. See Meso, 62 A.3d at 78 (holding that a claim for breach of an

anti-assignment provision in a global consent agreement did not accrue when the 

alleged breacher entered into a binding merger agreement, but when the assignment 

actually occurred at the merger closing); see also Int’l Bus. Machs. Corp. v. 

Zachariades, 70 F.3d 1278, 1995 WL 697210, at *2 (9th Cir. 1995) (TABLE) 

(holding that “the limitations period for failure to assign [a patent under an 

employment agreement] commenced on the date that [the assignee] first could have 

demanded assignment,” i.e., “the dates that the patents were issued”). Thus, the 

earliest date this claim could have accrued is June 23, 2020, when the ‘038 Patent 

was issued.

The authority on which Defendants rely does not support an earlier accrual 

date. In Board of Trustees of Leland Stanford Junior University v. Roche Molecular 

Systems, Inc., for instance, the United States Court of Appeals for the Federal Circuit 

concluded that, where a plaintiff had notice of claims arising from the issuance of 
17

one patent, it also had notice of claims arising from “continuation patents” that were 

issued thereafter. 583 F.3d at 842. In so holding, the court rejected the plaintiff’s 

position that its claims under the later-filed patents could not have accrued until those 

patents were issued. But, critically, “[i]n Stanford, the plaintiff had actual notice of 

the [first] issued patent, as well as of defendants’ claim of ownership over related 

patents that ‘may issue.’” Regents of Univ. of Cal. v. Chen, 2017 WL 3215356, at 

*6 (N.D. Cal. July 26, 2017) (distinguishing Stanford). Here, there is no allegation 

that Plaintiff’s breach of contract claim accrued upon the issuance of a prior-issued 

patent, and Stanford is therefore inapposite.8

8 Defendants cite numerous cases analyzing accrual of claims other than breach of contract 

claims—see, e.g., Miller v. Bechtel Corp., 663 P.2d 177 (Cal. 1983) (fraud); Bernson v. 

Browning-Ferris Indus., 873 P.2d 613 (Cal. 1994) (defamation); Fox v. Ethicon EndoSurgery, Inc., 110 P.3d 914 (Cal. 2005) (malpractice); Wang v. Palo Alto Networks, Inc., 

2014 WL 1410346 (N.D. Cal. Apr. 11, 2014) (misappropriation); Cmty. Cause v. 

Boatwright, 177 Cal. Rptr. 657 (Ct. App. 1981) (violation of a statute); Nguyen v. W. 

Digital Corp., 177 Cal. Rptr. 3d 897 (Ct. App. 2014) (malpractice)—or analyzing accrual 

under the law of other jurisdictions. See, e.g., Ferris Mfg. Corp. v. Carr, 2015 WL 279355 

(N.D. Ill. Jan. 21, 2015); Wise v. Hubbard, 769 F.2d 1 (1st Cir. 1985); BroadStar Wind 

Sys. Gp. Ltd. Liab. Co. v. Stephens, 459 Fed. Appx. 351 (5th Cir. 2012); Univ. Patents, Inc. 

v. Kligman, 1991 WL 64652 (E.D. Pa. Apr. 22, 1991); Fed. Express Corp. v. Accu-Sort 

Sys., Inc., 2005 WL 8156707 (W.D. Tenn. Mar. 30, 2005); OrbusNeich Med. Co., Ltd., 

BVI v. Boston Sci. Corp., 694 F. Supp. 2d 106 (D. Mass. 2010) WesternGeco v. Ion 

Geophysical Corp., 2009 WL 3497123 (S.D. Tex. Oct. 28, 2009); Informatics Applications 

Gp., Inc. v. Shkolnikov, 836 F. Supp. 2d 400 (E.D. Va. 2011); MV Circuit Design, Inc. v. 

Omnicell, Inc., 2015 WL 1321743 (N.D. Ohio Mar. 24, 2015); M & T Chems., Inc. v. Int’l 

Bus. Machs. Corp., 403 F. Supp. 1145 (S.D.N.Y. 1975), aff’d, 542 F.2d 1165 (2d Cir. 

1976). That authority does not apply or control here.
18

Accordingly, Plaintiff’s claim for breach of the Assignment Agreement 

premised on the failure to assign the ‘038 Patent accrued no earlier than June 23, 

2020, when the ‘038 Patent was issued.9

c. When Did The Statute Of Limitations Run?

Using June 23, 2020 as the earliest accrual date, Plaintiff was within the threeor four-year limitations period when he filed the Second Amended Complaint on 

June 22, 2023. Accordingly, I recommend that the Court deny the motion to dismiss 

Count Seven to the extent it asserts a claim for breach of the Assignment Agreement 

premised on Gleitzman’s alleged failure to assign the ‘038 Patent.

2. Breach Of The Assignment Agreement For Failure to 

Disclose

a. What Is The Presumptive Limitations Period? 

Count Seven also alleges that Gleitzman breached the Assignment Agreement 

by failing to “promptly” disclose his rights relating to the ‘038 Patent and the ‘314 

Patent Application. As with Plaintiff’s other theory of breach, Plaintiff’s breach of 

9 Defendants do not argue that the Replicant Assignment Agreement was a repudiation of 

the Assignment Agreement. Even if they did, I could not “find as a matter of undisputed 

fact that [Plaintiff] objectively manifested an intent to treat the repudiation as a breach”

such that an earlier accrual date would apply. Meso, 62 A.3d at 79. Additionally, to the 

extent Gleitzman breached the Assignment Agreement by failing to assign some other right

predating issuance of the patent (such as a right to the patent application), it is not clear 

from the Assignment Agreement when the duty to assign any such rights would have 

arisen, and additional fact development would be needed to identify an accrual date.
19

contract claims based on the failure to disclose are governed either by Delaware’s 

three-year or California’s four-year statute of limitations. 

b. When Did The Claims Accrue?

Plaintiff alleges that Gleitzman breached the Assignment Agreement by 

failing to promptly disclose his rights relating to the ‘038 Patent and the ‘314 

Application to Ruse. For the ‘038 Patent, Plaintiff says the claim accrued on June 

23, 2020, when the ‘038 Patent was issued. For the ‘314 Application, Plaintiff 

contends his claim arose on December 24, 2020, when the ‘314 Application was 

published, or at the earliest, on June 24, 2020, when the ‘314 Application was filed.

Gleitzman, on the other hand, argues that these claims accrued in mid-2017 when 

Gleitzman first began developing intellectual property for Atomic and Replicant.

Again, “[f]or breach of contract claims, the wrongful act is the breach, and the 

cause of action accrues at the time of breach.” Meso, 62 A.3d at 77; see also

Stanford, 583 F.3d at 846. To determine when the breach allegedly occurred, the 

Court must look to the language of the contract.

Gleitzman promised in the Assignment Agreement to “promptly make full 

written disclosure to the Company . . . [of] all [his] right, title and interest throughout 

the world in and to any and all Company Inventions and all patent, copyright, 

trademark, trade secret and other intellectual property rights therein.” Assign. Agt.
20

§4(d).10 It is not clear from the face of the agreement when, under the facts alleged,

Gleitzman’s duty to disclose was triggered—upon efforts to develop new 

technology, the filing or approval of a patent application, the issuance of a patent, or 

some other event. The Court therefore cannot determine when these claims accrued,

and if they are barred by the statute of limitations, without further factual 

development. See, e.g., Kim v. Coupang, LLC, 2021 WL 3671136, at *6 (Del. Ch. 

Aug. 19, 2021) (“Because the accrual date is not ‘ascertainable from the face of the 

complaint,’ . . . the Court is not able to adjudicate that defense on this motion to 

dismiss.” (quoting Cent. Mortg. Co., 2012 WL 3201139 at *16)); Intermec IP Corp. 

v. TransCore, LP, 2021 WL 3620435, at *22-23 (Del. Super. Aug. 16, 2021) 

(deferring judgment on a statute of limitations defense where the relevant contractual 

provision was ambiguous, creating a disputed fact); Smith v. Mattia, 2010 WL 

412030, at *4 (Del. Ch. Feb. 1, 2010) (denying motion to dismiss premised on statute 

10 The Assignment Agreement is governed by California law. Assign. Agt. § 12(a). “Under 

California law, ‘[t]he language of a contract is to govern its interpretation, if the language 

is clear and explicit, and does not involve an absurdity.’” Centene Corp. v. Accellion, Inc., 

2022 WL 898206, at *6 (Del. Ch. Mar. 28, 2022) (alteration in original) (quoting Cal. Civ. 

Code § 1638). “[E]xtrinsic evidence may be used to explain the meaning of a contract even 

if the contract appears unambiguous on its face.” Id. “The logic behind the California 

approach is that the meaning of a contract ‘can only be found by interpretation in light of 

all the circumstances that reveal the sense in which the writer used the words.’” CA, Inc. 

v. Ingres Corp., 2009 WL 4575009, at *29 (Del. Ch. Dec. 7, 2009) (citation omitted), aff’d, 

8 A.3d 1143 (Del. 2010).
21

of limitations where “the Court [could not] yet say when the cause of action on th[e]

claim accrued”).

Because it is not clear from the face of the Second Amended Complaint when 

Plaintiff’s claim for breach of the Assignment Agreement premised on the failure to 

disclose accrued, I recommend that the Court deny the motion to dismiss Count 

Seven.

C. The Motion To Dismiss Count Eight For Tortious Interference 

With The Assignment Agreement Is Granted. 

In Count Eight, Plaintiff alleges that Replicant tortiously interfered with the 

Assignment Agreement by “falsely concealing Gleitzman’s status as an inventor” in 

the Provisional Applications and the ‘453 Application, and by entering into the 

Replicant Assignment Agreement with Gleitzman “in defiance of Gleitzman’s preexisting assignment obligations to Ruse.” SAC ¶ 174. 

As set forth below, Count Eight should be dismissed as time-barred.

1. What Is The Presumptive Limitations Period?

The parties agree that Plaintiff’s claim for tortious interference with contract 

arises under California law. ROB at 8; AB at 21. In Delaware, the statute of 

limitations governing a claim for tortious interference with contractual relations is 

three years. 10 Del. C. § 8106(a). “The statute of limitations for tortious interference 

with contract in California is two years.” DC Comics v. Pac. Pictures Corp., 938 F. 

Supp. 2d 941, 948 (C.D. Cal. 2013); Cal. Civ. Proc. Code § 339(1). Under the 
22

Borrowing Statute, California’s shorter, two-year limitations period applies. See 10 

Del. C. § 8121.

2. When Did The Claim Accrue?

“A tortious-interference claim typically accrues ‘at the date of the wrongful 

act.”’ DC Comics, 938 F. Supp. 2d at 948 (citation omitted). “[I]n no event does a 

claim accrue ‘later than the actual breach of contract by the party who was 

wrongfully induced to breach,’ because the breach is the culmination of the alleged 

wrong.” Id. (citation omitted); see also Redisegno.com, S.A. de C.V. v. Barracuda 

Networks, Inc., 2020 WL 3971622, at *2-3 (N.D. Cal. July 14, 2020) (“Under 

California law, the two-year statute of limitations begins to run no later than the date 

of the breach or termination of the underlying contract.” (citing Forcier v. Microsoft 

Corp., 123 F. Supp. 2d 520, 530 (N.D. Cal. 2000))); Lynwood Invs. CY Ltd. v. 

Konovalov, 2022 WL 3370795, at *6 (N.D. Cal. Aug. 16, 2022) (same).

11 Therefore, 

at the latest,12 the tortious interference claim accrued on June 23, 2020, when the 

11 The same is true under Delaware law. See Pomeranz, 2005 WL 217039, at *8 (finding

“the plaintiffs’ claims accrued on . . . the date that the allegedly wrongful Withdrawal 

Agreement was executed” where the plaintiff alleged that a limited partner tortiously 

interfered with a limited partnership agreement by entering into a withdrawal agreement 

with the limited partner in breach of the partnership agreement).

12 Replicant contends the tortious interference claim accrued earlier, either on December 

27, 2018, when Replicant allegedly “induced . . . Gleitzman’s breaches . . . by . . . 

concealing Gleitzman’s status as an inventor” of the ‘038 Patent, or on February 27, 2020, 

when “Gleitzman . . . assign[ed] all of his rights in the ‘038 Patent to Replicant.” SAC 

¶¶ 157, 174.
23

‘038 Patent was issued and Plaintiff’s breach of contract claim for failure to assign 

accrued. See pp. 14-18, supra.

Assuming a June 23, 2020 accrual date, the statute of limitations 

presumptively ran for Count Eight two years later, on June 23, 2022—four months 

after the filing of the Initial Complaint on February 22, 2022, but more than a year 

before the filing of the Second Amended Complaint on June 22, 2023. Therefore, 

Count Eight is time-barred unless tolling applies or Count Eight relates back to the 

filing of the Initial Complaint.

3. Does Tolling Apply?

Plaintiff contends that under California’s “discovery rule,” the two-year 

statute of limitations governing the tortious interference claim was tolled until 

sometime in 2023, when Plaintiff discovered the factual basis for his claim during

discovery in this action. Replicant counters that Plaintiff was on constructive or 

inquiry notice of the claim by June 23, 2020. 

Under California law, a claim for tortious interference with a contract “shall 

not be deemed to have accrued until the discovery of the loss or damage suffered by 

the aggrieved party thereunder.” Cal. Civ. Proc. Code § 339(1). 

This so-called “discovery rule” “postpones accrual of a cause of action 

until the plaintiff discovers, or has reason to discover, the cause of 

action.” A plaintiff “discovers” the cause of action the moment “he at 

least suspects a factual basis, as opposed to a legal theory,” for the 

elements of the claim—in other words, when plaintiff suspects “that 

someone has done something wrong to him.” . . . “[T]he discovery 
24

rule postpones accrual of a cause of action until plaintiff discovers the 

facts underlying its claims.” But a plaintiff need not suspect facts 

“supporting each specific legal element of a particular cause of action” 

to have discovered that cause of action; rather, California courts “look 

to whether the plaintiffs have reason to at least suspect that a type of 

wrongdoing has injured them.” “So long as a suspicion exists, it is clear 

that the plaintiff must go find the facts; she cannot wait for the facts to 

find her.”

DC Comics, 938 F. Supp. 2d at 951 (citations omitted).

13 “By expressly providing 

for the common-law discovery rule and no other common-law tolling principles, 

section 339 appears to reflect the legislature’s clear and unequivocal intent to 

preclude application of common-law tolling mechanisms other than the discovery 

rule.” Id. at 950.

13 See also Vera v. REL-BC, LLC, 281 Cal. Rptr. 3d 45, 54, 69 (Ct. App. 2021) (“The courts 

interpret discovery in this context to mean not when the plaintiff became aware of the 

specific wrong alleged, but when the plaintiff suspected or should have suspected that an 

injury was caused by wrongdoing.”); Fox, 110 P.3d at 920 (“[P]laintiffs are required to 

conduct a reasonable investigation after becoming aware of an injury, and are charged with 

knowledge of the information that would have been revealed by such an investigation.”); 

Norgart v. Upjohn Co., 981 P.2d 79, 88-89 (Cal. 1999) (same); Jolly v. Eli Lilly & Co., 

751 P.2d 923, 927-28 (Cal. 1988) (same).

California’s approach is consistent with Delaware law. See Pomeranz, 2005 WL 217039, 

at *3 (“Inquiry notice does not require full knowledge of the material facts; rather, plaintiffs 

are on inquiry notice when they have sufficient knowledge to raise their suspicions to the 

point where persons of ordinary intelligence and prudence would commence an 

investigation that, if pursued would lead to the discovery of the injury.”); Merck & Co. v. 

SmithKline Beecham Pharms. Co., 1999 WL 669354, at *42 (Del. Ch. Aug. 5, 1999) 

(“Even when tolled, the statute of limitations is suspended only until a plaintiff discovers 

his rights or, by exercising reasonable diligence, should have discovered such rights.”), 

aff’d, 746 A.2d 277 (Del. 2000), and aff’d, 766 A.2d 442 (Del.).
25

At the latest,14 Plaintiff had constructive notice of the facts underlying his 

tortious interference claim by June 23, 2020, when the ‘038 Patent was issued. 

“[I]ssuance of a patent and recordation in the Patent Office constitute notice to the 

world of its existence.” Gen. Bedding Corp. v. Echevarria, 947 F.2d 1395, 1397-98 

(9th Cir. 1991) (quoting Wine Ry. Appliance Co. v. Enter. Ry. Equip. Co., 297 U.S. 

387 (1936)). “The issuance of a patent gives a plaintiff constructive notice of its 

claims if the patent reveals information sufficient to alert a reasonable person of the 

need to inquire further.” Int’l Bus. Machines Corp. v. Zachariades, 1993 WL 

443409, at *2 (N.D. Cal. Oct. 27, 1993), aff’d in part, rev’d in part on other grounds, 

70 F.3d 1278.

Plaintiff asserts that he was not on constructive notice of the ‘038 Patent 

because he “had no reason or duty to scour the patent records.” AB at 20. Assupport 

for that position, he looks to General Electric Co. v. Wilkins, in which the United 

States District Court for the Eastern District of California found that an engineer 

claiming an ownership interest in a patent was not on constructive notice of his 

claims solely because a publicly issued patent failed to include him as an inventor. 

14 Replicant asserts that, in fact, Plaintiff had constructive notice of his tortious interference 

claim eighteen months earlier, in December 2018, when the ‘038 Application was 

published. See ROB at 19 (“Ruse had ‘reason to at least suspect’ that it had a claim against 

Replicant at the time the ‘038 Patent application listing only Abraham as an inventor was 

published on December 27, 2018.”).
26

2011 WL 3163348 (E.D. Cal. July 26, 2011). The court recognized that the engineer 

“had constructive notice of the existence of the . . . Patent upon its issuance,” but 

explained that “knowledge of a patent’s existence is not the same as knowledge of a 

cause of action based on conduct underlying issuance of the patent.” Id. at *5. The

court concluded that the plaintiff “ha[d] not carried its burden of establishing that 

[the engineer] had reason to know of his claims concerning the . . . Patent by virtue 

of its issuance,” where no other facts put him on notice of his claims and he “would 

have had to scour the Patent Office’s records for all patents issued to Plaintiff each 

year and then review the substance of each patent to determine whether he should 

have been named as an inventor.” Id.

Notably, other decisions under California law have declined to limit 

constructive notice of patents to individuals actively working in the patent field or 

who otherwise are under a duty to investigate the patent docket. See, e.g., Klang v. 

Pflueger, 2014 WL 12587028, at *5 (C.D. Cal. Oct. 2, 2014) (acknowledging 

authority that “limit[s] a finding of constructive notice,” but explaining that “[t]his 

approach . . . is not controlling law” and “the broader rule . . . controls the outcome 

here” (quoting Wang, 2014 WL 1410346, at *6-7)). 

Under either approach, the result here is the same, because the Second 

Amended Complaint alleges additional facts that, taken as true, demonstrate Plaintiff 

was under a duty to investigate the patent record. The Second Amended Complaint
27

alleges that Plaintiff knew (1) Gleitzman began working with Replicant in mid-2017 

to develop its “code, design, content, product and brand”;

15 (2) by 2018, that 

relationship had generated “work product,” which Ruse agreed through the ICA 

would remain the “sole and exclusive property” of Atomic for one year;

16 and (3) in 

2020, Gleitzman and Replicant wanted Ruse to relinquish its “ownership rights to 

the technology underlying the ‘038 Patent” through a similar agreement.17 Those

pled facts should have given rise to at least a suspicion “that [Ruse’s] business 

relation was being tampered with,” creating a duty to consult the patent records. DC 

Comics, 938 F. Supp. 2d at 951.18 Had Plaintiff done so, he would have discovered 

the ‘038 Patent, putting him on notice of the wrongdoing underlying his claims—

15 SAC ¶¶ 39-41.

16 Id. ¶¶ 10, 58. 

17 Id. ¶ 10. 

18 Plaintiff asserts that “Ruse had no reason to go looking for patent or patent applications 

based on the course of dealing between the parties, and in light of Gleitzman’s fiduciary 

obligations to Ruse.” AB at 23. But once Plaintiff became aware of facts that would cause 

suspicion in a reasonably prudent person, he could no longer rely on Gleitzman’s 

representations (or lack thereof) as a fiduciary. See In re Tyson Foods, Inc., 919 A.2d 563, 

600 (Del. Ch. 2007) (“Where plaintiffs have relied upon a fiduciary’s statements . . . they 

are not on inquiry notice of the harm done to them unless they had some reason to suspect 

that the information upon which they relied was inaccurate.” (emphasis added)); see also 

Regents, 2017 WL 3215356, at *5 (explaining that where the plaintiff “was on both actual 

and constructive notice of its potential claims,” it could not “be heard to complain . . . that 

any actions on [the defendant’s] part prevented it from filing suit”).
28

i.e., that Gleitzman invented the ‘038 Technology but assigned it to Replicant instead 

of Ruse. 

Accordingly, the statute of limitations was not tolled under the discovery rule 

and Count Eight is time-barred unless it relates back to the Initial Complaint. 

4. Does The Claim Relate Back To The Initial Complaint?

“Notwithstanding the general liberal policy toward amendments imparted by 

Rule 15, a motion to add or substitute a party after the statute of limitations has run 

must be denied if it fails to satisfy the requirements of Rule 15(c).” Shulman v. 

Kolomoisky, 2023 WL 1453658, at *3 (Del. Ch. Feb. 1, 2023) (quoting Mullen v. 

Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993)). Under Court of 

Chancery Rule 15(c), 

An amendment of a pleading relates back to the date of the original 

pleading when 

(1) relation back is permitted by the laws that provide the statute 

of limitations applicable to the action, or 

(2) the claim or defense asserted in the amended pleading arose 

out of the conduct, transaction or occurrence set forth or 

attempted to be set forth in the original pleading, or

(3) the amendment changes the party or the name of the party 

against whom a claim is asserted if the foregoing provisions of 

subdivision (2) of this paragraph are satisfied and, within 120 

days of the filing of the complaint, or such additional time the 

Court allows for good cause shown, the party to be brought in by 

amendment 
29

(A) has received such notice of the institution of the action 

that the party will not be prejudiced in maintaining a 

defense on the merits; and 

(B) knew or should have known that, but for a mistake 

concerning the identity of the proper party, the action 

would have been brought against the party.

Ct. Ch. R. 15(c).

The parties have not argued that relation back is permitted under California 

law. See Ct. Ch. R. 15(c)(1). The relation-back analysis is therefore governed by 

Court of Chancery Rule 15(c)(3), which “establishes the ‘relation back’ doctrine’

applicable” when an amendment adds a claim against a party that was not named in 

the original pleading—here, Replicant. Shulman, 2023 WL 1453658, at *3 (quoting 

Allmaras v. Bd. Of Adj. of Sussex Cnty., 238 A.3d 142, 2020 WL 4669008 at *2 (Del. 

2020) (TABLE)). Under that subsection, 

If the amending party seeks to add a new party to the action after the 

running of the applicable statute of limitations, that party must, first, 

show that the amendment arises out of the same conduct, transaction, 

or occurrence as timely set forth in the original pleading. Next, the 

amending party must show that the new party “has received such notice 

of the institution of the action that the party will not be prejudiced in 

maintaining a defense on the merits . . . .” Finally, the amending party 

must also show that the new party “knew or should have known that, 

but for a mistake concerning the identity of the proper party, the action 

would have been brought against the [new] party.”

Ciabattoni v. Teamsters Loc. 326, 2017 WL 3175617, at *2 (Del. Super. July 25, 

2017) (alteration and second ellipsis in original) (citing Ct. Ch. R. 15(c)).
30

Here, the Second Amended Complaint does not allege (and Plaintiff does not 

argue) that Plaintiff was mistaken about the identity of the proper defendant for his 

tortious interference claim. Instead, Plaintiff argues for a construction of Rule 15(c) 

that eliminates the “mistaken identity” requirement. That construction is 

inconsistent with both the plain language of the Rule and with case law interpreting 

it. See Shulman, 2023 WL 1453658, at *3 (“[A] party seeking relief under Rule 

15(c) must still show that it was mistaken as to the identity of the proper defendant.” 

(quoting Allmaras, 2020 WL 4669008 at *2)); CCS Invs., LLC v. Brown, 977 A.2d 

301, 313 (Del. 2009) (“The courts generally decline to find a mistake when the 

plaintiff cannot demonstrate an intent to include the unnamed party before the 

limitations period expired . . . .”).

Because Plaintiff has not shown he was mistaken about Replicant’s identity, 

Count Eight does not relate back to the Initial Complaint. Plaintiff filed the Second 

Amended Complaint on June 22, 2023—more than two years after the tortious 

interference claim accrued, at the latest, on June 23, 2020. As a result, Count Eight 

should be dismissed as time-barred.19

19 Dismissal should be with prejudice pursuant to Court of Chancery Rule 15(aaa). To 

argue dismissal should be without prejudice, Plaintiff points to In re Mindbody, Inc., 

Stockholder Litigation, 2020 WL 5870084, at *34 & n.309 (Del. Ch. Oct. 2, 2020), and In 

re Dell Technologies Inc. Class V Stockholders Litigation, 2020 WL 3096748, at *43 (Del. 
31

D. The Motion To Dismiss Count Six Seeking A Declaratory 

Judgment That Ruse Is An Assignee Of The ‘038 Patent Is Denied. 

In Count Six, Plaintiff seeks a declaration that Ruse is an assignee of the ‘038 

Patent. The parties debate whether Count Six sounds in contract or tort and is subject 

to a two-, three-, or four-year statute of limitations under Delaware or California law. 

In my view, Plaintiff’s declaratory judgment claim could be viewed as requesting 

relief to remedy the harm alleged in either Count Seven or Count Eight. But, in any 

event, the Court plainly has the power to decide whether Ruse is an assignee of the 

‘038 Patent as a consequence of resolving Plaintiff’s contract claims. Therefore, to 

the extent Count Six is a separate “claim,” it survives alongside Count Seven.

20 

Ch. June 11, 2020), in which the Court dismissed claims without prejudice where discovery 

might uncover a compelling reason to revisit dismissal. Because Plaintiff was on 

constructive notice of the ‘038 Patent, factual development cannot save the tortious 

interference claim, and dismissal should be with prejudice.

20 Replicant remains a necessary party given the relief Plaintiff seeks. See Meso, 2011 WL 

1348438, at *18 (declining to dismiss non-parties to a contract where “questions of law 

and fact abound with regard to whether those entities also may be subject to injunction or 

other relief that might be granted to Plaintiffs in this action” and the Court therefore could 

not “rule out the possibility that certain equitable relief granted by this Court would include 

relief against” those parties) (citing Ct. Ch. R. 19(a)).
32

III. CONCLUSION

For the reasons explained above, I recommend that the Court deny the 

Motions to Dismiss as to Counts Six and Seven and grant the Motions to Dismiss as 

to Count Eight. This is a final report under Court of Chancery Rule 144. Exceptions 

to this final report are stayed in accordance with the Chancellor’s August 8, 2023 

assignment letter.