COURT OF CHANCERY

OF THE

SAM GLASSCOCK III

VICE CHANCELLOR

STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

34 THE CIRCLE

GEORGETOWN, DELAWARE 19947

Date Submitted: May 22, 2018

Date Decided: May 24, 2018

Philip Trainer Jr., Esquire

Marie M. Degnan, Esquire

Ashby & Geddes

500 Delaware Avenue, 8th Floor

Wilmington, Delaware 19899

Gregory V. Varallo, Esquire

Susan M. Hannigan, Esquire

Richards, Layton & Finger, P.A. 

920 N. King Street 

Wilmington, Delaware 19801

Michael Busenkell, Esquire

Geller Scali Busenkell & Brown LLC

1201 N. Orange Street, Suite 300

Wilmington, Delaware 19801

Thomas A. Uebler, Esquire

Kerry M. Porter, Esquire

McCollom D’Emilio Smith Uebler LLC 

1523 Concord Pike, Suite 300 

Wilmington, Delaware 19803

Re: MHS Capital LLC v. Goggin et al., Civil Action No. 2017-0449-

SG

Dear Counsel:

On May 17, 2018, Defendant Keith Goggin moved for clarification of this 

Court’s May 10, 2018 Memorandum Opinion granting in part and denying in part 

the Defendants’ Motions to Dismiss.1 Goggin sought clarification on the ground 

that the Court “did not address [his] argument that any claim that survives should 

 

1 MHS Capital LLC v. Goggin, 2018 WL 2149718 (Del. Ch. May 10, 2018).
2

at a minimum be dismissed to the extent that plaintiff purports to assert it 

individually (and should accordingly proceed only derivatively).”2 On May 22, 

Goggin filed a letter with the Court, acknowledging that the Memorandum Opinion 

in fact addressed his request to rule that any surviving claim is derivative rather 

than direct. As Goggin points out, this Court stated that it “need not decide” 

whether any surviving claim is derivative or direct, because even if it held that 

such a claim was derivative, “demand would be excused and the claim would 

proceed.”3 The Court cited Delaware authority in support of this approach.4 

Nevertheless, Goggin argues that “the central premise of his Motion remains 

unchanged,” and he continues to seek a ruling on whether the surviving claim for 

breach of contract is direct or derivative.5

The Motion is denied. “A motion for clarification may be granted where the 

meaning of what the Court has written is unclear, and such a motion is treated, 

procedurally, as a motion for reargument under Court of Chancery Rule 59(f).”

6

 

As Goggin now concedes, there is nothing unclear about this Court’s treatment of 

 

2 Mot. for Clarification ¶ 3.

3 MHS Capital LLC, 2018 WL 2149718, at *18 n.203.

4

See Needham v. Cruver, 1993 WL 179336, at *3 (Del. Ch. May 12, 1993) (“This Court need 

not decide at this point whether plaintiffs’ claims ... are individual or stockholder derivative 

claims because, even if the claims are derivative claims, a pre-suit demand should be excused.”); 

Chrysogelos v. London, 1992 WL 58516, at *7 n.8 (Del. Ch. Mar. 25, 1992) (“I need not decide 

the character of th[e] claim, because even if it is derivative, demand is excused.”).

5 May 22, 2018 Letter to the Court.

6 Naughty Monkey LLC v. MarineMax Northeast LLC, 2011 WL 684626, at *1 (Del. Ch. Feb. 

17, 2011).
3

the direct/derivative issue. Where, as here, the meaning of a court’s decision is 

clear, a motion for clarification will be denied.

7

 Moreover, Goggin does not argue 

that this Court “overlooked a decision or principle of law that would have 

controlling effect or . . . misapprehended the facts or the law so the outcome of the 

decision would be different.”8 Accordingly, there is no basis for reargument or 

clarification of the Memorandum Opinion.

To the extent the foregoing requires an Order to take effect, IT IS SO 

ORDERED.

Sincerely,

/s/ Sam Glasscock III

Sam Glasscock III

 

7

See In re Oxbow Carbon LLC, 2017 WL 1191903, at *2 (Del. Ch. Mar. 30, 2017) (denying a 

motion for clarification of a “ruling [that] was clear and unambiguous”).

8 Pontone v. Milso Indus. Corp., 2014 WL 4352341, at *1 (Del. Ch. Sept. 3, 2014).