IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BURTON WEINSTEIN, CAROLE

NIMEROFF, CEDARVIEW

OPPORTUNITIES MASTER FUND,

LP, JEFFREY SCHNAPER, NIGEL

GREGG, and WILLIAM SHEPPARD

et al.,

Plaintiffs,

v. 

LUXEYARD, INC., a Delaware

corporation,

Defendant.

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) C.A. No. N18C-04-043 MAA

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Submitted: November 9, 2021

Decided: January 14, 2022

MEMORANDUM OPINION

Julia B. Klein, Esquire (Argued), of KLEIN, LLC, Wilmington, Delaware, Attorney for 

Plaintiffs.

Ann M. Kashishian, Esquire, of KASHISHIAN LAW, LLC, Wilmington, Delaware, and 

Jack J. Nichols, Esquire (Argued), of JACK J. NICHOLS, P.C., Houston, Texas,

Attorneys for Defendant.

Adams, J.
2

Defendant issued convertible debentures in varying amounts to Plaintiffs in 

April 2012. Plaintiffs allege that the convertible debentures matured on January 31, 

2014, and that the principal balance outstanding under each convertible debenture, 

plus interest, became due and payable on that date. Defendant, however, has failed 

to pay any amount to Plaintiffs.

Plaintiffs’ remaining claim is a single cause of action for breach of contract. 

The Court holds that Plaintiffs’ claim fails on statute of limitations grounds. 

Namely, Plaintiffs’ claim falls under the three-year statute of limitations for breaches 

of contract, rather than the six-year statute of limitations for promissory notes, and 

is therefore untimely. Consequently, Plaintiffs are precluded from obtaining the 

relief they seek in this action. 

I. Factual Background

A. Parties and Relevant Non-Parties

Plaintiffs Burton Weinstein, Carole Nimeroff, Jeffrey Schnapper, Nigel 

Gregg, William Sheppard, and Cedarview Opportunities Master Fund, LP

(collectively, “Plaintiffs”) brought this action to recoup investments they made in

Defendant Luxeyard, Inc. (“Luxeyard”) during one of Luxeyard’s initial rounds of 

financing. 
3

Non-party Amir Mireskandari (“Mireskandari”) is Luxeyard’s co-founder,

board member and interim CEO. Non-party Mark Lev (“Lev”) is Plaintiffs’ 

representative, who facilitated Plaintiffs’ investments in Luxeyard.

B. Background

In April 2012, Luxeyard, a luxury goods retailer that offers indoor furnishings,

issued convertible debentures (“CDs”) in varying amounts to Plaintiffs.1 The terms 

of the CDs are identical and provided for conversion to common stock in two ways: 

voluntary conversion and mandatory conversion.2 Each CD that Luxeyard issued to 

Plaintiffs referenced a corresponding Debenture Purchase Agreement (DPA).3 The 

1 See JXs 13, 16, 18, 21, 24, 27; Trial Tr. (Nov. 24, 2020) at 29:18-21. The 

specific principal amount of CDs were as follows: Cedarview Opportunities Master

Fund, LP ($100,000.00); Burton Weinstein ($25,000.00); Carole Nimeroff 

($25,000.00); William Sheppard ($50,000.00); Jeffrey Schnapper ($25,000.00); and 

Nigel Gregg ($25,000.00). 

2 See, e.g., JX 13 at Art. 2(a) and (f). Pursuant to Article 2(a), voluntary 

conversion occurs at the option of the holder. Pursuant to Article 2(f), mandatory 

conversion occurs if each of the following conditions are met: (a) Luxeyard shares 

have to be registered or available for resale under Rule 144 (or similar rule); (b) the 

closing bid price for Luxeyard’s common stock remains at or above $1.00 for ten 

consecutive trading days; and (c) the daily volume of Luxeyard’s common stock 

during such consecutive ten-day period is at least 50,000 shares per day.

3 See JXs 14, 19, 22, 25, 28. In the Joint Pre-Trial Stipulation (“PTS”) and 

during trial, Plaintiffs objected to the inclusion of the DPA as an exhibit on the 

grounds that “Plaintiffs ha[d] never seen this document and d[id] not know what it 

[wa]s or contains.” The Court overrules this objection. Plaintiffs Weinstein, 

Cedarview Opportunities Master Fund, Schnapper, and Gregg each signed the DPA 

investor signature page. While Luxeyard did not provide a signature page for

Plaintiffs Sheppard and Nimeroff for the DPA, the DPA is referenced in each of the 

CDs signed by Plaintiffs. Thus, all Plaintiffs were either on actual or constructive

notice of the DPA.
4

DPA defined terms within the CDs and provided for additional terms, such as 

representations and warranties, closing conditions, and other provisions.

The CDs set the maturity date for the investments for January 31, 2014, 

provided that the CDs had not converted into shares.

4 Luxeyard admitted that it 

defaulted under the CDs by failing to repay the amount owed.5

C. Procedural Posture

Plaintiffs commenced this litigation against Luxeyard and Mireskandari on 

April 5, 2018.6 On June 25, 2018, Luxeyard answered the complaint and admitted 

to the breach of contract claim against it.7 On August 23, 2018, the Court dismissed 

Mireskandari from the case for failure to state a claim and lack of personal 

jurisdiction.8 After Mireskandari’s dismissal, two sets of Delaware counsel 

withdrew their representation of Luxeyard. 

On January 30, 2020, after Luxeyard’s current Delaware counsel entered her 

appearance, Luxeyard requested leave to amend its answer to the complaint.9 The 

4 See, e.g., JX 13.

5 PTS at 3. Although Luxeyard claims that the CDs converted into equity, a 

fact which Plaintiffs dispute, the resolution of this issue is not pertinent to this 

decision because Plaintiffs failed to file their action within the prescribed three-year 

statute of limitations, as described herein.

6 See Dkt. 1.

7 See Dkt. 5. In its Answer, Luxeyard also included an affirmative defense that 

“Plaintiffs’ claims are barred by the applicable statute of limitations.”

8 See Dkt. 14.

9 See Dkt. 34.
5

Court denied Luxeyard’s motion to amend its answer on March 23, 2020.10 A twoday bench trial was held on November 24, 2020 and November 30, 2020. At trial, 

the parties introduced forty-one exhibits. The parties completed post-trial briefing 

on April 16, 2021. On May 14, 2021, during post-trial argument, the Court ordered 

the parties to confer regarding resolving the action without Court action.

11 On June 

14, 2021, the parties informed the Court that they were unable to reach a resolution.12

Upon recognizing that the CDs and DPA contained conflicting choice of law 

provisions, the Court ordered the parties to submit supplemental post-trial briefing 

addressing the conflict.

13

 The parties completed supplemental post-trial briefing on 

November 9, 2021. 

D. Parties’ Contentions

Plaintiffs’ sole remaining claim for relief is for breach of contract. Plaintiffs 

seek all principal amounts due under the CDs, as well as accrued pre-judgment 

interest, post-judgment interest, and all attorney’s fees and costs in bringing the 

litigation. 

Luxeyard contends that Plaintiffs are precluded from obtaining such relief 

because they failed to bring their claims within the applicable statute of limitations.

10 See Dkt. 45.

11 See Dkt. 88. 

12 See Dkt. 90. 

13 See Dkt. 91.
6

Notwithstanding the statute of limitations, Luxeyard argues that Plaintiffs’ 

investments converted into shares of Luxeyard automatically by operation of the 

mandatory conversion provisions in the CDs.

14

II. Legal Analysis 

The statute of limitations is case-dispositive; therefore, the Court will only 

address this issue and need not reach any of the remaining issues in this case. 

A. Delaware’s Statute of Limitations Applies

The parties agree in supplemental post-trial briefing that Delaware is the 

proper forum for this dispute. Consistent with the principle that the procedural law 

of the forum state controls, the general rule is that the forum state’s statute of 

limitations applies.15 Therefore, Delaware law governs the applicable statute of 

limitations. 

14 Luxeyard also claims that the CDs were one of many financing rounds with 

express preference rights on the company and, therefore, Luxeyard cannot pay 

Plaintiffs without making a pro rata payment to all debenture holders. Luxeyard 

also argues that because Plaintiffs fundamentally assert a securities law claim, it 

should be brought in Federal Court. Because the Court finds that Plaintiffs’ claim is 

ultimately time barred, the Court does not address Luxeyard’s alternative averments. 

15 Pivotal Payments Direct Corp. v. Planet Payment, Inc., 2015 WL 11120934, 

at *3 (Del. Super. Dec. 29, 2015) (quoting Chaplake Holdings, Ltd. v. Chrysler 

Corp., 766 A.2d 1, 5 (Del. 2001) (“As a general rule, the law of the forum governs 

procedural matters”); Am. Energy Tech., Inc. v. Colley & McCoy Co., 1999 WL 

301648, at *2 (D. Del. Apr. 15, 1999) (“Statutes of limitations are generally 

considered to be procedural rather than substantive law”)).
7

The CDs and the DPA contain conflicting choice of law provisions. The CDs 

contain a Delaware choice of law provision, while the DPA states that New York 

law governs. Under Delaware law, however, choice of law provisions do not apply 

to statutes of limitations unless expressly included.16 Where no provision expressly 

includes statutes of limitations, the law of the forum applies as it is a procedural 

matter.17 Here, neither choice of law provision expressly includes a statute of 

limitations. Thus, neither is instructive and the law of the forum state, Delaware, 

applies. 

The exception to the general principle that the procedural law of the forum 

state governs is inapplicable here. The exception occurs when “the procedural law 

of the foreign state is so inseparably interwoven with substantive rights as to render 

a modification of the foregoing rule necessary, lest a party be thereby deprived of 

his legal rights.”18 Plaintiffs, however, have conceded that Delaware substantive law 

applies.19 From the inception of this case to post-trial, Plaintiffs cited and relied 

upon Delaware substantive law.20 Thus, there is no “foreign state” at play. 

16 Pivotal Payments, 2015 WL 11120934, at *3 (citing Am. Energy Tech., 1999 

WL 301648, at *2-3).

17 Id.

18 MPEG LA, L.L.C. v. Dell Global B.V., 2013 WL 812489, at *3 (Del. Ch. Mar. 

6, 2013) (quoting Monsanto Co. v. Aetna Cas. & Sur. Co., 1994 WL 317557, at *4 

(Del. Super. Apr. 15, 1994)).

19 See Pls.’ Post-Trial Op. Brief at 5 (“[t]he Debentures are valid and existing 

contracts governed by Delaware law”).

20 See generally Complaint; see also Pls.’ Post-Trial Op. Brief.
8

Plaintiffs’ Post-Trial Supplemental Brief only suggests that the Court may apply 

New York law. 

Even if New York substantive law applied, there is no evidence suggesting 

that New York law is so inseparably interwoven with Plaintiffs’ breach of contract 

claim thereby necessitating a deviation from the general rule. New York’s six-year 

statute of limitations for breaches of contract and promissory notes is a general 

procedural limitation. Plaintiffs have not put forth any evidence to suggest that New 

York’s statute of limitations has a special connection to the state’s substantive law, 

or that the two are inseparably interwoven. This finding is consistent with this 

Court’s previous holdings that statutes of limitations are not inseparably interwoven 

with substantive rights, even where it consequently bars the claim and deprives a 

plaintiff of redress.

21

The Court therefore finds that Delaware’s statute of limitations applies. 

B. Plaintiffs’ Claim is Barred by Delaware’s Statute of Limitations

Statutes of limitations, by their very nature, are harsh.22 “When a plaintiff 

fails to file a timely complaint, a jurisdictional defect is created that cannot be 

21 See Pivotal Payments, 2015 WL 11120934, at *3 (“The Court finds that the 

parties have not demonstrated that the laws of New York or Canada are so 

inseparably interwoven with the substantive rights as to cause a deviation from the 

general rule. The Court will apply the statute of limitations of the forum”); see also 

TrustCo Bank v. Mathews, 2015 WL 295373, at *5 (Del. Ch. Jan. 22, 2015).

22 Scharf v. Edgcomb Corp., 864 A.2d 909, 920 (Del. 2004) (citing Mary A.O. 

v. John J.O., 471 A.2d 993, 995 n.4 (Del. 1983)).
9

excused.”23 Whether Plaintiffs’ action is barred by the statute of limitations depends 

on whether the CDs are promissory notes. Plaintiffs contend that the CDs are 

promissory notes and thus, the six-year statute of limitations for promissory notes 

under Section 8109 applies.24 Luxeyard argues that because the CDs lack the 

requisite characteristics of promissory notes, the general three-year statute of 

limitations under Section 8106 for breaches of contract applies.25 

The Court finds that Plaintiffs’ investments are subject to the three-year 

general statute of limitations because the CDs are not promissory notes.

Accordingly, the Court finds by a preponderance of the evidence that Plaintiffs’ 

claims were not timely filed within the three-year period, and no tolling exception 

applies to extend the statute of limitations period.

23 Id. (citing Mary A.O. v. John J O., 471 A.2d at 995; Riggs v. Riggs, 539 A.2d 

163 (Del. 1988)).

24 “When a cause of action arises from a promissory note, bill of exchange, or 

an acknowledgment under the hand of the party of a subsisting demand, the action 

may be commenced at any time within 6 years from the accruing of such cause of 

action.” 10 Del. C. § 8109.

25 “No action to recover damages for trespass, no action to regain possession of 

personal chattels, no action to recover damages for the detention of personal chattels, 

no action to recover a debt not evidenced by a record or by an instrument under seal, 

no action based on a detailed statement of the mutual demands in the nature of debit 

and credit between parties arising out of contractual or fiduciary relations, no action 

based on a promise, no action based on a statute, and no action to recover damages 

caused by an injury unaccompanied with force or resulting indirectly from the act of 

the defendant shall be brought after the expiration of 3 years from the accruing of 

the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 

and 8127 of this title.” 10 Del. C. § 8106(a). 
10

1. The Convertible Debentures are Neither Promissory Notes nor 

Negotiable Instruments

Throughout the course of this action, Plaintiffs have confusingly referred to 

the CDs at issue as “convertible debentures,” “loans,” and “promissory notes.”26 No 

matter the classification, the evidence presented at trial is that Plaintiffs did not 

invest in promissory notes. Therefore, Plaintiffs’ breach of contract claim arising 

out of their CDs is subject to a three-year statute of limitations.

A promissory note is a form of negotiable instrument defined as “a written 

promise by one person to pay another person, absolutely and unconditionally, a sum 

certain at a specified time.”27 This definition is fundamentally identical to the 

definition of a “negotiable instrument” under the Delaware Uniform Commercial 

Code (“DUCC”).28 The DUCC defines a “negotiable instrument” as:

An unconditional promise or order to pay a fixed amount of money, 

with or without interest or other charges described in the promise or 

order, if it:

(1) Is payable to bearer or to order at the time it is issued or first 

comes into possession of a holder;

26 See, e.g., Complaint (referring to CDs as “promissory notes” and “notes,” but 

attaching documents titled “Convertible Debenture”); Trial Tr. (Nov. 24, 2020) at 

34:18 (referring to the CDs as “my client’s debentures” and recognizing that the CDs 

contain conversion features), 110:15-23-111:1-5 (discussing notice of default 

regarding “promissory notes”), 28:4-7 (“I think we agreed earlier that this lawsuit 

here is about certain 10 percent convertible debentures that were issued to my clients, 

but they were not repaid; correct?”). 

27 Saunders v. Stella, 1989 WL 89518, at *2 (Del. Super. June 29, 1989). See 

also Fineberg v. Credit Intern. Bancshares, Ltd., 857 F. Supp. 338, 351 (D. Del. 

1994).

28 See 6 Del. C. § 3-104(a).
11

(2) Is payable on demand or at a definite time; and

(3) Does not state any other undertaking or instruction by the 

person promising or ordering payment to do any act in 

addition to the payment of money, but the promise or order 

may contain (i) an undertaking or power to give, maintain, or 

protect collateral to secure payment, (ii) an authorization or 

power to the holder to confess judgment or realize on or 

dispose of collateral, or (iii) a waiver of the benefit of any law 

intended for the advantage or protection of an obligor.29

Thus, to be negotiable, an instrument must: (1) be signed and in writing;30 (2) 

contain an unconditional promise to pay a fixed amount in money; (3) be payable to 

bearer or order on demand or at a definite time; and (4) contain no other undertaking 

or instruction to do any act in addition to the payment of money.31 Money is defined 

as “a medium of exchange currently authorized or adopted by a domestic or foreign 

government.”32 

This Court has previously recognized, citing Professors White and Summers’ 

treatise on commercial law, that a negotiable instrument “is a peculiar animal and 

that many animals calling for the payment of money and others loosely called 

29 Id.

30 See 6 Del. C. § 3-104 cmt. 1 (“the term “negotiable instrument” is limited to 

a signed writing that orders or promises payment of money”).

31 6 Del. C. § 3-104(a)(1-3); see also 6 Del. C. § 3-104 cmt. 1.

32 6 Del. C. § 1-201(24).
12

‘commercial paper’ are not negotiable instruments and not subject to the rules of 

Article 3.”33 

Pursuant to the Uniform Commercial Code, which Delaware has adopted, 

negotiability is determined at the time of issuance.34 If a purported note is not 

negotiable, it should be construed as a contract.35 

In determining whether the CDs are negotiable instruments, and thus 

promissory notes, it is essential that the promise to pay a fixed amount of money be 

unconditional.36 Under the DUCC, a promise is unconditional unless it states: (1) 

an express condition to payment; (2) that the promise is subject to or governed by 

another writing; or (3) that rights or obligations with respect to the promise are stated 

in another writing.37 Therefore, to be unconditional, the promise to pay cannot be 

subject to another agreement or the occurrence or nonoccurrence of another event. 

Here, the CDs are conditional because they contain an express condition for 

payment. The CDs contain a mandatory conversion provision stating that:

If at any time prior to the Maturity Date, (a) the shares of Common 

Stock underlying this Debenture are registered in a registration 

statement under the Securities Act or the shares of Common Stock 

33 Jacob v. Harrison, 2002 WL 31840890, at *4 (Del. Super. Dec. 16, 2002) 

(quoting 2 JAMES J. WHITE & ROBERT S. SUMMERS, UNIFORM 

COMMERCIAL CODE § 16-1, at 70 (4th ed. 1995)). 

34 Am. Jur. 2d, Bills and Notes § 36; see also 6 Del. C. § 3-104(a)(1). 

35 Gem Global Yield Fund, Ltd. V. Surgilight, Inc., 2006 WL 2389345, at *6 

(S.D.N.Y. Aug. 17, 2006).

36 6 Del. C. § 3-104 cmt. 1.

37 6 Del. C. § 3-106(a).
13

underlying this Debenture are available for resale pursuant to Rule 144 

or similar rule, without limitation, (b) for a period of ten consecutive

trading days the closing bid price for the Company’s Common Stock 

remains at or above $1.00; and (c) the daily volume of the Common 

Stock during such consecutive ten day period is at least 50,000 shares 

per day, then all outstanding principal and accrued but unpaid interest 

under this Debenture shall automatically convert into shares of 

Common Stock...38

In short, if the events contemplated in the mandatory conversion provision 

occur, then payment is excused and any amount owed is automatically converted 

into stock. The promise to pay money is therefore conditioned upon the 

nonoccurrence of the events in the mandatory conversion provision of the CDs.

As aforementioned, negotiability is determined at the time of issuance. 

Consequently, the negotiability of the CDs remains the same regardless of whether 

the mandatory conversion actually occurred. The mere presence of the condition 

renders the CDs not negotiable. Thus, because the CDs are conditional, the CDs are 

not negotiable nor promissory notes.

2. Plaintiffs Did Not Timely File this Lawsuit

The statute of limitations for a breach of contract is three years.39 A cause of 

action begins to accrue “at the time the contract is broken, not at the time when the 

38 See, e.g., JX 13 at Art. 2(f). 

39 Intermec IP Corp. v. TransCore, LP, 2021 WL 3620435, at *21 (Del. Super. 

Aug. 16, 2021) (citing Wedderien v. Collins, 2007 WL 3262148, at *4 (Del. Nov. 6, 

2007); 10 Del. C. § 8106). 
14

actual damage results or is ascertained.”40 Although draconian in nature, a court 

cannot extend the limitations period out of notions of fair play.41 When a claim falls 

outside the statute of limitations period, the plaintiff bears the burden of proving that 

one of the tolling doctrines adopted by Delaware courts applies.42

The CDs had a maturity date of January 31, 2014. As Plaintiffs alleged in 

their complaint and as Lev and Mireskandari testified at trial, on February 25, 2014, 

Lev reached out to Mireskandari regarding the status of their investments and 

indicated legal action would be forthcoming.

43

 Therefore, at the latest, Plaintiffs’ 

cause of action began to accrue on February 25, 2014. Pursuant to Section 8106, 

Plaintiffs were required to file their action by February 25, 2017. Because Plaintiffs 

did not file their action until April 5, 2018, Plaintiffs’ action is barred by the statute 

of limitations unless they can demonstrate a tolling doctrine applies.

Under Delaware law, there are circumstances in which the running of the 

statute of limitations can be tolled. “These exceptions include: 1) fraudulent 

concealment; 2) inherently unknowable injury; and 3) equitable tolling.”44 “Each 

40 Worrel v. Farmers Bank of Del., 430 A.2d 469, 472 (Del. 1981) (internal 

quotations omitted).

41 Intermec IP Corp., 2021 WL 3620435, at *21 (citing Trustwave Holdings, 

Inc. v. Beazley Ins. Co., Inc., 2019 WL 4785866, at *4 (Del. Super. Sept. 30, 2019).

42 Winner Acceptance Corp. v. Return on Capital Corp., 2008 WL 5352063, at 

*14 (Del. Ch. Dec. 23, 2008).

43 Complaint ¶ 22; Trial Tr. (Nov. 24, 2020) at 102-105; Trial Tr. (Nov. 30, 

2020) at 82:7-23-83:1-12.

44 Smith v. Mattia, 2010 WL 412030, at *4 (Del. Ch. Feb. 1, 2010).
15

exception rests on the premise that the statute of limitations should be tolled where 

the facts underlying a claim were so hidden that they could not have been discovered 

by a reasonable plaintiff. Indeed, if one of these exceptions applies, the statute will 

only begin to run upon the discovery of facts constituting the basis of the cause of 

action or the existence of facts sufficient to put a person of ordinary intelligence and 

prudence on inquiry which if pursued, would lead to the discovery [of the injury].”45

Here, none of these exceptions apply. Plaintiffs have not met their burden to 

demonstrate that the statute of limitations period should be tolled, and their claim is 

untimely.

Plaintiffs argue in their post-trial brief that the statute of limitations “was 

tolled by Mireskandari’s repeated and unequivocal promises to pay Plaintiffs the 

amounts due under the Debentures.”46 This statement, with no support from the trial 

or evidentiary record in the case, cannot clear the hurdle of establishing tolling of 

the statute of limitations under Delaware law.

The only possible doctrine applicable to toll the statute of limitations in this 

action is that of fraudulent concealment. “The fraudulent concealment doctrine 

presents an exception to the usual rule that ignorance of the facts does 

45 Id. (internal quotations and citations omitted).

46 Pls.’ Post-Trial Op. Brief at 18-19.
16

not toll the statute of limitations.”47 “Fraudulent concealment requires an 

affirmative act of concealment or ‘actual artifice’ by a defendant that prevents a 

plaintiff from gaining knowledge of the facts.”48 “Defendant’s promise to make 

repairs or remedy the alleged breach is insufficient to toll the statute of limitations.”49

Here, no fraudulent concealment exists. The trial record contains no evidence 

that either Luxeyard or Mireskandari prevented Plaintiffs from gaining knowledge 

about the maturity date of the CDs and Luxeyard’s failure to comply with the terms 

of the CDs. To the contrary, Lev and Mireskandari’s testimony indicates that they 

were in contact about the CDs and Plaintiffs’ attempt to recoup their investments.

The CDs, by their own terms, also indicate that January 31, 2014 was the maturity 

date and the time any funds would be owed, if applicable. Plaintiffs did not take any 

discovery in this action and failed to present any evidence at trial or otherwise to 

suggest fraudulent concealment.50

Even though Plaintiffs failed to present any evidence at trial regarding the 

remaining tolling doctrines, the doctrines likewise do not apply for similar reasons. 

The inherently unknowable injuries doctrine fails as it applies only when “no 

47 Burrell v. Astrazeneca LP, 2010 WL 3706584, at *7 (Del. Super. Sept. 20, 

2010) (internal quotation and citation omitted).

48 Id. (quoting Weiss v. Swanson, 948 A.2d 433, 451-52 (Del. Ch. 2008)).

49 Techton Am., Inc. v. GP Chemicals, Inc., 2004 WL 2419129, at *2 (Del. 

Super. Oct. 25, 2004).

50 Pls.’ Post-Trial Op. Brief at 18-19.
17

observable or objective factors [] put a party on notice of an injury” and when 

plaintiffs can “show that they were blamelessly ignorant” of the injury.51 In essence, 

“the running of the statute of limitations is tolled while the discovery of the existence 

of a cause of action is a practical impossibility.”52 Here, this is simply not the case. 

From the onset of the litigation, Plaintiffs were aware of the maturity date of the 

CDs.

Likewise, the doctrine of equitable tolling does not apply. Equitable tolling 

applies “for claims of wrongful self-dealing, even in the absence of actual fraudulent 

concealment, where a plaintiff reasonably relies on the competence and good faith 

of a fiduciary.”

53 Although the Court can infer from the record that Mireskandari is 

a fiduciary, there is simply no evidence to suggest that Mireskandari engaged in selfdealing. Based on the evidence at trial, Plaintiffs have failed to establish that a

tolling doctrine applies. Thus, Plaintiffs’ claims are barred by the statute of 

limitations. 

51 In re Dean Witter P’ship Litig., 1998 WL 442456, at *5 (Del. Ch. July 17, 

1998), aff’d, 725 A.2d 441 (Del. 1999).

52 Id. (quoting Ruger v. Funk, 1996 WL 110072 (Del. Super. Jan. 22, 1996)). 

53 Id. at 6.
18

III. Conclusion

For the reasons stated in this opinion, judgment is entered for Luxeyard, and 

Plaintiffs’ claim will be dismissed as time-barred under 10 Del. C. § 8106. The 

parties shall bear their own attorneys’ fees and costs. IT IS SO ORDERED.