COURT OF CHANCERY

OF THE

STATE OF DELAWARE

JOSEPH R. SLIGHTS III

VICE CHANCELLOR

417 S. State Street

Dover, Delaware 19901

Telephone: (302) 739-4397

Facsimile: (302) 739-6179

Date Submitted: August 13, 2018

Date Decided: September 19, 2018

David L. Finger, Esquire Kenneth J. Nachbar, Esquire

Finger & Slanina, LLC Alexandra M. Cumings, Esquire

1201 N. Orange Street, 7th Floor Morris, Nichols, Arsht & Tunnell LLP

Wilmington, DE 19801 1201 N. Market Street

Wilmington, DE 19801

Re: Nabil Akrout v. Roman Jarkoy, Vladimir Bobrovsky, Boris Kalk, 

and Intelligent Security Systems International, Inc.

C.A. No. 2017-0473-JRS

Dear Counsel:

Plaintiff has moved for reargument under Court of Chancery Rule 59(f)

(the “Motion”) following the Court’s July 10, 2018, memorandum opinion

(the “Opinion”) in which the Court addressed several case dispositive motions.

1

This is the Court’s ruling on the Motion.

 

1 Akrout v. Jarkoy, 2018 WL 3361401 (Del. Ch. July 10, 2018). Capitalized terms are as 

defined in the Opinion unless otherwise defined. 
Nabil Akrout v. Roman Jarkoy, Vladimir Bobrovsky, Boris Kalk, 

and Intelligent Security Systems International, Inc.

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Factual and Procedural Background

In the Opinion, the Court resolved: (1) Plaintiff’s motion for default judgment 

against Intelligent Security Systems International, Inc. (“ISSI”); (2) Roman Jarkoi’s2

motion to dismiss Count I (breach of fiduciary) of the operative complaint3; and 

(3) Plaintiff’s motion for default judgment against Vladimir Bobrovsky and Boris 

Kalk, the non-responding Individual Defendants. The Court denied Plaintiff’s 

motion for default judgment against ISSI, a dissolved entity, because the claims were 

brought outside of the three-year period for post-dissolution winding-up set forth 

under 8 Del. C. § 278. As for the motion to dismiss Count I, the Court granted that 

motion because the breach of fiduciary duty claim was clearly barred by laches. 

Finally, the Court dismissed all Counts against Bobrovsky and Kalk, thus mooting 

Plaintiff’s motion for default judgment against these defendants, on the ground that 

 

2

I note that Jarkoi’s name appears to have been misspelled in the case caption and 

throughout the Complaint.

3

Jarkoi was the only defendant who appeared in the litigation. Count I of the operative 

alleged that the Individual Defendants, including Jarkoi, breached their fiduciary duty to

Plaintiff by failing, inter alia, to distribute to him pre-dissolution “dividends” that were 

allegedly declared and paid to others following Plaintiff’s removal as President and CEO

of ISSI and for failing to pay him “accrued salary” per his “signed contract” with ISSI. 
Nabil Akrout v. Roman Jarkoy, Vladimir Bobrovsky, Boris Kalk, 

and Intelligent Security Systems International, Inc.

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the former directors of ISSI should not be made to answer claims against, or arising 

out of their service to, a dissolved entity when those claims are brought outside of 

the statutory winding-up period. 

Plaintiff now moves to reargue the Court’s denial of the motion for default

judgment against the dissolved corporation. For the reasons that follow, Plaintiff’s 

Motion must be denied.

The Standard

“A motion for reargument under Court of Chancery Rule 59(f) will be denied 

unless the court has overlooked a controlling decision or principle of law that would 

have controlling effect, or the court has misapprehended the law or the facts so that 

the outcome of the decision would be different.”4 Reargument motions may not be 

deployed to re-litigate already litigated matters nor to advance arguments or present 

evidence that could have been raised before the previous judgment.5 Stated 

 

4 Those Certain Underwriters at Lloyd’s, London v. Nat’l Installment Ins. Servs., 

2008 WL 2133417, at *1 (Del. Ch. May 21, 2008).

5 11 Wright Miller, Federal Practice and Procedure § 2810.1 (2005). See also Sunrise 

Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 975581, at *1 (Del. Ch. Mar. 4, 

2010) (“[A] motion for reargument is ‘not a mechanism for litigants to relitigate claims 

already considered by the court,’ or to raise new arguments that they failed to present in a 
Nabil Akrout v. Roman Jarkoy, Vladimir Bobrovsky, Boris Kalk, 

and Intelligent Security Systems International, Inc.

C.A. No. 2017-0473-JRS

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differently, a motion for reargument may not direct the court to new matters beyond 

“the existing record,”

6 or simply rehash arguments already made.7

 

The Contentions

As noted, the Motion focuses on the Court’s holding that Plaintiff improperly 

brought his claims against all Defendants beyond the statutory winding-up period 

following ISSI’s dissolution.8 Plaintiff asserts that he had no occasion to raise his 

proffered basis to challenge the Court’s holding in this regard either in his briefs or 

 

timely way.” (quoting Am. Legacy Found. v. Lorillard Tobacco Co., 895 A.2d 874, 877 

(Del. Ch. 2005)).

6 Reserves Dev. LLC v. Severn Sav. Bank, FSB, 2007 WL 4644708, at *1 (Del. Ch. Dec. 31, 

2007) (citing Miles, Inc. v. Cookson Am., Inc., 677 A.2d 505, 506 (Del. Ch. 1995)).

7 Miles, 677 A.2d at 506 (“Where . . . the motion for reargument represents a mere rehash 

of arguments already made at trial and during post-trial briefing, the motion must be 

denied.”).

8 8 Del. C. § 278 (“All corporations, whether they expire by their own limitation or are 

otherwise dissolved, shall nevertheless be continued, for the term of 3 years from such 

expiration or dissolution or for such longer period as the Court of Chancery shall in its 

discretion direct, bodies corporate for the purpose of prosecuting and defending suits, 

whether civil, criminal or administrative, by or against them, and of enabling them 

gradually to settle and close their business, to dispose of and convey their property, to 

discharge their liabilities and to distribute to their stockholders any remaining assets, but 

not for the purpose of continuing the business for which the corporation was organized.”).
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and Intelligent Security Systems International, Inc.

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at the various oral arguments on his motions because the Court did not focus on this 

issue until after the motions were submitted for decision. Accordingly, the Court’s 

decision on the statutory winding-up period, as a matter of law, is ripe for 

reargument.

9

As for the merits, Plaintiff maintains that his Complaint cannot be deemed 

untimely under the statutory three-year post-dissolution winding-up period because

the deadline to file within the winding-up period fell on a Sunday. Accordingly,

under either Court of Chancery Rule 6 or the so-called “Sunday Rule,” Plaintiff 

contends that his filing deadline was extended to the following Monday.10 Rule 6 

states, in relevant part: “In computing any period of time . . . by these Rules, by order 

of Court, or by any applicable statute, the day of the act, event, or default after which 

the designated period of time begins to run is not to be included, [and] [t]he last day 

of the period so computed shall be included, unless [it] is a Saturday, Sunday or 

 

9 Kobza v. Target Stores, Inc., 2009 WL 5214489, at *3 (W.D.N.Y. Dec. 29, 2009) (inviting 

a motion for reconsideration because the Court ruled on grounds that neither party had 

reason to argue).

10 Pl.’s Mot. for Rearg. (the “Motion”), ¶¶ 3, 5.
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and Intelligent Security Systems International, Inc.

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other legal holiday. . . .”

11 According to Plaintiff, Rule 6 applies to Section 278 

because there is no evidence that the General Assembly intended that Section 278 

would not be subject to the rule.12 With this guidance in mind, Plaintiff argues that 

because the expiration of three years following the filing of the certificate of 

dissolution fell on a Sunday, the filing of the complaint against the dissolved entity 

would be timely if made on the following business day. 

Citing In re Citadel Industries, the Court concluded that the General 

Assembly, in fact, did intend that the three year statutory winding-up period be 

calculated as precisely three years, not more or less than three years.13 In response, 

Plaintiff argues “Rule 6(a) does not restrict itself to statutes of limitation, but instead 

 

11 Ct. Ch. R. 6(a).

12 Mot. ¶ 7 (citing Santow v. Ullman, 166 A.2d 135, 136 (Del. 1960) (“The general rule for 

the computation of time under a statute, in the absence of anything showing a contrary 

intent, is that the first day should be excluded but the day on which the act is to be done 

should be included. This rule is so well settled that it is embodied in the rules of our trial 

courts.”)).

13 Op. at *5–6. See In re Citadel Indus., 423 A.2d 500, 502, 507 (Del. Ch. 1980) (finding 

that when the Section 278 three-year winding-up period ends, “the statute, as amended, 

gives this Court no power to ‘continue’ a corporation for winding-up purposes on an 

application made after . . . the corporation has ceased to exist as a legal entity”).
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applies to all . . . ‘applicable statute[s]’ includ[ing] statutes setting deadlines for 

filing documents with the court.”

14

 Moreover, Plaintiff states, even if Rule 6 does 

not apply to Section 278, the “Sunday Rule” applies to extend a deadline that expires 

on a Sunday to the either the following Monday or following business day.15 Relying 

on Nelson v. Frank E. Best Inc., Plaintiff argues that because Section 278 defines the 

relevant time using years, instead of days, the General Assembly must have intended 

for the ”Sunday Rule” to apply.16

For his part, Jarkoi contends the Motion should be denied on two alternative 

threshold grounds before the Court even reaches the merits. First, Jarkoi points out 

that, notwithstanding the Court’s express direction, Plaintiff inexplicably failed on 

two separate occasions to file an affidavit reflecting notice to and service upon ISSI 

with regard to his motion for default judgment. This failure, Jarkoi maintains, 

justified the Court’s denial of the motion for default judgment on procedural 

 

14 Mot. ¶ 8; McGuire v. Ass’n of Owners of Gull Point Condo., Inc., 2001 WL 379541, at 

*2 (Del. Ch. Apr. 2, 2001).

15 Mot. ¶ 5; Ct. Ch. R. 6(a).

16 Mot. ¶ 11 (citing Nelson v. Frank E. Best Inc., 768 A.2d at 473, 478–79 (Del. Ch. 2000)). 
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grounds.17 Second, Jarkoi maintains that the Motion is procedurally barred because

it is nothing more than a rehash of arguments already considered and rejected in the 

Opinion.18 

To the extent the Court is inclined to consider the Motion on the merits, Jarkoi 

argues that the case law makes clear that neither Rule 6(a) nor the “Sunday Rule” 

applies to Section 278.19 Jarkoi cites specifically to In re Citadel where the court 

held that the three-year winding-up period “begins to run as of the date of the filing 

of the certificate of dissolution and [] it expires three years thereafter.”20

Analysis

Plaintiff sought default judgment against ISSI which had not (and still has not) 

appeared in the litigation. Thus, by definition, there was no party to oppose the 

default. When the Court declined to enter the default, therefore, it did so sua sponte. 

 

17 Defs.’ Opp’n to Pl.’s Mot. for Rearg. (“Defs.’ Opp’n Br.”) at 3. 

18 Id. at 4.

19 Id. at 5–7.

20 Id. at 5 (citing Op. at *5); In re Citadel Indus., 423 A.2d at 502.
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and Intelligent Security Systems International, Inc.

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While this is entirely proper,21 the procedural posture in which the ruling was made 

did not allow Plaintiff to develop fully his arguments regarding the timeliness of his 

Complaint. Accordingly, I agree with Plaintiff that his arguments on reargument are 

not procedurally barred. Even so, the Motion still fails on the merits for four separate 

reasons.

First, as Defendants correctly observe that, after being directed by the Court 

to do so not once but twice, Plaintiff without explanation failed to provide notice of 

his motion for default judgment to any of the defendants, including ISSI.22 As the 

Court held in the Opinion, this alone is a basis to deny the motion for default 

judgment.23 

 

21 See Kobza, 2009 WL 5214489, at *2; 2 Moore’s Federal Practice (Third Ed.2009), 

§ 12.30[1] (“Indeed, even if the parties do not identify a potential problem [with respect to 

a proffered default], it is the duty of the court—at any level of the proceedings—to address 

the issue sua sponte whenever it is perceived”).

22 See Ct. Ch. R. 55(b) (“If the party against whom judgment by default is sought has 

appeared in the action, the party (or, if appearing by representative, the party’s 

representative) shall be served with written notice of the application for judgment at least 

3 days prior to the hearing on such application. If such party has not appeared written notice 

shall be served if the Court so directs”).

23 Op. at *6 n.46: “I note that even if Section 278 is not operative here, the motion for 

default judgment against ISSI must nevertheless be denied because Plaintiff’s counsel has 
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Second, I remain satisfied that Rule 6 is not applicable to Section 278.

24

 In 

this regard, In re Citadel Industries is on all fours. There, the court determined 

Section 278’s winding-up period neither reflects a statute of limitations nor 

contemplates court filings that would be governed by the court’s rules.

25 “Statutes,” 

as referenced in Rule 6, are statutes that address specifically the timing for filing 

actions in court.

26

 In other words, Rule 6 governs the court’s interpretation of 

 

twice failed to provide proper notice to ISSI.” See Tr. of Oral Arg. on Pl.’s Mot. for Default 

J. Against Def. Intelligent Sec. Sys. Int’l, Inc. (Feb. 27, 2018) (Dkt. 41) at 13–14; Tr. of 

Oral Arg. on Def. Roman Jarko[i]’s Mot. to Dismiss and Pl.’s Mot. for Entry of Default J. 

Against Vladimir Bobrovsky and Boris Kalk (Apr. 17, 2018) (Dkt. 42) at 16. 

24 Op. at *6 n.45: “If the deadline at issue was one set by Court rule, or was a statute of 

limitations, then Court of Chancery Rule 6(a) would extend the deadline to the following 

Monday, June 26, 2017 . . . [The winding-up period] is, instead, a timeframe within which 

a corporation ‘shall nevertheless be continued’ following dissolution ‘for the purpose of 

prosecuting and defending suits’ and winding-up affairs. 8 Del. C. § 278.”

25 Citadel, 423 A.2d at 507 (holding that the “corporation ceased to exist as a legal entity” 

precisely three years from the date of dissolution [even if on a weekend day] and that this 

court had “no power to ‘continue’ a corporation for winding-up purposes on application 

made after the statutory three-year period has expired”).

26

“‘[A]pplicable statute’ is best read as referring instead to statutory provisions addressing 

periods of time (e.g., a statute of limitations) involving events that occur within this court, 

such as the filing of a complaint.” Nelson, 768 A.2d at 488.
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statutory schemes that are directed to the litigation of disputes in court. 27 In contrast, 

Section 278 governs how long after dissolution a corporation will be deemed to be 

alive and breathing for any purpose, including the defense of litigation.28

Third, the statute leaves no room for common law rules of construction such 

as the “Sunday Rule.” As this court stated in Nelson, the “absence of a specific 

exclusion in the statute is vitally important evidence of the General Assembly’s 

intent not to exclude the final Sunday.”29

Finally, as noted in the Opinion, Plaintiff could have acted within the threeyear window to extend the winding-up period.

30

 He made no effort to do so. Instead, 

he waited until the expiration of three years post-dissolution to bring stale claims 

 

27 McGuire, 2001 WL 379541, at *2 (holding that Rule 6(a) applies to deadlines that 

“require[] an action to be performed within the courthouse”).

28 Citadel, 423 A.2d at 500, 506.

29 Nelson, 768 A.2d at 480.

30 Op. at *10.
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against defendants who had long since moved on from the dissolved entity.31 Under 

these circumstances, default judgment was wholly inappropriate. 

For the foregoing reasons, the Motion is DENIED. 

IT IS SO ORDERED.

Very truly yours,

/s/ Joseph R. Slights III

 

31 See Territory of U.S. Virgin Isl. v. Goldman, Sachs & Co., 937 A.2d 760, 789–91 

(Del. Ch. 2007) (holding that plaintiff could not pursue claim against dissolved 

corporation’s stockholders or directors arising from their service because the corporation 

lacked the capacity to be sued).