Bocock v. Innovate Corp., C. A. 2021-0224-PAF

CourtCourt of Chancery of Delaware
Writing for the CourtPaul A. Fioravanti, Jr. Vice Chancellor
PartiesBocock et al. v. Innovate Corp., Inc. et al.
Docket NumberC. A. 2021-0224-PAF
Decision Date22 November 2022

Bocock et al.
Innovate Corp., Inc. et al.

C. A. No. 2021-0224-PAF

Court of Chancery of Delaware

November 22, 2022

John G. Harris, Esquire David B. Anthony, Esquire Berger Harris LLP

Kevin G. Abrams, Esquire J. Peter Shindel, Jr., Esquire April M. Ferraro, Esquire Abrams & Bayliss LLP

Martin S. Lessner, Esquire Daniel M. Kirshenbaum, Esquire M. Paige Valeski, Esquire Young Conaway Stargatt & Taylor, LLP

Stephen C. Norman, Esquire Jaclyn C. Levy, Esquire Potter Anderson & Corroon LLP

Michael P. Kelly, Esquire Sarah E. Delia, Esquire McCarter & English LLP

Kurt M. Heyman, Esquire Aaron M. Nelson, Esquire Heyman Enerio Gattuso & Hirzel LLP

Dear Counsel:

Plaintiffs have moved pursuant to Court of Chancery Rule 59(f) for reargument (the "Motion")[1] of the court's October 28, 2022 memorandum opinion


(the "Opinion").[2] The Opinion granted in part and denied in part the Defendants' motions to dismiss Plaintiffs' amended verified complaint (the "Complaint").[3] The Motion seeks reargument and reconsideration of the court's dismissal of Plaintiffs' claim that the Innovate Defendants misappropriated DTV America's DTV Cast technology. The Opinion concluded that this claim was time-barred.[4]

In dismissing the DTV Cast claim as time-barred, the court relied on the following allegations of the Complaint:

Misappropriating the DTV Cast Technology and using it as its "hub" for an economically feasible, fully integrated network of LPTV stations located anywhere in the United States made it possible for the HC2 Entities to go on a $150,000,000 acquisition spree to purchase stations, starting in November 2017. Many of the acquisitions were originally identified by DTV America. Yet, none of those acquisitions were made for the benefit of DTV America. In fact, DTV America did not acquire one company or subsidiary following the November 2017 takeover by the HC2 Entities.[5]

In the Opinion, the court concluded that the only reasonable reading of these allegations is that the misappropriation of DTV Cast occurred outside the three-year presumptive limitations period because the Complaint alleges that the


misappropriation of DTV Cast made it possible for the acquisition spree to occur "starting in November 2017." The Motion argues that the court misapprehended the facts and misapplied the plaintiff-friendly standard governing a motion to dismiss. Mot. ¶¶ 8-12.

A party seeking reargument "bears a heavy burden." Neurvana Med., LLC v. Balt USA, LLC, 2019 WL 5092894, at *1 (Del. Ch. Oct. 10, 2019). "The Court will deny a motion for reargument 'unless the Court has overlooked a decision or principle of law that would have a controlling effect or the Court has misapprehended the law or the facts so that the outcome of the decision would be affected.'" Nguyen v. View, Inc., 2017 WL 3169051, at *2 (Del. Ch. July 26, 2017) (quoting Stein v. Orloff, 1985 WL 21136, at *2 (Del. Ch. Sept. 26, 1985)). A motion for reargument "may not be used to relitigate matters already fully litigated or to present arguments or evidence that could have been presented before the court entered the order from which reargument is sought." Standard Gen. Master Fund L.P. v. Majeske, 2018 WL 6505987, at *1 (Del. Ch. Dec. 11, 2018). "Where the motion merely rehashes arguments already made by the parties and considered by the Court when reaching the decision from which reargument is sought, the motion must be denied." Wong v. USES Hldg. Corp., 2016 WL 1436594, at *1 (Del. Ch. Apr. 5, 2016).


Plaintiffs argue that the court misapprehended the fact that the acquisition spree spanned the period from June 2017 through December 2020, citing paragraph 34 of the Complaint. The Complaint and the Plaintiffs' answering brief did not attempt to link paragraphs 34 and 75, and the court did not misapprehend the facts. The Complaint alleged that the acquisition spree, which was made possible by the Innovate Defendants' misappropriation of DTV Cast, started in November 2017. The fact that the alleged acquisition spree continued after November 2017 does not alter the conclusion that the only reasonable reading of the Complaint is that the misappropriation first occurred at or before November 2017.

The Plaintiffs had every opportunity to make this argument during the briefing on the motions to dismiss but failed to do so. To be sure, the Innovate Defendants' opening brief in support of their motion...

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