Proffe Publishing, Inc. v. Lindner et al

Filing 30

ORDER denying 21 Motion to Dismiss for Failure to State a Claim. So Ordered by Chief Judge Joseph N. Laplante.(jb)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Proffe Publishing, Inc.
v.

Civil No. 16-cv-93-JL
Opinion No. 2016 DNH 211

Wolfgang Lindner, et al.

MEMORANDUM ORDER
This case concerns a contract dispute between plaintiff
Proffe Publishing, Inc. (PPI), a financial newsletter publisher,
and defendant Wolfgang Lindner, whom PPI hired as its assistant
editor in 2011.

PPI alleges that Lindner, once ensconced in his

new position, executed contracts that purported to serve PPI but
which, in reality, improperly enriched Lindner and various
associates.

PPI has sued Lindner, two German-based companies

Lindner allegedly controls, x-services, UG and J.L. Consult,
GmbH, and two of Lindner’s hires, Peter Kunze and Egbert Woelk.
Alleging diversity jurisdiction, 28 U.S.C. § 1332, Proffe asserts
six causes of action:

1) conversion (against Lindner); 2)

fraudulent concealment (against all defendants); 3) breach of
fiduciary duty (against Lindner, Kunze and Woelk); 4) civil
conspiracy (against all defendants); 5) breach of the covenant of
good faith and fair dealing (against all defendants); and 6)
breach of contract (against all defendants).

The defendants have

moved to dismiss the case in its entirety, arguing:

that this

court lacks subject matter jurisdiction to hear the case due to a
contractual forum selection clause; that the plaintiff’s claims
are barred by New Hampshire’s three-year statute of limitations;
and that all of plaintiff's claims fail to state a claim for
which relief can be granted.

See Fed. R. Civ. P. 12(b) (1), (6).

The court has reviewed the parties’ submissions, and heard their
oral arguments.

As a general matter, the parties’ disagreement

over which of several disputed contracts control this litigation
makes resolution of the case on a motion to dismiss difficult.
More specifically, the court finds that neither of the
potentially operative forum selection clauses are mandatory and
that the Complaint sufficiently alleges both monetary damages
that exceed the jurisdictional threshhold and facts that support
each cause of action.

Finally, because the defendants’ statute

of limitations defense targets plaintiff’s claimed damages,
rather than its asserted causes of action, the court need not
resolve that issue at this early stage of litigation.
Accordingly, defendants’ motion is denied.
I.

Background
The court culls the following facts from plaintiff’s first

amended Complaint and from information contained in documents on
which the complaint relies.

Haley v. City of Bos., 657 F.3d 39,

46 (1st Cir. 2011).
2

PPI publishes several weekly financial newsletters.

One

such newsletter is Proffe's Trend Portfolio, of which Michael
Proffe is editor-in-chief.

Defendant Lindner holds 15% of PPI's

stock and served as a director.1

In December 2011, PPI

contracted with Lindner to pay him 5000 euros per month to serve
as Trend Portfolio's assistant editor.

Lindner’s

responsibilities included submitting weekly market reports to
Michael Proffe concerning PPI’s own investments.

Although

Lindner never returned a signed copy of the contract with PPI,
the parties acted in accordance with its terms until May 2015.
In November 2015, PPI and defendant x-services agreed to an
oral contract, pursuant to which x-services would provide PPI
with information technology, administration, bookkeeping and
customer relations services for a fee of 4500 euros per month.
PPI alleges that Lindner is the sole member of x-services.

Both

Lindner and x-services were required to submit monthly invoices
as a prerequisite to payment.

Lindner’s role gave him access to

PPI’s financial accounts and information technology systems.
In August 2013, Lindner retained defendant Kunze, a friend
with software (but no management) experience, to act as CEO of

1

The date Lindner became a director is unclear.
directorship was terminated in January 2016.
3

His

PPI and assume some of Lindner’s responsibilities.
be paid $3000 per month.

Kunze was to

Lindner’s fee remained unchanged.

In May 2015, Proffe met with Lindner, Kunze and PPI’s
accountants to address Proffe’s concerns that Lindner wasn’t
performing his contractual obligations and that neither Lindner
nor Kunze were properly submitting documentation of PPI’s
revenues and accounting.

In particular, Kunze authorized Lindner

to be paid for providing services as a vendor even though Lindner
hadn’t submitted invoices.

The failure to document expenses

prevented PPI’s accountants from generating balance sheets or
profit and loss statements.

PPI subsequently discovered that

these failures concealed numerous payments to Lindner or entities
he controlled (defendants x-services and J.L. Consult) totalling
$82,000 more than what they were due under their agreements with
PPI.
As a result of the May 2015 meeting, Lindner and Kunze
provided assurances that the Lindner-controlled entities would
not be paid without first submitting invoices.

In addition, they

assured Proffe and the PPI accountants that they would timely
provide revenue information, bank and credit card statements and
vendors’ invoices so that accurate financial information could be
made available to PPI management.

4

Proffe also agreed –- on behalf of PPI –- to Lindner’s
request to modify Lindner’s independent contractor agreement.
The new agreement provided that J.L. Consult would assume
Lindner’s obligations under the 2011 contract, and increased the
monthly fee for vendor services from 5,000 to 7,000 euros.
Proffe signed the new contract on behalf of PPI and delivered it
to Lindner.

As with the earlier contract, Lindner did not return

a signed copy.

Nevertheless, PPI and Mr. Lindner acted according

to its terms for about six months.
Roughly six weeks after his May 2015 meeting with Proffe,
Lindner and the accountants, Kunze resigned from PPI citing a
conflict of interest.

Nevertheless, in August 2015 Kunze signed

an agreement, in his role as CEO of PPI, to retain defendant
Woelk as an independent contractor to take over Kunze’s
responsibilities under his vendor agreement with PPI.2

Woelk was

paid $3,000 per month to work 4 hours per week under the August
2015 agreement.
Proffe first suspected during October 2015 that something
was awry at PPI when an x-service employee resigned and informed
Proffe that Lindner was engaging in questionable business and

2

Plaintiff alleges on information and belief that Woelk’s
principal occupation is to provide technology consultant services
to chemical vapor deposition users and equipment makers. Thus,
PPI avers, it is doubtful that Woelk has any meaningful
experience as a business manager.
5

accounting practices.

Upon further examination, Proffe

discovered that neither Lindner nor Kunze provided PPI’s
accountants with any financial information after June 30, 2015,
and that J.L. Consult and

x-services continued to receive

payments without first submitting invoices.

Additionally, Proffe

discovered that Lindner, Kunze and Woelk had concealed the
unauthorized payments to Lindner, J.L. Consult and x-services in
amounts totaling at least $82,000, and that x-services failed to
maintain software systems and provide accountants with financial
information, in contravention of its agreement with PPI.
Lindner, Kunze and Woelk concealed the unauthorized payments by
limiting the paper trail.

One method they employed was to list

PPI’s accounts payable in lump sums by aggregating multiple
vendors in a single ledger entry, thus hindering the discovery of
improper payments.

In addition, while bank statements revealed

the precise amounts paid to vendors, only Lindner, Kunze and
Woelk had access to them.
On November 21, 2015, Proffe ordered the suspension of
payments to J.L. Consult and x-services until Lindner provided a
satisfactory explanation for these vendors’ failure to submit
invoices before being paid and for the failure to provide PPI’s
accountants with the financial information promised at the May
2015 meeting.

Proffe gave Lindner a December 10, 2015 deadline

6

to comply.

Lindner did not meet the deadline, and on December

18, 2015, made arrangements for PPI to pay x-services 6,250 euros
despite Proffe’s order to suspend payments to it.

Lindner

proceeded to make it difficult, if not impossible, for PPI to
operate without his direct involvement.

He blocked Proffe’s

access to PPI bank accounts and refused to turn over corporate
documentation, passwords for servers and firewalls, and
information to access PPI’s account with its internet service
provider.

PPI spent a substantial amount of time and money

retaking control of its accounts.

On January 17, 2016, Lindner

accessed the PPI accountants’ servers and downloaded all of PPI’s
bookkeeping information.

He also accessed PPI’s accounts at a

financial institution at around the same time.
In January 2016, PPI shareholders holding 85% of PPI’s stock
voted to remove Lindner as a PPI director and to terminate PPI’s
agreements with Lindner, J.L. Consult and x-services effective
January 18, 2016.

These shareholders also resolved to initiate

legal action against Lindner to recover PPI’s property.

At

around the same time, PPI terminated Woelk’s vendor agreement and
demanded that he return all PPI property.

A few weeks later,

Woelk turned over some of PPI’s property in a meeting with
Proffe.

PPI alleges on information and belief that Woelk failed

to bring with him several binders of financial information that

7

PPI needed to file its tax returns.

Consequently, PPI was forced

to incur the expense of recreating its 2015 financial records.
At the same time, Woelk also delivered to Proffe papers that
purported to be PPI contracts3 with J.L. Consult and x-services
bearing dates of May 20, 2015, and signatures by Lindner and
Kunze (“the Woelk contracts”).

PPI argues that these purported

contracts are invalid because Proffe neither approved of nor
signed them, and did not even know about them until February 1,
2016.

The Woelk contracts differ from the revised contracts

bearing Proffe’s signature in ways that are disadvantageous to
PPI but highly favorable to J.L. Consult and indirectly to
Lindner.

For example, the contract increases the fees to be paid

to J.L. Consult while reducing its obligations to PPI.

In

addition, the J.L. Consult contract was backdated to 2010,
contained no non-compete provision, gave J.L. Consult a
unilateral right to increase the fees charged by up to 5% per
year and provided J.L. Consult with broad indemnification rights
and highly favorable termination rights.
The Complaint alleges that Lindner continues to submit
“worthless” copy for weekly newsletters despite PPI’s termination
of its contracts with J.L. Consult and x-services and denial of

3

Plaintiff refers to these contracts as “The Bogus
Contracts.” The court does not adopt that nomenclature, but
mentions it only to point out that PPI disputes their validity.
8

access to records of PPI’s investments that form the basis for
the newsletters.

In addition, Lindner continues to send invoices

on behalf of J.L. Consult and x-services in the amounts specified
in the contracts delivered by Woelk.
II.

Applicable legal standard
To survive a motion to dismiss under Rule 12(b)(6), the

plaintiff must state a claim to relief by pleading “factual
content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged.”
Martinez v. Petrenko, 792 F.3d 173, 179 (1st Cir. 2015) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).

In ruling on such

a motion, the court accepts as true all well-pleaded facts set
forth in the complaint and draws all reasonable inferences in the
plaintiff’s favor.

See, e.g., Martino v. Forward Air, Inc., 609

F.3d 1, 2 (1st Cir. 2010).

The court “may consider not only the

complaint but also facts extractable from documentation annexed
to or incorporated by reference in the complaint and matters
susceptible to judicial notice.”

Rederford v. U.S. Airways,

Inc., 589 F.3d 30, 35 (1st Cir. 2009) (internal quotations
omitted).

9

III. Legal Analysis
A.

Forum selection clause
Before turning to plaintiff’s substantive claims, the court

first addresses the defendants’ argument that the court lacks
subject matter jurisdiction as a result of forum selection
clauses in the Woelk contracts, which state that both parties
(PPI and J.L. Consult) “consent to the personal jurisdiction of
the courts in Rostock, Mecklenburg-Vorpommem, Germany.”

The

court declines to dismiss the case on these grounds.
Initially, the court notes that the First Circuit Court of
Appeals treats a motion to dismiss based on a forum-selection
clause as one alleging failure to state a claim under Fed. R.
Civ. P. 12(b)(6).

Silva v. Encyclopedia Britannica, Inc. 239

F.3d 385, 387-88 (1st Cir. 2001).

The Complaint highlights a

dispute as to whether the Woelk contracts are valid.

That is not

an issue that can be resolved in the present procedural posture
-– a motion to dismiss under Rule 12(b)(6).

Moreover, even if

the Woelk contracts are the operative ones, the above forum
clause appears to be permissive rather than mandatory, and thus
does not deprive this court of jurisdiction.

As the Court of

Appeals has observed, “[p]ermissive forum selection clauses,
often described as ‘consent to jurisdiction' clauses, authorize
jurisdiction and venue in a designated forum, but do not prohibit

10

litigation elsewhere . . . In contrast, mandatory forum selection
clauses contain clear language indicating that jurisdiction and
venue are appropriate exclusively in the designated forum.”
Rivera v. Centro Medico de Turabo, 575 F.3d 10, 17 (1st Cir 2009)
(quoting 14D Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3803.1 (3d ed. 1998)
(emphasis added)).

The clause presented here is such a “consent”

clause because it lacks any mandatory language and invokes the
parties’ “consent.”

The court therefore finds that, even if

operable, the clause is permissive, rather than mandatory.
The defendants’ fallback forum selection position is that a
clause in the December 2011 PPI-Lindner and PPI-J.L. Consult
contracts (the contracts that plaintiff claims are the operative
agreements) also contain a forum selection clause which prevents
this court from hearing the case.

The court disagrees.

The

clause in the original contracts states that
“Nashua (NH) will be the court of jurisdiction for this
contractual agreement.”4

While there are state courts in Nashua,

N.H. -– Circuit and Superior -– the lack of specificity as to
which court is the subject of the clause, as well as the fact
that this court has jurisdiction over cases originating in
Nashua, N.H., counsels against a conclusive finding at this stage

4

Complaint, Exh. 1, 2 (doc. nos. 1-1 and 1-2).
11

of the litigation.

Moreover the court is not convinced that the

language used is that of a mandatory clause.

See, e.g. Arguss

Comm. Group, Inc. v. Teletron, Inc., No. 99-257-JD, 2000 WL 36936
at *7, n.8 (D.N.H. Nov. 19, 1999) (“when only jurisdiction is
specified the clause will generally not be enforced without some
further language indicating the parties intent to make
jurisdiction exclusive” quoting Docksider, Ltd. V. Sea Tech.,
Ltd. 875 F.2d 762, 764 (9th Cir. 1989)) (and cases cited
therein).
Based on the foregoing, the court declines to dismiss the
case based on either of the forum selection clauses that may be
at issue.
B.

Amount in controversy
The defendants also claim that the court lacks subject

matter jurisdiction over this case because the plaintiff has
failed to satisfy the amount in controversy requirement of 28
U.S.C. § 1332, which provides that “[t]he district courts shall
have original jurisdiction of all civil actions where the matter
in controversy exceeds the sum or value of $75,000, exclusive of
interest and costs . . . .”

Ordinarily, “the sum claimed by the

plaintiff controls if the claim is apparently made in good faith.
St. Paul Mercury Indem. Co. v. Red Cab Co., 303 U.S. 283, 288-89
(1938).

If the opposing party challenges the jurisdictional
12

amount, then the plaintiff must demonstrate “that it is not a
legal certainty that the claim involves less than the
jurisdictional amount.”
335, 338 (1st Cir. 2004).

Stewart v. Tupperware Corp., 356 F.3d

damages:

Plaintiff alleges two categories of

1) $82,000 converted by Lindner5; and 2) the $100,000

cost to repair the damage caused by the defendants.5

Either

alone or taken together, the damage allegations satisfy the
plaintiff’s obligation to demonstrate the lack of a legal
certainty that its damages fall below the jurisdictional
threshhold.

While the defendants forcefully argue that neither

amount is legally or factually supportable, these arguments do
not defeat the plaintiff’s showing.

As such, the court finds

that the plaintiff satisfies the jurisdictional amount in
controversy requirement.

5

Complaint (doc. no. 1) at § 18.

5

Complaint (doc. no. 1) at §§ 18, 38.
13

C.

Statute of limitations6
Defendants next argue that New Hampshire’s three-year

statute of limitations excludes any damage that accrued prior to
March 14, 2013.

See N.H. Rev. Stat. Ann. § 508:4, I.

At oral

argument, however, defense counsel indicated that this defense is
focused on limiting plaintiff’s damages to those occurring only
within the three years immediately prior to this lawsuit, rather
than striking claims from the suit.

The court declines to

address this issue in the context of a motion to dismiss.
D.

Count 1 - Conversion7
Delaware law defines conversion as “any distinct act of

dominion wrongfully exerted over the property of another, in
denial of [the plaintiff’s] right, or inconsistent with it.”
Kuroda v. SPJS Holdings, L.L.C., 971 A.2d 872, 888 (Del. Ch.
2009) (quoting Drug, Inc. v. Hunt, 168 A. 87, 93 (Del. 1933).
PPI alleges that Lindner and the companies he controlled engaged
6

The parties apply New Hampshire law to the statute of
limitations issue, and the court does as well. This is likely
the correct approach, as PPI’s principal place of business is in
New Hampshire. See Klaxon v Stentor Elec. Mfg. Co., 313 U.S.
487, 496 (1941) (holding that federal court sitting in diversity
applies forum state's choice of law rules); Waterfield v.
Meredith Corp., 161 N.H. 707, 710 (2011) (observing that New
Hampshire applies its own statute of limitations “in any case in
which either party is a New Hampshire resident or the cause of
action arose in this State.”).
7

The parties apply Delaware law to the substantive claims.
The court will follow suit.
14

in a scheme to misappropriate money to which they were not
entitled from PPI.

Defendants originally argued that the

Complaint does not allege that Lindner personally benefitted from
the contracts.

They also argue that Lindner, as a PPI officer

and director, had the authority to enter into contracts with xservices and J.L. Consult.

Therefore, they assert, a clause in

PPI’s Articles of Incorporation exculpates him and no cause of
action can lie.

As to the first argument, the defendants

conceded at oral argument that a conversion can occur even if the
defendant does not personally enrich himself.

Regardless, since

Lindner was allegedly the sole member of the LLCs with whom he
contracted, the Complaint sufficiently “allows the court to draw
the reasonable inference” that he benefitted personally.
Martino, 609 F.3d at 2.

Moreover, whether, as Lindner argues,

PPI’s Articles of Incorporation shield him from liability depends
on a question that cannot be answered at this stage of the
litigation –- whether he acted in bad faith, in breach of his
duty of loyalty, in his self-interest, or engaged in intentional
misconduct.

In re Cornerstone Therapeutics Stockholders Litig.,

115 A.3d 1173, 1179-80 (Del. Ch. 2014) (“When a director is
protected by an exculpatory charter provision, a plaintiff can
survive a motion to dismiss by that director defendant by
pleading facts supporting a rational inference that the director

15

harbored self-interest adverse to the stockholders’ interests,
acted to advance the self-interest of an interested party from
whom they could not be presumed to act independently, or acted in
bad faith.”).
Finally, the defendants’ argument that this claim is more
properly brought as one for breach of a fiduciary duty of loyalty
and is therefore duplicative of Count 3 misses the mark because
plaintiffs are permitted to plead alternative theories.
Civ. P. 8(d)(2).
E.

Fed. R.

The motion to dismiss is denied as to Count 1.

Count 2 – Fraudulent concealment
Proof of fraudulent concealment under Delaware law requires:

1) deliberate concealment by the defendant of a material past or
present fact, or silence in the face of a duty to speak; 2) that
the defendant acted with scienter; 3) an intent to induce the
plaintiff’s reliance upon the concealment; 4) causation; and 5)
damages resulting from the concealment.
525 A.2d 146, 149 (Del. 1987).

Nicolet, Inc. v. Nutt,

Defendants argue that this count

should be dismissed as to all defendants except Lindner because
the Complaint fails to specifically allege that x-service, J.L.
Consult, Kunze or Woelk took any affirmative action to defraud
PPI.

As to x-service and J.L. Consult, the court finds that the

Complaint quite adequately alleges facts that the two Lindnercontrolled entities concealed facts regarding allegedly improper
16

payments to Lindner and to the entities from both PPI and its
accountants.
As to Woelk and Kunze, the argument that, “from their
perspective,” they were continuing under an oral agreement8 is
insufficient to support dismissal at this stage, where the
plaintiff alleges that, as Chief Operating Officers, they failed
to disclose that Lindner and his companies were not submitting
invoices even though they were being paid.

In addition, the

Complaint explicitly alleges that Kunze reneged on his May 2015
promise not to pay Lindner in the absence of invoices.

As for

Woelk, the Complaint alleges that he assumed Kunze’s
responsibilities in August 2015 and that payments to Lindner
continued after Proffe ordered them suspended.

Finally, it was

Woelk that delivered the contracts that PPI claims are fraudulent
in February 2016.

Whether they ultimately prove to be

legitimate, as the defendants claim, is not the issue presently
before the court.

The allegations in the complaint are

sufficient to state a claim for fraudulent concealment against
all defendants.

8

Memorandum of Law (doc. no. 21-1) at 8.
17

F.

Count 3 – Breach of Fiduciary Duty
A claim for breach of fiduciary duty under Delaware law has

two elements:

1) that a fiduciary duty existed and 2) that the

defendant breached that duty.
573, 601 (Del. Ch. 2010).

Beard Research v. Kates, 8 A.3d

Directors, or others with high-ranking

corporate positions “unquestionably owe fiduciary duties” to the
corporation.

Id. at 601.

Thus, the remaining question is

whether the Complaint sufficiently alleges that Lindner, Kunze or
Woelk breached their duties of loyalty and care to PPI.
Rural Metro Corp., 88 A.3d 54, 81 (Del. Ch. 2014).

In re

The court

finds that it does, as the allegations that Kunze and Woelk
improperly paid the Lindner companies or failed to report their
lack of invoices could be a breach.

To the extent that the

defendants rely on the business judgment rule, an exculpatory
clause in PPI’s Articles of Incorporation, or 8 Del. C. §
102(b)(7)9 to insulate Woelk and Kunze from liability, those

9

As relevant here, 8 Del. C. § 102(b)(7) provides that an
entity's articles of incorporation may contain:
A provision eliminating or limiting the personal
liability of a director to the corporation or its
stockholders for monetary damages for breach of
fiduciary duty as a director, provided that such
provision shall not eliminate or limit the liability of
a director: (i) For any breach of the director’s duty
of loyalty to the corporation or its stockholders; (ii)
for acts or omissions not in good faith or which
involve intentional misconduct or a knowing violation
18

defenses are dependent on facts more appropriately presented
under Rule 56 (motion for summary judgment) or Rule 50 (motion
for judgment as a matter of law).

See supra, pp. 14-15.

The

motion to dismiss Count 3 is denied.
G.

Count 4 – Conspiracy
Under Delaware law, the elements of a civil conspiracy are:

1) a confederation or combination of two or more persons; 2) an
unlawful act done in furtherance of the conspiracy; and 3) actual
damage.

AeroGlobal Capital Mgmnt., LLC v. Cirrus Industries,

Inc., 871 A.2d 428, 437 n.8 (Del. 2005).

Defendants argue that

the Complaint fails to set forth facts in support of the second
and third elements because, it argues, the only contracts that
were signed by the Lindner-controlled companies and PPI permitted
the payments that are the subject of this lawsuit.

But, as

previously noted, the legitimacy and applicability of those
contracts is in dispute, and thus they cannot be the basis of
dismissal.

Woelk argues that his failure to return PPI records

“was not unlawful.”

However, as the plaintiff points out, the

records unquestionably belonged to PPI, not Woelk.

At this stage

of law; . . . or (iv) for any transaction from which the
director derived an improper personal benefit.
19

of the proceedings that allegation is sufficient to proceed.

The

motion to dismiss Count 4 is denied.10
G.

Counts 5 and 6 – Breach of contract and of the covenant of
good faith and fair dealing11
The court addresses these two counts in reverse order.

Resolution of the breach of contract count requires resolution of
the dispute as to which contracts are operative.

The defendants’

motion is premised on the assertion that the 2015 contracts are
the only ones in play.
alleges otherwise.

As previously noted, the Complaint

Defendants also allege that Lindner would

have complied with his obligations but for PPI’s anticipatory
breach.

At a minimum, this suggests that he did not fulfill his

obligations.

Whether he was justified in doing so is not fodder

for Rule 12(b)(6) because of the court’s obligation to “accept[]
as true all well-pleaded facts set forth in the complaint and
draw[] all reasonable inferences in the plaintiff's favor.”
Martino, 609 F.3d at 2.

More generally, defendants’ broad-brush

argument that the Complaint lacks any indication of what the
defendants were supposed to do and what they did falls short.
The complaint sufficiently alleges that each defendant took

10

Defendants’ motion makes no specific argument as to Kunze
in the context of Count 4.
11

Because the parties briefed these two causes of action
together, the court addresses them in one section.
20

actions that were at least inconsistent with, and at most,
outright violated, the agreements that PPI alleges were in place.
Whether PPI’s allegations withstand scrutiny is a question for
another day in another procedural posture.
As to Count 5, the covenant of good faith and fair dealing
under Delaware law is “best understood as a way of implying terms
in the agreement, whether employed to analyze unanticipated
developments or to fill gaps in the contract’s provisions.”
Dunlap v. State Farm Fire and Cas. Co., 878 A.2d 434, 441 (Del.
2005).

Existing contract terms control, however, such that

implied good faith cannot be used to circumvent the parties’
bargain, or to create a “free-floating duty . . . unattached to
the underlying legal document.”

Id. (citations omitted).

Thus,

one generally cannot base a claim for breach of the implied
covenant on conduct authorized by the terms of the agreement.
Id.
Defendants argue simply that the Complaint lacks specific
allegations of any breach of an implied obligation.
disagrees.

The court

The allegations that defendants engaged in

transactions that benefitted themselves, but were hidden from, or
in contravention of directions from, PPI are sufficient to allow
the case to proceed.

21

IV.

Conclusion
The defendants’ forum selection clause and amount-in-

controversy arguments fail, and they largely withdrew their
damages based statute of limitations arguments.

Their

substantive arguments are inappropriate for disposition under
Rule 12, and will be better suited under Rule 56 or at trial.
Defendant's motion to dismiss12 is therefore DENIED.
SO ORDERED.

Joseph N. Laplante
United States District Judge
Dated: November 22, 2016
cc:

David K. Pinsonneault, Esq.
Jeremy David Eggleton, Esq.

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Doc. no. 21.
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