IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
DAVID NAMDAR,
Counterclaim Defendant
and Counter-Counterclaim C.A. No. 2024-0535-CDW
Plaintiff,
v.
IMMUTABLE HOLDINGS INC.,
Counterclaim Plaintiff and
Counter-Counterclaim
Defendant.
REPORT DENYING MOTION TO
DISMISS AMENDED COUNTER-COUNTERCLAIM
Date Submitted: February 3, 2026
Date Decided: July 17, 2026
Thomas A. Uebler, Brian V. DeMott, MCCOLLOM D’EMILIO SMITH
UEBLER LLC, Wilmington, Delaware; Andrew G. Prout, Brent S.
Colasurdo, ROSS, WOLCOTT, TEINERT & PROUT LLP, Costa Mesa, CA;
Counsel for Counterclaim Defendant and Counter-Counterclaim Plaintiff David Namdar
David E. Ross, Roger S. Stronach, Dylan T. Mockensturm, ROSS
ARONSTAM & MORITZ LLP, Wilmington, Delaware; Travis G. Edwards,
Jonathan I. Liebman, KELLOGG, HANSEN, TODD, FIGEL &
FREDERICK, PLLC, Washington, DC; Counsel for Counterclaim Plaintiff and Counter-Counterclaim Defendant Immutable Holdings Inc.
WRIGHT, M.
Pending before the court is counterclaim plaintiff Immutable Holdings
Inc.’s Motion to Dismiss Amended Verified “Counter-Counterclaim”
(“Motion”).1 I recommend the court deny the Motion.
I. BACKGROUND 2
Counterclaim defendant David Namdar is an individual residing in San
Juan, Puerto Rico.3 Namdar previously invested in Immutable and served as
Immutable’s president. 4 Immutable is a Delaware corporation with its
principal place of business in San Juan, Puerto Rico. 5 Immutable is a
blockchain holding company that owns equity in a variety companies in the
digital asset ecosystem. 6
1
Dkt. 56.
2
For additional background, I refer readers to Vice Chancellor Laster’s decisions dismissing Namdar’s claims with prejudice and denying Namdar’s motion to dismiss Immutable’s counterclaims. See generally Dkts. 32–33.
3
Ans. to Verified Countercl. and Am. Verified Counter-Countercl., Dkt. 52 ¶ 1 (“Amended Counter-Counterclaim” and cited as “Am. Counter-Countercl.”); Verified Am. Compl., Dkt. 13 ¶ 2 (“Amended Complaint” and cited as “Am. Compl.”).
4
Am. Counter-Countercl. ¶¶ 5–7; Am. Compl. ¶ 19.
5
Am. Counter-Countercl. ¶ 2; Am. Compl. ¶ 3.
6
See Am. Compl. ¶¶ 15–17.
A. Factual Background
Namdar invested $100,000 in Immutable on January 26, 2021. 7
Namdar alleges that, in exchange for serving as Immutable’s President, the
parties entered into an oral compensation arrangement under which Namdar
would receive a 6.5% equity interest in Immutable.8
In February, Namdar and Fried worked to purchase the NFT.com
website domain (“Domain”) for Immutable with plans to build a business
around the site.9 Namdar contributed $1 million to that acquisition, $200,000
of which were his personal funds and the rest he fundraised through his
personal network.10 As part of this acquisition Namdar also connected Fried
and Immutable with GMP Stifel, an investment bank with experience in the
cryptocurrency and blockchain industries to assist with building the Domain
business. 11 Namdar alleged that the parties negotiated the structure of the
business associated with the Domain and that, in May, the Domain was
assigned to NFT.com LLC.12
7
Am. Counter-Countercl. ¶ 6; Am. Compl. ¶ 18.
8
Am. Compl. ¶ 19; see Am. Counter-Countercl. ¶ 7 (alleging Namdar was offered additional equity as compensation but not specifying the amount).
9
Am. Counter-Countercl. ¶ 8.
10
Id. ¶ 9; Am. Compl. ¶ 22.
11
Am. Counter-Countercl. ¶ 10.
12
Am. Compl. ¶¶ 26, 28.
-2-Namdar also claimed he contributed substantial time and effort to
Immutable and the Domain-related business.13 He alleged that, as Immutable
moved closer to going public, Immutable and Fried took steps to ensure he
would not be compensated for his work. 14 For example, Namdar asserted he
was excluded from a trip taken by Fried and Immutable’s board on or about
July 20 concerning a business collaboration regarding the Domain.15 He also
alleged he was omitted from Immutable’s share register when it was circulated
on or about July 31.16
On August 2, Namdar met with Fried and Jeffrey Long, Immutable’s
Head of Legal, at Immutable’s headquarters to discuss his missing shares.17
During that meeting, Namdar and Immutable executed an employment
agreement.18 The relevant sections of the Employment Agreement state:
1. Employment. (a) Commencing on the
Effective Date, Immutable Holdings shall employ
Executive for a period of twelve (12) months (the
“Term”), as its President, in which capacity
Executive will also serve as Chief Executive Officer
(“CEO”) of Immutable Holdings’ affiliate
NFT.com LLC, provided that Executive will
13
Id. ¶ 30.
14
Id. ¶ 35.
15
Id. ¶ 38.
16
Id. ¶ 39.
17
Am. Counter-Countercl. ¶ 11; Am. Compl. ¶ 40.
18
Dkt. 10, Ex. 2 (“Employment Agreement” and cited as “Empl. Agreement”).
-3-transition out of the role of CEO of NFT.com LLC
over time such that Executive’s role with respect to
NFT.com LLC will be as an advisor by the end of
calendar year 2021.
2. Compensation. While Executive is
employed by Immutable Holdings, Executive shall
be paid a salary of Fifteen Thousand Dollars
($15,000) per month (“Base Salary”), payable in
accordance with the regular payroll schedule in
effect at the Company.
3. Equity Compensation. Executive will
receive a grant of stock in the number of units that
shall constitute .5% of all outstanding shares of its
common stock, in accordance with Immutable
Holdings’ applicable Stock Plan following
successful completion of the Company’s pending
reverse take-over “RTO” (the “RTO Grant”).
Executive will be eligible for an additional grant of
stock in Immutable Holdings in the number of units
that shall constitutes .5% of all outstanding shares
of its common stock, in accordance with Immutable
Holdings’ applicable Stock Plan, following the first
anniversary of the execution of this Agreement so
long as Executive has completed his duties and
obligations hereunder in good faith and remains in
good standing with the Company (the “Anniversary
Grant” and, collectively with the RTO grant, the
“Equity Grants”). Executive will receive separate
documentation regarding the forgoing grants under
the Company’s applicable Stock Plan.19
Namdar alleged the parties agreed Namdar would receive a 6.5% stake
in Immutable for serving as president. 20 Namdar also alleged defendants then
19
Id. §§ 1–3 (cleaned up).
20
Am. Compl. ¶ 86.
-4-fraudulently induced him into executing the Employment Agreement and
accepting the 1% stake plus a $15,000 monthly salary for 12 months by falsely
representing the step-down in equity would not affect him financially. 21
Currently, Namdar alleges Immutable breached the Employment Agreement
by failing to pay his $15,000 monthly salary as required by Section 2 and
failing to grant him the 1% equity he is entitled to under Section 3.22
B. Procedural Posture
On May 20, 2024, Namdar filed his complaint, asserting claims for
breach of contract, promissory estoppel, unjust enrichment, and fraud. 23
Namdar first sought to have the court declare the Employment Agreement
void and unenforceable because defendants fraudulently induced him to
accept it.24
On July 26, defendants filed the Motion and their opening brief in
support of it. 25 Immutable also asserted two counterclaims against Namdar,
arguing the Employment Agreement is valid and Namdar breached the
21
See id. ¶¶ 87–90.
22
Am. Counter-Countercl. ¶¶ 17–20.
23
Verified Compl., Dkt. 1, Counts I–VI.
24
Id. ¶¶ 34–45, 87–91.
25
See Dkt. 9.
-5-Employment Agreement’s forum-selection clause and general release of
liability clause.26
On September 5, Namdar filed an amended complaint.27 On September
13, Namdar moved to dismiss Immutable’s counterclaims and filed his
opening brief.28 On September 19, defendants moved to dismiss the Amended
Complaint and filed their opening brief.29
On October 21, Immutable filed its answering brief opposing Namdar’s
motion to dismiss the counterclaims. 30 That same day, Namdar filed his
answering brief opposing defendants’ motion to dismiss the Amended
Complaint.31 On November 4, Namdar filed his reply brief in further support
of his motion to dismiss the counterclaims, 32 and defendants filed their reply
brief in further support of their motion to dismiss the Amended Complaint.33
26
Def. and Countercl. Pl.’s Verified Countercls., Dkt. 10 ¶¶ 57, 70–76; Empl. Agreement § 14.
27
See Am. Compl.
28
Dkts. 14–15.
29
Dkt. 18.
30
Dkt. 19.
31
Dkt. 20.
32
Dkt. 21.
33
Dkt. 22.
-6-On March 20, 2025, the court heard oral argument and dismissed the
Amended Complaint with prejudice. 34 The court held the Employment
Agreement is a valid settlement agreement supported by consideration. 35
On June 6, the court issued an opinion denying Namdar’s motion to
dismiss Immutable’s counterclaims based on an alleged breach of the forumselection clause.36 On July 14, Namdar answered Immutable’s counterclaims
and asserted a “counter-counterclaim” for breach of contract, alleging that
Immutable breached material provisions of the Employment Agreement by
failing to pay salary and failing to deliver the agreed equity compensation. 37
On August 4, Immutable moved for a more definite statement regarding
the Original Counter-Counterclaim,38 which the court granted on September
8. 39 On September 22, Namdar filed the Amended Counter‑Counterclaim.40
On October 30, Immutable moved to dismiss the Amended CounterCounterclaim and filed its opening brief.41 Namdar filed his answering brief
34
Dkts. 29, 31.
35
Dkt. 32 at 73.
36
Dkts. 33–34.
37
Dkt. 37 (“Original Counter-Counterclaim”).
38
Dkt. 38.
39
Dkt. 51.
40
Dkt. 52.
41
Dkt. 56.
-7-in opposition on December 5, and Immutable filed its reply brief on December
19.42 On February 4, 2026, the Court heard oral argument on the Motion and
took the matter under advisement.43
II. ANALYSIS
Immutable moves to dismiss the Amended Counter-Counterclaim with
prejudice under Court of Chancery Rule 12(b)(6). 44 When considering a
motion to dismiss under Rule 12(b)(6), the court (1) accepts all well pleaded
factual allegations as true, (2) credits vague allegations if they give the
opposing party notice of the claim, and (3) draws all reasonable inferences in
favor of the non-moving party. Cent. Mortg. Co. v. Morgan Stanley Mortg.
Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011). A motion to dismiss will be
denied “unless the [claimant] would not be entitled to recover under any
reasonably conceivable set of circumstances.” Cent. Mortg. Co, 27 A.3d at
535.
Immutable contends the Amended Counter-Counterclaim should be
dismissed for three reasons. First, Immutable argues the Amended Counter42
Dkts. 61, 63.
43
Dkt. 66.
44
Dkt. 56.
-8-Counterclaim is not a proper pleading under Court of Chancery Rule 7. 45
Second, Immutable argues the Amended Counter-Counterclaim is barred by
res judicata. 46 Third, Immutable argues the Amended Counter-Counterclaim
is barred by laches. 47
Namdar argues the Amended Counter-Counterclaim is permissible
under Court of Chancery Rule 13. 48 He also argues res judicata is
inapplicable because there is no prior action and the Amended CounterCounterclaim is a new claim that is “part of the same suit.”49 Finally, Namdar
argues the Amended Counter-Counterclaim is timely because it was filed
within the three-year limitations period when tolling and relation-back
principles are applied, so it is presumptively not barred by laches. 50
Alternatively, Namdar argues Immutable will suffer no prejudice because the
case remains at the pleading stage, discovery has not begun, and the contract
45
Countercl. Pl. Immutable Hldgs. Inc.’s Opening Br. in Support of Its Mot. to Dismiss Am. Verified “Counter-Countercl.” at 11–15 (“Opening Br.”), Dkt. 56. 46
Id. 15–20.
47
Id. 20–27.
48
Pl./Countercl. Def. David Namdar’s Opp’n to Def.’s Mot. to Dismiss Am. Verified “Counter-Countercl.” 3–6 (“Answering Br.”), Dkt. 61.
49
Id. 7–8.
50
Id. 9–14.
-9-at issue is already being litigated in this action, so Immutable’s laches
argument still fails.51
As I explain below, I find the Court of Chancery Rules permit countercounterclaims, also referred to as “counterclaims in reply” or “reply
counterclaims.” Counterclaims in reply are not entirely unknown in our
court,52 the plain language of the Court of Chancery Rules permits them, and
the weight of authority interpreting the Federal Rules of Civil Procedure, on
which the Court of Chancery Rules are based, accepts counterclaims in reply
in at least some circumstances. I also find Namdar’s counterclaim in reply is
not barred by res judicata because that doctrine requires the existence of a
prior action litigated to finality, which is lacking here. And, finally, I find the
Amended Counter-Counterclaim is not time-barred because it relates back to
the timely-filed Original Counter-Counterclaim.
51
Id.
52
See, e.g., VGS, Inc. v. Castiel, 2004 WL 876032, at *1 (Del. Ch. Apr. 22, 2004) (noting the participation of certain parties as “reply counterclaim plaintiffs” and a “reply counterclaim defendant”); Arvida/JMB P’rs, L.P. v. Vanderbilt Income & Growth Assocs., L.L.C., 1997 WL 33173286, at *1 (Del. Ch. Sept. 11, 1997) (ORDER) (noting the assertion of “reply counterclaims” and entering judgment for “Reply Counterclaim Defendants”).
- 10 -A. The Court of Chancery Rules Permit Counterclaims in
Reply to a Counterclaim
Immutable contends the court should grant the Motion because Court
of Chancery Rule 7 does not list a “counter-counterclaim” as an acceptable
pleading, and no Delaware court decision has expressly condoned a “countercounterclaim.” 53 As Immutable notes, Rule 7(a)(1) recognizes only seven
types of pleadings: “(A) a complaint; (B) an answer to a complaint; (C) an
answer to a counterclaim designated as a counterclaim; (D) an answer to a
crossclaim; (E) a third-party complaint; (F) an answer to a third-party
complaint; and (G) if the Court orders one, a reply to an answer.” 54 Relying
on five federal decisions, Immutable argues the Amended CounterCounterclaim is procedurally improper under Rule 7.55
53
Opening Br. 11; Reply Br. 3–4.
54
Opening Br. 11 (quoting Ct. Ch. R. 7(a)(1)).
55
Id. 12–15 (citing and quoting Brotman v. State Gov’t Leadership Found., 2019 WL 234570, at *6 (E.D. Tenn. Jan. 16, 2019) (finding the plaintiff’s attempt to bring counterclaims “impermissible” after his complaint had been dismissed)); Healthe, Inc. v. High Energy Ozone LLC, 2021 WL 2939924, at *2 (M.D. Fla. June 17, 2021) (agreeing counterclaims in reply are impermissible under the FRCP and likely result in confusion down the road); Gonzalez v. Cent. Elec. Coop., Inc., 2009 WL 3415235, at *5 (D. Or. Oct. 15, 2009) (“Rule 7(a) . . . does not permit . . . ‘counterclaims’ in replies.”); Brooks v. Bates, 781 F. Supp. 202, 207 (S.D.N.Y. 1991) (“[T]he Federal Rules of Civil Procedure do not contemplate a counterclaim to a counterclaim. However, Rule 15(a) permits a party to amend its pleadings by leave of court[.]”); Williams v. Walker Morgan, LLC, 2017 WL 655580, at *1 (D.S.C. Feb. 17, 2017) (observing that “[t]he Federal Rules of Civil Procedure do not recognize counterclaims to counterclaims.”)).
- 11 -Namdar asserts his pleading is authorized if Rule 7 is read together with
Rule 13. 56 He characterizes his filing as an “answer to a counterclaim
designated as a counterclaim” under Rule 7(a)(1)(C) and argues Rule 13
permits a counterclaim to be asserted in a reply to a counterclaim. 57 Namdar
cites two decisions within the Third Circuit recognizing counterclaims
asserted in a reply to a counterclaim.58
1. The “Tangled” Propriety of Counterclaims in Reply
Under the Federal Rules of Civil Procedure
The parties’ reliance on federal authorities in the absence of guiding
authority from a Delaware court is appropriate. The Court of Chancery Rules
are patterned after the Federal Rules of Civil Procedure (“FRCP”), so federal
authority is instructive on the proper interpretation of this court’s
corresponding rules. See Moran v. Unation, Inc., 2025 WL 3706330, at *9
(Del. Ch. Dec. 22, 2025) (citing Terramar Retail Centers, LLC v. Marion #2-Seaport Tr. U/A/D June 21, 2002, 2018 WL 6331622, at *9 n.53 (Del. Ch.
56
Id. 11; see Reply Br. 3–4.
57
Answering Br. 3–4 (citing Power Tools & Supply, Inc. v. Cooper Power Tools, Inc., 2007 WL 1218701, at *6 (E.D. Mich. Apr. 20, 2007) (“by the plain language of the rules, a counterclaim may be raised in a pleading, and a reply to a counterclaim is a permissible pleading; hence, a counterclaim may be asserted in a reply to a counterclaim.”)).
58
Id. 4–5 (citing Joseph Bancroft & Sons Co. v. M. Lowenstein & Sons, Inc., 50 F.R.D. 415, 418 (D. Del. 1970); Janssen Pharm., N.V. v. Mylan Pharms. Inc., 2016 WL 11785098, at *16 (D. Del. Oct. 18, 2016)).
- 12 -Dec. 4, 2018). As one federal court has noted, “[t]he procedural propriety of
‘counterclaims in reply’ is tangled, to put it mildly.” Healthe, Inc. v. High
Energy Ozone LLC, 2021 WL 2939924, at *1 (M.D. Fla. June 17, 2021).59
Federal courts have taken a variety of approaches to resolving the question.
First, some federal courts permit no counterclaims in reply because the
text of FRCP 7(a) does not list a “counter-counterclaim” as a permitted
pleading. See KLC Fin., LLC v. SARC USA, Inc., 2026 WL 1959070, at *2
(E.D. Mo. July 7, 2026) (citing Gonzalez v. Cent. Elec. Coop., Inc., 2009 WL
3415235, at *5 (D. Or. Oct. 15, 2009), and Healthe, 2021 WL 2939924, at
*2); Healthe, 2021 WL 2939924, at *1 (citing Gonzalez, 2009 WL 3415235,
at *5); Pearl Res., 643 B.R. at 449–50 (citing Gonzalez, 2009 WL 3415235,
at *5). Second, other federal courts permit all counterclaims in reply because
FRCP Rule 13(a) permits “a pleading” to state “any claim” as a counterclaim
and under FRCP 7(a) an answer (or reply) to a counterclaim is “a pleading.”
See KLC Fin., 2026 WL 1959070, at *2 (citing Power Tools & Supply, Inc. v.
Cooper Power Tools, Inc., 2007 WL 1218701, at *2–3 (E.D. Mich. Apr. 20,
59
See also, e.g., KLC Fin., LLC v. SARC USA, Inc., 2026 WL 1959070, at *2 (E.D. Mo. July 7, 2026) (“Courts are divided over whether a plaintiff can advance a counterclaim in reply to a defendant’s counterclaim.”) (citations omitted); In re Pearl Res. LLC, 643 B.R. 436, 448 (Bankr. S.D. Tex. 2022) (“Whether a plaintiff may assert a counterclaim in reply to defendant’s counterclaim has been a divisive issue among courts.”) (citations omitted).
- 13 -2007), and SEMS, Inc. v. Lee, 2023 WL 6165684 (M.D. La. Sept. 21, 2023));
Healthe, 2021 WL 2939924, at *2 (citing Power Tools, 2007 WL 1218701, at
*2–3); Pearl Res., 643 B.R. at 450 (discussing Power Tools).
Third, other courts permit counterclaims in reply if they are compulsory
claims in response to the counterclaim. See KLC Fin., 2026 WL 1959070, at
*3 (citing Electroglas, Inc. v. Dynatex Corp., 473 F. Supp. 1167, 1171 (N.D.
Cal. 1979)); Healthe, 2021 WL 2939924, at *1 (citing Electroglas, 473 F.
Supp. at 1171); Pearl Res., 643 B.R. at 450–52 (discussing Electroglas, 473
F. Supp. at 1171; Vieste, LLC v. Hill Redwood Dev., 2012 WL 464191, at *2
(N.D. Cal. Feb. 13, 2012); and other authorities). Fourth, some courts allow
compulsory counterclaims in reply to permissive counterclaims. See KLC
Fin., 2026 WL 1959070, at *3 (citing Lincoln Sav. Bank v. Open Solutions,
Inc., 956 F. Supp. 2d 1032, 1040 (N.D. Iowa 2013), and Feed Mgmt. Sys., Inc.
v. Brill, 518 F. Supp. 2d 1094, 1095–96 (D. Minn. 2007)); Healthe, 2021 WL
2939924, at *1 (citing Lincon Sav. Bank, 956 F. Supp. 2d at 1040); Pearl Res.,
643 B.R. at 452–57 (discussing Lincoln Sav. Bank, 956 F. Supp. 2d at 1040;
Feed Mgmt. Sys., 518 F. Supp. 2d at 1096–97; and other authorities). Fifth,
“some [courts] throw up their hands at the whole quagmire and conclude
counterclaims in reply should be treated as motions to amend the complaint.”
Healthe, 2021 WL 2939924, at *1 (citing Century Pac., Inc. v. Hilton Hotels
- 14 -Corp., 528 F. Supp. 2d 206, 213 n.3 (S.D.N.Y. 2007), aff’d, 354 F. App’x 496
(2d Cir. 2009)). See also KLC Fin., 2026 WL 1959070, at *3 (citing
authorities); Pearl Res., 643 B.R. at 457–58 (discussing authorities). 60
To those five approaches, the Pearl Resources court added a sixth. As
the court explained, it viewed the critical inquiry being to ask what the
counterclaim in reply is trying to do: “(1) seek[] to amend plaintiff’s original
complaint; or (2) seek[] to remain part of another pleading on the docket.”
643 B.R. at 458. If the counterclaim in reply is trying to do the former, where
the plaintiff is seeking to add new claims to the original complaint, then “the
‘counterclaims in reply’ would not actually be counterclaims but simply an
amendment. Thus, Rule 15 would govern.” Id. at 450. If the counterclaim in
reply instead is filed instead as part of another pleading, such as an answer to
a counterclaim, then “Rule 15 would not apply” and the plaintiff may proceed
with the counterclaim in reply. Id. at 458–59.
The Wright & Miller treatise, surveying the landscape, acknowledges
the FRCP’s plain language supports the second approach: “[Because] there
60
This is the approach taken by several courts within the Third Circuit. See Pennington v. Wells Fargo Bank, 947 F. Supp. 2d 529, 533–34 (E.D. Pa. 2013) (citing Se. Indus. Tire Co. v. Duraprene Co., 70 F.R.D. 585, 587–88 (E.D. Pa. 1976) (“Duraprene”)); Janssen Pharma., N.V. v. Mylan Pharma. Inc., 2016 WL 11785098, at *12 (D. Del. Oct. 18, 2016) (citing Pennington, 947 F. Supp. 2d at 533–34); Aleynikov v. Goldman Sachs Gp., 2016 WL 6440122, at *6 n.6 (D.N.J. Oct. 28, 2016) (citing Pennington, 947 F. Supp. 2d at 533).
- 15 -does not appear to be any warrant for . . . limiting constructions in the
language of the rules, . . . an answer to a counterclaim . . . should be fully
capable of housing counterclaims of any kind.” 5 WRIGHT & MILLER’S
FEDERAL PRACTICE & PROCEDURE § 1188 (4th ed. Sept. 2025 update). But it
also suggests plaintiffs consider a different approach: “Nevertheless, a more
orderly procedure for achieving the same result might be for the plaintiff to
seek to amend the original complaint to include the new claim.” Id.
2. The Plain Language of the Court of Chancery Rules
Permits Counterclaims in Reply
Considering the foregoing federal authorities, I find the correct
approach for the Court of Chancery Rules is to apply the plain language,
which permits a plaintiff to assert a counterclaim as part of their answer to a
defendant’s counterclaim. To borrow the recent words of one federal court:
[Court of Chancery] Rules 7 and 13 permit
counterclaims in reply. [Court of Chancery] Rule
13 permits counterclaims to be asserted in a
pleading, and [Court of Chancery] Rule 7(a)(3)
defines pleading to include an answer to a
counterclaim.
KLC Fin., 2026 WL 1959070, at *3 (emphasis in original).
For the reasons explained by the Pearl Resources court, I decline to
embrace the approach that treats all counterclaims in reply as amendments to
the complaint. See Pearl Res., 643 B.R. at 457–58. The authors of the Wright
- 16 -& Miller treatise are correct that a plaintiff amending its complaint rather than
filing a counterclaim in reply will often be “a more orderly procedure.” See
5 WRIGHT & MILLER’S FEDERAL PRACTICE & PROCEDURE § 1188 (4th ed.
Sept. 2025 update). But I agree with the Pearl Resources court that the rules
do not require it, and forcing a counterclaim in reply to be treated as if it were
an amendment to the complaint is inconsistent with the Rules 7, 13, and 15.
See Pearl Res., 643 B.R. at 457–58.
Immutable’s arguments against a plain language approach are not
persuasive. First, as to Immutable’s argument that Rule 7 does not explicitly
identify a counter-counterclaim as a permitted pleading, 61 Rule 7 does not
identify a counterclaim as one either—counterclaims are claims, not
pleadings. 62 Second, as to Immutable’s argument that reading Rule 13 to
61
Reply Br. 3–4.
62
See, e.g., Pearl Res., 643 B.R. 436, 449 (Bankr. S.D. Tex. 2022) (“As the language of the rule shows, a counterclaim is not itself a pleading, but is a claim included in some other pleading.”); Vivot Equip. Corp. v. Underwater Mechanix Servs., LLC, 2024 WL 231450, at *2 (D.V.I. Jan. 22, 2024) (“Because a counterclaim is not itself a pleading, to state a counterclaim consistently with Rule 7(a) and Rule 13, a party must file the counterclaim as part of a recognized pleading, i.e., an answer.”) (quoting Allied Med. Assocs. v. State Farm Mut. Auto. Ins. Co., 2009 WL 839063, at *1–2 (E.D. Pa. Mar. 26, 2009), and discussing other authorities); 5 WRIGHT & MILLER’S FEDERAL PRACTICE AND PROCEDURE § 1183 (4th ed. Apr. 2026 update) (“In the same vein, affidavits, notices of removal, crossclaims, and counterclaims are not considered pleadings.”). These authorities illustrate why I am unsure the Pearl Resources court’s sixth approach is necessary. I agree a counterclaim in reply which “seeks to amend [the] original complaint” instead of “seek[ing] to remain part of another pleading,” 643 B.R. at 458, should be analyzed as a motion for leave to amend under Rule 15, but that suggests the
- 17 -permit counterclaims in any pleading other than an answer “would render the
Rules nonsensical,”63 the weight of federal authority allowing counterclaims
in reply to counterclaims discussed above is an adequate rejoinder. 64
Third, as to Immutable’s argument that a plain language approach
“lacks any limiting principle” and will create a “procedural nightmare”65 of
counterclaims in reply to counter-counterclaims (and so on), Immutable does
not identify a case where this happened. The FRCP went into effect on
September 16, 1938, 66 the substance of Rules 7 and 13 has not materially
changed in the past 88 years, 67 and federal courts have allowed counterclaims
filing of a counterclaim as a standalone pleading, something Rules 7 and 13 do not seem to contemplate.
63
Reply Br. 4.
64
See also Joseph Bancroft & Sons Co. v. M. Lowenstein & Sons, Inc., 50 F.R.D. 415, 418 (D. Del. 1970) (“Rule 13 is not limited by its terms to counterclaims only in the answer, and speaks simply of claims which ‘the pleader’ has against the opposing party.”); Warren v. Indian Ref. Co., 30 F. Supp. 281, 282 (N.D. Ind. 1939) (“The question arises, who may counterclaim? Defendant says, only the defendant. Plaintiff says, either plaintiff or defendant. That is, it is plaintiff’s contention that a plaintiff may file a counterclaim to a counterclaim. This seems to be exactly what Rule 13(b) permits. It is worthy of note and would seem to be quite significant that Rule 13 does not use the term ‘plaintiff’ or ‘defendant’, or ‘complaint’ or ‘answer’, but speaks of ‘pleading’, ‘a pleader’ and ‘any opposing party.’”). 65
Opening Br. 12–13 (citing authorities); Reply Br. 4 (citing authorities). 66
See FRCP Hist. Note at VII.
67
Compare FRCP 7(a) (1938), with FRCP 7(a); compare FRCP 13(a)–(b) (1938), with FRCP 13(a)–(b). A copy of the FRCP as adopted in 1938 is available online from the Library of Congress. See U.S. Cong., H. Doc. No. 75-460, https://hdl.loc. gov/loc.law/llserialsetce.10250_00_00-002-0460-0000 (last visited July 17, 2026).
- 18 -in reply since the early days.68 Finally, as to Immutable’s argument that this
approach allows Namdar to introduce claims that he could have asserted as
part of his original complaint and would undermine the finality of the court’s
prior dismissal order, 69 the plain language of the Court of Chancery Rules 7
and 13 do not require it. 70 There are legal doctrines and principles—such as
res judicata, the law of the case, the prohibition on claim-splitting, and Rule
15(a)(5)—that seek to promote judicial efficiency, finality, and respect for
prior rulings. One (or more) of those doctrines and principles could be applied
when a plaintiff’s assertion of a counterclaim in reply is inconsistent with
them. Immutable invoked one in its opening brief, and I address that in the
next section.
68
See Elizabeth Gaspar Brown, Federal Procedure—Counterclaim to a
Counterclaim Under the Federal Rules, 52 MICH. L. REV. 1179, 1179–80 (1954) (“With one exception the cases decided in the federal courts under the Federal Rules of Civil Procedure have held that the plaintiff is free to plead a counterclaim in the reply, although in every instance the counterclaim in the reply under consideration was one related to the subject matter of the counterclaim pleaded in the defendant’s answer.”) (citing authorities).
69
Opening Br. 13–14; Reply Br. 6–7.
70
Cf. Duraprene, 70 F.R.D. at 588 (stating, in dicta, “the Federal Rules clearly authorize a counterclaim in reply even in those limited circumstances where the plaintiff would not have been able to augment his claim if it were not for the fact that the defendant had filed a compulsory counterclaim”).
- 19 -B. Res Judicata Does Not Mandate Dismissal of the Amended
Counter-Counterclaim
In its opening brief, Immutable argues that even if the Amended
Counter-Counterclaim is permitted under Court of Chancery Rule 7, it
separately fails because it is barred by res judicata.71
As the Supreme Court has explained, “[t]he doctrine of res judicata is
venerable and well-established in our legal history, having been traced back
to Roman law and implemented in English law in the twelfth century.”
LaPoint v. AmerisourceBergen Corp., 970 A.2d 185, 191 (Del. 2009) (citation
omitted). It exists “to provide a definite end to litigation, prevent vexatious
litigation, and promote judicial economy,” and “extends to all issues which
might have been raised and decided in the first suit as well as to all issues that
actually were decided.” Id. at 191–92 (citations omitted). “In essence, the
doctrine of res judicata serves to prevent a multiplicity of needless litigation
of issues by limiting parties to one fair trial of an issue or cause of action
which has been raised or should have been raised in a court of competent
jurisdiction.” Id. (quoting Taylor v. Desmond, 1990 WL 18366, at *2 (Del.
Super. Jan. 25 1990), aff’d, 1990 WL 168243 (Del. Aug. 31, 1990)).
71
Opening Br. 15–20.
- 20 -Delaware applies a five-part test to determine when res judicata bars a
claim:
(1) the original court had jurisdiction over the
subject matter and the parties; (2) the parties to the
original action were the same as those parties, or in
privity, in the case at bar; (3) the original cause of
action or the issues decided was the same as the case
at bar; (4) the issues in the prior action must have
been decided adversely to the appellants in the case
at bar; and (5) the decree in the prior action was a
final decree.
Id. (quoting Dover Hist. Soc., Inc. v. City of Dover Plan. Comm’n, 902 A.2d
1084, 1092 (Del. 2006)). Immutable argues all five elements are met here.72
Namdar disagrees, arguing that res judicata does not apply because the
doctrine requires a prior action and there is no prior action here.73
I agree with Namdar that res judicata does not preclude the Amended
Counter-Counterclaim because the doctrine requires the existence of a prior
action. “[R]es judicata only ‘applies to successive litigations, not within the
same case.’” Goode v. Goode, 350 A.3d 1226, 2025 WL 3204047, at *5 (Del.
Nov. 17, 2025) (ORDER) (quoting Elutions Cap. Ventures S.A.R.L. v. Betts,
2022 WL 17075692, at *6 (Del. Ch. Nov. 18, 2022) (ORDER)). 74
72
Opening Br. 15–20.
73
Answering Br. 7–8.
74
See also French v. French, 622 A.2d 1095, 1992 WL 453269, at *3 (Del. Dec. 7, 1992) (ORDER) (explaining res judicata does not apply when the relevant motions
- 21 -Immutable, perhaps recognizing this problem, dismisses Namdar’s
argument as a “technicality” and shifts the argument to different grounds,
insisting “[w]hether by operation of Rule 15, the law-of-the-case doctrine, or
res judicata, the law is clear: A plaintiff who has litigated to finality one cause
of action cannot later bring new claims arising from the same transaction.”75
As salutary as that principle might be, Immutable did not argue all of those
grounds in its opening brief, it raised only res judicata. 76 For purposes of the
Motion, then, Immutable waived reliance on Rule 15(a)(5), the law of the case
doctrine, and the prohibition on claim splitting. See Emerald P’rs v. Berlin,
726 A.2d 1215, 1224 (Del. 1999) (“Emerald Partners has waived any
argument it had against Hall Financial by not raising the issues in their
opening brief.”); Murphy v. State, 632 A.2d 1150, 1152 (Del. 1993) (“The
“were part of the same suit”); Res Judicata, BLACK’S LAW DICTIONARY (6th ed. 1990) (“[A] final judgment rendered by a court of competent jurisdiction on the merits is conclusive as to the rights of the parties and their privies, and, as to them, constitutes an absolute bar to a subsequent action involving the same claim, demand or cause of action.”) (emphasis added); Res Judicata, BLACK’S LAW DICTIONARY (12th ed. 2024) (“An affirmative defense barring the same parties from litigating a second lawsuit on the same claim, or any other claim arising from the same transaction or series of transactions and that could have been—but was not—raised in the first suit.”) (emphasis added).
75
Reply Br. 9–10.
76
See Opening Br. 15–20.
- 22 -failure to raise a legal issue in the text of the opening brief generally
constitutes a waiver of that claim[.]”).
C. The Amended Counter-Counterclaim is Not Barred by
Laches
Immutable’s final argument is that the Amended Counter-Counterclaim
is time barred under the equitable doctrine of laches. 77 The Amended
Counter-Counterclaim is a legal claim (breach of contract) for which Namdar
seeks legal relief (money damages).78 Under this court’s precedent, when a
party “has advanced a legal claim and seeks a form of relief that is available
from a court at law, such as monetary damages, then the court will apply the
statute of limitations in the same manner as a law court.” Lebanon Cnty.
Emps.’ Ret. Fund v. Collis, 287 A.3d 1160, 1194 (Del. Ch. 2022). 79 But
“extraordinary circumstances may provide an exception to the strict
application of statutes of limitations for purely legal matters, separate and
apart from the application of tolling doctrines.” Kraft v. WisdomTree Invs.,
Inc., 145 A.3d 969, 983 (Del. Ch. 2016). Breach of contract claims are subject
to a three-year statute of limitations period, see 10 Del. C. § 8106(a), so the
77
Id. 20–27; Reply Br. 13–18.
78
See Am. Counter-Countercl., Prayer for Relief ¶ C (“Awarding Namdar damages in an amount to be determined at trial[.]”).
See also, e.g., Vivint Solar, Inc. v. Lundberg, 2024 WL 2755380, at *20 (Del. Ch. 79
May 30, 2024), aff’d, 340 A.3d 541 (Del. Mar. 19, 2025) (ORDER).
- 23 -question Immutable’s argument presents is whether the Amended CounterCounterclaim was filed within three years of the claim accruing, absent
extraordinary circumstances.
Immutable argues “it is plain from the face” of the Amended CounterCounterclaim that any claim Namdar has for breach of the Employment
Agreement accrued no later than August 2, 2022, the date of the last
“Anniversary Grant” under the Employment Agreement.80 It argues Namdar
did not file his Amended Counter-Counterclaim until September 22, 2025,
outside the three-year window for breach of contract claims. 81 Immutable
also argues that Namdar cannot benefit from the July 14, 2025 filing date of
the Original Counter-Counterclaim under Court of Chancery Rule 15(c)
because Vice Chancellor Laster’s order granting Immutable’s motion for a
more definite statement was a judicial finding and law of the case that the
Original Counterclaim did not put Immutable on notice of the claim against
it.82
In response, Namdar does not take issue with the August 2, 2022 start
date for the running of the three-year clock, but argues that the Amended
80
Opening Br. 21.
81
Id.
82
Id. 23–25.
- 24 -Counter-Counterclaim is timely for two reasons. First, he argues the Original
Counter-Counterclaim was timely filed on July 14, 2025, and the Amended
Counter-Counterclaim relates back to the Original Counter-Counterclaim
under Court of Chancery Rule 15(c) because Immutable had all the notice it
needed. 83 Second, he argues the limitations period for the Amended CounterCounterclaim was tolled by the filing of Immutable’s breach of contract
counterclaim on July 26, 2024. 84
1. The Amended Counter-Counterclaim Relates Back to
the Original Counterclaim Under Rule 15(c)(2)
Under Court of Chancery of Rule 15(c)(2), an amended pleading relates
back to the date of the original pleading when “the amendment asserts a claim
or defense that arose out of the conduct, transaction, or occurrence set out—
or attempted to be set out—in the original pleading[.]” Ct. Ch. R. 15(c)(2).
“The ‘determinative factor’ for a Delaware court applying Rule 15(c) is
‘whether a defendant should have had notice from the original pleadings that
the plaintiff’s new claim might be asserted against him.’” Cent. Mortg. Co.
v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 2012 WL 3201139, at *17 (Del.
Ch. Aug. 7, 2012) (quoting Atlantis Plastics Corp. v. Sammons, 558 A.2d
83
Answering Br. 9–11.
84
Id. 12.
- 25 -1062, 1065 (Del. Ch. 1989)). “The cause of action concept embodied in Rule
15(c) has been broadly defined to require simply that there be fair notice of
the general fact situation out of which the claim or defense arose . . . . [T]he
mere fact that the amendment changes the legal theory on which the action
was originally brought is of no consequence if the factual situation upon which
the action depends remains the same.” Mullen v. Alarmguard of Delmarva,
Inc., 625 A.2d 258, 264 (Del. 1993) (citations omitted). At bottom, “[t]he
purpose of Rule 15(c) is to provide the opportunity for a claim to be tried on
its merits, rather than being dismissed on procedural technicalities, when the
policy behind the statute of limitations has been addressed.” Chaplake Hldgs.,
Ltd. v. Chrysler Corp., 766 A.2d 1, 6 (Del. 2001) (quoting 3 MOORE’S
FEDERAL PRACTICE § 15.02[1] (3d ed. 1999)). “Whether a proposed
amendment satisfies the requirements for Rule 15(c) is at the trial court’s
discretion.” Mullen, 625 A.2d at 264 (citation omitted).
Immutable’s vigorous argument notwithstanding, I agree with Namdar
the operative date here for evaluating the timeliness of the Amended CounterCounterclaim should be July 14, 2025, not September 22, 2025. I am not
persuaded the only reasonable interpretation of the three sentences in the
comments box of the order granting Immutable’s motion for a more definite
statement is an explicit finding that the Original Counter-Counterclaim failed
- 26 -to put Immutable on notice in the way that Rule 15(c) contemplates for
relation-back purposes. 85
Paragraphs 2 through 5 of the Original Counter-Counterclaim lay out
the essential elements of a claim for breach of contract: (1) “Namdar and
Immutable entered into an Employment Agreement dated August 2, 2021”;86
(2) ”Immutable breached material terms of the [Employment] Agreement by,
among other things, failing to pay Namdar’s salary for the agreed-to period
and failing to provide the agreed-to equity compensation”; 87 and (3) ”Namdar
was injured by Immutable’s conduct in an amount to be determined at trial.”88
See Calumet Cap. P’rs LLC v. Victory Park Cap. Advisors, LLC, 353 A.3d
88, 112 (Del. Ch. 2026) (“the elements of a claim for breach of contract are a
contractual obligation, a breach of that obligation by the defendant, and a
causally related injury warranting a remedy”) (citing AB Stable VIII LLC v.
Maps Hotels & Resorts One LLC, 2020 WL 7024929, at *47 (Del. Ch. Nov.
30, 2020), aff’d, 268 A.3d 198 (Del. 2021)). And there is little difference
between the Original Counter-Counterclaim and the Amended CounterCounterclaim for purposes of giving fair notice of Namdar’s breach of
85
See Dkt. 51.
86
Original Counter-Countercl. ¶ 2.
87
Id. ¶ 4.
88
Id. ¶ 5.
- 27 -contract claim—most of the allegations added to the Amended CounterCounterclaim after the court granted Immutable’s Rule 12(e) motion are
irrelevant to Namdar’s claim that Immutable breached the Employment
Agreement. 89 In the words of this court in Atlantis Plastics, Immutable “had
notice from the [O]riginal [Counter-Counterclaim] that [Namdar’s] new claim
might be asserted against [Immutable].” 558 A.2d at 1065.
For these reasons, I find the Amended Counter-Counterclaim relates
back to the Original Counter-Counterclaim under Rule 15(c) and is not timebarred.90
2. The Filing of Immutable’s Breach of Contract
Counterclaim Did Not Toll the Limitations Period for
the Amended Counter-Counterclaim
I reject Namdar’s alternative argument that the filing of Immutable’s
breach of contract counterclaim tolled the limitations period for the Amended
Counter-Counterclaim. 91 The only authority cited by Namdar, the Fourth
Circuit’s 1982 opinion in Burlington Industries v. Milliken & Co., 92 is not the
89
See Am. Counter-Countercl. ¶¶ 3–10.
90
This could be a Pyrrhic victory for Namdar. Most of the compensation due Namdar under the Employment Agreement was due before July 14, 2022. See Empl. Agreement ¶¶ 1–3; see also Vivint Solar, Inc. v. Lundberg, 2024 WL 2755380, at *28 & n.192 (Del. Ch. May 30, 2024), aff’d, 340 A.3d 541 (Del. Mar. 19, 2025) (ORDER).
91
Answering Br. 12.
92
690 F.2d 380, 389 (4th Cir. 1982).
- 28 -law in Delaware: “Under Delaware law, where a counterclaim seeks
affirmative relief rather than acting merely as a defense to a plaintiff’s
allegations, it does not relate back to the filing of the complaint, but must
independently satisfy the statute of limitations.” Whitney v. Guys, Inc., 48 F.
Supp. 3d 1236, 1258 (D. Minn. 2014) (citing DiNorscia v. Tibbett, 124 A.2d
715, 716 (Del. Super. 1956)), aff’d, 826 F.3d 1074 (8th Cir. 2016). See also
Delaware Chems., Inc. v. Reichold Chems., Inc., 121 A.2d 913, 917–18 (Del.
Ch. 1956); Adames v. Adames, 2020 WL 3027240, at *1–2 (Del. Super. June
5, 2020); Wilson v. Kirlin, 2011 WL 1465576, at *1–2 (Del. Super. Apr. 15,
2011).
III. CONCLUSION
I recommend the court deny Immutable’s Motion to Dismiss the
Amended Verified “Counter-Counterclaim.” This is a Report under Court of
Chancery Rule 144(b)(1). Under Court of Chancery Rule 144(c)(2)(A),
exceptions to this Report are stayed pending issuance of a Final Report in this
action.
- 29 -