COURT OF CHANCERY
OF THE
STATE OF DELAWARE
LOREN MITCHELL LEONARD L. WILLIAMS JUSTICE CENTER MAGISTRATE IN CHANCERY 500 NORTH KING STREET, SUITE 11400
WILMINGTON, DE 19801-3734
Date Submitted: June 4, 2026
Date Issued: July 20, 2026
Hugh J. Marbury, Esquire Gregory Blue, Esquire
Joshua Seiler, Esquire Gary J. Gorham, Esquire
Joel G. Weinberg, Esquire Lachtman Cohen & Belowich LLP Cozen O’Connor LLP 11811 San Vicente Blvd., Suite 414 1201 N. Market Street, Suite 1001 Wilmington, DE 19801
Wilmington, DE 19801
Joel G. Weinberg, Esquire Thomas A. Uebler, Esquire Precision Counsel APC Brian V. DeMott, Esquire
9465 Wilshire Blvd., Suite 300 McCollom D’Emilio Smith Uebler LLC Beverly Hills, CA 90212 2751 Centerville Road, Suite 401
Wilmington, DE 19808
Re: Ekaterina Tchernavskikh v. Peter “PJ” Accetturo, et al.
C.A. No. 2025-1284-LM
Dear Counsel,
This letter resolves the Defendants’ pending motion to dismiss. The core issues
of this motion are whether the plaintiff, Ekaterina Tchernavskikh (“Plaintiff”), has
standing to sue derivatively on behalf of FilmPort, Inc., and whether her individual
claims are adequately pled to survive Delaware’s “reasonable conceivability”
standard.
For reasons further explained below, the Court finds that Plaintiff fails to state
a claim for breach of contract, fraud, and negligent misrepresentation, but has Ekaterina Tchernavskikh v. Peter “PJ” Accetturo, et al.
C.A. No. 2025-1284-LM
July 20, 2026
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sufficiently pleaded her remaining claims. Therefore, Defendants’ motion to dismiss
is DENIED IN PART and GRANTED IN PART.
I. FACTUAL BACKGROUND
On September 2024, Plaintiff and Peter Accetturo co-founded FilmPort,
an AI film production company, and agreed that Plaintiff would be Chief
Technology Officer (“CTO”), and that Mr. Accetturo would be Chief Executive
Officer (“CEO”) and FilmPort’s sole director. 1 Plaintiff alleges the parties initially
agreed that Plaintiff would receive 30% of FilmPort equity, and Mr. Accetturo would
receive 70%.2
After Mr. Accetturo posted a controversial viral video, Plaintiff alleges that on
October 3, 2024, to persuade her to remain at FilmPort, the parties agreed that
Plaintiff would gain a director position on FilmPort’s board, and gain an additional
20% equity stake, making both Mr. Accetturo and Plaintiff 50% FilmPort
stockholders.3 Plaintiff also signed the Restricted Stock Purchase Agreement
(“RSPA”), which provides that upon cessation as a service provider, FilmPort has
1
Docket Item (“D.I.”) 1 ¶ 19–20; D.I. 1, Ex. 3.
2
D.I. 1 ¶ 19–20.
3
Id. ¶¶ 26, 28.
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an option to repurchase un-released shares at the Plaintiff’s purchase price.4
Although no documentation has been provided, Plaintiff alleges the parties executed
the RSPA after an alleged oral agreement with Mr. Accetturo on October 3, 2024,
and then backdated the signing date to September 13, 2024.5
Around December 2024, the parties agreed that Plaintiff was effectively
FilmPort’s CEO, and that Mr. Accetturo would become Chief Creative Officer
(“CCO”). 6 Plaintiff points to a January 17, 2025, email between Mr. Accetturo and
Jupiter Agency, in which Mr. Accetturo stated that Plaintiff was the CEO and cofounder of FilmPort.7 She also relies on a January 28, 2025, O-1 visa support letter
in which Mr. Accetturo stated that Plaintiff was a co-founder and CEO of FilmPort,
and that she managed all operational and financial aspects of the organization. 8
On January 14, 2025, FilmPort hired Tawny Toci as its COO. 9 Ms. Toci created
a capitalization table (“Cap Table”) listing Plaintiff as a 50% FilmPort stockholder.10
4
D.I. 16 at 1.
5
D.I. 1 at 12.
6
Id. ¶ 35.
7
Id., Ex. 5.
8
Id., Ex. 9.
9
Id. ¶ 41.
10
Id. ¶ 42; D.I. 1, Ex. 8.
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On February 14, 2025, Plaintiff claims that Mr. Accetturo and Ms. Toci called a joint
meeting, suggesting that Mr. Accetturo should retake FilmPort’s CEO position.11
Ten days later, Mr. Accetturo and Ms. Toci terminated Plaintiff’s employment with
FilmPort.12
On March 11, 2025, Mr. Accetturo sent Plaintiff an email stating that he was
initiating FilmPort’s dissolution. 13 On May 13, 2025, discovering that FilmPort was
still operational, Plaintiff sent a letter to FilmPort demanding its books and records
and to set a litigation hold. 14 FilmPort rejected Plaintiff’s demands. 15
Plaintiff initiated this Action on November 6, 2025, alleging derivative claims
on behalf of FilmPort as well as individual claims. Plaintiff alleges loss of equity in
FilmPort, lost compensation, lost employment opportunities, damages resulting
from Plaintiff’s O-1 Visa Application complications, relocation costs, and emotional
distress.16 On December 23, 2025, Defendants moved to dismiss, in which they raise
11
D.I. 1 ¶ 46.
12
Id. ¶ 49.
13
Id. ¶ 53; D.I. 1, Ex. 11.
14
D.I. 1 ¶¶ 56–57.
15
Id. ¶ 57.
16
Id. ¶¶ 52, 55, 63; D.I. 1, Ex. 12.
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C.A. No. 2025-1284-LM
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that Plaintiff has no standing to assert derivative claims on behalf of FilmPort, and
that Plaintiff fails to state valid individual claims.17
II. ANALYSIS
When considering a motion to dismiss under Court of Chancery Rule 12(b)(6),
the Court accepts all well pleaded facts as true, accepts vague allegations as well
pleaded if they give the opposing party notice of the claim, and draws all reasonable
inferences in the non-moving party’s favor.18 A claim will be dismissed only if there
is no “reasonably conceivable” set of circumstances under which the alleged facts
may support it.19 Accordingly, the Court considers only whether Plaintiff has
alleged facts that, if proven, state reasonably conceivable claims for relief, not
whether Plaintiff will ultimately prevail.
A. Plaintiff’s Derivative Standing
Under Delaware law, a plaintiff asserts a derivative action “on behalf of an
entity to enforce a claim that the entity could assert.” 20 For a plaintiff to have
derivative standing, this Court has two requirements: (1) stock ownership at the
17
See generally D.I. 16.
18
Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 535 (Del. 2011); see also Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99–100 (Del. 1992). 19
Id.
20
Del. Ch. Ct. R. 23.1
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outset of the action; and (2) continuous stock ownership throughout the litigation.21
Further, a plaintiff must plead facts with “particularity.”22
Plaintiff’s standing to assert derivative claims on behalf of FilmPort depends
on whether Plaintiff was a valid FilmPort stockholder upon her termination, and
whether she has maintained continuous ownership throughout this litigation.
Defendant argues that Plaintiff’s derivative claims depend on whether she was a
valid director.23 The Court disagrees that the inquiry begins and ends with Plaintiff’s
alleged directorship. Rather, the dispositive question is whether Plaintiff adequately
pleads continuous stock ownership sufficient to maintain derivative standing.
Plaintiff’s alleged director status matters only because it informs whether
Defendants validly terminated Plaintiff’s employment and, in turn, whether the
Company’s subsequent exercise of the RSPA’s repurchase provisions effectively
extinguished Plaintiff’s ownership interest. Although director status can determine
whether the RSPA repurchase validly divested Plaintiff of her stock, Defendants’
argument is not dispositive because Plaintiff can still maintain standing as a
21
See Parfi Holding AB v. Mirror Image Internet, Inc., 954 A.2d 911, 935 (Del. Ch. 2008). 22
Del. Ch. Ct. R. 23.1
23
D.I. 24 at 1.
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stockholder if: (1) Plaintiff is still a service provider as an officer or employee; or
(2) Plaintiff’s original 30% stock was not subject to the RSPA.
B. Plaintiff’s Director Status
First, the Complaint does not allege facts with particularity to support her
director status. Delaware law states that “the business and affairs of every
corporation . . . shall be managed by or under the direction of a board of directors.”24
In addition to de jure status, Delaware recognizes de facto director status, where
individuals can be directors “irrespective of a formal authorization.”25 However, a
de facto office “must have a de jure existence or at least one recognized by law.” 26
Although Plaintiff characterizes herself as functioning as one of FilmPort’s
principals, Delaware corporate law distinguishes between managerial authority and
board authority.27 Officers may exercise substantial operational control over a
corporation without simultaneously serving as directors.28 Accordingly, allegations
24
8 Del. C. § 141 (a).
25
Harris v. Harris, 289 A.3d 310, 331 (Del. Ch. 2023).
26
State ex rel. James v. Deakyne, 58 A.2d 129, 131 (Del. Super. 1948).
27
See 8 Del. C. § 141 (a).
28
Jones Apparel Grp., Inc. v. Maxwell Shoe Co., Inc., 883 A.2d 837, 852 (Del. Ch. 2004) (“Indeed, § 141(a) itself states that when management authority is delegated to ‘persons’ other than the board, those ‘persons’ shall exercise that authority only ‘to such extent’ as provided in the charter, suggesting that the statute contemplates at least some elimination of board authority.”).
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that Plaintiff negotiated with investors, supervised employees, managed business
operations, or served as CEO do not themselves establish that Plaintiff occupied a
seat on FilmPort’s board. Accordingly, the Court evaluates Plaintiff’s allegations
under the specific requirements governing de jure and de facto directorships rather
than the practical importance of her executive role.
Here, the Complaint does not plead facts supporting de jure or de facto status,
as there is no allegation of a formal expansion of the board to add a second seat or
of corporate actions holding Plaintiff out as a director. FilmPort’s sole director, as
appointed in its bylaws, was Mr. Accetturo, and no other director was formally
appointed under FilmPort’s bylaws. 29 Neither party alleges that a proper vote was
held to add a second board seat, nor that a vote was held to appoint Plaintiff as a
director. Without a proper vote, Plaintiff’s allegation that she was given a board seat
during the October 3, 2024 agreement fails.
Even with a second board seat, to be categorized as a de facto director,
Plaintiff’s role is unlike Stream TV Networks, where this Court considered whether:
(1) the company held employees out as directors; (2) those employees acted as
29
FilmPort’s bylaws state, “[t]he number of directors constituting the entire Board of Directors is one (1). This number may be changed by a resolution of the Board of Directors or of the stockholders.” D.I. 1, Ex. 10, § 3.2.
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directors with the full knowledge and encouragement of the company; (3) those
employees were formally invited to join the company’s board; (4) those employees
accepted that invitation; (5) the company publicly announced those appointments,
and; (6) those employees attended board meetings. 30
Applying those factors here, the Court finds that the pled facts show that
Plaintiff was described as a FilmPort co‑founder and CEO, but not as a director.
Although Mr. Accetturo stated in his January 17, 2025, email to Jupiter Agency that
Plaintiff was the CEO and co-founder of FilmPort, Director status and CEO status
are distinct positions in the structure of a corporation, with this Court explaining that
some CEO decisions require the “board’s plenary authority under section 141(a) of
the DGCL.” 31
The distinction is significant. In Stream TV Networks, the challenged
individuals exercised authority uniquely associated with directors and were
consistently recognized as board members by the corporation itself. 32 Here, by
30
See Stream TV Networks, Inc. v. SeeCubic, Inc.,250 A.3d 1016 (Del. Ch. 2020). 31
Foley v. Session Corp., 345 A.3d 537, 554 (Del. Ch. 2025).
32
Stream TV Networks, Inc., 250 A.3d at 1032 (“Stream and the Rajan brothers treated the Outside Directors as directors, and all other relevant parties reasonably believed that the Outside Directors were directors. The Rajan brothers, on behalf of Stream, sent letters of invitation to join the Board to the Outside Directors. Each of the Outside Directors agreed to join the Board, and Stream announced to its investors and employees that the Outside Directors had become members of the Board.”).
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contrast, the Complaint principally alleges that Plaintiff acted as FilmPort’s CEO
and co-founder. While those allegations demonstrate a substantial leadership role
within the Company, they do not reasonably support the inference that Plaintiff
exercised the legal authority of a corporate director. The Complaint contains no
allegation that Plaintiff participated in formal board deliberations, voted on board
matters, executed written board consents, or otherwise exercised powers reserved to
the board under Delaware law. Although Plaintiff did attend investor meetings,
attendance is typical for other corporate roles, including CEOs, co-founders, and
other employees, not just for directors.
Accordingly, on the current pleadings, Plaintiff has not shown she was a
FilmPort director.
C. Plaintiff’s Stockholder Status
Plaintiff adequately pleads she is a valid FilmPort stockholder. Although she
was terminated as a service provider, she alleges her original 30% equity was not
subject to repurchase under the RSPA. 33 The parties present fundamentally different
interpretations of the RSPA. Defendants maintain that the agreement governs
Plaintiff’s entire ownership interest and automatically extinguished her stock upon
33
D.I. 22 at 33–34.
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termination.34 Plaintiff, however, alleges that the RSPA documented only a portion
of an already-existing ownership arrangement and therefore could not operate to
repurchase equity that existed independently of the agreement. 35 At this procedural
stage, the Court need not determine which interpretation ultimately proves correct.
It need only decide whether Plaintiff’s interpretation is reasonably conceivable.
The RSPA defines a service provider as an “employee, advisor, consultant,
officer, or director of the Company.” 36 Further, the RSPA states:
If the Purchaser ceases to be a Service Provider . . . the Company
will . . . have an irrevocable, exclusive option to repurchase . . . any
shares which have not yet been released from the Repurchase
Option . . . at a price per share equal to the Purchase Price . . . . 37
Here, FilmPort terminated Plaintiff when Mr. Accetturo, as chairperson of the
board, held a meeting at which termination was effected. First, Section 5.4 of
FilmPort’s bylaws states that officers can only be terminated by an affirmative vote
of the majority of FilmPort’s board “at any regular or special meetings.”38 FilmPort
34
D.I. 16 at 8–9.
35
D.I. 22 at 15–18.
36
D.I. 1, Ex. 4.
37
Id.
38
FilmPort’s bylaws state that “any officer may be removed, either with or without cause, by an affirmative vote of the majority of the Board of Directors at any regular or special meeting of the board.” D.I. 1, Ex. 10 §5.4.
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held this termination meeting on February 24, 2025. 39 Although this meeting’s
informal character may blur the line between a regular and a special meeting, as sole
director and chair, Mr. Accetturo had authority under the bylaws to call meetings as
provided therein.
Both “regular” and “special” meetings are informal under sections 3.6 and 3.7
of FilmPort’s bylaws, which allow the board of directors to hold “regular” meetings
at any place and at any time.40 Further, “special meetings” must “be called at any
time by the chairperson of the board, the chief executive officer, the president, the
secretary, or any two directors.”41 Given sections 3.6 and 3.7 of the bylaws
governing regular and special meetings and the allegation that a meeting occurred,
the Complaint supports the inference that a meeting could be held by the chair and
that action to remove an officer could be taken thereunder.
Separate from her termination analysis, Plaintiff alleges an oral agreement with
Mr. Accetturo for an additional 20% equity and contends the RSPA did not govern
39
D.I. 1 ¶ 49.
40
FilmPort’s bylaws state that “[r]egular meetings of the Board of Directors may be held without notice at such time and at such place as shall from time to time be determined by the board . . . Special meetings of the Board of Directors for any purpose or purposes may be called at any time by the chairperson of the board, chief executive officer, the president, the secretary or any two directors.” D.I. 1, Ex. 10 §§3.6 and 3.7.
41
D.I. 1, Ex. 10 § 3.7.
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her initial 30% interest.42 Although Defendants contend the RSPA governs all
shares, Plaintiff alleges her original 30% equity may not be governed by the RSPA,
so she retains derivative standing as a valid FilmPort stockholder. Defendants
dispute this theory and point to the language of the RSPA and related corporate
documents to establish that Plaintiff owned only the shares reflected in that
agreement.43
At the pleading stage, the Court cannot disregard Plaintiff’s factual allegations
concerning the parties’ oral ownership arrangement or resolve conflicting inferences
arising from the documentary record. Whether Plaintiff can ultimately substantiate
the existence of an ownership interest outside the RSPA presents a factual question
that cannot be resolved on a Rule 12(b)(6) motion.
Accordingly, although Plaintiff has not adequately alleged that she remained a
director, and the Complaint alleges that the bylaws permitted her removal as an
officer, she has sufficiently pleaded that she remained a stockholder by alleging that
her original equity interest was not subject to the RSPA. At this stage, those
allegations are sufficient to establish derivative standing.
42
D.I. 1 at 8.
43
D.I. 24 at 14.
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D. Plaintiff’s Individual Causes of Action
Plaintiff has adequately stated claims for declaratory relief and conversion. Her
breach of contract, fraud, and negligent misrepresentation claims, however, fail to
state a claim upon which relief can be granted.
1. Declaratory Relief
Plaintiff states a valid claim for declaratory relief. To state a valid claim for
declaratory relief, an actual controversy must be alleged, where it: (1) involves the
rights of the party seeking relief; (2) is asserted against a party who has an interest
in contesting the claim; (3) is between parties whose interests are real and adverse;
and (4) is ripe for judicial determination.44
First, Plaintiff alleges an actual controversy regarding her director status and
the validity of her termination and stock repurchase. Second, Plaintiff’s declaratory
relief claim is properly asserted against Defendants because they have an interest in
contesting this claim, specifically in not losing control of Plaintiff’s repurchased
equity. Third, the asserted interests in the declaratory relief claim are real and
adverse, because they involve contested ownership of FilmPort with no collusion
between Plaintiffs and Defendants. Therefore, this issue is ripe for judicial
44
See Rollins Int’l, Inc. v. Int’l Hydronics Corp., 303 A.2d 660, 662–63 (Del. 1973). Ekaterina Tchernavskikh v. Peter “PJ” Accetturo, et al.
C.A. No. 2025-1284-LM
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determination because Plaintiff alleges that she was wrongfully terminated and
divested of her stock, two issues which this Court can resolve.
As such, Plaintiff alleges sufficient facts to state a valid claim for declaratory
relief.
2. Breach Of Contract
Plaintiff fails to state a valid breach of contract claim. Although Plaintiff
plausibly alleges that discussions occurred between herself and Mr. Accetturo
concerning ownership and governance, the Complaint does not adequately
distinguish between promises allegedly made by Mr. Accetturo in his personal
capacity and actions taken on behalf of FilmPort. 45
That distinction is dispositive. Under Delaware law, to state a valid breach of
contract claim, three elements are required: (1) a contractual obligation, whether
express or implied; (2) breach of that obligation; and (3) damages. 46 Further, a
contractual obligation requires consideration, which is “a benefit to a promisor or a
detriment to a promisee pursuant to the promisor’s request,” which cannot be
fulfilled with a preexisting duty.47 However, “officers of a corporation are not liable
45
See generally D.I. 1.
46
Connelly v. State Farm Mut. Auto. Ins. Co., 135 A.3d 1271, 1279 n. 28 (Del. 2016). 47
Cont’l Ins. Co. v. Rutledge & Co., Inc., 750 A.2d 1219, 1232 (Del. Ch. 2000). Ekaterina Tchernavskikh v. Peter “PJ” Accetturo, et al.
C.A. No. 2025-1284-LM
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on corporate contracts as long as they do not purport to bind themselves
individually.”48
Here, Plaintiff argues two separate contract theories. First, Plaintiff alleges that
she made a contract with Mr. Accetturo to remain with FilmPort for an additional
20% equity.49 Second, Plaintiff presents the RSPA, a written contract containing
Plaintiff’s stock ownership restrictions. 50 Importantly, Plaintiff’s claim against Mr.
Accetturo is deficient because individuals are generally not personally liable for
contracts made on a corporation’s behalf.51 Plaintiff’s claim also fails because the
RSPA is a contract between Plaintiff and FilmPort, not Plaintiff and Mr. Accetturo
individually.
The Complaint alleges that Mr. Accetturo and Plaintiff entered into an
agreement in which Plaintiff would gain 20% equity in exchange for Plaintiff’s
remaining at FilmPort. 52 Next, Plaintiff alleges she suffered damages, including loss
of equity in FilmPort, lost compensation, lost employment opportunities, damages
48
Wallace ex rel. Cencom Cable Income Partners II, L.P. v. Wood, 752 A.2d 1175, 1180 (Del. Ch. 1999).
49
D.I. 1 at 8–9.
50
See id. at 12.
51
Wallace, 752 A.2d 1175, 1180 (Del. Ch. 1999).
52
D.I. 1 at 8–9.
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resulting from Plaintiff’s Visa complications, relocation costs, and emotional
distress. Also, Plaintiff alleges sufficient facts that she provided valid
consideration.53 Plaintiff’s original tasks at FilmPort as part of her CTO position are
not valid forms of consideration because these were preexisting duties. However,
Plaintiff alleges that she performed new tasks that were not part of her original
employment scope after the contract’s formation, including investor relations,
financial modeling, recruitment, employee management, and video production.54
These are valid forms of consideration because they were in addition to her original
employment scope.
Nevertheless, the allegations reflect that any relevant agreements concerning
stock and officer positions were made on behalf of FilmPort and not by Mr.
Accetturo in his individual capacity. Although Mr. Accetturo may have contracted
with Plaintiff orally on October 3, 2024, he was still contracting on behalf of
FilmPort as its sole director because the oral agreement was predicated on FilmPort’s
stock and officer positions.
Thus, because Mr. Accetturo only contracted on behalf of FilmPort, this claim
cannot withstand Defendants’ motion to dismiss.
53
D.I. 22 at 17–18.
54
D.I. 1 at 11.
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3. Fraud And Negligent Misrepresentation
Plaintiff does not state valid claims for fraud and negligent misrepresentation
because both are predicated on false representations that the Complaint and
documents reflect as true. Under Delaware law, the elements of fraud are: (1) a false
representation made by the defendant; (2) the defendant’s belief that the
representation was false or was recklessly indifferent to its truth; (3) the defendant’s
intention to induce the plaintiff to act or refrain from acting; (4) the plaintiff’s action
or restraint from action in justifiable reliance on the representation; and (5) resulting
damages. 55 This Court has recognized that negligent misrepresentation requires: (1)
a duty to provide accurate information, based on the plaintiff’s pecuniary interest;
(2) the supplying of false information; (3) failure to exercise reasonable care in
obtaining or communicating information; and (4) damages. 56
Here, Plaintiff alleges she relied on Defendants’ statements by investing time,
expertise, resources, and labor into FilmPort.57 Further, Plaintiff pleads damages,
specifically loss of equity, lost compensation, and emotional distress. 58 When Mr.
55
See Valley Joist BD Holdings, LLC v. EBSCO Indus., Inc., 269 A.3d 984, 988 (Del. 2021).
56
H-M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 147 n. 44 (Del. Ch. 2003). 57
D.I. 1 ¶¶ 52, 55, 63; D.I. 1, Ex. 12.
58
Id.
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Accetturo made the October 3, 2024 offer, he owed a duty to Plaintiff to provide
accurate information, given that Plaintiff had a pecuniary interest in FilmPort
specifically tied to her stockholdings and employment status. 59
However, Plaintiff alleges that, to prevent her departure, Mr. Accetturo offered
her an additional 20% equity, expressly representing that she was a 50%
stockholder. 60 Plaintiff pleads that those representations were false, and that Mr.
Accetturo made these false statements to induce her to remain at FilmPort and forego
other employment opportunities.61 The RSPA and Cap Table show that Plaintiff
was, in reality, a 50% stockholder, with Mr. Accetturo acknowledging Plaintiff’s
status in the Jupiter and Visa letters. 62 Plaintiff repeatedly alleges throughout the
Complaint that she did become a fifty-percent stockholder, and she relies upon the
RSPA, capitalization table, and multiple written communications as evidence
confirming that ownership status.63 Because Plaintiff’s own theory depends upon
the truth of those representations at the time they were made, the Complaint does not
plausibly plead the threshold element of either fraud or negligent
59
D.I. 22 at 33–34.
60
Id. at 5.
61
Id. at 33–34.
62
D.I. 1, Ex. 5–6.
63
See generally D.I. 1.
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misrepresentation—a false statement of existing fact.64 Therefore, Plaintiff does not
allege sufficient facts to state a valid claim for fraud and negligent misrepresentation.
4. Conversion
Plaintiff adequately states a valid claim for conversion. This Court has defined
conversion as an “‘act of dominion wrongfully exerted over the property of
another.’”65 A corporation can commit conversion when it takes “the plaintiff’s
shares without authority.”66
The Complaint alleges Plaintiff owned 9 million FilmPort shares and
Defendants exercised dominion by repurchasing those shares without authority
under the RSPA.67 This repurchase was thus a wrongful exertion of control over
Plaintiff’s property. Unlike Plaintiff’s fraud-based claims, the viability of the
conversion claim turns principally upon ownership rather than intent.68 Because the
Court concludes that Plaintiff adequately pleads the continued existence of at least a
potential ownership interest, notwithstanding Defendants’ asserted repurchase, it
64
D.I. 22 at 33.
65
Foley, 345 A.3d at 550 (Del. Ch. 2025) (quoting McGowan v. Ferro, 859 A.2d 1012, 1040 (Del. Ch. 2004), aff’d, 873 A.2d 1099 (Del. 2005)).
66
Id.
67
D.I. 1 at 39–40.
68
Id.
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cannot conclude as a matter of law that Defendants’ exercise of dominion over those
shares was authorized. 69 That issue necessarily turns upon disputed factual questions
for trial.
Therefore, Plaintiff has plead sufficient facts to state a valid claim for
conversion.
E. Leave To Amend
Leave to amend is denied. Under Delaware law, “leave to amend should be
freely granted when justice so requires.”70 However, “[i]f a party neither amends
nor moves to amend by the time set forth in Rule 15(a)(5)(A), a dismissal under Rule
12(b)(6) or 23.1 will be with prejudice—but only as to the named party—unless the
Court for good cause shown dismisses the complaint without prejudice.”71
Here, leave to amend is denied because Plaintiff neither filed her amended
complaint before her reply brief to Defendants’ motion to dismiss, nor has Plaintiff
shown good cause under Rule 15(a)(5)(B). To show good cause, a plaintiff must
attempt to show “why dismissal with prejudice would be unjust.” 72 Here, Plaintiff
69
Id.
70
Ct. Ch. R. 15(a)(2).
71
Ct. Ch. R. 15(a)(5)(B).
72
Larkin v. Shah, 2016 WL 4485447, at *21 (Del. Ch. Aug. 25, 2016).
Ekaterina Tchernavskikh v. Peter “PJ” Accetturo, et al.
C.A. No. 2025-1284-LM
July 20, 2026
Page 22 of 22
does not argue good cause in her complaint and answering brief, and she does not
explain why dismissal with prejudice would be unjust. 73 Importantly, Rule 15(aaa),
the precursor to Rule 15(a)(5), was written to induce plaintiffs to either “stand on
the complaint and answer the motion; or, to amend or seek leave to amend the
complaint before the response to the motion was due.”74
As such, leave to amend is denied.
III. CONCLUSION
For the reasons above, Defendants’ motion to dismiss is GRANTED IN PART
and DENIED IN PART. As to Defendants’ motion to dismiss for Counts I–V, VII,
and XI of Plaintiff’s complaint, it is DENIED. As to Defendants’ motion to dismiss
for Counts VIII–X, it is GRANTED with prejudice.
Exceptions are permitted in accordance with Court of Chancery Rule 144,
however exceptions are stayed until resolution of the remaining claims.
Respectfully submitted,
/s/ Loren Mitchell
Magistrate in Chancery
73
See generally D.I. 1; D.I. 22.
74
Braddock v. Zimmerman, 906 A.2d 776, 783 (Del. 2006).