IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MAIN LINE GROWTH, LLC, a )
Delaware Limited Liability Company, )
)
Plaintiff and Counterclaim )
Defendant, )
)
v. ) C.A. No. N25C-12-329 PAW CCLD
)
AMERICAN POLYMERS INC. d/b/a )
AMPO-USA, a Delaware Corporation, )
)
Defendant, Counterclaim )
Plaintiff, and Third-Party )
Plaintiff, )
)
v. )
)
MICHAEL STILES, DONALD C. )
VAVALA, and DONNA STILES, )
)
Third-Party Defendants. )
Submitted: July 1, 2026
Decided: August 27, 2026
OPINION
Upon Third-Party Defendants’ Special Motion
to Dismiss Pursuant to 10 Del. C. § 6003 and
for Punitive Damages Under 10 Del. C. § 6010(b);
GRANTED, in part and DENIED, in part.
Michael W. McDermott, Esq.; David B. Anthony, Esq.; and Zachary J. Schnapp, Esq., of Berger McDermott LLP, Attorneys for Plaintiff/Counterclaim Defendant Main Line Growth, LLC and Third-Party Defendants Michael Stiles, Donald C. Vavala, and Donna Stiles.
Jaclyn C. Marasco, Esq., of Faegre Drinker Biddle & Reath LLP; Melinda Bowen, Esq.; and Erich Linder, Esq., of Spencer Fane, Attorneys for
Defendant/Counterclaim Plaintiff/Third-Party Plaintiff American Polymers Inc. d/b/a AMPO-USA.
WINSTON, J.
2
I. INTRODUCTION
This opinion addresses a novel issue under Delaware’s recently amended
statute concerning “strategic lawsuits against public participation,” commonly
known as “SLAPPs.” The statute applies where a cause of action is based on speech
or speech-related conduct that fits into one of three categories. Of the three, only
one is at issue here: “Communication on an issue under consideration or review in a
legislative, executive, judicial, administrative, or other governmental proceeding.”1
The Court is asked to determine whether communications are “on an issue under
consideration or review” in a judicial proceeding.
In answering that question, the Court agrees with the courts of California—a
state with well-developed anti-SLAPP jurisprudence interpreting similar statutory
language—that the law does not protect statements “having any connection,
however remote, with an official proceeding.”2 The Court also agrees that, to qualify
for protection, a statement must at least “relate[] to the substantive issues in the
1
10 Del. C. § 6002(b)(2).
2
See, e.g., Bassi v. Bassi, 321 Cal. Rptr. 3d 1, 14 (Cal. Ct. App. 2024) (quoting Paul v. Friedman, 117 Cal. Rptr. 2d 82, 92 (Cal. Ct. App. 2002), abrogated on other grounds by Jacob B. v. Cty. of Shasta, 154 P.3d 1003 (Cal. 2007)).
3
litigation.”3 Such a determination does not lend itself to bright lines, and the Court
does not purport to draw them. It will depend on the specific facts of each case.
Turning to the facts here: Through his government procurement business,
AMPO, Brodie Trout entered into a business relationship with his wife’s family.
Tensions arose, first in the marriage and then in the business relationship. MLG,
Trout’s former uncle-in-law’s consulting business, commenced this lawsuit against
AMPO for breach of contract. AMPO filed counterclaims and third-party claims,
including for defamation and tortious interference against Trout’s former mother-inlaw (Donna), the uncle-in-law (Mike), and an MLG contractor (Vavala). Those
third-party defendants now move to dismiss the defamation and tortious interference
claims.
As their basis for dismissal, the third-party defendants first invoke the new
anti-SLAPP statute. They contend the claims are based on communications “on an
issue under consideration or review” in a judicial proceeding, namely, MLG’s breach
of contract action. But the communications are too far removed from the breach of
contract lawsuit to warrant anti-SLAPP protection. The relevant statements are
mostly Donna’s website posts. On their face, those posts, and Donna’s other
communications, do not concern any substantive issue in the breach of contract
3
See, e.g., id. (quoting Neville v. Chudacoff, 73 Cal. Rptr. 3d 383, 391 (Cal. Ct. App. 2008)).
4
action. The closest they come is an assertion that Trout “owes our family money!”
But there is no indication whether that refers to the money that is the subject of
MLG’s breach of contract claims. The statements do not reference this lawsuit or
the threat of it; the web posts are alleged to have begun over a year before the lawsuit
was filed. Overall, the communications appear to reflect personal hostility, not
commentary on the substance of a business dispute. Neither the pleadings, nor any
evidence in the record, show otherwise. Accordingly, the anti-SLAPP statute does
not apply.4
In the alternative, the third-party defendants invoke Rules 12(b)(2) and
12(b)(6). Those rules are far from novel. And unlike the anti-SLAPP law, they do
not provide an opportunity for a movant to obtain fees, costs, or punitive damages.
They do, however, provide bases for dismissal here. Under the well-trod Rule
12(b)(2) and 12(b)(6) standards, the Court lacks personal jurisdiction over Donna
and Mike, and AMPO fails to state a claim against Vavala. The claims against the
third-party defendants are thus dismissed.
4
For the avoidance of doubt, this opinion has no bearing on whether a statement qualifies for anti-SLAPP protection under Section 6002(b)(3), which concerns “[e]xercise of the right of freedom of speech or of the press, the right to assemble or petition, or the right of association, guaranteed by the United States Constitution or Delaware’s Constitution, on a matter of public concern.” Even if a statement does not fit under Section 6002(b)(2), it may still be protected under Section 6002(b)(3) if it is “on a matter of public concern.” No one contends the statements at issue here are on a matter of public concern.
5
II. FACTUAL AND PROCEDURAL BACKGROUND5
A. THE PARTIES’ PERSONAL AND BUSINESS RELATIONSHIPS
Non-party Brodie Trout (“Trout”) is the founder and CEO of counterclaim
plaintiff American Polymers Inc. d/b/a AMPO-USA (“AMPO”),6 a government
procurement business incorporated in Delaware.7 Trout is the ex-husband of Jaclyn
Stiles (“Jaclyn”).8 Jaclyn is the daughter of third-party defendant Donna Stiles
(“Donna”), who resides in Florida.9
5
For purposes of Rule 12(b)(6), the Court draws the facts from the Counterclaims (defined infra n.6) and documents incorporated therein, and it accepts as true the well-pled facts in the Counterclaims. In ruling on personal jurisdiction under Rule 12(b)(2) and on a “special motion” under 10 Del. C. § 6003, the Court is permitted to consider materials outside of the pleadings. See 10 Del. C. § 6006 (“In ruling on a motion under § 6003 of this title, the court shall consider the pleadings, the motion, any reply or response to the motion, and any evidence that could be considered in ruling on a motion for summary judgment.”); Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007) (“In ruling on a Rule 12(b)(2) motion, the court may consider the pleadings, affidavits, and any discovery of record.” (citing Cornerstone Techs., LLC v. Conrad, 2003 WL 1787959, at *3 (Del. Ch. Mar. 31, 2003))). The Court does not consider allegations that the parties stipulated to strike from the Counterclaims. See D.I. 40.
6
This opinion references AMPO’s Amended Answer, Affirmative Defenses, Counterclaims, and Third-Party Complaint (D.I. 25). The “Answer” portion of that filing (pp. 2-13) is herein cited as “Ans. ¶ [number].” The “Counterclaims and Third-Party Claims” portion (pp. 17-38) is herein called the “Counterclaims” and cited as “Countercl. ¶ [number].”
7
See Countercl. ¶¶ 2, 17, 19.
8
See id. ¶ 11. For clarity, this opinion refers to members of the Stiles family by their first names. No disrespect or familiarity is intended.
9
See id. ¶¶ 6, 16.
6
During his marriage, Trout became acquainted with Jaclyn’s uncle, third-party
defendant Michael Stiles (“Mike”).10 Mike, who resides in Maryland, is the
principal of plaintiff and counterclaim defendant Main Line Growth, LLC (“MLG”),
a Delaware LLC.11 Trout also became acquainted with third-party defendant Donald
Vavala (“Vavala,” and with Donna and Mike, “Third-Party Defendants”), MLG’s
contractor.12 The Counterclaims allege that Mike represented that he and Vavala had
relationships in the government procurement space and offered to help Trout grow
his business.13
AMPO and MLG entered into two contracts, one in January 2021 and another
in February 2023 (together, the “Agreements”).14 As a general matter, the
Agreements contemplate that MLG will assist AMPO in obtaining government
contracts and that, in return, MLG will receive a portion of the resulting profits.15
After the parties entered the January 2021 Agreement, AMPO obtained
government contracts which MLG alleges were in connection with that Agreement.16
10
Id. ¶ 19.
11
Id. ¶¶ 3-4.
12
Id. ¶ 19.
13
Countercl. ¶ 19.
14
See id. ¶¶ 20, 30, 43; see also D.I. 1, Exs. A, B (the Agreements). 15
See generally D.I. 1, Exs. A, B.
16
See Ans. ¶¶ 13-16; see also Countercl. ¶ 26.
7
The first such contract was awarded to AMPO in November 2022.17 AMPO made
at least some payments to MLG.18
B. THE PARTIES’ RELATIONSHIPS DETERIORATE, AND THIRD-PARTY
DEFENDANTS ALLEGEDLY MAKE DEFAMATORY STATEMENTS
By September 2024, Trout’s marriage to Jaclyn, and his relationship with his
then-mother-in-law, was on shaky ground. After Trout contacted Donna looking for
Jaclyn, the Counterclaims allege, Donna “commenced a[] . . . smear campaign
against Trout.”19 This included Donna publishing statements on a web domain she
had previously registered, “brodietrout.com.”20
“In Donna’s first publication after Jaclyn’s departure in September 2024,”
AMPO alleges, “the website featured a depiction of the grim reaper as the main
image on the . . . homepage.”21 On one page, the website identifies Trout as
“founder/CEO of AMPO-USA” and states Trout “owes our family money!”22 More
fully, that page reads:
Brodie Trout is a veteran of the U.S. Army and the
founder/CEO of AMPO-USA, a supply company that
specializes in providing products to healthcare facilities
17
See Ans. ¶ 14.
18
See id. ¶ 20.
19
Countercl. ¶ 16.
20
Id. ¶ 17.
21
Id.; see also Countercl. Ex. 1 at pdf p. 6.
22
See Countercl. Ex. 1 at pdf pp. 3, 5.
8
and government agencies. He has used his military
position to build a career in the private sector, focusing on
providing supplies through his California LLC company,
AMPO-USA.
I have known Brodie Trout for over 10 years.
He owes our family money!
Please contact me at [email] or at [phone number]
for more information regarding Brodie D. Trout or
AMPO/USA.
Thank you for your attention with this matter.23
Other pages “included old family photos, alongside quotes to the effect that a person
is not always who they appear to be.”24 Another page includes, next to an image of
what appears to be a holiday gift box, text on the topic of one person taking from
another, such as:
A broken childhood creates scars that run deep and last a
lifetime. That emptiness creates a desperate hunger—a
need to possess what others have, to take what isn’t earned,
to copy lives that seem whole, and to claim what was never
theirs.
Some fill their hands with what others have worked for,
yet feel nothing when they take it. They watch shadows
constantly, trusting no one—not even themselves.
Eventually, the mirror reveals what everyone else has
already seen: in trying to fill that childhood void by
blaming and taking from others, they become the very
23
See id. Another page attached to the Counterclaims is similar to the first paragraph of this quoted text, with minor differences. See id. at pdf p. 2.
24
See Countercl. ¶ 17; see also Countercl. Ex. 1 at pdf pp. 9-14.
9
thing that caused their pain—the thief, the taker, the source
of someone else’s wound.
. . . What’s taken without permission always finds its way
back—but the cost of the return is rarely what the taker
expects.25
According to the Counterclaims, Donna also wrote a direct message to an
AMPO employee, stating:
Brodie told us that he was broke! AND NOW I FIND
OUT THAT HE TOLD YOU HIS BUSINESS IS DOING
AMAZING????.... If you are in contact with him, I
suggest you let him know that things are going to spiral if
he continues to lie and block us as if we don’t exist. Jaclyn
may go away peacefully, but her father and I won’t.26
In January 2025, Trout informed Mike that he intended to file for divorce from
Jaclyn, after which “Mike, [Vavala], and MLG all effectively stopped consulting for
AMPO entirely.”27 Around October 2025, Mike “threaten[ed] that he and Donna
would interfere with the divorce proceedings unless Trout gave them equity in
AMPO and a share of AMPO’s profits and emphasizing that Donna was already
‘texting [him] nonstop to destroy the company.’”28 Mike also “informed Trout that
25
See Countercl. Ex. 1 at pdf pp. 18-19.
26
Countercl. ¶ 38.
27
Id. ¶ 33.
28
Id. ¶ 37 (second alteration in original).
10
he would do everything in his power to undo AMPO’s success and take AMPO
down.”29
Trout asked Mike about “the publications and statements about AMPO,” and
“Mike told Trout he had ‘brought this upon [him]self,’” stating further that “you
pissed off mama bear and now I’m going to make sure you get what you deserve.”30
When “shown the publications about Trout and AMPO, [Vavala’s] position was that
it was a ‘personal issue’ and not a company issue.”31
The Counterclaims allege, “[o]n information and belief, MLG, through Mike
and Vavala, has contacted government representatives and suppliers, causing
reputational harm and damages to AMPO’s business.”32 They further allege that
“multiple industry contacts have mentioned and/or implied that they have heard
rumors from [Vavala] or Mike about AMPO’s ability to perform on its contracts.”33
29
Id.
30
Id. ¶ 39 (alteration in original).
31
Id. ¶ 40.
32
Countercl. ¶ 41.
33
Id.
11
C. THIS ACTION
MLG filed this action against AMPO in December 2025.34 The complaint
alleges that AMPO failed to pay MLG amounts owed under the Agreements.35
According to the complaint, AMPO most recently paid MLG under the first
Agreement in May 2025 but continues to owe additional payments.36 And despite
winning a contract under the second Agreement in May or June 2025, the complaint
alleges, AMPO has not paid MLG under that Agreement.37
In response, AMPO filed the Counterclaims.38 They assert, among other
causes of action, counts for defamation and tortious interference with business
relations against Third-Party Defendants.39 According to the Counterclaims, Donna
recently “abandoned the [brodietrout.com] domain,” but “[e]ven after MLG filed its
34
See generally D.I. 1.
35
See id. ¶ 34.
36
See id. ¶¶ 20-21, 25-26, 34.
37
See id. ¶¶ 17, 23, 25-26, 34.
38
See generally Countercl. AMPO filed an initial version of the Counterclaims in January 2026 but amended them after MLG, Third-Party Defendants, and two additional third-party defendants moved for partial dismissal. See generally D.I. 9, Counterclaims and Third-Party Claims; D.I. 19; D.I. 25 Ex. Redline. 39
See Countercl. ¶¶ 48-55 (Count Two for Defamation), 77-82 (Count Six for Tortious Interference with Business Relations).
12
lawsuit against AMPO, Donna continued publishing defamatory articles on her own
website.”40
On May 7, 2026, Third-Party Defendants filed the instant Special Motion to
Dismiss Pursuant to 10 Del. C. § 6003 and for Punitive Damages Under 10 Del. C.
§ 6010(b) (the “Motion”).41 Invoking Delaware’s recently amended anti-SLAPP
statute, the Motion seeks expedited dismissal of the defamation and tortious
interference counts, as well as costs, attorneys’ fees, expenses, and punitive
damages.42 In the alternative, the Motion seeks dismissal under Rules 12(b)(2) and
12(b)(6).43 AMPO filed an opposition44 and Third-Party Defendants a reply.45 The
Court heard argument on July 1, 2026.46
40
See Countercl. ¶¶ 17, 38.
41
See D.I. 30, Third-Party Defs.’ Special Mot. to Dismiss Pursuant to 10 Del. C. § 6003 and for Punitive Damages Under 10 Del. C. § 6010(b) (hereinafter “Mot.”). 42
See id. ¶¶ 5, 12-21, 43-44.
43
See id. ¶ 45.
44
See D.I. 37, Def. American Polymers Inc. d/b/a AMPO-USA’s Resp. in Opp’n to Third-Party Defs.’ Special Mot. to Dismiss Pursuant to 10 Del. C. § 6010(b) (hereinafter “Opp’n”).
45
See D.I. 41, Third Party Defs.’ Reply in Further Support of Special Mot. to Dismiss Pursuant to 10 Del. C. § 6003 and for Punitive Damages Under 10 Del. C. § 6010(b) (hereinafter “Reply”).
46
See D.I. 44.
13
III. ANALYSIS
This opinion first addresses whether Delaware’s new anti-SLAPP statute
applies. That issue determines the framework through which the Court addresses
Third-Party Defendants’ dismissal arguments, as well as whether Third-Party
Defendants may recover fees and additional damages. As previewed above and
explained below, the statute does not apply. Accordingly, the Court proceeds to
assess the Motion under the ordinary Rule 12(b)(2) and 12(b)(6) standards.
Although Third-Party Defendants are not entitled to the anti-SLAPP statute’s
heightened protections, under those well-worn standards, they are entitled to
dismissal; the Court lacks personal jurisdiction over Donna and Mike, and the
Counterclaims fail to state a claim against Vavala.
A. THE ANTI-SLAPP STATUTE DOES NOT APPLY BECAUSE THE
UNDERLYING STATEMENTS ARE NOT PROTECTED ACTIVITY.
1. DELAWARE’S ANTI-SLAPP STATUTE AND THE QUESTION
REGARDING ITS APPLICATION HERE
In September 2025, Delaware replaced its anti-SLAPP statute with a version
of the Uniform Public Expression Protection Act (“UPEPA”).47 “The Uniform Law
Commission created that model act to enhance protections from [SLAPPs],” which
47
See Del. S.B. 80 as amended by H.A. 2, 153d Gen. Assem., 85 Del. Laws ch. 217 (2025) (codified at 10 Del. C. §§ 6001-14). “Sections 6001–14 of [Delaware’s version of] UPEPA correspond with [Sections] 1–14 of the model act.” Tesaro, Inc. v. Anaptysbio, Inc., 2026 WL 1122338, at *6 n.61 (Del. Ch. Apr. 24, 2026).
14
are “meritless lawsuits brought to ‘ensnare their targets in costly litigation that chills
society from engaging in constitutionally protected activity.’”48
Under UPEPA, a party may bring a “special motion” to dismiss a SLAPP
claim.49 Such a motion is statutorily expedited and triggers a stay of other
proceedings between the moving and responding parties.50 A moving party who
prevails on a special motion is entitled to costs, attorneys’ fees, and expenses, as well
as, under certain circumstances, punitive damages.51
“A special motion proceeds in three parts.”52 In part one, “the moving party
must ‘establish[ ] under [Section] 6002(b) or (d) of this title that this chapter
applies.’”53 If the movant satisfies part one, then in part two, the burden shifts to the
responding party “to demonstrate that the challenged conduct is among the carveouts listed in Section 6002(c).”54 If the challenged conduct is not carved out, then
48
Tesaro, 2026 WL 1122338, at *6 (quoting Unif. Pub. Expression Prot. Act, prefatory n. at 1, 3 (Unif. L. Comm’n 2020)). Like the Court of Chancery in Tesaro, this Court “relies on the Uniform Law Commission’s official comments to the model act in interpreting UPEPA.” See id. at *7 n.70 (first citing Gibson v. Keith, 492 A.2d 241, 247-48 (Del. 1985); and then citing Cannon v. Romeo Sys., Inc., 2025 WL 2848069, at *20 n.164 (Del. Ch. Oct. 7, 2025)).
49
See id. (citing 10 Del. C. § 6003).
50
See 10 Del. C. § 6004-05, 6008.
51
See id. § 6010.
52
Tesaro, 2026 WL 1122338, at *7 (referencing 10 Del. C. § 6007(a)).
53
Id. (first alteration in original) (quoting 10 Del. C. § 6007(a)(1)). 54
Id. (citing 10 Del. C. § 6007(a)(2)).
15
in part three, the Court assesses the merits of the claims; the motion will be granted
if “[t]he responding party fails to establish a prima facie case as to each essential
element of the cause of action” or the movant establishes that either “[t]he
responding party failed to state a cause of action upon which relief can be granted”
or “[t]here is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law.”55
This case turns on part one, whether the anti-SLAPP statute applies. Section
6002(b) sets forth three categories to which the statute applies, namely, to a cause of
action asserted based on a person’s:
(1) Communication in a legislative, executive, judicial,
administrative, or other governmental proceeding;
(2) Communication on an issue under consideration or
review in a legislative, executive, judicial, administrative,
or other governmental proceeding; or
(3) Exercise of the right of freedom of speech or of the
press, the right to assemble or petition, or the right of
association, guaranteed by the United States Constitution
or Delaware’s Constitution, on a matter of public
concern.56
55
10 Del. C. § 6007(a)(3).
56
Id. § 6002(b). The statute may also apply under Section 6002(d), see id. § 6007(a)(1), but that section is not relevant here.
16
The movant bears the burden to establish that the case fits under one of these three
categories.57 That burden “must be carried with evidence,” but the issue is “legal”
rather than “factual.”58 “If the moving party fails to prove that [UPEPA] applies, the
motion must be denied.”59
To determine whether the anti-SLAPP statute applies, the Court must ask,
first, “[w]hat conduct is the basis for the challenged claim(s)” and, second, “does
that conduct constitute protected activity?”60 Here, the parties agree that Donna’s
statements are the only conduct that is potentially protected.61 They likewise agree
Section 6002(b)(2) is the only protected category that could apply and that the only
57
See 10 Del. C. § 6007(a)(1) (requiring that “[t]he moving party establish[]” statute applies); Unif. Pub. Expression Prot. Act § 7 cmt. 2 (“In this phase, the party filing the motion has the burden to establish that the Act applies for one of the reasons identified in Section 2(b).”); see also Nirschl v. Schiller, 308 Cal. Rptr. 3d 338, 347 (Cal. Ct. App. 2023) (“[T]he moving [party] has the burden of establishing that the lawsuit’s claims are based on activity protected by the statute.” (citation omitted)). 58
Unif. Pub. Expression Prot. Act § 7 cmt. 2.
59
Id.
60
See Mission Beverage Co. v. Pabst Brewing Co., LLC, 223 Cal. Rptr. 3d 547, 557 (Cal. Ct. App. 2017).
61
See Mot. ¶¶ 15-19 (arguing that “Donna’s statements are subject to the claim” and are protected activity); Opp’n ¶ 12 (explaining that the Motion points only to Donna’s statements); Reply ¶ 12 & n.5 (arguing only about Donna’s statements and noting that, although defamation is asserted against Mike and Vavala as well, the defamation count “addresses only Donna’s statements”).
17
“proceeding” to which Donna’s statements might relate is the breach of contract
action MLG initiated in this case.62
Combining the statutory framework with the parties’ positions yields the
decisive question: Were Donna’s statements “[c]ommunication[s] on an issue under
consideration or review” in MLG’s breach of contract action against AMPO?63
2. DONNA’S STATEMENTS ARE TOO ATTENUATED FROM MLG’S
BREACH OF CONTRACT ACTION TO BE PROTECTED.
The answer is no. Donna’s statements are too attenuated from MLG’s breach
of contract action to be “on an issue under consideration or review” therein, meaning
the anti-SLAPP statute does not apply. As explained below, this result finds support
from both persuasive California anti-SLAPP caselaw and analogous Delaware law
on the “litigation privilege.”
a. CALIFORNIA ANTI-SLAPP CASELAW
No Delaware case has addressed how closely a communication must connect
to an issue in a judicial proceeding to fit within Section 6002(b)(2). 64 However,
62
See Mot. ¶¶ 15-16, 19 (invoking only Section 6002(b)(2) and suggesting Donna’s statements relate to “MLG’s lawsuit against AMPO” in this case); Opp’n ¶¶ 11, 13 (asserting that “[t]he Motion is predicated only on [Section] 6002(b)(2)” and that Donna’s statements “are unrelated to the subject of MLG’s lawsuit against AMPO— i.e., a single claim for breach of contract based on AMPO’s alleged non-performance under the [Agreements]”).
63
10 Del. C. § 6002(b)(2).
64
Tesaro found it unnecessary to address a similar issue. 2026 WL 1122338, at *7 & n.71. Instead, Tesaro held that the anti-SLAPP law did not apply because the
18
California’s well-developed anti-SLAPP jurisprudence65 provides persuasive
guidance.66
As California courts have explained, anti-SLAPP protection “is not accorded
to statements ‘having any connection, however remote, with an official
proceeding.’”67 Rather, as the statutory language directs, the statements “must occur
challenged claim, contractual repudiation, did not “arise[] from” speech. See id. at *7-9. Here, there is little question that the challenged claims—for defamation and tortious interference based on allegedly defamatory statements—arise from speech. See id. at *8 (explaining that defamation is “the quintessential example” of a claim that arises from speech). In another case, the Court of Chancery found that statements made in a court proceeding were covered under Section 6002(b)(1) but denied the anti-SLAPP motion under part three. See Zama Cap. Master Fund, LP v. Ader, 2026 WL 1166092, at *1 (Del. Ch. Apr. 28, 2026) (ORDER).
65
See Thomas R. Burke, Anti-SLAPP Litigation § 8.1 (Westlaw Sept. 2025 Update) (“California’s anti-SLAPP statute is now over 30 years old and has been analyzed by more trial court orders and appellate court decisions (both published and unpublished) than any other anti-SLAPP statute in the nation.”).
66
Third-Party Defendants argue that the Court should discount California caselaw because California has not adopted UPEPA. See Reply ¶¶ 6-8. But California’s statute contains a provision similar to Delaware UPEPA Section 6002(b)(2). See Nirschl, 308 Cal. Rptr. 3d at 347 (explaining that California’s “anti-SLAPP law makes ‘any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body’ protected activity” (quoting Cal. Civ. Proc. § 425.16(e)(2))). That is unsurprising, because UPEPA “is modeled in part on California’s anti-SLAPP statute.” Burke, supra note 65 § 1.1. The Uniform Law Commission’s official comments to UPEPA reference California caselaw repeatedly, as did the Court of Chancery in Tesaro. See, e.g., Unif. Pub. Expression Prot. Act § 2 cmts. 1-2, 5; id. § 7 cmts. 1-2, 4; Tesaro, 2026 WL 1122338, at *7-8 & nn.70-72, 77.
67
Bassi, 321 Cal. Rptr. 3d at 14 (quoting Paul, 117 Cal. Rptr. 2d at 92).
19
in connection with ‘an issue under consideration or review’ in the proceeding.”68
That requires that the statement at least “relate[] to the substantive issues in the
litigation.”69 Communications concerning matters that are “irrelevant to proving or
disproving the allegations pled in the . . . proceeding” do not qualify.70 Determining
whether a statement relates to substantive issues does not lend itself to bright lines
and depends on the specific facts of each case. Two cases from the California Court
of Appeals are instructive.
The first is McConnell v. Innovative Artists Talent & Literary Agency, Inc.71
There, plaintiffs sued the talent agency that employed them seeking declarations that
they had the right to terminate their employment agreements and that certain
68
See id. (quoting Paul, 117 Cal. Rptr. 2d at 92); see also Rand Res., LLC v. City of Carson, 433 P.3d 899, 906 (Cal. 2019) (“‘[I]t is insufficient to assert that the acts alleged were “in connection with” an official proceeding.’ Instead, ‘[t]here must be a connection with an issue under review in that proceeding.’” (quoting Paul, 117 Cal. Rptr. 2d at 93)). Delaware’s statute contains the same “issue under consideration or review” language. 10 Del. C. § 6002(b)(2).
69
Bassi, 321 Cal. Rptr. 3d at 14 (quoting Neville, 73 Cal. Rptr. 3d at 391). California courts also require that the statement be “directed to persons having some interest in the litigation.” See id.; see also Neville, 73 Cal. Rptr. 3d at 394-95 (collecting cases illustrating scope of requirement). Because the statements at issue here do not relate to substantive issues in the litigation, the Court need not determine whether this State’s anti-SLAPP law imposes an additional “directed to persons having some interest in the litigation” requirement.
70
See Neville, 73 Cal. Rptr. 3d at 389-90 (citing Paul, 117 Cal. Rptr. 2d at 93-94). 71
96 Cal. Rptr. 3d 1 (Cal. Ct. App. 2009).
20
provisions of those agreements were void.72 The next day, the agency sent plaintiffs
letters purporting to modify their job duties.73 Plaintiffs later amended their
complaints to assert wrongful termination and retaliation based in part on the
purported modification of their duties.74 The agency moved to strike those causes
of action under California’s anti-SLAPP statute, contending the letters were
protected because they were written in connection with an issue under consideration
in the judicial proceeding.75
The court affirmed denial of the anti-SLAPP motion.76 It explained that even
though “the lawsuits undoubtedly precipitated” the letters, they were directed at
different issues than those raised in plaintiffs’ initial lawsuit.77 As the Court
observed: “[T]he . . . letter on its face says nothing at all about [plaintiff’s] lawsuit,
and nothing at all about any claims [the agency] might make in that lawsuit.
Consequently, it is difficult to find any basis to conclude that [the agency’s] letter
72
See id. at 3.
73
See id. at 4, 7.
74
See id. at 4, 6-7.
75
See id. at 7.
76
Id. at 3.
77
See McConnell, 96 Cal. Rptr. 3d at 7.
21
was written ‘in connection with an issue under consideration’ in those lawsuits, of
which no mention at all was made.”78
The second is Bassi v. Bassi. There, an ex-wife threatened to file a complaint
against her ex-husband, alleging Racketeer Influenced and Corrupt Organizations
Act (RICO) claims related to the sale of counterfeit “organic” seed.79 The appellate
court considered whether numerous of the ex-wife’s emails were sufficiently
connected to the RICO proceedings to be protected by the anti-SLAPP statute.80
Most of the emails were not protected.81 Those emails referenced a “racket,”
appeared to call the ex-husband a “seed counterfeiter,” and referenced his seed
companies “stealing” and “illegally growing seed.”82 Yet the court held that they
were not sufficiently connected to the RICO proceedings.83 That was because the
emails were “largely or wholly composed of assertions and innuendo that bear no
clear relation to [the ex-wife’s] anticipated RICO action,” and none of them
suggested a “good faith intention to file a lawsuit.”84 As the court explained, it was
78
Id.
79
See Bassi, 321 Cal. Rptr. 3d at 9-10.
80
See id. at 13, 15.
81
See id. at 15.
82
See id. at 16.
83
See id. 15.
84
See id. at 16 (quoting Digerati Hldgs, LLC v. Young Money Entm’t, LLC, 123 Cal. Rptr. 3d 736, 746 (Cal. Ct. App. 2011)).
22
“insufficient for [the party seeking anti-SLAPP protection] to generally aver a
connection between her communications to [the opposing party] and the anticipated
exercise of her petitioning rights by filing a federal RICO action.”85
Certain other emails were protected, because “they pertain[ed] more directly
to [the ex-wife’s] anticipated RICO lawsuit and include[d] or refer[red] to a draft
complaint in that action.”86 The first such email “attached a revised RICO draft
complaint” and suggested the ex-wife had evidentiary support for the allegations,
the second advised that the ex-wife may file the RICO action but hoped to “settle
our issues” without doing so, and a third asserted that the ex-husband should find a
lawyer to assist with reviewing the RICO complaint.87 The court’s holding illustrates
the distinction between insinuations of wrongdoing on topics vaguely related to a
lawsuit, which are not protected, and communications actually referencing a lawsuit
or the legal issues therein, which may be protected.
Here, Donna’s statements are too vaguely related to MLG’s breach of contract
action to qualify for anti-SLAPP protection. Like the letter in McConnell, Donna’s
statements do not mention this lawsuit or any of the claims in it. 88 Instead, like the
85
See Bassi, 321 Cal. Rptr. 3d at 17 (citing Paul, 117 Cal. Rptr. 2d at 93-94). 86
Id.
87
See id. at 17-18.
88
McConnell, 96 Cal. Rptr. 3d at 7.
23
unprotected emails in Bassi, the statements are largely “assertions and innuendo that
bear no clear relation” to MLG’s breach of contract action.89 While the
Counterclaims allege that Donna published statements “to implicate AMPO’s
business dealings” generally,90 none of the statements reference this lawsuit, the
Agreements, or breach of any contract. The closest is the website’s assertion that
Trout “owes our family money!” coupled with a reference to the fact that Trout is
“founder/CEO of AMPO-USA.”91 But there is no indication that this refers to the
money MLG would later allege AMPO owes it under the Agreements.92 Donna’s
other statements are yet farther afield.93
89
Bassi, 321 Cal. Rptr. 3d at 16.
90
See Countercl. ¶ 50.
91
See Countercl. Ex. 1 at pdf pp. 3, 5.
92
To the extent that is what Donna was referring to, Third-Party Defendants could have submitted an affidavit averring as much. See 10 Del. C. § 6006 (permitting the Court to consider “any evidence that could be considered in ruling on a motion for summary judgment”). It is the movant’s burden to establish UPEPA applies. Unif. Pub. Expression Prot. Act § 7 cmt. 2. Although pleadings may sometimes suffice, see id., and the Counterclaims allege some of Donna’s statements were about AMPO, see, e.g., Countercl. ¶¶ 17, 38-39, 49-50, they do not show that those statements concerned AMPO’s obligations under the Agreements.
93
See, e.g., Countercl. Ex. 1 at pdf pp. 18-19 (generally referencing “tak[ing] what isn’t earned” and “a need to possess what others have”); Countercl. ¶ 38 (alleging statement that “Brodie told us he was broke,” that “things are going to spiral if he continues to lie and block us as if we don’t exist,” and that “Jaclyn may go away peacefully, but her father and I won’t”).
24
Nor do any statements suggest good faith anticipation of litigation.94 The
Counterclaims allege the website statements were first posted more than a year
before MLG filed this lawsuit.95 Although the Counterclaims also allege that Donna
“continued publishing defamatory articles on her own website” after this litigation
commenced,96 they do not identify those articles’ contents beyond anything
previously posted, and Third-Party Defendants provide no reason to conclude that
the articles concern MLG’s breach of contract claim.97 Together, Donna’s statements
appear to reflect general personal enmity, rather than an attempt to engage regarding
any specific legal dispute.
At bottom, there is no basis for the Court to conclude that Donna’s statements
concern substantive issues in MLG’s breach of contract action. On their face, they
do not, and Third-Party Defendants have submitted no evidence to suggest
94
See Bassi, 321 Cal. Rptr. 3d at 14-16; People ex rel. Allstate Ins. Co. v. Rubin, 280 Cal. Rptr. 3d 858, 861 (Cal. Ct. App. 2021) (explaining that pre-litigation statements are protected “only where . . . [they] were made in good faith anticipation of litigation under serious consideration at the time the statements were made” (citing Bailey v. Brewer, 128 Cal. Rptr. 3d 380, 388 (Cal. Ct. App. 2011))). 95
See Countercl. ¶ 17 (alleging website posts made in September 2024). 96
See id. ¶ 38.
97
See McConnell, 96 Cal. Rptr. 3d at 6-7 (explaining that “the existence of the . . . lawsuits does not mean any writing [defendant] might send thereafter is a ‘writing made in connection with an issue under consideration or review’ in the lawsuits”).
25
otherwise. Accordingly, under persuasive California caselaw, the anti-SLAPP
statute does not apply.98
b. DELAWARE LITIGATION PRIVILEGE CASELAW
Delaware cases on the “litigation privilege” provide further support. As
California courts have recognized, although the two areas of law are not
“coextensive,” the litigation privilege can provide “an aid in construing the scope”
of anti-SLAPP coverage.99 That is because both serve similar policy interests, in
that they ensure “freedom of access to the courts without [the] fear of being harassed
subsequently by derivative tort actions.”100 And in applying both, courts consider
98
Third-Party Defendants ask the Court to follow cases from Minnesota and Washington, rather than California, see Reply ¶¶ 9-11, but the two cases Third-Party Defendants cite are distinguishable. Unlike here—where the underlying statements were made on a website with no clear tie to any specific legal or governmental proceeding—the statements in those cases were made in a report submitted to a state agency, an attorney letter commencing a dispute resolution process and offering settlement, and arbitration claims. See Anderson v. Anderson, 36 N.W.3d 811, 814, 818-19 (Minn. Ct. App. 2026) (addressing “statements set forth in a report to the Minnesota Board of Social Work”); Valve Corp. v. Bucher Law PLLC, 571 P.3d 312, 316-18 (Wash. Ct. App. 2025) (addressing defendant attorneys’ letter “initiat[ing] the dispute resolution process” and “proposing settlement terms,” as well as attorneys “fil[ing] their clients’ claims individually in arbitration”), review denied, 579 P.3d 792 (Wash. 2025) (TABLE).
99
See Neville, 73 Cal. Rptr. 3d at 388-89 (quoting Flatley v. Mauro, 139 P.3d 2, 17-18 (Cal. 2006)).
100
See id. (alteration in original) (quoting Healy v. Tuscany Hills Landscape & Recreation Corp., 39 Cal. Rptr. 3d 547, 550 (Cal. Ct. App. 2006)). To be sure, while there are similarities, the purposes of the two areas of law are not “the same.” See Flatley, 139 P.3d at 18 (comparing litigation privilege, which “serves broad goals of guaranteeing access to the judicial process, promoting the zealous representation by
26
whether communications “are actually connected to litigation.”101 As noted, on the
new anti-SLAPP statute, Delaware caselaw is sparse. But on the litigation privilege,
it is plentiful. Litigation privilege precedent thus provides a useful Delaware law
cross-check on the California anti-SLAPP cases discussed above.
Delaware courts have “long recognized” the litigation privilege, which
“protects from actions for defamation statements of judges, parties, witnesses[,] and
attorneys offered in the course of judicial proceedings so long as the party claiming
the privilege shows that the statements issued as part of a judicial proceeding and
were relevant to a matter at issue in the case.”102 The privilege “encourage[s] citizens
to peaceably resolve their differences in court through litigation (or the threat of
litigation) by allowing them to speak to their adversaries freely without fear of facing
liability for what they say, and without the prospect of having their good faith legal
counsel of their clients, and reinforcing the traditional function of the trial as the engine for the determination of truth,” with anti-SLAPP statute, which “protect[s] the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process”). Even so, California courts recognize that “[t]here is, of course, a relationship between the litigation privilege and the anti-SLAPP statute,” and they look to the former as an aid in construing the latter. See id. at 17. 101
See Bel Air Internet, LLC v. Morales, 230 Cal. Rptr. 3d 71, 84 (Cal. Ct. App. 2018) (citations omitted).
102
Seva Hldgs. Inc. v. Octo Platform Equity Hldgs., LLC, 2024 WL 3982187, at *5 (Del. Ch. Aug. 29, 2024) (quoting Paige Cap. Mgmt., LLC v. Lerner Master Fund, LLC, 22 A.3d 710, 715 (Del. Ch. 2011)).
27
claims prompt the initiation of more claims.”103 In other words, it is “designed to
encourage candid and full testimony in court, to have parties resolve their disputes
peaceably, to let a result issue, and then move on.”104
“Traditionally,” the privilege “applied only to statements made during judicial
proceedings.”105 However, its scope “has expanded over time,” particularly to cover
“communications made in advance of anticipated litigation.”106 Yet Delaware courts
have cautioned against extending the privilege beyond its policy rationale.107 Prelitigation communications can fit that rationale, but only where made “in an effort
to address the alleged grievance between the parties.”108 Accordingly, where pre103
Paige Cap. Mgmt., LLC, 22 A.3d at 716.
104
Id. at 720.
105
Feenix Payment Sys., LLC v. Blum, 2022 WL 215026, at *6 (Del. Super. Jan. 25, 2022) (citing Paige Cap. Mgmt., 22 A.3d at 716-17).
106
Id. (citing Paige Cap. Mgmt., 22 A.3d at 716-17). The privilege’s traditional application is analogous to 10 Del. C. § 6002(b)(1), which protects statements “in” a judicial proceeding. Section 6002(b)(2), which protects statements “on an issue under consideration or review in” a judicial proceeding, more readily corresponds to the more recent expansion of the privilege.
107
See Paige Cap. Mgmt., 22 A.3d at 720 (declining to extend privilege where doing so would not serve policy of “encourag[ing] full-throated advocacy . . . to facilitate a fair adjudication of the underlying claims”); see also Whittington v. Whittington, 2024 WL 490807, at *3 (Del. Super. Feb. 8, 2024) (explaining that privilege extends “where the purposes underlying the privilege are satisfied” (quoting Tatro v. Esham, 335 A.2d 623, 627 (Del. Super. 1975))).
108
See Feenix, 2022 WL 215026, at *6 (quoting BRP Hold Ox, LLC v. Chilian, 2018 WL 5734648, at *5 (Del. Super. Oct. 31, 2018)); Paige Cap. Mgmt., 22 A.3d at 722-23 (explaining that rationale for extending privilege is to “allow[] parties to
28
litigation communications are covered, they are typically formal letters sent to
parties with some relationship to the dispute.109 Delaware courts have not expanded
the privilege to include internet or media statements, except where they merely
“profess to be reports of court documents.”110
Donna’s statements are a poor fit for Delaware’s litigation privilege. None
seek to resolve the parties’ disputes peaceably or to gather information for that
purpose. They appear to seek the opposite, offering to provide webpage visitors with
“more information regarding Brodie D. Trout or AMPO/USA” and conveying that
Donna will not “go away peacefully.”111 The website statements were not directed
peaceably resolve disputes in advance of litigation by previewing claims that will be made in good faith in litigation”).
109
See, e.g., Whittington, 2024 WL 490807, at *3 (holding privilege applied to letter sent by law firm to party seeking information as part of “preliminary investigation to determine whether any cause of action could be pursued” against that party); Feenix, 2022 WL 215026, at *7 (holding privilege applied to letter sent to lenders who “were not an unrelated third party” but were “the party . . . identified as acting unlawfully with respect to [the sender’s] property”).
110
See Barker v. Huang, 610 A.2d 1341, 1345-46 (Del 1992) (explaining that “statements . . . made during a newspaper interview concerning judicial proceedings[] are not accorded the protection of the absolute [litigation] privilege” but that allegedly defamatory articles were protected because they “each by their own words profess to be reports of court documents, rather than of direct interviews”); Sunstar Ventures, LLC v. Tigani, 2009 WL 1231246, at *6-7 (Del. Super. Apr. 30, 2009) (holding statements “made during a newspaper interview concerning the soon to be filed Contract Action,” published in print and online, were not privileged).
111
See Countercl. Ex. 1 at pdf pp. 3, 5; Countercl. ¶ 38 (“Jaclyn may go away peacefully, but her father and I won’t.”).
29
to parties with a relationship to the dispute but, rather, were posted on the internet
for the public writ large.
Donna’s statements are unlike any that Delaware courts have found
privileged, and there is no policy rationale for expanding the privilege to cover them.
To be sure, the Court does not hold that the protections of 10 Del. C. § 6002(b)(2)
and the litigation privilege are coextensive. But this State’s litigation privilege
jurisprudence provides further reason to conclude that the statements here are not
sufficiently connected to a pending judicial proceeding to qualify for coverage under
the anti-SLAPP statute.
* * *
For the reasons explained above, the anti-SLAPP statute does not apply,
meaning Third-Party Defendants’ “special motion” fails at step one, and the Court
need not address steps two or three. The practical consequence is that Third-Party
Defendants may not recover fees, costs, or punitive damages.112
That does not mean AMPO’s claims may proceed. The Court next addresses
Third-Party Defendants’ alternative request for dismissal under Rules 12(b)(2) and
12(b)(6).
112
See 10 Del. C. § 6010.
30
B. RULE 12(B)(2): THE COURT LACKS PERSONAL JURISDICTION OVER
DONNA AND MIKE.
Third-Party Defendants assert that the Court lacks personal jurisdiction over
Donna and Mike, residents of Florida and Maryland.113
When a defendant invokes Rule 12(b)(2) to seek dismissal for lack of personal
jurisdiction, “[t]he plaintiff has the burden to show a basis for the Court’s jurisdiction
over the nonresident defendant.”114 In assessing this burden, the Court engages in a
two-pronged inquiry: it must determine, first, “that service of process is authorized
by statute” and, second, “that the exercise of jurisdiction over the nonresident
defendant comports with traditional due process notions of fair play and substantial
justice.”115 Both prongs must be satisfied as to each defendant.116 “If, as here, no
evidentiary hearing has been held, [the] plaintiff[] need only make a prima facie
showing of personal jurisdiction, and ‘the record is construed in the light most
favorable to the plaintiff.’”117
113
See Mot. ¶¶ 23-29; Countercl. ¶¶ 4, 6.
114
Terramar Retail Ctrs., LLC v. Marion #2-Seaport Trust U/A/D/ June 21, 2002, 2017 WL 3575712, at *4 (Del. Ch. Aug. 18, 2017) (quoting Sprint Nextel Corp. v. iPCS, Inc., 2008 WL 2737409, at *5 (Del. Ch. July 14, 2008)), aff’d, 184 A.3d 1290 (Del. 2018) (TABLE).
115
Ryan, 935 A.2d at 265 (citations omitted).
116
See CLP Toxicology, Inc. v. Casla Bio Hldgs. LLC, 2020 WL 3564622, at *10 (Del. Ch. June 29, 2020) (citation omitted).
117
Ryan, 935 A.2d at 265 (citations omitted).
31
As explained below, AMPO fails to make a prima facie showing of
jurisdiction over Donna or Mike.
1. DONNA’S INTERNET POSTS AND PURPORTED REVENUE FROM A
DELAWARE LLC DO NOT ESTABLISH JURISDICTION.
For jurisdiction over Donna, AMPO invokes 10 Del. C. § 3104(c)(4).118 That
subsection applies where a person
[c]auses tortious injury in the State or outside of the State
by an act or omission outside the State if the person
regularly does or solicits business, engages in any other
persistent course of conduct in the State or derives
substantial revenue from services, or things used or
consumed in the State.119
Unlike the other Section 3104(c) prongs, which concern specific jurisdiction, (c)(4)
“confers general jurisdiction.”120 Accordingly, subsection (c)(4) “requires a higher
level of activity in the forum state.”121
118
See Opp’n ¶¶ 23-24.
119
10 Del. C. § 3104(c)(4).
120
Lone Pine Res., LP v. Dickey, 2021 WL 2311954, at *5 & n.25 (Del. Ch. June 7, 2021) (citing Comput. People, Inc. v. Best Int’l Grp., Inc., 1999 WL 288119, at *7 (Del. Ch. Apr. 27, 1999)).
121
Id. (citation omitted); see also Comput. People, 1999 WL 288119, at *8 (“Specifically, subsection (c)(4) jurisdiction arises only ‘when a defendant has had contacts with this state that are so extensive and continuing that it is fair and consistent with state policy to require that the defendant appear here and defend a claim.’” (quoting Red Sail Easter Ltd. P’rs, L.P. v. Radio City Music Hall Prods., Inc., 1991 WL 129174, at *3 (Del. Ch. July 10, 1991))).
32
AMPO asserts that “Donna conducted a targeted defamation campaign against
a Delaware corporation [AMPO] for years and derives substantial revenue from a
Delaware LLC.”122 According to AMPO, this is sufficient for general jurisdiction.123
It is not.
First, “mere maintenance of a website or webpage over the Internet accessible
to anyone, including Delawareans, . . . is insufficient to confer general
jurisdiction.”124 Accordingly, assuming Donna’s website was accessible in
Delaware, that would provide no basis for jurisdiction. To the extent AMPO relies
on Donna’s non-website statements,125 the Counterclaims fail to allege they were
made to anyone in Delaware, let alone that they constituted a “persistent course of
conduct in the State.”126
Second, AMPO has not shown that Donna “derives substantial revenue from
a Delaware LLC.”127 Neither the Counterclaims nor AMPO’s opposition specify the
122
See Opp’n ¶ 24.
123
See id.
124
Owens v. Lead Stories, LLC, 2021 WL 3076686, at *4 (Del. Super. July 20, 2021) (citing Rotblut v. Terrapinn, Inc., 2016 WL 5539884, at *6 (Del. Super. Sept. 30, 2016)), aff’d, 273 A.3d 275 (Del. 2022) (TABLE).
125
See Countercl. ¶¶ 18, 38, 50.
126
10 Del. C. § 3104(c)(4).
127
See Opp’n ¶ 24. Even if AMPO had made such a showing, it would still need to show that the substantial revenue was “from services, or things used or consumed in the State.” 10 Del. C. § 3104(c)(4).
33
relevant Delaware LLC. Rather, the opposition cites four attached exhibits without
explanation. These exhibits are: (i) a webpage posted by “Donna Lewis Stiles LLC”
advertising real estate services for buying homes in Florida or Maryland;128 (ii) a
Realtor.com listing for Donna, seeming to show that she is affiliated with “Berkshire
Hathaway Homeservices Penfed Realty” in Maryland;129 (iii) a webpage indicating
“Berkshire Hathway HomeServices” is “[a]n independently owned and operated
franchisee of BHH Affiliates, LLC;”130 and (iv) a Delaware Secretary of State entity
search result showing BHH Affiliates, LLC is a Delaware LLC.131 Without so much
as an explanation, the links at which these exhibits hint are too vague and attenuated
to establish general jurisdiction.132 And, in any event, the Counterclaims do not
allege that any revenue Donna receives is “substantial,” as required by the statute.133
128
See Opp’n Ex. 1.
129
See Opp’n Ex. 2.
130
See Opp’n Ex. 3.
131
See Opp’n Ex. 4.
132
See Toe No.2 v. Blessed Hope Baptist Church, Inc. of Hartford Cty., 2012 WL 1413552, at *2 (Del. Super. Jan. 31, 2012) (explaining that evidence in support of personal jurisdiction “cannot be mere vague or general assertions, without factual specificity” (citing Greenly v. Davis, 486 A.2d 669, 670 (Del. 1984))); Comput. People, 1999 WL 288119, at *7 (holding defendant’s “Delaware contacts are too attenuated to support personal jurisdiction grounded upon his ‘general presence in this state’” (citations omitted)).
133
See Rotblut, 2016 WL 5539884, at *8.
34
AMPO asserts no other basis for jurisdiction over Donna. The claims against
her are thus dismissed under Rule 12(b)(2).
2. MIKE’S RELATIONSHIP TO AND ALLEGED ACTS TARGETING
DELAWARE ENTITIES DO NOT ESTABLISH JURISDICTION.
Turning to Mike, AMPO invokes 10 Del. C. § 3104(c)(1) and 6 Del. C. § 18-109.134 Section 3104(c)(1) applies where a person “[t]ransacts any business or
performs any character of work or service in the State.”135 Under Section 18-109, a
Delaware LLC manager consents to jurisdiction for proceedings “involving or
relating to the business of the [LLC] or a violation by the manager . . . of a duty to
the [LLC].”136
According to AMPO, these statutes are triggered because Mike “participates
materially in [Delaware LLC] MLG’s business” and “intentionally interfered with a
Delaware competitor’s business by making false statements to government
representatives and suppliers about AMPO’s ability to perform on its contracts, and
derived financial benefit from that interference.”137 The Court does not have
jurisdiction under either statute.
134
See Opp’n ¶¶ 18-20.
135
10 Del. C. § 3104(c)(1).
136
6 Del. C. § 18-109(a). “Manager,” for purposes of Section 18-109, includes a “person . . . who . . . participates materially in the management of the [LLC].” Id. 137
See Opp’n ¶ 20 (citations omitted).
35
To the extent it contends formation of MLG satisfies Section 3104(c)(1),
AMPO is mistaken. Forming a Delaware entity is a basis for jurisdiction only where
that formation is “‘done as part of a wrongful scheme’ or ‘an integral component of
[the] total transaction . . . to which the plaintiff’s instant cause of action relates.’”138
Mike’s only alleged “wrongful conduct” was his “contact[ing] government
representatives and suppliers” regarding AMPO.139 The formation of MLG was not
part of that conduct.
Nor does committing an alleged tort against a Delaware-domiciled business
suffice. The Counterclaims do not allege that Mike contacted government
representatives and suppliers in Delaware or that AMPO is headquartered or does
any business there.140 It is thus unclear how Mike could be said to have
“[t]ransact[ed] any business or perform[ed] any character of work or service” in
Delaware.141
138
Lone Pine, 2021 WL 2311954, at *5 (alterations in original) (first quoting Conn. Gen. Life Ins. Co. v. Pinkas, 2011 WL 5222796, at *2 (Del. Ch. Oct. 28, 2011); and then quoting Papendick v. Bosch, 410 A.2d 148, 152 (Del. 1979)).
139
See Countercl. ¶ 41.
140
AMPO also suggests that Mike “derived financial benefit” from this contact with government representatives and suppliers. See Opp’n ¶ 20. That is not alleged in the Counterclaims, nor would it show that Mike transacted business or performed work in Delaware.
141
10 Del. C. § 3104(c)(1); cf. In re Bracket Hldg. Corp. Litig., 2017 WL 3283169, at *14 (Del. Super. July 31, 2017) (holding out-of-state activities that allegedly “directly harmed . . . a Delaware corporation” insufficient to confer jurisdiction
36
The LLC manager consent statute similarly does not apply. Delaware courts
have sometimes interpreted Section 18-109 “narrowly to refer to corporate
governance and the internal affairs of an LLC.”142 More recently, the Court of
Chancery interpreted Section 18-109’s “involving or relating to the business of the
[LLC]” language more broadly, but even then, extended it only to claims that “relate
to running an LLC’s day-to-day business.”143
Even construing Section 18-109 broadly, AMPO has not satisfied it. The
Counterclaims do not allege Mike’s false statements were made as part of MLG’s
“day-to-day business.” To the contrary, the Counterclaims suggest that Mike
because “[n]one of the corporations in this case have presences in Delaware, and none of [defendant’s] conduct is alleged to have occurred in Delaware,” rejecting application of conspiracy theory of jurisdiction (citations omitted)). 142
See Endowment Res. Grp., LLC v. Wildcat Venture P’rs, LLC, 2021 WL 841049, at *5 (Del. Ch. Mar. 5, 2021) (first citing CLP Toxicology, 2020 WL 3564622, at *12; and then citing Hartsel v. Vanguard Grp., Inc., 2011 WL 2421003, at *9 (Del. Ch. June 15, 2011), aff’d, 38 A.3d 1254 (Del. 2012) (TABLE)).
143
See Next Level Ventures, LLC v. AVID USA Techs. LLC, 2023 WL 3141054, at *20 (Del. Ch. Mar. 16, 2023) (citations omitted).
37
engaged in this conduct as a form of personal retaliation for Trout “seeking divorce
from Jaclyn.”144 Section 18-109 does not apply.145
As with Donna, AMPO has failed to establish personal jurisdiction over Mike.
Third-Party Defendants’ Rule 12(b)(2) motion is granted.146
C. RULE 12(B)(6): AMPO FAILS TO STATE A CLAIM AGAINST VAVALA.
Lacking jurisdiction over Donna and Mike, the Court is left to consider the
merits of AMPO’s claims against Vavala: Count Two, for defamation; and Count
Six, for tortious interference with business relations.
144
See Countercl. ¶¶ 39, 41. The Counterclaims allege “MLG, through Mike and Don” contacted government representatives and suppliers, “causing reputational harm and damages to AMPO’s business.” See id. ¶ 41. That is not a factual allegation that this contact was made as part of Mike’s day-to-day role managing the business, and it is in any event made “[o]n information and belief.” See id.; infra n.153.
145
Even if Section 18-109 applied, AMPO would need to establish that due process is satisfied. As the Next Level Ventures court explained while interpreting Section 18-109 broadly, the due process inquiry “is particularly important for claims that do not relate to the LLC’s internal affairs.” See Next Level Ventures, 2023 WL 3141054, at *21.
146
AMPO’s request for jurisdictional discovery is denied. See Opp’n ¶ 25. AMPO has not shown that jurisdiction in Delaware is “minimally plausible.” See Xactus, LLC v. Sike, 2024 WL 3947319, at *8 (Del. Ch. Aug. 27, 2024) (ORDER) (quoting 300 W 22 Realty, LLC v. Strathmore Ins. Co., 2023 WL 2300628, at *4 (Del. Super. Mar. 1, 2023), aff’d, 309 A.3d 1265 (Del. 2023) (TABLE)). The Court will not permit it to “fish for a possible basis” for jurisdiction over Donna and Mike. In re Am. Int’l Grp., Inc., 965 A.2d 763, 816 n.195 (Del. Ch. 2009), aff’d sub nom. Teachers’ Ret. Sys. of La. v. PricewaterhouseCoopers LLP, 11 A.3d 228 (Del. 2011) (TABLE).
38
Upon a Rule 12(b)(6) motion, the Court: (i) accepts all well-pled factual
allegations as true; (ii) credits vague allegations if they give the opposing party
notice of the claim; (iii) draws all reasonable inferences in favor of the non-moving
party; and (iv) denies dismissal if recovery on the claim is reasonably conceivable.147
The Court does not, however, accept conclusory allegations unsupported by facts or
draw unreasonable inferences in favor of the nonmovant.148
Even under this non-movant-friendly standard, AMPO fails to state a claim
for defamation or tortious interference against Vavala.
1. THE COUNTERCLAIMS FAIL TO ALLEGE VAVALA MADE A
DEFAMATORY STATEMENT.
AMPO’s defamation claim fails for a straightforward reason: the
Counterclaims fail to allege that Vavala made a defamatory statement.149 The
specific statements identified in the Counterclaims were made by Donna, not
147
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldg., LLC, 27 A.3d 531, 535 (Del. 2011) (citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002)). 148
Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 871 (Del. 2020) (citing Deuley v. DynCorp Int’l, Inc., 8 A.3d 1156, 1160 (Del. 2010)). 149
See Page v. Oath Inc., 270 A.3d 833, 842 (Del. 2022) (explaining that to state a claim, plaintiff “must plead” that “the defendant made a defamatory statement” (quoting Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005))).
39
Vavala.150 The only paragraph gesturing toward any alleged defamatory statement
by Vavala is:
On information and belief, MLG, through Mike and
[Vavala], has contacted government representatives and
suppliers, causing reputational harm and damages to
AMPO’s business. AMPO is gathering specific
information about MLG’s efforts, but multiple industry
contacts have mentioned and/or implied that they have
heard rumors from [Vavala] or Mike about AMPO’s ability
to perform on its contracts.151
This allegation is conclusory and cannot support a claim, for multiple
reasons.152 It is made only “[o]n information and belief.”153 It “fails to identify to
whom the allegedly [defamatory] statements were made,” alluding only generally to
150
See McMahon v. McMahon, 340 A.3d 543, 2025 WL 903788, at *3 (Del. 2025) (TABLE) (holding statement “cannot support a libel claim because that statement was not published by Defendant” (citing Page, 270 A.3d at 842)).
151
Countercl. ¶ 41.
152
See Page, 270 A.3d at 843 (explaining that a court “is not required to accept as true conclusory allegations without specific supporting factual allegations” (citation modified)).
153
See Neurvana Med., LLC v. Balt USA, LLC, 2020 WL 949917, at *23 (Del. Ch. Feb. 27, 2020) (holding allegation that defendant “repeatedly disparaged [plaintiff company] and its officers to investors, potential investors, members of [the company’s] board, and other people and entities in the neuro-medical device industry” need not be accepted as true because it was “made merely ‘[u]pon information and belief’ and was unsupported by well-pleaded facts” (citing Griffin Corp. Servs., LLC v. Jacobs, 2005 WL 2000775, at *6 (Del. Ch. Aug. 11, 2005)).
40
“government representatives and suppliers.”154 It “provides no examples of specific
statements,”155 alleging only “rumors . . . about AMPO’s ability to perform on its
contracts.”156 And it is far from specific regarding whether Vavala in fact made any
statement, or even whether a third-party said that Vavala made any statement,
alleging only that “industry contacts have mentioned and/or implied that they have
heard rumors from [Vavala] or Mike.”157
Accordingly, AMPO’s defamation claim against Vavala is dismissed.
2. THE COUNTERCLAIMS FAIL TO ALLEGE A BUSINESS
OPPORTUNITY WITH WHICH VAVALA INTERFERED.
AMPO’s tortious interference claim likewise fails. As with defamation, the
only relevant allegations against Vavala are made “[o]n information and belief.”158
In addition, the Counterclaims fail to allege any specific business opportunity with
which Vavala interfered.
154
See McMahon, 2025 WL 903788, at *2 (affirming dismissal where complaint alleged defendant made statement to “multiple individuals, including colleagues where she and Plaintiff McMahon’s wife work”).
155
See id.
156
Countercl. ¶ 41.
157
Id. (emphasis added).
158
See id.
41
A tortious interference claim requires a plaintiff to plead “the reasonable
probability of a business opportunity.”159 Under this element, the plaintiff must
“identify a specific party who was prepared to enter[] into a business relationship
but was dissuaded from doing so by the defendant.”160 It is insufficient to “offer
‘vague statements about unknown customers’” or allege “a ‘nebulous,
unascertainable class’ of business relationships.”161
AMPO does not plead any specific party prepared to enter a business
relationship. It pleads generally that it had expectations of relations “with
government agencies, suppliers, and other parties in the defense procurement
industry.”162 AMPO cites Images Hair Solutions Medical Center v. Fox News
Network, LLC for the proposition that plaintiffs need not “plead the names or
identifying information of the parties interfered with.”163 But AMPO’s pleading is
even more conjectural than the allegations in that case. Whereas plaintiffs in Images
159
Organovo Hldgs., Inc. v. Dimitrov, 162 A.3d 102, 122 (Del. Ch. 2017) (quoting DeBonaventura v. Nationwide Mut. Ins. Co., 419 A.2d 942, 947 (Del. Ch. 1980)). 160
Id. (quoting Agilent Techs., Inc. v. Kirkland, 2009 WL 119865, at *7 (Del. Ch. Jan. 20, 2009)).
161
Id. at 122-23 (first quoting Agilent, 2009 WL 119865, at *7; and then quoting Kimbleton v. White, 2014 WL 4386760, at *8 (D. Del. Sept. 4, 2014)). 162
See Countercl. ¶ 78.
163
See Opp’n ¶ 36 (citing Images Hair Sols. Med. Ctr. v. Fox News Network, LLC, 2013 WL 6917138, at *6 (Del. Super. Dec. 20, 2013)).
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Hair pled “a number of customers who cancelled appointments,”164 AMPO pleads
only that Vavala’s statements “caus[ed] reputational harm and damages to AMPO’s
business.”165 AMPO does not plead that it lost any customer or partner, either
identified or unidentified.
The tortious interference claim against Vavala is dismissed.
IV. CONCLUSION
For the foregoing reasons, Third-Party Defendants’ motion to dismiss under
10 Del. C. § 6003 is denied. The motion under Rule 12(b)(2) is granted without
prejudice to AMPO’s right to file claims against Donna and Mike in a court of
competent jurisdiction. The motion under Rule 12(b)(6) is granted as to the claims
against Vavala and moot as to the claims against Donna and Mike.
IT IS SO ORDERED.
/s/ Patricia A. Winston
Patricia A. Winston, Judge
164
Images Hair, 2013 WL 6917138, at *6.
165
See Countercl. ¶ 41.
43