IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
OMNICARE PHARMACY OF )
FLORIDA, LLC (d/b/a OMNICARE OF )
JACKSONVILLE, OMNICARE OF )
CENTRAL FLORIDA, and OMNICARE )
OF TAMPA), ) C.A. No. N25C-01-233 KMM
)
Plaintiff, )
)
v. )
)
LAKE CITY NURSING, LLC d/b/a THE )
PALMS NURSING AND REHAB AT )
LAKE CITY (f/k/a AVALON HC & )
REHAB); ORANGE PARK NURSING, )
LLC d/b/a THE PALMS NURSING AND )
REHAB AT ORANGE PARK (f/k/a )
OAKVIEW HEALTHCARE); PORT ST. )
LUCIE NURSING, LLC d/b/a THE )
PALMS NURSING AND REHAB AT )
PORT ST. LUCIE (f/k/a EMERALD )
HEALTHCARE); WINTER HAVEN )
NURSING, LLC d/b/a THE PALMS )
NURSING AND REHAB AT WINTER )
HAVEN (f/k/a BRANDYWYNE )
HEALTHCARE CENTER); ORLANDO )
NURSING, LLC d/b/a THE PALMS )
NURSING AND REHAB AT ORLANDO )
(f/k/a TERRA VISTA REHAB); LTC )
CONSULTANTS OF CENTRAL )
FLORIDA LLC d/b/a PALMS )
MANAGEMENT, LILAC HEALTH )
GROUP LLC; LAKE CITY FL OPCO )
LLC; ORANGE PARK FL TWO OPCO )
LLC; PORT ST. LUCIE FL OPCO LLC; )
LAKE MARIAM FL OPCO LLC; and )
ORLANDO FL OPCO LLC, )
)
Defendants.
Date Submitted: May 22, 2026
Date Decided: August 31, 2026
Upon Certain Defendants’ Motion to Dismiss – GRANTED
MEMORANDUM OPINION AND ORDER
Alan C. Cardenas-Moreno, BALLARD SPAHR LLP, Wilmington, Delaware, Attorney for Plaintiff.
Sean T. O’Kelly, O’KELLY & O’ROURKE, LLC, Wilmington, Delaware, Attorney for Defendants Lake City FL Opco LLC, Orange Park FL Two Opco LLC, Port St. Lucie FL Opco LLC, Lake Mariam FL Opco LLC, and Orlando FL Opco LLC.
Miller, J.
ii
I. INTRODUCTION
Omnicare Pharmacy of Florida, LLC (“Omnicare”) entered into contracts
with operators of long-term care facilities, under which Omnicare provided
pharmaceutical goods and services. These operators, referred to as “Old Operators,”
failed to pay Omnicare’s invoices over a four month period. Omnicare seeks
recovery for the unpaid invoices from Old Operators.
In March 2023, each Old Operator entered into a contract to transfer the
management and operations of the facilities to the moving defendants, referred to as
“New Operators.” New Operators took over operations and management of the
facilities but refused to pay invoices that pre-dated the transaction.
Omnicare asserts claims of successor-in-interest and fraudulent transfer
against New Operators to collect unpaid pre-transaction invoices. New Operators
move to dismiss (the “Motion”)1 for lack of personal jurisdiction. Omnicare puts
forward four theories to exercise personal jurisdiction over New Operators.
First, Omnicare argues that New Operators are bound by the forum selection
clause in the contracts between Omnicare and Old Operators because New Operators
accepted and retained benefits stemming from the contracts. Omnicare, however,
fails to allege any facts that New Operators received the requisite benefit from the
contracts. Therefore, Omnicare has failed to establish New Operators, non1
New Operators’ Motion to Dismiss Pursuant to Rule 12(b)(6) (“OB”), D.I. 22.
1
signatories to the Omnicare/Old Operators agreements, are bound by the forum
selection clause.
Second, Omnicare argues personal jurisdiction based on a successor-liability
theory due to New Operators being a mere continuation of Old Operators. But
Omnicare alleged no facts to support this theory.
Third, Omnicare relies on the alleged fraudulent transfers to confer
jurisdiction over New Operators. Omnicare, however, must still show that the longarm statute has been satisfied, which it failed to do.
Fourth, Omnicare relies on an ancillary jurisdiction theory, asserting that
because the court has jurisdiction over Old Operators and the same facts and
wrongful conduct are alleged against both sets of defendants, jurisdiction may be
exercised over New Operators. Omnicare misapplies ancillary jurisdiction. It does
not confer personal jurisdiction over New Operators.
New Operators’ Motion is GRANTED.
2
II. FACTUAL BACKGROUND2
A. The parties
Omnicare provides pharmaceutical goods and services to long-term care
institutions and skilled nursing facilities.3
Old Operators are Florida limited liability companies that own and operate
nursing and rehabilitation facilities in Florida.4
New Operators—Lake City FL Opco LLC, Orange Park FL Two Opco LLC,
Port St. Lucie FL Opco LLC, Lake Mariam FL Opco LLC, and Orlando FL Opco
LLC—are Florida limited liability companies that operate nursing and rehabilitation
facilities in Florida.5
B. The Omnicare/Old Operators relationship
In October 2022, Old Operators entered into a series of Pharmacy Products
and Services Agreements as well as Pharmacy Consultant Agreements with
Omnicare (collectively the “Old Operators Agreement”). Under the Old Operators
Agreement, Omnicare provided pharmacy products, services, and consulting to Old
Operators.6 Omnicare submitted monthly invoices to Old Operators, which they
2
The facts are derived from the First Amended Complaint (“Compl.”) (D.I. 14) and the documents it incorporates by reference.
3
Compl. ¶ 4.
4
Id. ¶¶ 1, 5-9, 14. Old Operators are Lake City Nursing, LLC, Orange Park Nursing, LLC, Part St. Lucie Nursing, LLC, Winter Haven Nursing, LLC, Orlando Nursing, LLC. 5
Id. ¶¶ 12-16, 46-51.
6
Id. ¶ 15.
3
were required to pay within 90 days.7 Old Operators paid the October and November
2022 invoices within the 90-day period. The December 2022 to March 2023
invoices, which became due after the Old Operators/New Operators transaction,
have not been paid.
C. The change in management
On March 31, 2023, each Old Operator entered into a Management and
Operations Transfer Agreement with a corresponding New Operator, effective April
1, 2023 (collectively the “Transfer Agreement”).8 Old Operators held the “sole right
to operate the Facilit[ies.]” The purpose of the agreement was to transfer those rights
to the contract-counterparty New Operator and “ensure an orderly transition of
operation of the Facilit[ies] and to transfer [each Old] Operator[s’] assets used in
connection with the operation of the Facilit[ies.]” Transfer of the right to operate
the Facilities9 required, among other things, governmental approval to hold the
requisite licenses under Florida law.10 The Closing on each Facility was conditioned
upon several things, including the corresponding New Operator obtaining and
confirming receipt of notice from the Florida Department of Health or other
applicable agency, that a license would be issued post-closing but effective as of the
7
Id. ¶ 17.
8
Id. ¶¶ 46-51.
9
Capitalized terms not defined herein have the meaning ascribed to them in the Transfer Agreement.
10
New Operators’ Reply in Support of Motion to Dismiss Pursuant to Rule 12(b)(6) (“RB”), D.I. 27, Ex. A (Transfer Agreement) § 1.
4
Closing date.11 On the Closing Date, the Old Operator was required to transfer and
assign patient trust funds,12 identify assumed contracts,13 and deliver a bill of sale
for supplies and personal property being sold.
During the period between the date of the Transfer Agreement and Closing,
the parties provided for a management period, beginning April 1, 2023 (the
“Management Period Commencement Date”) and concluding on the Closing date
(the “Management Period”).14 During the Management Period, New Operators
assumed management responsibilities of the transferred Facilities, but Old Operators
“remain[ed] ultimately responsible for the daily operational decisions …” and “Old
Operator[s] [had] the right to direct New Operator[s] on any administrative, business
or management matters concerning the operation of the Facilit[ies] during the
Management Period.”15 New Operators were required to arrange for the provision
of “bookkeeping, accounting, and administrative functions, including, … (iv)
Processing and payment of accounts payable[.]”16 New Operators were paid a
management fee for their services during the Management Period.17 New Operators
11
Id. §§ 1, 6.c.iv., 6.d.vii.
12
Id. § 8.a.
13
Id. § 10.b.
14
Id. § 3.a.
15
Id. § 3.c.
16
Id. §§ 3.a., 3.c.iv.
17
Id. § 5.a.
5
were precluded from holding themselves out as the operator of a Facility, but could
“hold [themselves] out as the manager of the Facility.”18
During the first three months of the Management Period, New Operators were
required to process Old Operators’ billing and account receivables that were invoiced
during the ninety days prior to the Management Period.19
New Operators were responsible for losses incurred during the Management
Period, but, “[a]ny expense that relate[d] to operation of the Facilit[ies] for the period
prior to the Management Period Commencement Date [was to] be borne and paid by
Old Operator[s].”20 This is reiterated in Section 11.a., which specifies that “New
Operator[s] shall not assume and shall not be liable for … any debts, liabilities or
obligations of the Old Operator[s], including, …: any (i) expenses that accrue[d] or
ar[o]se prior to the Management Period Commencement Date; [or] (ii) liabilities or
obligations of the Old Operator[s] to [their] creditors ….”21
The parties also agreed that
New Operator[s] shall have no duty whatsoever to take any action …
or make any payment … arising from or relating to any services
provided or costs arising from or related to any services provided or
costs incurred in connection with the management and operation of the
Facilit[ies] prior to the Management Period Commencement Date,
including … any matters relating to Contracts …[.]22
18
Id. § 3.r.
19
Id. § 4.a.ii. Old Operators were responsible for invoices that pre-dated this 90-day period. Id. 20
Id. §§ 5.b.-.c.
21
Id. § 11.a.
22
Id. § 11.c.
6
The Old Operators Agreement was not an assumed contract in the Transfer
Agreement.23
D. Omnicare seeks to recover pre-Management Period invoices from New
Operators.
Old Operators failed to remit payment for Omnicare invoices for the period
of December 2022 through March 2023.24 Omnicare alleges that by the express
terms of the Transfer Agreement, New Operators “agreed to pay Omnicare’s open
… invoices within 90 days” but they “failed to process any outstanding invoices on
behalf of Old Operators” for this period.25 New Operators have admitted liability
for Omnicare invoices after the Management Period Commencement Date.26
“Upon information and belief,” New Operators have collected revenues from
Medicare and Medicaid, and other insurers, relating to the products and services
Omnicare provided to Old Operators during the period of the outstanding invoices.27
Seeking to collect on the outstanding invoices, Omnicare asserts claims for
breach of contract, account stated, and unjust enrichment against Old Operators. It
asserts a claim for successor liability against New Operators and claims for
fraudulent transfer against both sets of defendants.
23
Transfer Agreement Schedule 10(a) lists all Contracts and Schedule 10(b) identifies the assumed contracts. The Old Operators-Omnicare contract is not listed in Schedule 10(b). 24
Compl. ¶¶ 42-46, 56.
25
Id. ¶¶ 53-54, 56-57.
26
Id. ¶¶ 53-54, 56-57.
27
Id. ¶ 58.
7
New Operators move to dismiss under Rule 12(b)(2) for lack of personal
jurisdiction.
III. THE PARTIES’ CONTENTIONS
As Florida entities with no connection with Delaware, New Operators argue
that the court has no jurisdiction over them. They further argue, as non-signatories
to the Old Operators Agreement, they are not bound by the forum selection clause
and no exception applies.28 Finally, New Operators contend that none of Omnicare’s
alternative jurisdictional theories satisfy the pleading standard or minimum contacts
requirements.
Omnicare contends that personal jurisdiction is proper because New
Operators received and accepted goods and services under the Old Operators
Agreement (and Medicare/Medicaid revenue), and therefore New Operators are
estopped from avoiding the forum selection clause.29 Omnicare asserts alternative
theories of jurisdiction based on New Operators being a mere continuation of Old
Operators, fraud, and ancillary jurisdiction.
IV. STANDARD OF REVIEW
A motion to dismiss for lack of personal jurisdiction is governed by Superior
Court Civil Rule 12(b)(2). “Generally, a plaintiff does not have the burden to plead
28
RB at 1-2.
29
Plaintiff’s Answering Brief in Opposition to New Operators’ Motion to Dismiss (“AB”), D.I. 25 at 6-9.
8
in its complaint facts establishing a court’s personal jurisdiction over [a nonresident] defendant.”30 However, a plaintiff bears the burden of establishing
jurisdiction when challenged by a motion to dismiss under Rule 12(b)(2).31 The
court is not limited to the pleadings and may consider affidavits and any discovery
of record. Unless contradicted by the record, the court must still “(1) accept as true
all well-pleaded allegations in the complaint; and (2) construe the record in the light
most favorable to the plaintiff.”32
V. DISCUSSION
A. Are New Operators bound by the forum selection clause?
Omnicare seeks to bind New Operators to the Old Operators Agreement’s
Delaware forum selection clause because they continued to receive benefits under
the contracts after execution of the Transfer Agreement. Specifically, Omnicare
argues that New Operators continued to receive Omnicare’s goods and services as
30
BACO Holdings, Inc. v. Arria Data2Text, Ltd., 2023 WL 2199871, at *1 (Del. Super. Feb. 24, 2023) (quoting Focus Fin. P’rs, LLC v. Holsopple, 241 A.3d 784, 800 (Del. Ch. 2020)). 31
Econ. Steel Bldg. Techs., LLC v. E. W. Constr., Inc., 2020 WL 1866869, at *1 (Del. Super. Apr. 14, 2020); Albert v. Alex. Brown Mgt. Srvs., Inc., 2005 WL 2130607, at *14 (Del. Ch. Aug. 26, 2005).
32
BACO Holdings, Inc., 2023 WL 2199871, at *2 (quoting Green Am. Recycling, 2021 WL 2211696, at *3 n.40 (Del. Super. June 1, 2021)); Econ. Steel Bldg. Techs., LLC, 2020 WL 1866869, at *1.
9
well as insurance reimbursement benefits.33 This is confirmed, Omnicare contends,
by New Operators’ admission of liability for post-Transfer Agreement invoices.34
New Operators argue that they did not receive a direct benefit from the Old
Operators Agreement, nor does the amended complaint allege any.
In general, a non-signatory is not bound by the terms of a contract. However,
a forum selection clause may be binding on a non-signatory where: “(1) … the forum
selection clause is valid; (2) … the [non-signatory] is a third-party beneficiary or is
‘closely related to’ the contract; and (3) … the claim arises from the [nonsignatory]’s standing relating to the agreement.”35 A non-signatory is “closely
related” when the non-signatory receives a “direct benefit” from the agreement or it
was foreseeable that the non-signatory would be bound by the agreement.36
There is no dispute that the Delaware forum selection clause is valid. For the
second element, Omnicare argues the “closely related” ground based on receipt of a
direct benefit.
33
AB at 7-8.
34
Id. at 8.
35
BAM Int’l, LLC v. MSBA Group Inc., 2021 WL 5905878, at *11 (Del. Ch. Dec. 14, 2021); RGIS Intern’l Transition Holdco, LLC v. Retail Svrs. WIS Corp., 2025 WL 3560688, at *5 (Del. Super. Sept. 29, 2025); Yangaroo Inc. v. Digital Media Svrs. Inc., 2024 WL 2791100, at *7 (Del. Super. May 30, 2024). This test is sometimes referred to as the Capital Group test, originating from Capital Group Cos., Inc. v. Armour, 2004 WL 2521295 (Del. Ch. Oct. 29, 2004). Florida Chem. Co., LLC v. Flotek Indus., Inc., 262 A.3d 1066, 1047, 1090 (Del. Ch. 2021). 36
RGIS Intern’l Transition Holdco, LLC, 2025 WL 3560688, at *5. See also, Omegawave Oy v. OTO.Coach, Inc., 2026 WL 1765663, at *10 (Del. Super. June 12, 2026) (the test is disjunctive).
10
“‘The direct benefit may arise at the time of contracting, or a party may accept
the benefits of an agreement after it is executed.’”37 “‘Both pecuniary and
nonpecuniary benefits [are] sufficient to satisfy this test.’”38 ‘[T]o be bound by [the]
forum selection clause[], [the] non-signator[y] must actually receive a benefit under
or by way of the contract.’”39 In such a case, the non-signatory is estopped from
disavowing the contract’s forum selection clause.40
Omnicare argues in its brief that “the facilities continued to order, and
Omnicare continued to provide, goods and services under the New Operators’ tenure
of the facilities.”41 Omnicare’s amended complaint, however, does not allege that
Omnicare provided goods or services to the Facilities after April 1, 2023.42 Thus,
this theory fails to satisfy the second element.
Omnicare next contends that because New Operators received revenue from
various insurers stemming from the products and services Omnicare provided to Old
Operators, New Operators received a direct benefit.43 New Operators respond that
37
Omegawave Oy, 2026 WL 1765663, at *10 (quoting Florida Chem. Co., 262 A.3d at 1091). 38
Id. (quoting Florida Chem. Co., 262 A.3d at 1091).
39
Id. (quoting Sustainability P’rs LLC v. Jacobs, 2020 WL 3119034, at *6 (Del. Ch. June 11, 2020)).
40
Id.
41
AB at 7-8.
42
Reylek v. Albence, 2023 WL 142522, at *2 (Del. Super. Jan. 10, 2023) (quoting Anglo Am. Sec. Fund, L.P. v. S.R. Glob. Int’l Fund, L.P., 829 A.2d 143, 155 (Del. Ch. 2003)) (“‘[p]arties may not amend the pleadings through briefing on a motion to dismiss.’”).
43
AB at 8.
11
merely providing administrative services to process claims does not constitute
receiving a direct benefit under the contract.
Omnicare’s allegation is directly contradicted by the Transfer Agreement.
While New Operators were responsible for preparing and submitting Medicare and
Medicaid claims,44 “[a]ny revenue New Operator[s] directly or indirectly receive[]
during the Management Period relating to operations of the Facilit[ies] prior to the
Management Period Commencement Date … shall be remitted to Old
Operator[s.]”45 Thus, any receipt of insurance benefits during the period Omnicare
provided goods and services to the Facilities, are for the benefit of Old Operators.
Lastly, Omnicare argues that “New Operators’ admission of liability for
invoices for goods and services upon execution of the [Transfer Agreement]
expressly confirms acceptance of benefits under the” Old Operators Agreement.46
Omnicare misconstrues the Transfer Agreement. New Operators agreed to process
debts and receivables on behalf of Old Operators for a fee. As noted, the revenue
from those collection activities were to be remitted to Old Operators.
44
Transfer Agreement § 4.a.i.
45
Id. § 4.c.
46
AB at 8.
12
Omnicare has failed to show that New Operators are bound by the Old
Operators Agreement’s forum selection clause and personal jurisdiction over New
Operators is not established on this basis.47
B. Has Omnicare shown an alternative basis for jurisdiction over New
Operators?
As a general rule, a buyer of assets is not liable for a seller’s debts or tortious
conduct.48 However, this general rule does not apply where (i) the buyer assumed
the seller’s liability; (ii) there is a de facto merger or consolidation; (iii) the buyer is
a mere continuation of the seller under a different name; or (iv) there was fraud in
the transaction.49
Omnicare asserts jurisdiction is proper under scenario (i), (iii), and (iv). Each
is addressed in turn.
1. Did New Operators expressly assume Old Operators’ liabilities?
Omnicare argues that by the Transfer Agreement requiring New Operators to
process and pay Old Operators’ accounts payable, New Operators “expressly
assumed Old Operators’ liabilities[.]”50 Additionally, by New Operators “accepting
Omnicare’s continued performance” and admitting New Operators’ liability for
47
Because Omnicare failed to satisfy the second element, the Court need not address the third element.
48
ADGS, LLC v. Emery Silfurtun, Inc., 2022 WL 1498433, at *6 (Del. Super. May 11, 2022) (citing Ross v. Desa Holdings Corp., 2008 WL 4899226, at *4 (Del. Super. Sept. 30, 2008)). 49
Id. (citing Ross, 2008 WL 4899226, at *4).
50
AB at 9.
13
unpaid invoices dated after April 1, 2023, they expressly accepted liability for all of
Old Operators’ liabilities.51
New Operators argue that their agreement to provide administrative services,
such as collecting and paying Old Operators’ accounts receivable and payable, does
not mean they assumed liability for these debts.52
As discussed above, Omnicare fails to plead that it delivered any goods or
services during the Management Period. Therefore, its argument regarding
continued performance is unavailing.
Omnicare asserts that New Operators impliedly assumed Old Operators’
liabilities when it agreed to “process[] and pay[ ] accounts payable” on “behalf of
Old Operators.”53 Omnicare relies on the terms of the Transfer Agreement for this
argument. Allegations are not well-pled when they are contradicted by the document
upon which they rely.54
While New Operators agreed to assume “management responsibility” for the
“bookkeeping, accounting, and administrative functions” of the Facilities,55 they
expressly disclaimed assuming any liabilities. Section 11 is clear: “New Operator[s]
51
Id.
52
RB at 4-5.
53
AB at 9.
54
WyPie Investments, LLC v. Homschek, 2018 WL 1581981, at *8 n.89 (Del. Super. Mar. 28, 2018) (quoting H–M Wexford LLC v. Encorp, Inc., 832 A.2d 129, 139 (Del. Ch. 2003) (“[A] complaint may, despite allegations to the contrary, be dismissed where the unambiguous language of documents upon which the claims are based contradict the complaint’s allegations.”)). 55
Transfer Agreement §§ 3.b.-.c.
14
shall not assume and shall not be liable for, … any debts, liabilities or obligations of
the Old Operator[s.]”56
Omnicare failed to establish that New Operators expressly or impliedly
assumed the liabilities of Old Operators.
2. Are New Operators a mere continuation of Old Operators?
Omnicare argues that because New Operators “continued to order and accept
goods and services [from] Omnicare[,]” it is a mere continuation of Old Operators.57
New Operators contend that this argument is not enough to show a mere
continuation.58
Courts narrowly construe the mere continuation theory.59 “‘The test is not the
continuation of the business operation; rather, it is the continuation of the corporate
entity.’”60 Successor liability should only be applied “where the new entity is so
dominated and controlled by the old company that [the] separate existence must be
disregarded.”61 “The primary elements of continuation include the common identity
of the officers, directors, or stockholders of the predecessor and successor
56
Id. § 11.a.
57
AB at 10.
58
OB at 10.
59
Ross, 2008 WL 4899226, at *4.
60
Id. (quoting Fountain v. Colonial Chevrolet Co., 1988 WL 40019, at *9 (Del. Super. Apr. 13, 1988)).
61
Id. (citing Elmer v. Tenneco Resins, Inc., 698 F. Supp. 535, 542 (D. Del. 1988)). See also Rajamani v. Revways Corp., 2019 WL 169316, at *2 (Del. Super. Jan. 11, 2019) (“Delaware law is settled that a successor entity can be subject to personal jurisdiction related to acts of its predecessor entity.”).
15
corporations, and the existence of only one corporation at the completion of the
transfer.”62
Again, Omnicare fails to allege that New Operators continued to order and
accept goods and services. Omnicare also has pled no facts from which it may be
inferred that Old Operators dominated or controlled New Operators. Further, there
are no facts alleged that there was any overlap in management or owners.63 Thus,
there is nothing in the amended complaint to suggest that the Transfer Agreement
was anything other than an arms-length transaction.64 Omnicare failed to establish
that the corporate separateness of these entities should be disregarded for
jurisdictional purposes. Accordingly, this theory fails to establish jurisdiction over
New Operators.
3. Does the fraud claim provide a basis for jurisdiction?
Omnicare alleges that New Operators and Old Operators fraudulently
structured the transaction so that liabilities would not be paid—New Operators took
all the assets leaving none to pay Old Operators’ liabilities.65 Based on these
62
Simple Glob., Inc. v. Brathwait Watches, Inc., 2022 WL 100363, at *2 (Del. Super. Jan. 10, 2022) (citing In re Asbestos Litig. (Bell), 517 A.2d 697, 699 (Del. Super. 1986)). 63
AB at 10.
64
Ross, 2008 WL 4899226, at *4.
65
AB at 10.
16
allegations of fraud, Omnicare contends personal jurisdiction exists over New
Operators.66
Even with a sufficiently pled fraudulent transfer claim, New Operators argue
that personal jurisdiction cannot be exercised over them because they have no nexus
to Delaware.67 New Operators rely on ADGS, LLC v. Emery Silfurtun, Inc. for
support.68
When a non-resident defendant challenges in personam jurisdiction, the Court
applies a two-step analysis. “The Court first considers whether jurisdiction may be
maintained under Delaware’s long-arm statute. If jurisdiction is proper under the
long-arm statute, the court then considers whether subjecting a defendant to
jurisdiction in Delaware violates the Due Process Clause of the Fourteenth
Amendment.”69
Delaware’s long-arm statute, Section 3104(c), permits personal jurisdiction
over a non-resident defendant who
(1) Transacts any business or performs any character of work or service
in the State;
(2) Contracts to supply services or things in this State;
(3) Causes tortious injury in the State by an act or omission in this State;
(4) Causes 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
66
Id.
67
OB at 7-9.
68
Id. at 7-8 (citing ADGS, LLC, 2022 WL 1498433).
69
Rotblut v. Terrapinn, Inc., 2016 WL 5539884, at *4 (Del. Super. Sept. 30, 2016). ADGS, LLC, 2022 WL 1498433, at *6; Rotblut, 2016 WL 5539884, at *5 (a plaintiff must make a specific showing that the court has jurisdiction over the movant).
17
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;
(5) Has an interest in, uses or possesses real property in the State; or
(6) Contracts to insure or act as surety for, or on, any person, property,
risk, contract, obligation or agreement located, executed or to be
performed within the State at the time the contract is made, unless the
parties otherwise provide in writing.70
If the long-arm statute is satisfied, the court will then consider whether “the
non-resident defendant ha[s] ‘minimum contacts’ with the forum so that the litigation
does not offend traditional notions of ‘fair play and substantial justice.’”71 This “is
determined ‘from the close examination of the particular circumstances of each
case.’”72 “Each defendant must have purposefully established minimum contacts
with the forum state such that he reasonably should ‘anticipate being haled into
court’ there.”73
New Operators are Florida limited liability companies that operate Florida
long-term care facilities. Omnicare has failed to show that New Operators transacted
business in Delaware, committed a tort or injury in Delaware, or have any nexus to
Delaware. Indeed, Omnicare does not attempt to satisfy Section 3104(c). Without
70
10 Del. C. § 3104(c).
71
Rotblut, 2016 WL 5539884, at *4 (citing Transportes Aereos De Angola v. Ronair, Inc., 544 F. Supp. 858, 865 (D. Del. 1992)).
72
Id. (quoting Transportes Aereos De Angola, 544 F. Supp. at 865).
73
Id. (citing Burger King Corp. v. Rudzewicz, 471 U.S. 462, 474 (1985)).
18
a statutory basis, Omnicare’s fraud claim is insufficient to exercise jurisdiction over
New Operators. ADGS is consistent with this ruling.
In ADGS, plaintiff asserted a breach of contract claim against the Emery
defendants. Plaintiff also asserted a successor liability claim against the non-resident
Hartmann defendants, asserting that the Emery and Hartmann defendants “crafted
the [APA] in such a way as to hinder, delay, and foreclose [plaintiff’s] recovery
against the Emery [d]efendants and to defraud [plaintiff.]”74 The Hartmann
defendants moved to dismiss for lack of personal jurisdiction.75
The court noted that while the “APA possibly could be construed as containing
certain indicia of a fraudulent transfer[,]” that was not sufficient to establish
jurisdiction over the non-resident defendants.76 The court continued, that even if the
APA were a fraudulent transfer, it “would be a fraudulent transfer with no nexus to
Delaware.”77 The court reinforced that “‘it is essential in each case that there be
some act by which the defendant purposely avails itself of the privilege of
conducting activities within the forum state, thus invoking the benefits and
74
ADGS, LLC, 2022 WL 1498433, at *3.
75
Id. The Emery defendants were subject to jurisdiction through a forum selection clause in the contract. Id. at *6.
76
Id.
77
Id.
19
protections of its laws.’”78 With no statutory basis for jurisdiction, the court granted
the motion to dismiss.79
The same result is required here—without a statutory basis to confer
jurisdiction over New Operators, they must be dismissed from this action.80
C. May the court exercise ancillary jurisdiction over New Operators?
Omnicare argues that because this court has personal jurisdiction over Old
Operators, it may exercise ancillary jurisdiction over New Operators. This is so,
Omnicare argues, because the factual predicate for the claims against Old Operators
and New Operators are the same.81 New Operators argue that there is no legal or
factual basis to exercise ancillary jurisdiction.82
In the court’s discretion, it may exercise ancillary jurisdiction “to litigate a
claim for which personal jurisdiction would not otherwise exist.”83 The exercise of
ancillary jurisdiction is permissible when personal jurisdiction has been established
over the defendant on a claim and the subject matter of the additional claim against
that defendant for which personal jurisdiction is lacking, is sufficiently related.84
78
Id. (quoting Gould v. Gould, 2011 WL 141168, at *7 (Del. Ch. Jan. 7, 2011)). 79
Id.
80
Because Omnicare failed to satisfy Section 3104, the Court does not reach the second step in the jurisdictional analysis.
81
AB at 12-13.
82
RB at 5-6.
83
Desmond v. Desmond, 2024 WL 4851606, at *2 (Del. Super. Nov. 21, 2024).
84
Id. (citing Capital Group Companies., Inc., 2004 WL 2521295) (“The doctrine applies where the claim is brought along with other claims for which jurisdiction does exist and are sufficiently related to that claim to warrant prosecution before a single tribunal.”); Harris v. Harris, 289 A.3d
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There is no claim for which jurisdiction exists over New Operators, thus, there
is no basis to exercise ancillary jurisdiction. The doctrine does not permit the court
to impute one party’s personal jurisdiction to another party simply because the
causes of action against them are based on the same facts. Accordingly, Omnicare’s
final theory of jurisdiction also fails.
VI. CONCLUSION
Omnicare has failed to meet its burden to make a prima facie showing of
personal jurisdiction over New Operators. Therefore, New Operators’ Motion to
Dismiss is GRANTED.
IT IS SO ORDERED.
/s/Kathleen M. Miller
Kathleen M. Miller, Judge
277, 297 (Del. Ch. 2023) (quoting Fitzgerald v. Chandler, 1999 WL 1022065, at *4 (Del. Ch. Oct. 14, 1999)) (“‘[O]nce a valid claim has been brought and personal jurisdiction established over a party defending a proper claim, ... Delaware courts are justified in asserting personal jurisdiction over the defending party where the subject matter of the claim is sufficiently related to the plaintiff's independent claims.’”).
21