      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SAMIR PATEL, AJAY BHATT,               )
MING YE, JOSEPH SHAN, PETER            )
SZETO, GENE LOU, JOSEPH                )
SHAN, NIRVA VYAS, and                  )
NORMAN NELSON,                         )
                                       )
                  Plaintiffs,          )
                                       )
             v.                        )   C.A. NO.: N18C-01-185 AML
                                       )
SUNVEST REALTY                         )
CORPORATION d/b/a RE/MAX               )
SUNVEST REALTY, RE/MAX,                )
LLC, AND RE/MAX HOLDINGS,              )
INC.                                   )
                                       )
                  Defendants.          )

                             Submitted: July 2, 2018
                            Decided: October 15, 2018

    Upon Defendants’ Motion to Dismiss: Granted in part, denied in part
    Upon Defendants’ Motions to Strike: Granted in part, denied in part

                         MEMORANDUM OPINION


Julia B. Klein, Esquire of KLEIN, LLC, Wilmington, Delaware, Attorney for
Plaintiffs.

Eric J. Monzo, Esquire, and Brenna A. Dolphin, Esquire of MORRIS JAMES,
LLP, Wilmington, Delaware, Attorneys for Sunvest Realty Corporation, Raymond
W. Cobb, Esquire of O’HAGAN MEYER, LLC, Wilmington, Delaware, Attorney
for RE/MAX, LLC and RE/MAX Holdings.


LeGrow, J.
      This case arose from alleged fraud committed by a real estate broker

formerly employed by a franchise branch of a nationally-recognized real estate

firm. Plaintiffs allege the broker embezzled funds Plaintiffs entrusted to him for

the purpose of investing in real property. Beginning in summer 2017, the broker

defaulted on Plaintiffs’ promissory notes, and he filed for bankruptcy a few months

later. Plaintiffs now bring claims of vicarious liability, common law negligence,

negligent hiring, retention, and supervision, breach of contract, and fraud against

the franchisee and franchisor.

      Plaintiffs’ claims present questions of franchisor and vicarious liability for

conduct of a franchisee’s agent.      Although the complaint adequately pleads

vicarious liability claims against both defendants, the adequacy of its direct

liability claims is more limited. As to those direct claims, Plaintiffs fail to plead

claims that depend on allegations that the franchisor employed the broker. Some

of Plaintiffs’ other direct claims survive under the low pleading standard applicable

to this motion, although Plaintiffs’ ultimate likelihood of success on those claims

seems marginal at best. In sum, notwithstanding the exhausting length and rhetoric

of Plaintiffs’ complaint, Plaintiffs barely make out fraud, negligence, and contract-

based claims under agency principles, but those claims may not withstand a closer

look after discovery.




                                          1
FACTUAL AND PROCEDURAL BACKGROUND

       The following facts are drawn from the amended complaint.1 Carl Chen

worked as a real estate broker from 1986 until 2017 when his real estate license

was terminated. According to the complaint, Chen worked for more than two

decades at RE/MAX Sunvest Realty (“Sunvest”), a franchisee of RE/MAX, LLC

(“RE/MAX”) (collectively with Sunvest, the “Defendants”). Beginning in 1991,

Chen convinced several friends and acquaintances to invest in real property in

return for monthly interest payments.                Chen continued to enter into these

promissory notes up to October 2016. In May 2017, Chen failed to make the

monthly interest payment to one of his noteholders, Norman Nelson. Nelson later

was informed that Chen no longer worked at Sunvest. On October 24, 2017, Chen

filed for bankruptcy. Around this time, the noteholders learned most of their funds

never were invested in real property.

       On January 17, 2018, several noteholders (“Plaintiffs”) brought this action

against Sunvest and RE/MAX to recover the funds they invested with Chen.2


1
  The Complaint contains 104 paragraphs and spans 62 pages. It includes headshots, website
screen shots, and numerous irrelevant, if not entirely conjectural, musings. The brevity of this
factual background demonstrates Plaintiffs’ unnecessary expenditure of resources in drafting the
Complaint, to say nothing of Defendants’ and the Court’s resources in reviewing and responding
to it. At some point during the drafting process, Plaintiffs lost sight of Rule 8’s direction that a
complaint shall contain a “short and plain statement of the claim.” Plaintiffs should not interpret
the Court’s partial denial of the motions to dismiss as an endorsement of this drafting style.
2
  The complaint included RE/MAX Holdings as a named defendant. At oral argument, however,
Plaintiffs conceded that all claims against RE/MAX Holdings should be dismissed. Accordingly,
only claims against Sunvest and RE/MAX remain.
                                                 2
Sunvest and RE/MAX filed separate motions to dismiss the original complaint, and

Plaintiffs then filed an amended complaint containing counts against each

defendant for vicarious liability, common law negligence, negligent hiring,

retention, and supervision, breach of contract, and fraud. Defendants filed motions

to dismiss the first amended complaint (“the Complaint”) and the parties briefed

and argued those motions.

The Parties’ Contentions

      In its motion to dismiss, Sunvest first argues the Court should dismiss

Plaintiffs’ claims under Rule 19 because the parties cannot join Chen who, Sunvest

maintains, is an indispensable party. Sunvest contends complete relief cannot be

granted to the parties without Chen’s joinder because Chen’s conduct is the basis

of Plaintiffs’ action. Sunvest acknowledges the automatic stay prevents Chen’s

joinder in this case while the bankruptcy case is litigated, but Sunvest asserts all

Plaintiffs’ claims can be litigated in the bankruptcy action.      Apart from this

procedural argument, Sunvest also maintains the Complaint should be dismissed

for failure to state a claim. Sunvest contends Plaintiffs only made conclusory

statements in support of their vicarious liability, negligent hiring, retention and

supervision, breach of contract, and fraud claims.

      In a separate motion, RE/MAX argues the Complaint fails to allege the

existence of any legally-cognizable relationship between Chen and RE/MAX.


                                         3
RE/MAX notes the Complaint alleges claims against “RE/MAX,” but fails to

specify which claims are asserted against which defendants. RE/MAX contends

the Complaint fails to make any connection between Sunvest and RE/MAX and

does not allege an employment or agency relationship with RE/MAX. Finally, like

Sunvest, RE/MAX argues the Complaint fails to plead fraud with sufficient

particularity.

        In response to Sunvest’s motion, Plaintiffs argue Chen is not an

indispensable party because the parties may obtain discovery from him without

joining him to this action. Additionally, Plaintiffs assert they have pleaded fraud

and the other claims with sufficient particularity and have pleaded sufficient facts

to put RE/MAX on notice that they intend to show RE/MAX exerted control over

Chen.

ANALYSIS

        On a motion to dismiss, the Court must determine whether the “plaintiff

‘may recover under any reasonably conceivable set of circumstances susceptible of

proof.’”3 “If [the plaintiff] may recover, the motion must be denied.”4 A court

may grant the motion if “it appears to a reasonable certainty that under no state of

facts which could be proved to support the claim asserted would plaintiff be
3
  Holmes v. D’Elia, 2015 WL 8480150, at *2 (Del. Dec. 8, 2015) (quoting Spence v. Funk, 396
A.2d 967, 968 (Del. 1978)).
4
  Deuley v. DynCorp Int’l, Inc., 2010 WL 704895, at *3 (Del. Super. Feb. 26, 2010) (citing
Parlin v. DynCorp Int’l, Inc., 2009 WL 3636756, at *1 (Del. Super. Sept. 30, 2009) (quoting
Spence, 396 A.2d at 968)), aff’d, 8 A.3d 1156 (Del. 2010).
                                            4
entitled to relief.”5 When applying this standard, the Court will accept as true all

non-conclusory, well-pleaded allegations.6 In addition, “a trial court must draw all

reasonable factual inferences in favor of the party opposing the motion.”7

    A. Chen is not an indispensable party under Rule 19(a).

       Sunvest first argues the amended complaint should be dismissed because

Chen allegedly is an indispensable party who cannot be joined in this action.

Sunvest argues Chen’s conduct forms the basis for Plaintiffs’ claims and therefore

he is an indispensable party under Rule 19. Because the automatic stay imposed

by the bankruptcy action prevents the parties from joining Chen, Sunvest argues

the Complaint should be dismissed.

       Under Rule 19(a), joinder is mandatory when: (1) complete relief cannot be

afforded without the absent party’s participation, or (2) the absent party claims an

interest in the subject of the action. Specifically, the rule provides, in relevant part:

              A person who is subject to service of process and whose
              joinder will not deprive the Court of jurisdiction over the
              subject matter of the action shall be joined as a party in
              the action if (1) in the person’s absence complete relief
              cannot be accorded among those already parties, or (2)
              the person claims an interest relating to the subject of the
              action and is so situated that the disposition of the action

5
  Fish Eng’g Corp. v. Hutchinson, 162 A.2d 722, 724 (Del. 1960) (citing Danby v. Osteopathic
Hosp. Ass’n of Del., 101 A.2d 308, 315 (Del. Ch. 1953), aff’d, 104 A.2d 903 (Del. 1954)); Nero
v. Littleton, 1998 WL 229526, at *3 (Del. Ch. Apr. 30, 1998).
6
  Pfeffer v. Redstone, 965 A.2d 676, 683 (Del. 2009).
7
  Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (citing Ramunno v. Cawley, 705 A.2d 1029, 1034
(Del. 1998) (citing Solomon v. Pathe Commc’ns Corp., 672 A.2d 35, 38 (Del. 1996)) (other
citations omitted)).
                                              5
                 in the person’s absence may (i) as a practical matter
                 impair or impede the person’s ability to protect that
                 interest or (ii) leave any of the persons already parties
                 subject to a substantial risk of incurring double, multiple,
                 or otherwise inconsistent obligations by reason of the
                 claimed interest. If the person has not been so joined, the
                 Court shall order that the person be made a party.8

          Rule 19(a)(2) is not implicated here because none of the parties argues Chen

has an interest in the subject of the action or that litigation without Chen would

impair his ability to protect his interests. As to Rule 19(a)(1), on which Sunvest

relies, complete relief can be accorded to all named parties without Chen’s joinder.

Sunvest argues Chen is indispensable because his conduct forms the basis for

Plaintiffs’ claims. Chen’s likely role as an essential factual witness, however, does

not compel the conclusion that joinder is necessary to accord relief to all the named

parties. The parties may subpoena Chen, take discovery from him, and compel

him to testify.          Thus, Plaintiffs’ claims do not require Chen’s joinder for

evidentiary purposes. Additionally, Chen’s joinder is not required to determine

liability because Plaintiffs do not claim Chen or either defendant was

comparatively or contributorily negligent.             Accordingly, Chen is not an

indispensable party under Rule 19(a).




8
    Super. Ct. Civ. R. 19(a).
                                              6
     B. Count I of the Complaint adequately pleads Chen committed fraud and
        that he was Sunvest’s employee.
       Count I of the Complaint alleges Sunvest vicariously is liable for Chen’s

fraud. Sunvest argues the Complaint fails to plead fraud with particularity and

fails adequately to allege Chen was Sunvest’s employee or agent.

          1. The Complaint adequately alleges Chen committed fraud.

       According to Superior Court Civil Rule 9(b), “[i]n all averments of fraud, . .

. the circumstances constituting fraud . . . shall be stated with particularity.” 9 The

rule requires a plaintiff to “allege circumstances sufficient to fairly apprise the

defendant of the basis for the claim.”10 The elements of fraud are:

              (1) defendant’s false representation, usually of fact, (2)
              made either with knowledge or belief or with reckless
              indifference to its falsity, (3) with an intent to induce the
              plaintiff to act or refrain from acting, (4) the plaintiff's
              action or inaction resulted from a reasonable reliance on
              the representation, and (5) reliance damaged the
              plaintiff.11

       Plaintiffs’ Complaint alleges Chen falsely claimed to invest significant funds

in real estate on Plaintiffs’ behalf.12 The Complaint describes how Chen developed

a reputation as a seasoned real estate broker and alleges that several plaintiffs were

friends with Chen for many years before they entrusted their money to him. The

Complaint includes the following exchange that occurred at a creditors’ meeting
9
  Super. Ct. Civ. R. 9(b).
10
   H-M Wexford, LLC v. Encorp, Inc., 832 A.2d 129, 145 (Del. Ch. 2003).
11
   Stephenson v. Capano Development, Inc., 462 A.2d 1069, 1074 (Del. 1983).
12
   Am. Compl. ¶¶ 6-13.
                                             7
for the bankruptcy action between Chen, the debtors’ trustee, Alfred Giuliano, and

Plaintiffs’ attorney, Julia Klein:

      CHEN: Yeah, we – we borrowed the money – the intention was to invest in
      real estate, but then I ended up using that to take care of my negative cash
      flow.

      GIULIANO: Is that what you told them? You told them it was to invest in
      real estate?

      CHEN: In the very beginning, yes. Later on when they –

      GIULIANO: Like the million seven, when you borrowed the million seven,
      what did you tell those folks?

      CHEN: Yeah, to invest in real estate.

      GIULIANO: To invest in real estate. But you did not invest it in real estate,
      you used it to cover the cash flow?

      CHEN: Yeah.

      ...

      KLEIN: What did you – so, just so I understand the money that you received
      from Mr. B[h]at, the $200,000, those went to pay interest payments of other
      noteholders or what did you use the money for?

      CHEN: I – I used the money for – to take care of negative cash flow for
      Chen-MAX, both of the Chen-MAX Properties, Inc.

      KLEIN: Okay. Did you use the money you received from him to invest in
      any property, any real property or rental property?

      CHEN: No.

      KLEIN: Okay. Were you supposed to under the promissory note?



                                         8
       CHEN: Yeah, yeah.13

       From this exchange, it is reasonable to infer that: (1) Chen falsely

represented that he would invest Plaintiffs’ funds in real estate; (2) Chen knew his

representations were false; (3) Chen intended to induce Plaintiffs to invest their

funds through him; (4) Plaintiffs reasonably relied on Chen’s representations; and

(5) Plaintiffs suffered damages.14 In other words, the Complaint fairly appraises

Defendants of the basis for the claim.15 Accordingly, the Complaint alleges with

sufficient particularity that Chen committed fraud.

           2. The Complaint             adequately       alleges    Chen      was     Sunvest’s
              agent/employee.
       In Delaware, “the party asserting an agency relationship has the burden of

proving it.”16 An agency relationship “results from the manifestation of consent by

one person to another that the other shall act on his behalf and subject to his

control, and consent by the other so to act.”17 A plaintiff may sue an employer for

the actions of an employee under principles of vicarious liability if the actions

occurred within the scope of employment.18

13
   Id. at ¶ 47 (emphasis in the original).
14
   Id. at ¶ 48 (“Chen knew that Plaintiffs expected their funds to be used to purchase, improve,
and maintain real property. Chen over the years locally [sic] had established a reputation for
being a fine real estate broker and assured Plaintiffs that their funds would be used for precisely
that purpose: invest in and manage real property and ensure a steady return on investment.
Based on these representations, Plaintiffs parted with their money.”).
15
   Id. ¶¶ 6-13.
16
   F.E. Myers Co. v. Pipe Maintenance Services, Inc., 599 F.Supp. 697, 702 (D. Del. 1984).
17
   RESTATEMENT (SECOND) OF AGENCY § 1 (AM. LAW INST. 2006).
18
   Fisher v. Townsends, Inc., 695 A.2d 53, 58 (Del. 1997).
                                                9
         It is reasonable to infer from the Complaint that Chen was Sunvest’s

employee or agent. Chen acted as a real estate broker, which is Sunvest’s regular

business. Chen worked at Sunvest’s office on Kirkwood Highway, and Plaintiffs

signed the promissory notes in that office.19 Additionally, the Complaint alleges

Chen worked at Sunvest for twenty years. Because Chen worked at Sunvest as a

real estate broker, and the Complaint’s allegations permit a reasonable inference

that Chen’s fraud occurred within the scope of his employment at Sunvest, the

Complaint adequately pleads Sunvest vicariously is liable for Chen’s conduct.

Whether Plaintiffs can prove Chen was acting within the scope of his employment

is a distinct question, but Plaintiffs need not meet that burden of proof at the

pleadings stage.

      C. Count II of the Complaint adequately pleads a vicarious liability claim
         against RE/MAX.

         Count II of the Complaint alleges RE/MAX vicariously is liable for Chen’s

fraudulent conduct because RE/MAX is Sunvest’s franchisor. RE/MAX argues the

Complaint fails sufficiently to allege that Chen or Sunvest was RE/MAX’s agent

or that RE/MAX benefited from Chen’s conduct. As discussed in Section B.2, the

Complaint adequately alleges Chen was Sunvest’s employee. The adequacy of

Count II, therefore, depends on whether RE/MAX, as Sunvest’s franchisor, may be

held vicariously liable for Chen’s fraud.

19
     Am. Compl. at ¶ 34.
                                            10
       A plaintiff may hold a franchisor vicariously liable by establishing the

franchisor had an actual or apparent agency relationship with its franchisee. In

order to establish actual agency between a putative franchisor and franchisee, a

plaintiff must show the franchisor has the right to control the franchisee’s

business.20 An agency relationship exists if the franchisor has the right to exercise

control over the franchisee’s daily operations.21 Evidence of such control includes,

among other things, a franchisor’s power to regulate advertising, office procedures,

staff procedures, accounting, insurance, and maintenance of the premises.

       Here, the Complaint fails to allege RE/MAX exerted control over Sunvest’s

daily operations. Although the Complaint alleges RE/MAX is a very large and

well-advertised realty company, the Complaint does not allege RE/MAX

controlled Sunvest’s operations, and actual agency therefore is not sufficiently

pleaded.

       Alternatively, the principle of apparent agency focuses on the apparent

relationship between a principal and an agent.22                   In Billops v. Magness

Construction Co., the Delaware Supreme Court examined the rule for apparent

agency in a franchise relationship and held that apparent agency depends on a third

party’s reasonable reliance on an alleged principal’s manifestations of the agent’s


20
   Billops v. Magness Const. Co., 391 A.2d 196, 197 (Del. 1978).
21
   Id.
22
   Id. at 198.
                                              11
authority to bind the principal.23          The Billops Court explained that the

manifestations “may be made directly to the third party, or may be made to the

community in general, for example, by way of advertising.”24 An agent’s apparent

authority is a question of fact typically left to the jury.25

        In Billops, the plaintiffs sued several Hilton Hotels entities as the franchisors

of Brandywine Hilton Inn for the tortious conduct of the inn’s banquet director.26

The Court held the plaintiffs showed ample evidence indicating the inn was the

franchisor’s apparent agent.27 Among the factors considered by the Court were the

inn’s use of Hilton’s logo and signage at the exclusion of all other logos28 and the

requirement that the inn identify itself completely with the Hilton system,

including color scheme and interior design.29 The Court also relied on the fact that

the defendants admitted there was no basis for a reasonable person to distinguish

the inn from any other Hilton Hotels corporation,30 and the plaintiffs stated they

put their faith and trust in the inn because Hilton “was a major hotel.”31




23
   Id.
24
   Id. at 198-99.
25
   Id.
26
   Id.
27
   Id.
28
   Id. at 199.
29
   Id.
30
   Id.
31
   Id.
                                            12
Accordingly, the Court found the plaintiffs relied on the Hilton name and the

quality it represents.32

       Plaintiffs’ Complaint sufficiently alleges that RE/MAX had apparent

authority over Sunvest. RE/MAX’s logo and trademark was featured prominently

in the office and on Sunvest’s website. Sunvest’s signs, email signatures, and

documents all bore RE/MAX’s name and/or trademark.                     The Complaint also

alleges Plaintiffs reached out to RE/MAX’s franchises because they thought the

franchises would be backed by RE/MAX and “its philosophy of caring for

customers.”33 The Complaint therefore alleges Plaintiffs relied on RE/MAX’s

name and brand quality. Accordingly, it is reasonable to infer from the Complaint

that Sunvest was RE/MAX’s apparent agent.

     D. Count III of the Complaint adequately alleges Sunvest negligently
        retained Chen.

       Count III of the Complaint includes claims of common law negligence and

negligent hiring, retention, and supervision against Sunvest. Plaintiffs largely base

this claim on the fact that Chen and Sunvest were named as co-defendants in

several real estate-related legal actions beginning in 2007. Plaintiffs contend these

lawsuits put Sunvest on actual or constructive notice of Chen’s fraudulent conduct.

Sunvest argues the Complaint only makes conclusory statements regarding its
32
  Id.
33
  Am. Compl. at ¶ 26 (“Real estate purchasers and investors, including Plaintiffs, reach out to
RE/MAX franchisees because they trust those franchises are backed by RE/MAX and its
philosophy of caring for customers.”).
                                              13
alleged negligent hiring, retention, and supervision of Chen. As discussed in

Section B.2, it is reasonable to infer from the Complaint that Sunvest employed

Chen, and Plaintiffs therefore may maintain adequately pleaded claims of common

law negligence and negligent hiring, supervision, and retention.

         Plaintiffs’ amended Complaint, however, does not adequately plead claims

for common law negligence or negligent hiring and supervision. The elements of

common law negligence in Delaware are duty, breach, causation, and harm.34 The

Complaint fails to allege Sunvest had any duty to Plaintiffs, and Plaintiffs therefore

have failed to allege common law negligence against Sunvest. Similarly, “[a]n

employer is liable for negligent hiring or supervision where the employer [was]

negligent . . . in the employment of improper persons involving risk of harm to

others or in the supervision of the employee’s activit[ies].”35 The plaintiff must,

however, allege the employer was on notice of the employee’s risk of tortious

behavior at the time the employer hired the employee.36 Here, the Complaint fails

to allege facts that would show Sunvest was on notice of the risk of Chen’s tortious

conduct at the time of his hiring. At most, the Complaint alleges Sunvest was or

should have been aware of Chen’s misconduct in 2007, well after Sunvest hired

him.37

34
   Hudson v. Old Guard Ins. Co., 3 A.3d 246, 250 (Del. 2010).
35
   Simms v. Christina School District, 2004 WL 344015, at *8 (Del. Super. Jan. 30, 2004).
36
   Fanean v. Rite Aid Corp. of Delaware, Inc., 984 A.2d 812, 826 (Del. Super. 2009).
37
   See Am. Compl. ¶ 22.
                                              14
         The Complaint does, however, adequately allege a claim for negligent

retention, which considers an employer’s actions or omissions after an employee’s

hiring.

                An action for negligent supervision is based upon the
                employer’s negligence in failing to exercise due care to
                protect third parties from the foreseeable tortious acts of
                the employee.
                ...
                The deciding factor is whether the employer had or
                should have had knowledge of the necessity to exercise
                control over its employee. Thus, existence of duty under
                a negligent supervision theory depends upon whether the
                risk of harm from the dangerous employee was
                reasonably foreseeable as a result of the employment.38

         The amended Complaint alleges “Sunvest had constructive, if not actual,

notice that Chen may [have been] engaging in conduct that [wa]s legally

actionable.”39      Plaintiffs allege Sunvest regularly was named as Chen’s co-

defendant and garnishee in debt and breach of contract actions relating to his real

estate investments. Plaintiffs also generally allege Sunvest knew or should have

known Chen was using his Sunvest position and office to facilitate his fraud.

Again, Plaintiffs will need substantially more to prevail on this claim at trial, but at

the pleadings stage, and drawing all reasonable inferences in Plaintiffs’ favor, there

is a reasonably conceivable set of circumstances under which Plaintiffs could

prevail on a claim against Sunvest for negligent retention.

38
     Matthews v. Booth, 2008 WL 2154391, at *3 (Del. Super. May 22, 2008).
39
     Am. Compl. ¶ 76.
                                               15
     E. Count IV of the Complaint fails to adequately plead common law
        negligence and negligent hiring, supervision, or retention against
        RE/MAX.

        Count IV of the Complaint alleges claims of common law negligence and

negligent hiring, supervision, and retention against RE/MAX. Plaintiffs argue

RE/MAX had the duty to ensure its agents “are of such qualification and character

that they will not . . . harm its customers.”40 Plaintiffs also claim RE/MAX has a

duty to review its agents’ qualifications and character regularly. In response,

RE/MAX argues the Complaint fails to allege facts to support Plaintiffs’

negligence claims.

        Similar to their claims against Sunvest for common law negligence and

negligent hiring and supervision, Plaintiffs also fail adequately to plead those

claims against RE/MAX. Regarding the negligent retention claim, however, and

unlike their adequately-pleaded claims against Sunvest, Plaintiffs fail to allege

facts to support a negligent retention claim against RE/MAX. The Complaint

refers to Chen as Sunvest’s employee, rather than RE/MAX’s employee.41

Although the Complaint alleges RE/MAX “benefited” from Chen’s employment

with Sunvest, it does not allege or permit a reasonable inference that Chen was

RE/MAX’s employee.42 The Complaint fails to allege that RE/MAX consented to


40
   Id. at ¶ 80.
41
   Id. ¶ 2.
42
   Id.
                                        16
have Chen act on its behalf or be subject to RE/MAX’s control. In their reply

brief, Plaintiffs state they are uncertain of the nature of Chen’s relationship with

RE/MAX and concede the Complaint is vague in this regard.43 Plaintiffs, however,

maintain Chen’s employment status may be inferred from RE/MAX’s website and

ask for leave to amend the Complaint.44 Although I am skeptical that Plaintiffs

will be able to plead that Chen is RE/MAX’s employee, Count IV is dismissed

without prejudice to Plaintiffs filing an amended Complaint within twenty days.

     F. Count V of the Complaint adequately pleads a breach of contract claim
        against Sunvest.

       Count V of the Complaint alleges a breach of contract claim against Sunvest

because Sunvest has not paid the interest due on Plaintiffs’ promissory notes. The

Complaint claims Sunvest is bound by the notes because Chen signed the notes as

Sunvest’s agent.       In response, Sunvest argues the Complaint fails to allege

Plaintiffs ever entered into a contract with Sunvest.

       When an agent enters into a contract with actual authority on behalf of a

disclosed principal, the principal is a party to the contract.45 The elements of a

breach of contract claim are: (1) a contractual obligation; (2) a breach of that

obligation; and (3) resulting damages.46

       Here, it is reasonable to infer Chen entered into contracts with Plaintiffs on
43
   Pl.s’ Resp. to RE/MAX’s Mot. Dismiss at ¶ 4.
44
   Id.; see also Am. Compl. at ¶ 22.
45
   RESTATEMENT (THIRD) OF AGENCY § 6.01 (AM. LAW INST. 2006).
46
   Interim Healthcare, Inc. v. Spherion Corp., 884 A.2d 513, 548 (Del. Super. 2005).
                                               17
Sunvest’s behalf.     The Complaint alleges Chen was Sunvest’s employee and

entered into promissory notes with each plaintiff.             The Complaint contained

exhibits showing Chen signed promissory notes with plaintiffs Patel, Bhatt, and

Ye. Chen’s signature block presented Chen as a broker and president of Sunvest. 47

Further, the Complaint adequately alleges the promissory notes are in default. The

notes promise to pay the holders monthly interest payments, and neither Chen nor

Sunvest has made interest payments on the notes since 2017. Accordingly, the

Complaint adequately pleads a breach of contract claim against Sunvest.

     G. Count VI of the Complaint adequately pleads a breach of contract claim
        against RE/MAX.
       Count VI of the Complaint claims RE/MAX is in breach of contract because

Chen signed Plaintiffs’ promissory notes as RE/MAX’s actual or apparent agent.

As discussed above, the Complaint fails to allege Chen was RE/MAX’s employee

or actual agent, but sufficiently alleges Sunvest was RE/MAX’s apparent agent and

that Sunvest’s employees, including Chen, had apparent authority to contract on

RE/MAX’s behalf. Under Delaware law, an apparent agent has authority to bind a




47
  Ye’s promissory note lists “Chenmax properties Inc., a Company of Carl Chen” as the note
buyer. Ex. C. to Am. Compl. It is reasonable to infer, however, that Chen acted with apparent
authority from Sunvest due to his signature. See RESTATEMENT (THIRD) OF AGENCY § 6.01 (AM.
LAW INST. 2006).
                                             18
principal to a contract.48 Whether Plaintiffs ultimately may prove the necessary

elements of this claim is a matter for another day.

     H. Count VII of the Complaint fails to adequately plead common law fraud
        against Sunvest & RE/MAX.
        Count VII of the Complaint pleads a common law fraud claim against both

Sunvest and RE/MAX based on Chen’s tortious conduct. Plaintiffs argue Chen’s

conduct is imputed to Sunvest and RE/MAX because Chen acted as their actual or

apparent agent.       Count VII does not, however, allege Sunvest or RE/MAX

committed fraud through any conduct other than Chen’s. As noted previously, the

Complaint sufficiently pleads Sunvest and RE/MAX vicariously may be liable for

Chen’s fraud because he acted as their actual or apparent agent. Because the

Complaint fails to allege Sunvest or RE/MAX committed fraud directly, the

Complaint fails to plead a fraud claim against Sunvest and RE/MAX distinct from

the vicarious liability claims alleged in Counts I and II.

     I. Defendants’ motions to strike are granted in part.

        In its motion to dismiss, RE/MAX argued that, if the Court does not dismiss

the Complaint in its entirety, it should strike paragraphs 21, 26, 27, and 32 under

Superior Court Civil Rule 12(f). Each of the allegations in those paragraphs,

48
  International Boiler Works Co. v. General Waterworks Corp., 372 A.2d 176, 177 (Del. 1977);
Giangrant v. Richard A. Parsons Agency, Inc., 1988 WL 40023, at * 2 (Del. Super. Apr. 22,
1988); Sarissa Capital Domestic Fund LP v. Innoviva Inc., 2017 WL 6209597, at *19 (Del. Ch.
Dec. 8, 2017) (“even if a person lacks actual authority to bind an entity to a contract with a third
party, the person still may have apparent authority to do so.”); RESTATEMENT (THIRD) OF
AGENCY § 6.01 (AM. LAW INST. 2006).
                                                19
however, relate – directly or indirectly – to Plaintiffs’ agency theories and

therefore are relevant to Plaintiffs’ claims.     In contrast, footnote 21 of the

Complaint is nugatory and therefore is striken.

      Defendants also moved to strike exhibits Plaintiffs attached to their

opposition brief, arguing those exhibits introduced matters outside the pleadings

and therefore could not be considered by the Court in resolving the motions to

dismiss. Plaintiffs contend those exhibits were offered for the limited purpose of

supporting Plaintiffs’ argument that any dismissal should be without prejudice. I

agree with Defendants that the exhibits may not properly be considered by the

Court, and the motion to strike therefore is granted as to those exhibits. Because

the only claim dismissed with prejudice is the duplicative Count VII, Plaintiffs’

reliance on those exhibits to support their request to amend the Complaint is

unnecessary.

CONCLUSION

      For the foregoing reasons, Defendants’ Motions to Dismiss are DENIED as

to Counts I, II, III, V, and VI, are GRANTED without prejudice as to Count IV,

and are GRANTED with prejudice as to Count VII. RE/MAX Holdings, Inc.’s

Motion to Dismiss is GRANTED as to all counts. IT IS SO ORDERED.




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