             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MCCANN AEROSPACE                               )
MACHINING, LLC, a Delaware                     )
limited liability company,                     )
                                               )
                     Plaintiff,                )
                                               )
              v.                               )   C.A. No. N16C-02-164 EMD CCLD
                                               )
JOHN W. MCCANN, MCCANN                         )
AEROSPACE MACHINING                            )
CORPORATION, a Georgia                         )
corporation, MCCANN                            )
TECHNOLOGIES CORPORATION, a                    )
Georgia corporation, and ARMAGH                )
CAPITAL RESOURCE LLC, a Georgia                )
limited liability company,                     )
                                               )
                     Defendants.               )

                                   Submitted: June 22, 2016
                                    Decided: June 30, 2016

              ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
                COUNT I OF THE FIRST AMENDED COMPLAINT

Gregory V. Varallo, Esquire, Kevin M. Gallagher, Esquire, Katherine L. Mowery, Esquire, and
Andrew J. Peach, Esquire, Richards, Layton & Finger, P.A., Wilmington, Delaware, Andrew D.
Gladstein, Esquire, and Michael E. Swartz, Esquire, Schulte Roth & Zabel LLP, New York, New
York. Attorneys for Plaintiff McCann Aerospace Machining, LLC.

John A. Sensing, Esquire, and Jaclyn C. Levy, Esquire, Potter Anderson & Corroon LLP,
Wilmington, Delaware, Stewart Clancy, Esquire, McGuire Woods LLP, Dallas, Texas, and
Cheryl Haas, Esquire, McGuire Woods LLP, Atlanta, Georgia. Attorneys for Defendants
McCann Aerospace Machining Corporation, McCann Technologies Corporation, Armagh
Capital Resource, LLC, and John W. McCann.

DAVIS, J.

       This 30th day of June, 2016, upon consideration of the First Amended Complaint filed by

Plaintiff McCann Aerospace Machining, LLC’s (“McCann Aerospace”) on February 22, 2016;

the Defendants’ Motion to Dismiss Count I of the First Amended Complaint (the “Motion to
Dismiss”) filed by Defendants McCann Aerospace Machining Corporation, McCann

Technologies Corporation, Armagh Capital Resource, LLC, and John W. McCann’s

(collectively, “Defendants”) on March 9, 2016; the Opening Brief in Support of Defendants’

Motion to Dismiss Count I of the First Amended Complaint (“Defs.’ Br.”) filed on March 9,

2016; Plaintiff’s Answering Brief in Opposition to Defendants’ Motion to Dismiss Count I of the

First Amended Complaint (“Pl.’s Opp.”) filed on April 5, 2016; Defendants’ Reply Brief in

Support of Defendants’ Motion to Dismiss Count I of the First Amended Complaint (“Defs.’

Rep.”) filed on April 20, 2016; the Court having held a Superior Court Civil Rule 16 status

conference with the parties on June 22, 2016: and, the Court finding that no hearing is necessary

on the Motion to Dismiss; it appears to the Court that:

         1.       This is a civil action filed and assigned to the Complex Commercial Litigation

Division. The civil action arises from an asset sale dispute. McCann Aerospace seeks damages

for its purchase of an aerospace manufacturer’s metal works business. Relevant to this Order,

McCann Aerospace claims Defendants fraudulently induced McCann Aerospace into buying the

company by hiding the extent to which its machines and parts needed repairs and upgrading.

Defendants claim McCann Aerospace’s fraud claim fails because it was not plead with

specificity under Superior Court Civil Rule 9(b).1 Defendants claim McCann Aerospace only

plead fraud to supersede the parties’ Asset Purchase Agreement’s (“APA”) indemnification cap.

         2.       In August 2013, Defendants expressed an interest in selling their assets, including

its aircraft manufacturing facility in Athens, Georgia (the “Facility”).2 The Facility builds and




1
  Super Ct. Civ. R. 9(b) (“In all averments of fraud, negligence or mistake, the circumstances constituting fraud,
negligence or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of mind of a
person may be averred generally.”).
2
  Plaintiff’s Amended Complaint (“Pl.’s Compl.”), ¶21

                                                          2
supplies aircraft parts to business, commercial, and military entities.3 The Facility uses massive

precision metal-cutting machines with sophisticated drive and control systems.4 The machines

use spindles to hold tools with which to manufacture these parts.5 Cooling systems drench the

spindles to prevent overheating.6 The machines also create piles of metal “chips,” or debris, in

the process.7

        3.       McCann Aerospace was interested in buying the assets. The parties negotiated

and did their due diligence for seven months.8 McCann Aerospace visually inspected the

Facility’s machines several times prior to closing; they appeared to be operable.9

        4.       On February 19, 2014, the parties executed the APA.10 The APA included

Schedule 3.06(a), a schedule of machines in need of repairs and upgrades.11

        5.       McCann Aerospace bought Defendants’ assets for $37 million. The APA capped

McCann Aerospace’s “Buyers Indemnified Losses” at $4.0 million.12 The indemnification cap

does not apply to fraud or intentional misrepresentation claims.13 The transaction closed March

25, 2014.14

        6.       After the closing, McCann Aerospace was “immediately deluged” with emails

and phone calls from customers complaining of long-overdue deliveries.15 McCann Aerospace

then began an investigation into what was the source of the customer complaints. McCann

Aerospace learned numerous machines were not properly maintained and were consistently shut
3
  Id. ¶17.
4
  Id. ¶19.
5
  Id. ¶48.
6
  Id. ¶49.
7
  Id. ¶44.
8
  Id.
9
  Id. ¶30.
10
   Id.
11
   Id. ¶28.
12
   APA at 42–44 (attached as Pl.’s Compl., Ex. 1).
13
   Id. at 47.
14
   Pl.’s Compl. ¶25.
15
   Id. ¶31.

                                                     3
down for non-routine maintenance.16 In the First Amended Complaint, McCann Aerospace

claims that Schedule 3.06(a) misstated the number of defective machines.

            7.     The First Amended Complaint alleges that Defendants fraudulently induced

McCann Aerospace to buy the broken, dysfunctional machinery, including items not on Schedule

3.06(a). In its entirety, McCann Aerospace’s fraud claim states:

            98.    Plaintiff repeats the allegations of paragraphs 1-97 as if fully set forth
                   herein.

            99.    Pursuant to Section 3.27 of the APA, Defendants had a duty to disclose
                   material facts necessary to make the statements in the APA not
                   misleading.

            100.   Defendants violated their duty of disclosure when they knowingly and
                   actively concealed significant problems that were plaguing the machines
                   and represented and warranted that the machines were in reasonable
                   operating condition for the purposes for which they were used.

            101.   Defendants made the above representations with knowledge of their
                   falsity.

            102.   Defendants knew the true nature and extent of the issues causing the
                   machines to fail, which were the subject of daily meetings and emails at
                   the Company prior to Closing.

            103.   To prevent Plaintiff from discovering the failing condition of the machines
                   during Plaintiff’s representatives’ inspection, Defendants directed
                   maintenance crews working on broken machines to vacate the factory
                   floor prior to the inspection, and instructed Company employees to make
                   critical machines that were down for repairs appear as if they were
                   functioning properly while Plaintiff’s representatives were on the
                   premises.

            104.   Defendants intended to induce Plaintiff’s reliance on those
                   misrepresentations and material omissions by causing Plaintiff to enter
                   into the APA and pay more than the fair value of the Company.

            105.   Plaintiff justifiably relied on the material misrepresentations and
                   omissions made by Defendants.



16
     Id. ¶32.

                                                      4
          106.         As a result of Defendants’ fraudulent conduct, Plaintiff was induced to pay
                       more for the Company than it was worth and thereby has been injured in
                       an amount to be determined at trial.17

          8.           McCann Aerospace claims that thirty minutes prior to a September 2013

inspection, maintenance employees cleared the floor.18 A machine operator then shoveled

“chips” from a functional machine to the broken one.19 Moreover, during the inspection,

employees removed the broken machine’s chips, making it appear that it was being prepped for

new work.20

          9.           Additionally, McCann Aerospace alleges Defendants’ fraud was not limited to a

single machine.21 McCann Aerospace claims Defendants concealed broken machine spindles by

soaking them in coolant.22 Allegedly, Defendants directed a machine maintenance manager to

attach tools to the broken spindles and turn on the machine’s coolant system.23 McCann

Aerospace contends that this gave the appearance that the machines were functional.24

          10.          Defendants allege that McCann Aerospace’s “complaint remains devoid of facts

alleged with the necessary particularity.”25 Defendants claims McCann Aerospace “failed to

plead sufficient details regarding the purported misrepresentations, including the identity of the

person orchestrating the alleged fraud, and where or when such alleged fraudulent acts were

conducted.”26 Defendants contend that Rule 9(b) of the Superior Court Civil Rules (“Civil Rule

__”) requires McCann Aerospace to plead, with particularity, the identification of who instructed

Defendants’ employees to perpetuate fraud, where and when the instruction(s) occurred, and

17
   Id. ¶¶98-106.
18
   Id. ¶45.
19
   Id.
20
   Id. ¶46.
21
   Id. ¶48.
22
   Id. ¶49.
23
   Id.
24
   Id.
25
   Defs.’ Br., at 9.
26
   Id. at 10.

                                                        5
which machines with broken spindles were allegedly doctored by which alleged machine

operators, even after amending its complaint.27

        11.      When addressing a Civil Rule 12(b) motion to dismiss, the Court accepts all well-

pleaded factual allegations as true, accepts even vague allegations as well-pleaded if they give

the opposing party notice of the claim, draws all reasonable inferences in favor of the non-

moving party, and only dismisses a case where the plaintiff would not be entitled to recover

under any reasonably conceivable set of circumstances.28 However, the Court must “ignore

conclusory allegations that lack specific supporting factual allegations.”29

        12.      In order for McCann Aerospace to survive a motion to dismiss a fraud claim,

McCann Aerospace must factually allege: (1) a false representation, usually of fact, made by

Defendants; (2) the Defendants’ knowledge or belief that the representation was false, or was

made with reckless indifference to the truth; (3) an intention to induce McCann Aerospace to act

or to refrain from acting; (4) causing McCann Aerospace to take action or inaction in justifiable

reliance upon the representation; and (5) damage to the McCann Aerospace as a result of such

reliance.30

        13.      In Trenwick American Litigation Trust v. Ernst & Young, L.L.P.,31 plaintiff’s

fraudulent inducement claim, in its entirety, read:

        The directors of both parent and subsidiary acted together to: fraudulently conceal
        (a) [Trenwick America's] financial condition from 2000 to 2003; (b) the financial
        condition and reserve level problems at Chartwell prior to the 1999 merger; (c)
        the true nature of the intercompany payable supposedly due to Trenwick by
        Chartwell; (d) the actual value of the LaSalle transaction; and (e) the true value of



27
   Id. (emphasis in original).
28
   Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 227 A.3d 531, 536 (Del. 2011); Doe v.
Cedars Academy, 2010 WL 5825343, at *3 (Del.Super. Oct. 27, 2010).
29
   Ramunno v. Crawley, 705 A.2d 1029, 1034 (Del. 1998).
30
   Gaffin v. Teledyne, Inc., 611 A.2d 467, 472 (Del. 1992).
31
   906 A.2d 168 (Del. Ch. 2006).

                                                       6
         the various TGI subsidiaries transferred between companies during the
         restructuring done in preparation for the LaSalle merger.

         As directors and/or officers of [Trenwick] and [Trenwick America], these
         defendants had a duty to disclose this information to Plaintiff. Plaintiff relied on
         these omissions to its detriment.32

         14.      The Court of Chancery dismissed plaintiff’s fraudulent inducement claim because

it failed to plead fraud with particularity. The Court, examining Chancery Rule 9(b), 33 stated:

         These allegations are precisely the sort of unspecific, broadbrush generalities that
         [Chancery] Rule 9(b) is intended to preclude from serving as a basis for a fraud
         claim. Notably absent from the complaint are particularized allegations
         identifying what aspect of [the] financial statements were tainted […], when those
         financial statements were made public, and the circumstances that suggest that
         any inaccuracies were intentional.34

         15.      In TrueBlue, Inc. v. Leeds Equity Partners IV, LP,35 plaintiffs sued over alleged

fraudulent inducements in a stock purchase agreement.36 Plaintiffs filed suit alleging, inter alia,

fraudulent inducement. Plaintiffs alleged that the defendants’ representations about what entity

would pay an earn-out induced plaintiffs to enter into the agreement.37 Defendants moved to

dismiss the fraud claim for failure to meet Civil Rule 9(b)’s heightened pleading standards.

         16.      The TrueBlue Court denied defendants’ motion to dismiss the fraud claim. The

Court held:

         [T]he Amended Complaint alleges that in or about April 2014, Christopher Mairs
         (a Leeds representative) stated that the HRX Earn-out was Leeds’ obligation and
         promised to pay it; and, that in or about April 2014, in Florida, Cartner Harned
         (Leed’s lead negotiator) stated that “of course Leeds would pay [the HRX Earn-
         Out].” These allegations are sufficient to satisfy the Rule 9(b) particularity



32
   Id. at 208.
33
   Ch. Ct. R. 9(b) (“In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be
stated with particularity. Malice, intent, knowledge and other condition of mind of a person may be averred
generally.”)
34
   Id.
35
   2015 WL 5968726 (Del. Super. Sept. 25, 2015).
36
   Id. at *1.
37
   Id.

                                                           7
        requirement because the time, place, content, and speaker of the statements
        underlying Plaintiffs’ fraud claim are clearly specified.38

        17.      The Court finds that Defendants’ argument as to the pleading standard under Civil

Rule 9(b) sets the bar too high. Civil Rule 9(b) does not require factual exactness.39 Instead, all

that is required to satisfy Civil Rule 9(b)’s pleading with particularity is “time, place, contents of

the alleged fraud, as well as the individual accused of committing the fraud.”40

        18.      The Court finds that paragraphs 43–49 and 98–106 of McCann Aerospace’s

Amended Complaint meet Rule 9(b)’s heightened pleading standard. McCann Aerospace

discussed the time (in anticipation of McCann Aerospace’s inspection); the place (the Facility’s

floor); the contents (placing chips and flushing spindles with coolant); and the individuals

accused of committing the fraud (maintenance employees, specific machine operators, and

supervisors).

        19.      For the foregoing reasons, Defendants’ Motion to Dismiss Count I of the First

Amended Complaint is DENIED.

        IT IS SO ORDERED.

                                                                    /s/ Eric M. Davis
                                                                    Eric M. Davis, Judge




38
   Id. at *6.
39
   See Universal Capital Management, Inc. v. Micco World, Inc., 2012 WL 1413598 (Del. Super. Feb. 1, 2012)
(allowing thinly-plead fraud claim to survive a motion to dismiss even though “scant” details were plead).
40
   TrueBlue, Inc., 2015 WL 5968726, at *6.


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