                                   COURT OF CHANCERY
                                           OF THE
                                   STATE OF DELAWARE

DONALD F. PARSONS, JR.                                        New Castle County Courthouse
   VICE CHANCELLOR                                            500 N. King Street, Suite 11400
                                                             Wilmington, Delaware 19801-3734



                             Date Submitted: October 23, 2014
                             Date Decided: December 8, 2014




   Kurt M. Heyman, Esq.                      Ms. Leilani Zutrau
   Melissa N. Donimirski, Esq.               229 McKinley Parkway
   Proctor Heyman LLP                        Mineola, NY 11501
   300 Delaware Avenue, Suite 200
   Wilmington, DE 19801

          Re:    Zutrau v. Jansing and ICE Systems, Inc.
                 Civil Action No. 7457-VCP

   Dear Counsel and Ms. Zutrau:

          On July 31, 2014, I issued my Post-Trial Opinion (the “Opinion”) in Plaintiff

   Leilani Zutrau‟s direct and derivative lawsuit against Defendant John C. Jansing and

   nominal defendant ICE Systems, Inc. (“ICE”) in which Zutrau pursued a variety of

   claims relating to, among other things, a reverse stock split executed by ICE that

   resulted in the elimination of Zutrau‟s minority equity interest in the company. As

   the Opinion‟s page count suggests, I addressed Zutrau‟s numerous arguments in

   detail and at length. Ultimately, although I rejected several of Zutrau‟s claims, I

   found that Jansing had breached his fiduciary duties and that the terms of the reverse
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
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Page 2


stock split were not entirely fair to Zutrau.1 At the conclusion of the Opinion, I

ordered the parties to submit adjusted damage calculations pursuant to a schedule set

forth in a related order (the “Damages Order”).2 The Damages Order imposed a

deadline of August 28, 2014, for Zutrau to raise any objections to Defendant‟s

revised calculations.3 Zutrau did not—and has not—raised any such objections.

      Instead, on August 27, Zutrau terminated her counsel‟s representation. Shortly

thereafter, those attorneys moved to withdraw and for entry of a charging lien. That

motion is the subject of a separate letter opinion being filed this same date and will

not be addressed further herein. Of relevance to this Letter Opinion, on September 8,

Zutrau filed, on her own behalf, another motion styled “Plaintiff‟s Motion to Alter or

Amend Judgment, or in the Alternative, for a New Trial” (the “Motion”) in which she

contests virtually every aspect of the Opinion. The parties fully briefed that Motion, 4

and the Court heard argument on it on October 23, 2014 (the “Argument”). This

1
      Zutrau v. Jansing, 2014 WL 3772859, at *42 (Del. Ch. July 31, 2014)
      [hereinafter Opinion].
2
      Zutrau v. Jansing, 2014 WL 3827569 (Del. Ch. July 31, 2014) [hereinafter
      Damages Order].
3
      Id. ¶ 4.
4
      The briefing consisted of Zutrau‟s opening brief (“Pl.‟s Br.”), Defendant‟s
      brief in opposition (“Def.‟s Opp‟n Br.”), and Zutrau‟s reply (“Pl.‟s Reply”),
      which collectively totaled roughly 113 pages.
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
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Letter Opinion constitutes my ruling on Zutrau‟s Motion. For the reasons that follow,

the Motion is denied.

                               I.     Legal Standard
      The parties dispute what legal standard should be applied to the Motion.

Zutrau characterizes the Motion as seeking either to alter or amend the judgment

under Court of Chancery Rule 59(e) or, alternatively, a new trial under Rule 59(a).

Jansing contends that the Motion effectively is one for reargument and must be

reviewed under Rule 59(f). Additionally, I note that, although not reflected in its

title, the Motion also seeks to amend Zutrau‟s pleadings under Rule 15(b) and

requests a stay pursuant to Rule 62(b).5 Based on these disputes and the confusion

they engender, I begin by reviewing briefly the standards applicable to each of the

potentially relevant rules.

               A.       Rule 59(e): To Alter or Amend the Judgment
      “„Under Rule 59(e), a motion to alter an Order may be granted if the plaintiff

demonstrates (1) an intervening change in controlling law; (2) the availability of new

evidence not previously available; or (3) the need to correct a clear error of law or to




5
      Because this Letter Opinion resolves the Motion, the request for a stay pending
      the Motion‟s disposition is moot.
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
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prevent manifest injustice.‟”6 As with a Rule 59(f) motion for reargument, the Court

will deny a motion under Rule 59(e) that “merely restates arguments already

considered and rejected during the litigation.”7

                           B.      Rule 59(a): New Trial
      “To obtain a new trial, the disappointed litigant must show that manifest

injustice otherwise would result.”8 “In ruling on such a motion, the Court is charged

with exercising the „judicial discretion of the Court so that injustice may be

prevented.‟”9


6
      In re Restatement of Declaration of Trust Creating the Survivor’s Trust
      Created Under the Ravet Family Trust Dated Feb. 9, 2012, 2014 WL 2538887,
      at *2 (Del. Ch. June 4, 2014) (quoting Nash v. Schock, 1998 WL 474161, at *1
      (Del. Ch. July 23, 1998)).
7
      Paron Capital Mgmt. v. Crombie, 2012 WL 3206410, at *1 (Del. Ch. Aug. 2,
      2012); see also Fisk Ventures, LLC v. Segal, 2008 WL 2721743, at *1 (Del.
      Ch. July 3, 2008) (noting that “relief under Rule 59 „is available to prevent
      injustice‟—not to offer a forum for disgruntled litigants to recast their losing
      arguments with new rhetoric”) (quoting Sutherland v. Sutherland, 968 A.2d
      1027, 1028 (Del. Ch. 2008)).
8
      Adams v. Calvarese Farms Maint. Corp., 2011 WL 383862, at *1 n.3 (Del. Ch.
      Jan 13, 2011) (citing In re William Lyon Homes S’holder Litig., 2007 WL
      270428, at *1 (Del. Ch. Jan. 18, 2007)).
9
      Cantor Fitzgerald, L.P. v. Cantor, 2001 WL 536911, at *2 (Del. Ch. May 11,
      2001) (quoting Daniel D. Rappa, Inc. v. Hanson, 209 A.2d 163, 166 (Del.
      1965)); see also Ross Sys. Corp. v. Ross, 1994 WL 198718, at *2 (Del. Ch.
      May 9, 1994).
Zutrau v. Jansing and ICE Systems, Inc.
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                          C.     Rule 59(f): Reargument
      To prevail on a motion for reargument under Rule 59(f), the moving party must

demonstrate either that the court overlooked a decision or principle of law that would

have controlling effect or that the court misapprehended the facts or the law such that

the outcome of the decision would be different.10          To justify reargument, a

misapprehension of the facts or the law must be both material and outcome-

determinative of the earlier decision.11      Mere disagreement with the Court‟s

resolution of a matter is not sufficient, and the Court will deny a motion for

reargument that does no more than restate a party‟s prior arguments.12

      Courts generally will not consider new evidence on a motion for reargument.

Reargument under Rule 59(f) “is only available to re-examine the existing record.”13

In appropriate circumstances, however, a litigant may seek reargument based on

10
      See, e.g., Preferred Invs., Inc. v. T&H Bail Bonds, 2013 WL 6123176, at *4
      (Del. Ch. Nov. 21, 2013); Medek v. Medek, 2009 WL 2225994, at *1 (Del. Ch.
      July 27, 2009); Reserves Dev. LLC v. Severn Sav. Bank, FSB, 2007 WL
      4644708, at *1 (Del. Ch. Dec. 31, 2007).
11
      See, e.g., Preferred Invs., 2013 WL 6123176, at *4; Aizupitis v. Atkins, 2010
      WL 318264, at *1 (Del. Ch. Jan. 27, 2010); Medek, 2009 WL 2225994, at *1.
12
      See, e.g., Preferred Invs., 2013 WL 6123176, at *4; In re Mobilactive Media,
      LLC, 2013 WL 1900997, at *1 (Del. Ch. May 8, 2013); Brown v. Wiltbank,
      2012 WL 5503832, at *1 (Del. Ch. Nov. 14, 2012).
13
      Reserves Dev. LLC, 2007 WL 4644708, at *1.
Zutrau v. Jansing and ICE Systems, Inc.
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newly discovered evidence.14 “To succeed on such a basis, an applicant must show

the newly discovered evidence came to his knowledge since the trial and could not, in

the exercise of reasonable diligence, have been discovered for use at the trial.”15

                    D.     Rule 15(b): Amending the Pleadings
      Rule 15(b) allows amendment of the pleadings to conform to issues “tried by

express or implied consent of the parties.”16         “The primary consideration in

determining whether to grant leave to amend under Rule 15(b) is prejudice to the

opposing party.”17 “The purpose of Rule 15(b) is „to encourage the disposition of

litigation on its merits,‟ and the „decision to permit or deny an amendment is left to

the discretion of the trial judge.‟”18 Assertion of entirely new claims via such a




14
      See In re Mobilactive Media, 2013 WL 1900997, at *1; Reserves Dev. LLC,
      2007 WL 4644708, at *1.
15
      Reserves Dev. LLC, 2007 WL 4644708, at *1.
16
      Ct. Ch. R. 15(b).
17
      Those Certain Underwriters at Lloyd’s, London v. Nat’l Installment Ins. Servs.,
      Inc., 2008 WL 2133417, at *10 (Del. Ch. May 21, 2008).
18
      Vichi v. Koninklijke Philips Elecs., N.V., 85 A.3d 725, 759 (Del. Ch. 2014)
      (quoting Grand Ventures, Inc. v. Whaley, 632 A.2d 63, 72 (Del. 1993)).
Zutrau v. Jansing and ICE Systems, Inc.
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motion is disfavored. Rather, motions under Rule 15(b) “„are intended to correct the

theory of an existing claim and not to assert new and different claims.‟”19

                               II.     Zutrau’s Motion
      Zutrau advances numerous arguments that arguably come under one or more of

the foregoing legal standards, but she does not tie any of those arguments closely to

any particular standard. As the following sections show, Zutrau‟s Motion spends

significant time disputing the Court‟s findings of facts and weighing of the evidence.

She has failed, however, to show any manifest injustice or misapprehension of the

facts or law such as would entitle her to a new trial or reargument. The Motion also

fails to present any cognizable basis for the ultimate relief she seeks: rescission of the

reverse stock split and/or dissolution of ICE.20




19
      Those Certain Underwriters at Lloyd’s, 2008 WL 2133417, at *11 (quoting
      Pickwick Entm’t, Inc. v. Theiringer, 898 F. Supp. 75, 78 (D. Conn. 1995)).
20
      Pl.‟s Br. 57. The Court previously addressed Zutrau‟s requested remedy and
      found damages to be more equitable and appropriate in this case than
      rescission. Opinion at *40. After trial, I denied Zutrau‟s request for
      dissolution, because she failed to show that any of the factors relevant to that
      issue supported dissolution. Id. at *40 n.374.
Zutrau v. Jansing and ICE Systems, Inc.
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     A.       The Motion Does Not Support Altering or Amending the Judgment
          Defendant challenges the timeliness of Zutrau‟s Motion under Rule 59(e). In

that regard, I note that Zutrau, a non-lawyer, is representing herself.21 Rule 59(e)

requires a motion to alter or amend the judgment be brought “not later than 10 days

after entry of judgment.”22 Jansing claims that, because there is no judgment, there

can be no motion to alter or amend the judgment. In the alternative, Jansing argues

that, if either the Damages Order or the Opinion is deemed to be a judgment, then

Zutrau was tardy in filing her Motion and, therefore, it should be denied as untimely.

Both the Opinion and the Damages Order were entered on July 31, 2014, and the



21
          There is some question as to whether Zutrau should receive the usual deference
          given to pro se plaintiffs, because she voluntarily assumed that status by
          discharging her counsel the day before the deadline to submit objections to
          Defendant‟s revised damage calculations. Additionally, the quality and extent
          of the briefing—including the admirably high degree of BlueBooking precision
          in the citations—strongly suggests that an attorney assisted Zutrau in preparing
          her submissions or that she has received at least some legal training.
          Regardless, I have accorded Zutrau the usual accommodations this Court
          grants to self-represented litigants. Finally, based on my disposition of this
          Motion and in the interest of finality, I consider it unnecessary to address the
          additional complications presented by the fact that Zutrau is proceeding pro se
          to seek reargument, or to alter or amend a judgment, or to obtain a new trial, as
          to virtually all of her claims, some of which are derivative. I simply note the
          usual rule that a Plaintiff cannot litigate derivative claims pro se. Kelly v. Fuqi
          Int’l, Inc., 2013 WL 135666, at *7 (Del. Ch. Jan. 2, 2013).
22
          Ct. Ch. R. 59(e).
Zutrau v. Jansing and ICE Systems, Inc.
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deadline for Zutrau to file any objections to the Defendant‟s revised damages

calculations was August 28. Zutrau filed her Motion on September 8. That is outside

the time limit under Rule 59(e), as computed under Court of Chancery Rule 6(a),

based on either the Opinion or the Damages Order, but not if based on the August 28

date. In response, however, Zutrau argues that, if anything, her Motion is too early. 23

Reading Rule 59(e) in a manner most favorable to Zutrau as a self-represented party,

I find the procedural status of this action sufficiently murky to warrant treating her

Motion, whatever its technical nature, as being timely. Thus, I will consider the

Motion on its merits.24

      In moving to alter or amend the judgment, Zutrau has not cited any intervening

change in controlling law. Furthermore, although she now states in an affidavit to her

Motion that maintaining a relationship with Jansing was a condition of the ICE equity

grant, Zutrau has not pointed to any new evidence that was not previously available.

23
      “The plain language of Rule 59(e) sets forth the outer time limits governing the
      filing of a motion under this rule, but is silent as to whether a judgment must be
      entered before filing.” Pl.‟s Reply 3.
24
      Defendant correctly argues that Rule 6(b) prevents the Court from enlarging
      the time frame in which to file a motion under Rule 59(e). Def.‟s Opp‟n Br.
      13. In this case, however, the Court is not expanding the time in which to file a
      Rule 59(e) motion, because no final judgment has been entered to date.
      Indeed, as evidence of the lack of a final judgment, I note that Jansing seeks to
      preclude Zutrau from contesting the still-pending revised damages calculations.
Zutrau v. Jansing and ICE Systems, Inc.
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Indeed, by Zutrau‟s own admission, she and her attorneys knew about the evidence

upon which this new argument is based before trial began.25 The only other way

Plaintiff could demonstrate a basis for relief under Rule 59(e) would be by showing

“„the need to correct a clear error of law or to prevent manifest injustice.‟”26

      While Zutrau disputes numerous aspects of the legal analysis in the Opinion,

she has not shown any clear error of law. In her briefing and at the Argument,

however, Zutrau repeatedly asserted that she is the victim of manifest injustice. For

instance, the “overall outcome is unjust, as it does not adequately address Jansing‟s

breaches and fraud, it wrongly allows ICE to repurchase Zutrau‟s stock, and it

unfairly values her equity interest.”27 Across dozens of pages, Zutrau fervently

argues that Jansing lied, concocted an untrue scheme, and sold the Court on his

mistruths.28 But, neither Zutrau‟s vehement disagreement with the Court‟s weighing

of the evidence and various factual findings nor her firm belief that the Court


25
      Pl.‟s Br. 33 & n.7; Zutrau Aff. ¶ 2.
26
      Paron Capital Mgmt., 2012 WL 3206410, at *1 (quoting Adams, 2011 WL
      383862, at *1 n.3).
27
      Pl.‟s Br. 1.
28
      E.g., Pl.‟s Reply 5-6 (“The central matter of Zutrau‟s Motion is attaining
      justice amid a mountain of misrepresentations that form the basis for Jansing‟s
      defense, which misinformed the Court‟s Opinion and Order.”).
Zutrau v. Jansing and ICE Systems, Inc.
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undervalued her ICE equity interest warrant a finding that she has been subjected to a

manifest injustice.29

        B.     The Motion Does Not Satisfy the Standard for a New Trial
      Whether to grant a new trial lies in the discretion of this Court. I may grant a

new trial “for any of the reasons for which rehearings have heretofore been granted in

suits in equity.”30 Without cataloguing all such reasons,31 our law directs that I

exercise my discretion to achieve the end goal of avoiding injustice. With regard to

the “new” allegation that Jansing conditioned Zutrau‟s receipt of equity on her having

a relationship with him, Zutrau and her counsel evidently knew about the facts

underlying that allegation before trial, but made a tactical decision not to present such

evidence at trial. Zutrau may have a bone to pick with her attorneys on that point, but

29
      Indeed, as a result of her lawsuit, Zutrau substantially increased the value she
      will receive for her ICE stock. Cf. Paron Capital Mgmt., 2012 WL 3206410,
      at *1 (rejecting a party‟s absence from trial because of financial hardship as
      grounds for relief under Rule 59‟s “manifest injustice” standard).
30
      Ct. Ch. R. 59(a).
31
      A relative dearth of case law exists on Rule 59(a). The fact that jury trials are
      not available in the Court of Chancery might explain why, in this Court, a
      motion for reargument, for which there is a robust body of law, generally is
      more common. Regardless of the specific subsection, however, “„the manifest
      purpose of all Rule 59 motions is to afford the Trial Court an opportunity to
      correct errors prior to appeal.‟” Cantor Fitzgerald, L.P., 2001 WL 536911, at
      *2 (quoting Eisenmann Corp. v. General Motors Corp., 2000 WL 303310, at
      *1 (Del. Super. Feb. 24, 2000)).
Zutrau v. Jansing and ICE Systems, Inc.
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it does not provide a legitimate basis for retrying this case. Lawyers serve as agents

of their clients; so long as lawyers act within their appropriate discretion, clients are

bound by the actions of their attorneys.32 As to the rest of the arguments in Plaintiff‟s

briefing, which are addressed more fully below, Zutrau has failed to show that

denying her a new trial on any or all of them would work a manifest injustice.33

C.      Treated as a Request for Reargument, the Motion Is Untimely and Fails
                                    on the Merits
      Despite Zutrau‟s protestations to the contrary, the Motion effectively is a

motion for reargument.34 As a motion for reargument, the Motion is clearly untimely




32
      See Vance v. Irwin, 619 A.2d 1163, 1165 (Del. 1993) (“[U]nder „our system of
      representative litigation, each party must be deemed bound by the acts of his
      lawyer-agent.‟”) (quoting Gebhart v. Ernest DiSabatino & Sons, Inc., 264 A.2d
      157, 160 (Del. 1970)).
33
      See Adams, 2011 WL 383862, at *1 n.3 (holding that a litigant‟s “bare
      assertion that a denial of relief would be „inconsistent with substantial justice‟”
      does not justify granting a new trial).
34
      Zutrau cites extensively to the trial record and disputes many of the Court‟s
      findings of facts and conclusions of law reflected in the Opinion. In substance,
      the Motion simply asserts that the Court got it wrong. This is a classic motion
      for reargument position. Notwithstanding Zutrau‟s disagreement with that
      proposition, this Court can consider the Motion under Rule 59(f). See, e.g.,
      Adams, 2011 WL 383862, at *1 n.3 (treating a Rule 59(e) motion as a motion
      under Rule 59(f) when movant sought reconsideration of the court‟s factual
      findings) (citing Cantor Fitzgerald, L.P., 2001 WL 536911, at *2).
Zutrau v. Jansing and ICE Systems, Inc.
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and I could deny it solely on that basis.35 Even if the Motion were timely, however, it

fails on the merits.        To obtain reargument, Zutrau “must show an outcome-

determinative overlooking of principle or precedent or else a similarly critical

misapprehension of the law or facts.”36       While Zutrau evinces, at length, her

disagreement with the Court‟s weighing of the evidence, she has not identified any

material fact or law that was overlooked or misapprehended.

                       1.       The apparently new arguments
      Jansing contends that Zutrau improperly raises three new arguments in her

Motion: (1) the terms of the reverse stock split were prohibited by the Restricted

Stock Agreement (“RSA”); (2) his use of ICE‟s credit line supported Zutrau‟s

35
      Rule 59(f) provides that a motion for reargument must be filed within 5 days
      after the filing of the Court‟s opinion or the receipt of the Court‟s decision.
      Because the Opinion was filed on July 31, 2014, a motion for reargument
      would have to have been filed by approximately August 7. Zutrau did not file
      her Motion until September 8.

      I also note that, when viewed as a motion for reargument, the Motion is
      procedurally improper because it is overly long and includes an unauthorized
      reply. Rule 59(f) limits movants to the motion itself; there is no reply.
      Deloitte & Touche USA LLP v. Lamela, 2006 WL 345007, at *1 & n.5 (Del.
      Ch. Feb. 7, 2006). Both the letter and the spirit of Rule 59(f) proscribe prolix
      submissions. See Ct. Ch. R. 59(f) (“A motion for reargument setting forth
      briefly and distinctly the grounds therefor may be served . . . . [A]ny opposing
      party may serve and file a short answer . . . .”) (emphasis added).
36
      Pontone v. Milso Indus. Corp., 2014 WL 4352341, at *2 (Del. Ch. Sept. 3,
      2014).
Zutrau v. Jansing and ICE Systems, Inc.
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equitable fraud claim; and (3) the alleged relationship between them was important to

her claims.37 To the extent Zutrau seeks to supplement the record regarding, for

example, her relationship with Jansing, such an attempt is improper on a motion for

reargument absent a showing that the moving party did not learn about the new

evidence until after the trial.38 That is not the situation here as to any of the „new‟

evidence proffered by Zutrau; therefore, I will not consider any of that evidence.

      To the extent Zutrau is raising new legal arguments now that she, or her

attorneys, failed to raise at trial, those new arguments also cannot provide a basis for

reargument.    “Motions for reargument or alteration of judgment are not the

appropriate method for a party to raise new arguments that it failed to present in a

timely way.”39 The RSA argument falls squarely within this category. Zutrau asserts

for the first time in her Opening Brief that Section 3(b) of the RSA trumps Section

9(b) and, thus, the reverse stock split violated the RSA. While both Sections 3(b) and

9(b) were mentioned in either the pre- or post-trial briefing, the parties addressed



37
      Def.‟s Opp‟n Br. 20-22.
38
      See Pontone, 2014 WL 4352341, at *5-6 (discussing the limited circumstances
      in which the record may be supplemented on a motion for reargument).
39
      Anvil Hldg. Corp. v. Iron Acq. Co., 2013 WL 4447840, at *3 (Del. Ch. Aug.
      16, 2013).
Zutrau v. Jansing and ICE Systems, Inc.
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them in completely different contexts. Rule 59 is designed to provide an opportunity

for parties and the trial court efficiently to correct errors related to the trial without

needing to appeal every mistake.40 If Zutrau wanted to raise this argument, she could

and should have done so before trial or, at least, in connection with the trial. Having

failed to do so, she is not entitled now to a second bite at the apple.

                       2.     Disagreements with the Opinion
      Beyond the new arguments, Zutrau advances at least ten other grounds for

reargument, several of which include sub-arguments.           Most of these arguments

simply dispute the Court‟s weighing of the evidence or crediting of certain disputed

testimony; none of them satisfy the standard under Rule 59(f). Without addressing in

detail every argument raised in the briefing, I discuss the most important ones below.

Zutrau devotes a significant portion of the briefing to her contentions that Jansing is a

liar and that the Court incorrectly credited his testimony. 41 I reject those arguments

out of hand. Weighing the credibility of testimony is the Court‟s responsibility.




40
      See supra note 31.
41
      Def.‟s Opp‟n 14 n.7 (cataloguing instances in her Opening Brief where Zutrau
      accused Jansing of lying or engaged in what Defendant calls “abusive
      commentary”).
Zutrau v. Jansing and ICE Systems, Inc.
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Disagreement with the Court‟s credibility determinations is not a basis for

reargument.42

      A large portion of Zutrau‟s Opening Brief objects to the Court‟s valuation of

her ICE stock. She contends, for instance, that the Court should not have relied on

the Duff & Phelps valuation report because of a litany of purported flaws. The

problem, however, is that Zutrau disputes the Opinion‟s conclusions without showing

that the Court overlooked some determinative fact or principle of law.         In the

Opinion, for example, the Court discussed at length what Zutrau argues were

Jansing‟s profit-suppression techniques,43 including his compensation,44 and

considered whether the Duff & Phelps report should have accounted for ICE‟s value

to third-party acquirers.45

      Zutrau next theorizes that this Court‟s power to dissolve ICE, if necessary, may

have motivated Jansing to stipulate to Zutrau‟s continued “derivative standing.” To


42
      See PharmAthene, Inc. v. SIGA Techs., Inc., 2011 WL 6392906, at *4 (Del. Ch.
      Dec. 16, 2011) (“As the trier of fact, the Court evaluates testimony, weighs
      credibility, and determines what inferences to draw from the evidence adduced
      at trial.”).
43
      Opinion at *18-31.
44
      Id. at *22-26.
45
      Id. at *38.
Zutrau v. Jansing and ICE Systems, Inc.
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the extent this argument tangentially challenges my finding in the Opinion that

Jansing‟s purpose in the reverse stock split was not to deprive Zutrau of derivative

standing, it is unpersuasive. The Opinion thoroughly addressed Jansing‟s motives.46

Because this fear-of-dissolution argument was not presented in connection with the

trial, it does not provide a proper basis for reargument.

      Zutrau contends that the Court erred in rejecting her equitable fraud claim on a

number of grounds. First, she denies that that claim was an impermissible bootstrap

of the claims she asserted in a related lawsuit in New York. This argument, however,

is neither material nor outcome-determinative because, even though the Opinion

found that the equitable fraud claim probably was a bootstrap, it dismissed that claim

on the merits based on Plaintiff‟s failure to prove the elements of such a claim.47

Second, Zutrau asserts that Jansing‟s promises did not relate solely to future conduct.

But, this is merely a rehash of arguments this Court previously rejected. 48 Third,

Zutrau contends that my finding that Jansing breached his fiduciary duty in relation to




46
      Id. at *34-35.
47
      Id. at *15.
48
      Id. at *16.
Zutrau v. Jansing and ICE Systems, Inc.
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the ICE Credit Line49 supports a finding of fraud. In that regard, she complains that

the Court “reduced Jansing‟s breach of his duty of loyalty to a minor infraction.”50

Once again, however, this argument does not suggest that the Court misapprehended

either the relevant facts or law in any material way. Rather, Zutrau conflates the legal

theories of breach of the duty of loyalty and equitable fraud, and asserts that the Court

should penalize Jansing more by granting a larger monetary award. None of these

contentions justify reargument.

      Finally, Zutrau argues that the Court overlooked the fact that the RSA does not

contain an anti-reliance clause. This argument, as I understand it, focuses on the

relationship between the rulings in the related litigation in New York and the

Opinion. The Opinion, however, did not hold that the New York litigation precluded

Zutrau‟s equitable fraud claim. As noted, even after observing that the equitable

fraud claim probably was an impermissible bootstrap on Zutrau‟s breach of contract

claims in New York, the Opinion still addressed Zutrau‟s equitable fraud claim on the

merits and found it lacking.51 Thus, even if the Court did “overlook” the fact that the

49
      Defined terms, unless otherwise noted here, have the same meaning as in the
      Opinion.
50
      Pl.‟s Br. 41.
51
      Opinion at *15-16.
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
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RSA does not have an anti-reliance clause, that oversight would not support

reargument because it was not material to the Court‟s resolution of the equitable

fraud claim Zutrau advanced.

      Turning next to the fiduciary duty claims, Zutrau argues: (1) Jansing should

have replaced her with another skilled treasurer; and (2) the employee bonuses he

awarded were a breach of his fiduciary duty. Neither of these arguments satisfies the

Rule 59(f) standard. Zutrau made exactly the same arguments previously and I

rejected them in the Opinion.52       There has been no showing that the Court

misapprehended a fact or principle of law regarding those arguments such that it

would cause the Court to alter its determination.

      Lastly, Zutrau asserts that the Court awarded an inadequate remedy. The

decision of what remedy to award is part of the broad discretion afforded the trial

court to fashion appropriate relief. Here, I considered the equities in this case and

determined that monetary damages were appropriate and that rescission was not.53

When I issued the Opinion, I did not find dissolution to be a proper remedy and




52
      Id. at *18-20, *31-32.
53
      Id. at *40.
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
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explained why.54 Zutrau has advanced no convincing reason for me to alter the relief

awarded in the Opinion.55

D.    There Is No Basis to Allow Amendment of the Pleadings Under Rule 15(b)
      Zutrau also requests an opportunity to amend her pleadings under Rule 15(b).

The purpose of Rule 15(b) is to conform the pleadings to the evidence. Nothing in

the Court‟s Opinion indicates that the pleadings were inadequate. Nor has Zutrau

articulated any basis for concluding that the current pleadings do not conform

sufficiently to the matters that were tried. Amendment, therefore, seems unnecessary.

      It appears more likely that Zutrau wishes to amend her pleadings to add new

arguments or claims, such as a breach of oral contract claim or a revised argument

pertaining to the significance of the RSA.56 Jansing objects that adding new claims

not only after trial, but after the Court issued its Opinion, would result in manifest




54
      Id. at *40 n.374.
55
      One way Zutrau potentially could have improved the relief awarded to her in
      the Opinion would have been to contest Defendant‟s revised damage
      calculations, a revision made necessary because Zutrau prevailed on a
      significant aspect of her case at trial. Zutrau, however, chose to file the Motion
      instead of complying with the procedures specified in the Damages Order.
56
      Pl.‟s Br. 56; Pl.‟s Reply 30.
Zutrau v. Jansing and ICE Systems, Inc.
Civil Action No. 7457-VCP
December 8, 2014
Page 21


prejudice to him. I agree.57 Zutrau counters that the parties already have tried and

presented all of the facts necessary to her new breach of oral contract claim, and, as a

result, Jansing would suffer no prejudice. Presentation of a set of facts does not allow

the parties later to advance whatever arguments they want based on those facts. Even

assuming that the parties presented the entire universe of facts relevant to the new

breach of oral contract claims—which Jansing apparently disputes—Defendant still

would be prejudiced. Pleadings are intended to provide fair notice to the opposing

party of the legal and factual theories and claims to be litigated. Because Jansing did

not have a fair opportunity to challenge Zutrau‟s new legal theory in connection with

the trial, I find that he would be prejudiced materially if I allowed the requested

amendment now. Thus, to the extent Rule 15(b) even permits what Zutrau requests,

such an amendment would be inappropriate at this late stage.

                              III.    CONCLUSION
      For the reasons stated in this Letter Opinion, I deny Zutrau‟s Motion in its

entirety. In brief summary: (1) the Motion fails to meet the standard to alter or

amend a judgment under Rule 59(e); (2) no showing of manifest injustice has been

57
      See Those Certain Underwriters at Lloyd’s, 2008 WL 2133417, at *8
      (describing a similar situation where the plaintiffs waited until after the post-
      trial opinion, but before entry of a final judgment to attempt to amend the
      pleadings, and finding such delay “inexcusable”).
Zutrau v. Jansing and ICE Systems, Inc.
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December 8, 2014
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made as would warrant a new trial under Rule 59(a); (3) Zutrau failed to satisfy her

burden for obtaining reargument under Rule 59(f); and (4) this is not a case in which

the requested amendment of the pleadings under Rule 15(b) would be appropriate.

Finally, I deny Zutrau‟s request for a stay of this case so that she may acquire new

counsel; she voluntarily terminated her previous counsel at the last possible, and most

inconvenient, moment. Those counsel were the second set of attorneys Zutrau has

had in this matter. To afford her the opportunity to start again with new counsel at

this late date would be prejudicial to Defendant and wasteful of this Court‟s limited

resources.

      IT IS SO ORDERED.

                                       Sincerely,

                                       /s/ Donald F. Parsons, Jr.

                                       Donald F. Parsons, Jr.
                                       Vice Chancellor

DFP/ptp
