                             COURT OF CHANCERY
                                   OF THE
 SAM GLASSCOCK III           STATE OF DELAWARE                  COURT OF CHANCERY COURTHOUSE
  VICE CHANCELLOR                                                        34 THE CIRCLE
                                                                  GEORGETOWN, DELAWARE 19947


                           Date Submitted: January 7, 2015
                           Date Decided: January 14, 2015

Joseph Alfred                                  Robert W. Whetzel
7 Flower Road                                  Travis S. Hunter
Somerset, New Jersey 08873                     Richards Layton & Finger
                                               One Rodney Square
                                               920 N. King Street
                                               Wilmington, Delaware 19801

              Re:    Joseph Alfred v. Walt Disney Co., et al.
                     Civil Action No. 10211-VCG

Dear Mr. Alfred and Counsel:

      This matter is before me on the Defendants’ motions to dismiss a complaint

sounding in contract, filed by the Plaintiff, Mr. Alfred, pro se. That Complaint is

remarkable. It is in my experience a unique example of the pleader’s art. It cites

to the epic of Gilgamesh, Woody Guthrie, the Declaration of Independence, Noah

and The Great Flood, Game of Thrones, Star Wars Episode V: The Empire Strikes

Back, Star Trek, President Obama, and Euclid’s proof of the Infinity of Primes,

among other references. It is well-written and compelling. In fact, it can be

faulted only for a single—but significant—shortcoming: it fails to state a claim on

which relief could be granted. Therefore, I grant the Defendants’ Motions to

Dismiss.
       The Plaintiff, in succinct and pith-perfect fashion, stated the gravamen of his

action as follows: “If the Plaintiff needed to sum up this entire case in one

sentence, it is this: Two executives of the Disney Company are stalling the next

evolution of human transportation on this planet.”1

       In other words, the Defendants are holding back the flying car.2

                              I. BACKGROUND FACTS

       The following facts are taken from the Complaint. Defendant Walt Disney

Company (“Disney” or the “Company”) is the owner of a trademark for the T-65

X-wing fighter plane, a (presumably) thus-far fictional vehicle created in

connection with the movie Star Wars Episode IV: A New Hope.3 Disney expects to

premiere a new installment of the Star Wars movie series in December of 2017.

Non-party Terrafugia, Inc. (“TI”) is an enterprise that the Plaintiff believes capable

of producing a vertical take-off and landing vehicle, which vehicle the user could

program for flight to a given destination and which would then be remotely

operated by the FAA.          The vehicle would travel between the realms of an

automobile and airplane, “creat[ing] Woody Guthrie’s endless skyway,”4 and


1
  Compl. ¶ 1.
2
   It is perhaps coincidental that it is Disney’s media competitor, Fox, whose creation, the
Stonecutters, hold back the electric car. See The Simpsons: Homer the Great (Fox television
broadcast Jan. 8, 1995).
3
  For the unfamiliar reader, the Plaintiff explains thusly: “The X-wing was the vehicle used by
the character Luke Skywalker to destroy the Death Star; the ultimate symbol of evil in all of
recorded human literature.” Compl. ¶ 4.
4
  Id. ¶ 1.


                                              2
would be priced to be available to the masses. It would revolutionize travel and

reduce the need for maintenance and improvement of existing roadway

infrastructure.

       In the Plaintiff’s conception, this vehicle would be built to resemble the X-

wing, which would promote its acceptance by the public. Plaintiff has developed a

marketing plan, pursuant to which Disney would license TI the right to use the X-

wing name and appearance, TI would develop the previously described short take-

off and landing programmable remotely controlled vehicle in the appearance of an

X-wing (the “Flying Car”),5 and the Plaintiff would raise the necessary funds for

development of the Flying Car through internet pledges of $10,000, each entitling

the investor to a ride in the Flying Car.

       Crucial to the Plaintiff’s promotional idea would be the support of Disney,

with its extensive existing connections, through its ownership of the Star Wars

franchise and otherwise, to flying cars.6 The Flying Car envisioned by the Plaintiff

would be promoted via tie-ins to Disney’s new Star Wars movie, and would be
5
  The Complaint uses various terms to describe the Plaintiff’s concept: among them the
“affordable automated personal airplane,” Compl. ¶ 2, the “affordable vertical takeoff and
landing automated personal airplane,” id. ¶ 7, and the “World’s First Flying X-wing,” id. ¶ 28.
According to the Plaintiff, TI describes the concept, more manageably, as the “flying car.” See
Pl.’s Answer to Walt Disney Co.’s Mot. to Dismiss at 3.
6
  At oral argument on the Motion to Expedite, the Plaintiff argued that the Disney relationship
with the Flying Car was even more crucial because the movie Back to the Future Part II
(Universal Pictures 1989), set in 2015, also featured flying cars. In this regard, I note that
Disney has been tantalizing the public with depictions of flying cars, at the same time failing to
promote those vehicles’ actual production as functioning transportation, since at least the time of
my long-ago boyhood. See, e.g., Charles Spain Verral, Walt Disney’s The Flying Car (Golden
Press, 1961), Ex. A, attached; The Absent-Minded Professor (Walt Disney Prods. 1961).


                                                3
publicized during halftime of a football game featuring the unbeaten football

Seminoles of Florida State University,7 to be televised on two Disney properties,

the American Broadcasting Company and ESPN.

       Implied in the Complaint is that the Plaintiff made an unsolicited proposal

involving Star Wars marketing to Disney. He was then contacted by someone at

Disney to arrange a conference call scheduled for July 22, 2014. In anticipation of

this call, the Plaintiff sent Disney a slide deck laying out the proposal described

above. On July 22, the conference call took place among Vanessa Blakely, an

officer of TI; the Plaintiff; and Divya Dalal, a Disney employee.8 The Complaint

does not allege the specifics of that conversation. However, shortly after the

telephone conference, the Plaintiff called the office of Defendant Bob Chapek, an

officer of Disney, to further discuss the proposed promotion of the Flying Car.

Chapek did not take this call. The Complaint is somewhat unclear as to what

happened next, but it appears that on the same day, July 29, 2014, Chapek’s

executive assistant, a Disney paralegal, or a “nameless Disney attorney” called or

emailed the Plaintiff and stated that Disney was not interested in his proposal.

According to the Plaintiff, participating in the July 22 telephone call represented a

change in Disney’s prior policy not to accept unsolicited proposals, which he took

7
  But see 2015 Rose Bowl (ESPN television broadcast Jan. 1, 2015). I note, however, that the
Plaintiff’s Complaint was filed in advance of this ill-fated (from the point of view of the Plaintiff
and the Seminoles) athletic contest.
8
  The Complaint describes Dalal as the “licensing lieutenant” for Disney. See Compl. ¶ 16.


                                                 4
as a guarantee that his proposal would be accepted.9 The individual Defendants,

Chapek and Robert A. Iger, the Chief Executive Officer and Chairman of the

Board of Disney, are, according to the Complaint, both residents of California.

They moved to dismiss for lack of jurisdiction under Chancery Court Rule 12(b)(2)

and for failure to state a claim upon which relief can be granted under Chancery

Court Rule 12(b)(6). The Company itself also moves to dismiss under Rule

12(b)(6). For the reasons that follow, those Motions must be granted.

                                       II. ANALYSIS

       A. Motion to Dismiss under Rule 12(b)(2)

       Delaware jurisdiction over an out-of-state defendant can arise by statute,

such as the long-arm statute,10 or, as alleged by the Plaintiff here, 10 Del. C. §

3114, which provides for service of process on out-of-state individuals who are

directors or officers of Delaware corporations, who are implied to have consented

to such jurisdiction. Once a determination is made that statutory service of process

has been perfected, then a separate inquiry as to the constitutionality of the




9
  See id. ¶ 25 (“The Walt Disney Corporation created an implied contract with the plaintiff when
it changed its own policy against accepting unsolicited submissions by a third party. The
plaintiff can infer an implied promise based on circumstances that exist in the ordinary course of
dealing and common understanding. Why even take the teleconference call on July 22, 2014 if
there were not mutual agreement that this campaign would be successful for the Disney
Corporation? There is an often used mathematical principle to solve difficult theorems: to prove
something, disprove the opposite (See Euclid’s proof on the infinity of prime numbers).”).
10
   See 10 Del. C. § 3104.


                                                5
exercise of that jurisdiction is required.11 Because, as discussed below, I find that

jurisdiction was not perfected, I need not reach the constitutional question.

       The Plaintiff, in a submission following his reply brief, concedes that he has

not perfected process over Chapek; Chapek’s Motion to Dismiss, therefore, is

granted.12 I next address whether jurisdiction has been obtained over Iger.

       The Plaintiff, noting, I am sure, that there is a tide in the affairs of men

which, taken at the flood, leads on to fortune,13 alleges Iger has missed the boat; he

argues that, in presumably causing Disney to not take the opportunity to participate

in the production of the Flying Car, which would then be available and desirable to

the mass of humanity—an opportunity that, if seized would have resulted in

Disney’s great financial benefit—Iger has breached fiduciary duties to the

Corporation. The Plaintiff, however, does not purport to sue derivatively on behalf

of the Company.14 Instead, the Plaintiff states that Iger has caused Disney to

breach a contract with him resulting in damages.15



11
   See, e.g., Hercules Inc. v. Leu Trust & Banking (Bahamas) Ltd., 611 A.2d 476, 480–81 (Del.
1992).
12
   Pl.’s Final Answer at 3. I note that the Plaintiff’s “Final Answer” was submitted after briefing
on the Motions to Dismiss had concluded. Because of this Court’s flexibility in addressing
claims brought by self-represented litigants, I have read and considered this submission. See,
e.g., Durham v. Grapetree, LLC, 2014 WL 1980335, at *5 (Del. Ch. May 16, 2014) (“[A]lthough
‘self-representation is not a blank check for defect,’ this Court has the discretion to ‘exhibit some
degree of leniency toward a pro se litigant, in order to see that his case is fully and fairly heard.’”
(footnotes omitted)).
13
   See William Shakespeare, Julius Caesar, act 4, sc. 3.
14
   See Pl.’s Answer to Def. Chapek’s and Iger’s Mot. to Dismiss at 1 (“Plaintiff does not allege
to sue on behalf of [the] shareholders; however Plaintiff’s actions in contracting with the


                                                  6
       The Plaintiff concedes that Iger is a resident of California and does not

allege any connections between Iger and the State of Delaware other than the fact

that he is an officer and director of Disney, a Delaware corporation. The Plaintiff

himself is a New Jersey resident and does not contend that the contract at issue was

created in Delaware. The Plaintiff, however, relies on 10 Del. C. § 3114 to provide

for service of process to obtain jurisdiction over Iger. According to the Plaintiff, in

allowing Disney to breach its contractual obligations to him, Iger was acting in his

capacity as CEO of the Company, thus, in Plaintiff’s view, making him subject to

jurisdiction under Section 3114.16 But Section 3114 does not apply to contract

claims asserted by third parties against a corporation; rather, it applies in actions

alleging breach of fiduciary duties on the part of individual directors.17 Although,


corporation were formulated under the premise that true fiduciaries would always accept the
Plaintiff’s proposal.”).
15
   See Compl. ¶ 30. The Plaintiff’s damages relate to his plan to be compensated with Disney
and Terrafugia stock, a deal which, if consummated, would be worth billions of dollars to him.
By way of context, the Plaintiff’s promotional scheme involving marketing $10,000 flights on
the Flying Car is expected to bring in $930,000,000 by itself through an internet facilitator,
Kickstarter. Id. ¶ 2. The Plaintiff does not seek a damage award, however, only specific
performance and injunctive relief.
16
   The Plaintiff alleges that he sent an email to Iger, which informed him of the proposal. Pl.’s
Answer to Def. Chapek’s and Iger’s Mot. to Dismiss at 3. When a Disney attorney contacted the
Plaintiff, he or she allegedly said, “It is the official position of the executive team that we are not
interested.” Id. at 4. Because Iger had received the proposal, the Plaintiff contends that this
statement was made at Iger’s direction. See id. The statement that Disney was not interested
represents, to Plaintiff, the breach of contract.
17
   See Ruggiero v. FuturaGene, plc., 948 A.2d 1124, 1132–33 (Del. Ch. 2008) (“Directors of a
corporation, however, are not parties to a contract simply because the corporation is a party to a
contract. . . . While 10 Del. C. § 3114 does authorize service over directors, trustees, or members
of the governing body of a Delaware corporation, it does so only where the cause of action is
based on such an individual's breach of fiduciary duty owed to the corporation and its
owners. . . . [T]he wrongs alleged here are contract claims unconnected with the internal affairs


                                                  7
as described above, the Plaintiff’s briefing on the Motions to Dismiss alludes to

breaches of fiduciary duties when Iger allegedly caused Disney to reject the Flying

Car proposal, that claim was not asserted in the Complaint and would, at any rate,

belong to the Company, not the Plaintiff. Further, the Plaintiff concedes that Iger

himself is not a party to the alleged contract between Disney and the Plaintiff.18

There simply is no basis by which the Plaintiff has shown that jurisdiction extends

to Iger; therefore, this action against him must be dismissed. In any event, as

described below, there is no underlying contract pursuant to which the individual

Defendants could be held liable.

       B. Motions to Dismiss under Rule 12(b)(6)

       Both Disney and the individual Defendants moved to dismiss under Rule

12(b)(6), alleging the Complaint states no claim under which relief can be granted.

or corporate governance issues that Delaware law is especially concerned with. . . . [Thus, the
plaintiff] failed to establish that . . . 10 Del. C. § 3114 applies.” (footnotes and internal quotation
marks omitted)); Lisa, S.A. v. Mayorga, 2009 WL 1846308, at *5 (Del. Ch. June 22, 2009)
(“Section 3114 provides for personal jurisdiction over a nonresident director or officer of a
Delaware corporation when sued for acts performed in his capacity as a director or officer. More
narrowly, however, ‘Delaware cases have consistently interpreted [Section 3114] as . . .
[applying] only in connection with suits involving the statutory and nonstatutory fiduciary duties
of nonresident directors.’ Moreover, the conduct alleged must have constituted a breach of
fiduciary duty to a Delaware corporation for which the plaintiff has standing to sue—that is a
duty which runs to the plaintiff either directly or derivatively.” (footnotes omitted)), aff'd, 993
A.2d 1042 (Del. 2010).
18
   Pl.’s Answer to Def. Chapek’s and Iger’s Mot. to Dismiss at 2 (“Plaintiff does not allege that a
contract was created between the plaintiff and [individual] Defendants.”). Because the
individual Defendants were not parties to the alleged contract, they cannot be held liable. See,
e.g., Wallace ex rel. Cencom Cable Income Partners II, Inc., L.P. v. Wood, 752 A.2d 1175, 1180
(Del. Ch. 1999) (“It is a general principle of contract law that only a party to a contract may be
sued for breach of that contract. Indeed, Delaware law clearly holds that officers of a
corporation are not liable on corporate contracts as long as they do not purport to bind
themselves individually.” (footnote omitted)).


                                                  8
Under that Rule, I must take the allegations of the Complaint as true and draw all

reasonable inferences therefrom. The matter will be dismissed only where it is not

reasonably conceivable that the Plaintiff could prevail.19

       The Plaintiff first argues that a contract exists that may be implied in fact

based on Disney agreeing to relax its policy not to consider unsolicited proposals.

According to the Plaintiff, this contract arose when Disney agreed to hear his

proposal. But in order to infer a contract from the behavior of the parties, I must

be able to conclude that the requisites of a contract have been met.20 That behavior

“is evaluated from the perspective of a reasonable person, considering all of the

attendant circumstances.”21




19
   Cent. Mortgage Co. v. Morgan Stanley Mortgage Capital Holdings LLC, 27 A.3d 531, 535
(Del. 2011).
20
   See, e.g., Phillips v. Wilks, Lukoff & Bracegirdle, LLC, No. 671,2013, 2014 WL 4930693, at
*3 (Del. Oct. 1, 2014), as corrected (Oct. 7, 2014) (“A contract may exist as either an express
contract or an implied-in-fact contract because they are legal equivalents—the first being arrived
at by language and the second by actions that demonstrate a meeting of the minds.” (internal
quotation marks omitted)); Capital Mgmt. Co. v. Brown, 813 A.2d 1094, 1098 (Del. 2002) (“An
implied contract is one inferred from the conduct of the parties, though not expressed in words.
The parties' intent and mutual assent to an implied-in-fact contract is proved through conduct
rather than words.” (internal quotation marks and footnote omitted)); Creditors' Comm. of Essex
Builders, Inc. v. Farmers Bank, 251 A.2d 546, 548 (Del. 1969) (“A contract will be implied in
fact only when the Court may fairly infer such an intent from the evidence; it represents the
presumed intention of the parties as indicated by their conduct.”); Trincia v. Testardi, 57 A.2d
638, 642 (Del. Ch. 1948) (“[A]n express agreement is arrived at by words, while an implied
agreement is arrived at by acts. Consequently, the difference seems to be only in the evidence by
which the agreement is proved.”).
21
   Levey v. Brownstone Asset Mgmt., LP, 2014 WL 3811237, at *10 (Del. Ch. Aug. 1, 2014)
(quoting 1 Williston on Contracts § 1:5 (4th ed.2014)) (internal quotation marks omitted),
reargument denied, (Del. Ch. Aug. 22, 2014).


                                                9
       A contract requires an offer, acceptance of the offer, and consideration

passing between the parties.22 There are simply no allegations in the Complaint

from which I can infer that Disney agreed to do anything, let alone what the terms

of that “anything” might have been. At most, the Complaint alleges that Disney,

contrary to its usual policy against accepting unsolicited proposals, attended a

telephone conference at which the Plaintiff could pitch his ideas, which the

Company then rejected. That does not state a contractual claim.

       The Plaintiff also argues that he is entitled to relief under a theory of

promissory estoppel. Promissory estoppel requires that the defendant make a

promise, that the promisor expected action by the promisee in reliance, that the

promisee acted to his detriment in reasonable reliance, and that equity requires

relief.23 The “promise” that Plaintiff points to is Disney’s willingness to hear his

proposal. In reliance on that willingness, the Plaintiff sent Disney a slide deck to

describe the promotion and licensing that he wanted from Disney. If Disney’s

promise was to give the Plaintiff’s ideas an airing, despite its prior policy not to

consider unsolicited proposals, they complied with that promise. The promise to


22
   See, e.g., Roam-Tel Partners v. AT&T Mobility Wireless Operations Holdings Inc., 2010 WL
5276991, at *6 (Del. Ch. Dec. 17, 2010).
23
   See, e.g., Lord v. Souder, 748 A.2d 393, 399 (Del. 2000) (“In order to establish a claim for
promissory estoppel, a plaintiff must show by clear and convincing evidence that: (i) a promise
was made; (ii) it was the reasonable expectation of the promisor to induce action or forbearance
on the part of the promisee; (iii) the promisee reasonably relied on the promise and took action to
his detriment; and (iv) such promise is binding because injustice can be avoided only by
enforcement of the promise.”).


                                               10
hear a proposal out, however, cannot be reasonably relied upon as a promise to

consummate a contract. There is simply no basis for the imposition of relief under

a rubric of promissory estoppel.

          In both his contract and estoppel claims, the Plaintiff makes essentially the

same argument: (1) he pitched a proposal to Disney that would facilitate the

production of the Flying Car by a third party in a way that would benefit that third

party, the Plaintiff himself, Disney, the United States, and mankind; (2) it was

such a flawless and compelling proposal that Disney could not reasonably turn it

down—yet Disney chose to do so; and, therefore, (3) for the good of the third-

party manufacturer, the Plaintiff, Disney, the United States, and mankind, the

Plaintiff seeks the equitable relief of a positive injunction directing Disney to

license the X-wing design and “wholeheartedly support” the promotion of the X-

wing Flying Car via tie-ins to upcoming Star Wars films, Back to the Future, and

its televising of Florida State’s unbeaten Seminole football team.24 The Plaintiff’s

marketing proposal may strike one as far-fetched or, perhaps, brilliant. Nothing

the Plaintiff has presented in his Complaint, however, indicates that any of the

Defendants took any action which can bind them contractually or equitably to

participate in the Plaintiff’s scheme.




24
     But see, again, 2015 Rose Bowl (ESPN television broadcast Jan. 1, 2015).


                                                11
                                    III. CONCLUSION

       Robert Fulton was laughed at by his peers, as was Secretary Seward.

Galileo faced the inquisition for promoting heliocentric theory. Stravinsky’s Rite

of Spring caused a riot when first played. The Impressionists’ early work was

considered unsalable, and Van Gogh “suffered for [his] sanity.”25 Plaintiff and his

vision of a vertical take-off and landing flying vehicle—which vehicle would

revolutionize transportation and save lives and resources—as well as his marketing

plan to achieve economies of scale by generating demand through a tie-in to a

similar vehicle made popular via cinema, may be of this ilk. If so, the Plaintiff

should persevere; it reportedly took Edison over a thousand attempts to create the
                                                                  26
light bulb before he struck upon the carbon filament.                  Because, however, the

Plaintiff has failed to perfect jurisdiction over the individual Defendants, and has

failed to state a claim against any of the Defendants, he is precluded from pursuing

equitable relief in aid of the Flying Car in this action. An order accompanies this

Letter Opinion.



25
   See Don McLean, Vincent, on American Pie (United Artists Records 1971).
26
   In that connection, I note that even if the Plaintiff is correct that Star Wars’ T-65 X-wing is
unique because it was used to destroy “the ultimate symbol of evil in all of recorded human
literature,” there are many other cinematic fictional flying cars that might excite the public’s
imagination, beyond the X-wing and the model seen in Back to the Future Part II (Universal
Pictures 1989). These include a flying Ford Model T, see The Absent Minded Professor (Walt
Disney Prods. 1961) and Ex. A; a flying 1920’s model custom racer based on autos created by
Count Lewis Zborowski, see Chitty Chitty Bang Bang (United Artists 1968); and a flying Ford
Anglia, see Harry Potter and the Chamber of Secrets (Warner Bros. 2002).


                                               12
     Sincerely,

     /s/Sam Glasscock III

     Vice Chancellor




13
EXHIBIT A
   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

JOSEPH ALFRED,                            )
                                          )
                  Plaintiff,              )
                                          )
      v.                                  ) C.A. No. 10211-VCG
                                          )
THE WALT DISNEY COMPANY,                  )
ROBERT A. IGER, and BOB CHAPEK            )
                                          )
                  Defendants.

                                    ORDER

      AND NOW, this 14th day of January, 2015,

      The Court having considered Defendants Robert A. Iger and Bob Chapek’s

Motion to Dismiss and The Walt Disney Company’s Motion to Dismiss (together,

the “Defendants Motions to Dismiss”), and for the reasons set forth in the Letter

Opinion dated January 14, 2015, IT IS HEREBY ORDERED that the Defendants

Motions to Dismiss are GRANTED, and the Plaintiff’s Complaint is DISMISSED

with prejudice.

SO ORDERED:



                                           /s/ Sam Glasscock III
                                           Vice Chancellor
