Delay in Seeking Expedition Causes Court to Deny Motion to Expedite
Steven D. Goldberg, Esq. Wilmington, DE sgoldberg@stevendgoldberg.com http://www.stevendgoldberg.com Contact me if you need assistance in forming/organizing a Delaware business entity or any matter of Delaware law including Delaware Law opinions. Delaware Forms and Publications are available at http://www.delawarellclaw.com
The Delaware Court of Chancery almost routinely expedites cases where there is proof that a party will be prejudiced in the absence of expedition. The Delaware Courts are in fact renowned for their willingness to expedite complex and complicated cases. In Icahn Partners LP v. Amylin Pharm., Inc., 212 WL 1526814, (Del. Ch. Apr. 20, 2012) the Court stated: “A plaintiff may earn expedited proceedings when she ‘has articulated a sufficiently colorable claim and shown a sufficient possibility of a threatened irreparable injury, as would justify imposing on the defendants and the public the extra (and sometimes substantial) cost of an expedited preliminary injunction proceeding.” The Court may however refuse to expedite a proceeding where the plaintiff’s delay “imposes additional burdens on the [C]ourt and could prejudice the [C]ourt’s ability to adjudicate the matter fairly.” Oliver Press Partners v. Decker 2005 WL 3441364 (Del. Ch. Dec 6, 2005).
In a recent decision by VC Noble, Brookstone Partners Acquisition XVI, LLC v. Tanus, CA No. 7533-VCN (Del. Ch. Aug. 10, 2012) the Court was faced with an action filed by the plaintiff on May 5, 2012, but did not seed to expedite the action until August 3, 2012 the Plaintiff sought to have the court enter a preliminary injunction before October 15, 2012 and a trial in January, 2013. Plaintiff knew when it filed the action that it faced an October 15, deadline to obtain a preliniary injunction as a contract was expiring on that date.
The Court held tha “Had Brookstone moved for expedition when the case was filed (or shortly thereafter), this case might well be nearing a hearing on a preliniary injunction with a 2012 trial date. But Brookstone let this action … proceed on a normal basis for months, knowing that it wanted relief before October 15, 2012.” The Court finally stating “[E]quity aids the vigilant, not those who slumber on their rights” refused to expedite the proceedings.
