dag motion to dismiss

D0235351.1

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

ROBERT L. KING, ) ) Plaintiff, ) ) v. ) Case No. 7770 VCP ) DAG SPE MANAGING MEMBER, INC., ) ) Defendant. )

DEFENDANT DAG SPE MANAGING MEMBER, INC.'S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO DISMISS THE COMPLAINT PURSUANT TO DELAWARE COURT OF CHANCERY RULE 12(b)(6)

/S/ Bernard G. Conaway Bernard G. Conaway, Esquire (DE No: 2856) CAMPBELL & LEVINE, LLC 800 North King Street, Ste 300 Wilmington, DE 19801 Tel: (302) 4261900 Fax: (302) 4269947 Attorneys for the Defendant DAG SPE Managing Member, Inc.

EFiled: Sep 05 2012 11:46AM EDT Transaction ID 46261695 Case No. 7770VCP

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TABLE OF CONTENTS

TABLE OF AUTHORITIES......................................................................................................... ii I. INTRODUCTION................................................................................................................4 II. NATURE AND STAGE OF THE PROCEEDINGS..........................................................5 III. STATEMENT OF FACTS.....................................................................................................6 IV. ARGUMENT .........................................................................................................................8 A. ONLY A SITTING DIRECTOR IS ENTITLED TO INSPECT CORPORATE BOOKS AND RECORDS UNDER 8 DEL. C. § 220 (d)...........................................8 1. Standard of Review.............................................................................................8 2. The Plaintiff is Not a Sitting Director...............................................................8 B. THE PLAINTIFF IS NOT A DIRECTOR OF DAG AND IS NOT ENTITLED TO EXAMINE DAG’S CORPORATE DOCUMENTS UNDER 8 DEL. C. §220 (d). ......................................................................................11 C. AS A MATTER OF LAW THE COMPLAINT SHOULD BE DISMISSED AS IT FAILS TO STATE A PROPER PURPOSE AS REQUIRED UNDER 8 DEL. C § 220 .............................................................................................13 V. CONCLUSION.....................................................................................................................18

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TABLE OF AUTHORITIES CASES PAGE(S)

Beiser v. PMCSierra, Inc.,, 2009 WL 483321 (Del. Ch. 2009) ..................................................15 Everett v. Transnation Development Corp., 267 A.2d 627 (Del. Ch. 1970)...............................11 Farber v. Seiberling Rubber Co., 168 A.2d 310 (Del. Super. 1961)..............................................9 In re General Motors (Hughes) Shareholder Litigation, 897 A.2d 162 (Del. 2006)......................8 Grobow v. Perot, 539 A.2d 180 (Del. 1988).................................................................................10 Helmsman Mgmt. Services, Inc. v. A & S Consultants, Inc., 525 A.2d 160 (Del. Ch.

1987) ....................................................................................................................................9, 15 Holdgreiwe v. Nostalgia Network, Inc., 1993 WL 144604 (Del. Ch. 1993)..................................9 Intieri v. Avatex, 1998 WL 326608 (Del. Ch. 1998) .....................................................................9 Jacobson v. Dryson Acceptance Corp., 2002 WL 75473 (Del. Ch. 2002)....................................10 Kortum v. Webasto Sunroofs, Inc., 769 A.2d 113 (Del. Ch. 2000) .........................................9, 19 Malpiede v. Townson, 780 A.2d 1075 (Del. 2001) ..................................................................8, 12

Omnicare, Inc. v. NCS Healthcare, Inc., 809 A.2d 1163 (Del. Ch. 2002) ..............................8, 10

Security First Corp. v. United States Die Casting & Develop. Co., 687 A.2d 563 (Del. 1997) ..................................................................................................................................15, 16

Thomas & Betts Corp. v. Leviton Mfg. Co., 681 A.2d 1026 (Del. 1996).....................................16

STATUTES AND RULES

8 DEL C. § 220 ...................................................................................................................... passim

Chancery Court Rule 12(b)(6) .................................................................................................5, 8

OTHER AUTHORITY

Stephen A. Radin, The New Stage of Corporate Governance Litigation: Section 220 Demands—Reprise, 28 CARDOZO L. REV. 1287 (2006).........................................................15

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I. INTRODUCTION

This action was brought by the plaintiff, Robert King, against the defendant,

DAG SPE Managing Member, Inc. (“DAG”) under 8 DEL. C. §220 (d). The sole count

asserted in the complaint is the plaintiff’s demand to inspect DAG’s corporate books

and records. Under the statute, a director has the right to examine the corporation’s

books and records. The statute does not give any such right to a former director or any

other person not performing the duties of the corporation’s director.

As admitted in the complaint at paragraph 2 the plaintiff "has been never a

shareholder." He further acknowledges that he is not a DAG director. Complaint at ¶

36. Based upon both admissions, he is not entitled to inspect DAG’s corporate books

and records under §220. As the plaintiff further admits in paragraph 36 he was

removed from the DAG board of directors on December 18, 2003. A “true and

accurate” copy of the DAG “Unanimous Written Consent of the Board of Directors,”

attached to the complaint as Exhibit I, evidences the plaintiff’s removal and his

replacement with another director. As demonstrated herein, nowhere in the complaint

does the plaintiff ever allege that he is a now a director of DAG or that he was ever a

director of DAG at any time after December 18, 2003. In other words, the plaintiff fails

to make the threshold allegation that he is a current director of DAG who is entitled to

inspect the corporate books and records. For the foregoing reasons and the reasons that

follow, the plaintiff’s claim should be dismissed.

D0235351.1 of 18

II. NATURE AND STAGE OF THE PROCEEDINGS

On August 9, 2012 the plaintiff, Robert King, filed this action against the

defendant, DAG SPE Managing Member, Inc. (“DAG”) to facilitate the plaintiff’s

demand to inspect DAG’s corporate books and records pursuant to 8 DEL. C §220 (d).

At paragraph 2 the plaintiff admits that he "has been never a shareholder." He further

acknowledges that he is not a DAG director. Based upon both admissions, he is not

entitled to inspect DAG’s corporate books and records under §220.

The complaint was served upon DAG's registered agent on August 13, 2012.

This is the defendant's opening Memorandum of Law in Support of its Motion to

Dismiss the Complaint Pursuant to Delaware COURT OF CHANCERY RULE 12(b)(6).

D0235351.1 of 18

III. STATEMENT OF FACTS

The complaint in this action consists of one count a demand by the plaintiff for

the production of DAG’s corporate books and records under 8 DEL. C. § 220 (d).1 The

complaint alleges, among other things, the following:

DAG SPE Managing Member, INC. (“DAG”) is a Delaware corporation that

serves as the managing member of DAG Realty, LLC. Complaint at ¶¶ 7, 8 appearing as

Exhibit A hereto. DAG was organized pursuant to a Certificate of Incorporation filed

with the Secretary of State of the State of Delaware on December 15, 2000. Complaint at

¶13. The plaintiff is a resident of the District of Columbia. Complaint at ¶3. He is

identified in DAG’s Certificate of Incorporation as one of four directors of DAG’s board

of directors. Complaint at ¶13. The other three directors, as reflected in Exhibit 5 of the

complaint, are identified as Eyob Mamo, Tamrat Mamo, and Jerry Schaeffer. The

plaintiff alleges that when the Certificate of Incorporation was filed, he was unaware

that he was identified as an initial director of DAG. Complaint at ¶ 13.

The plaintiff alleges that he first became aware that he was a member of the DAG

board of directors on March 28, 2003 when Mr. Mamo asked him to execute an “Action

by Unanimous Consent of the Directors of DAG SPE Managing Member, Inc.” (the

“Consent”). The Consent authorized DAG’s sale and acquisition of certain properties in

Washington, D.C. Complaint at ¶26. The plaintiff concedes that he signed the Consent.

Complaint at ¶ 26; see also, Exhibit F to the Complaint (reflecting the plaintiff's signature).

1By citing to certain facts, DAG neither admits nor denies them. Rather, given the standard of review on a motion to dismiss, DAG merely recites the factual allegations as set out in the complaint by the plaintiff.

D0235351.1 of 18

The plaintiff goes on to allege that, after he signed the Consent, “Mamo never

mentioned anything to do with DAG to King again.” Complaint at 27. The plaintiff

maintains that the first time he became aware that he had been removed as a member of

the DAG board of directors was on or about April 20, 2011. Complaint at ¶ 32. The

plaintiff alleges that, in response to his demands, DAG produced a document titled

“Unanimous Written Consent of the Board of Directors” executed on December 18, 2003

(the “Removal Document”). Complaint at ¶36. Attached to the complaint as Exhibit I is

a “true and correct copy” of the Removal Document. That document reflects that it was

filed with the Delaware Secretary of State on December 18, 2003.

The Removal Document provides that the plaintiff, “Robert King,” is

removed from his position as Independent Director on the Board of Directors of DAG:

WHEREAS, by unanimous written consent of the stockholders of the Corporation [DAG SPE Managing Member, Inc.] dated as of the date hereof, Robert King is removed from his position as Independent Director on the Board of Directors of the Corporation (the “Board”);

NOW THEREFORE, BE IT RESOLVED, that Goysaye Fekade is appointed to the Board as Independent Director effective as of December 18, 2003.

Id. The Removal Document is signed by Eyob Mamo, Tamrat Mamo, and Gerald

Schaeffer, the “remaining directors” of DAG. Id. Eyob Mamo, Tamrat Mamo, and

Gerald Schaeffer are the sole stockholders of DAG. Complaint at ¶ 11; see also Exhibit

“D” of the Complaint at ¶2.

D0235351.1 of 18

IV. ARGUMENT

A. ONLY A SITTING DIRECTOR IS ENTITLED TO INSPECT CORPORATE BOOKS AND RECORDS UNDER 8 DEL. C. § 220 (d)

1. Standard of Review

Under COURT OF CHANCERY RULE 12(b)(6), the “complaint must be dismissed for

failure to state a claim unless it alleges facts that establish each and every element of a

claim upon which relief could be granted.” Omnicare, Inc. v. NCS Healthcare, Inc., 809

A.2d 1163, 1168 (Del. Chan. 2002) (quotation marks omitted, citations omitted). While

the Court must accept as true all of the wellpleaded allegations of fact and draw

reasonable inferences in the plaintiff’s favor, the Court “is not . . . required to accept as

true conclusory allegations without specific supporting factual allegations.” In re

General Motors (Hughes) Shareholder Litigation, 897 A.2d 162, 168 (Del. 2006) (quotation

marks omitted, citation omitted) (emphasis added). Moreover, “the claim may be

dismissed if allegations in the complaint or in exhibits incorporated in the complaint

effectively negate the claim as a matter of law.” Malpiede v. Townson, 780 A.2d 1075,

1083 (Del. 2001) (citations omitted).

For the reasons set forth more fully below, pursuant to RULE 12(b)(6), the

plaintiff fails to state a claim under 8 DEL. C. §220(d) for the inspection of DAG’s

corporate documents and the complaint should be dismissed.

2. The Plaintiff is Not A Sitting Director

Under Delaware law, a director of a Delaware corporation is entitled to inspect

the corporate books and records for a purpose reasonably related to his position as a

D0235351.1 of 18

director. The Delaware Code states in relevant part:

Any director shall have the right to examine the corporation’s stock ledger, list of its stockholders and its other books and records for a purpose reasonably related to the director’s position as a director.

8 DEL. C. §220 (d). The director’s right to inspect corporate books is “correlative with

his duty to protect and preserve the corporation.” Henshaw v. American Cement Corp.,

252 A.2d 125, 128 (Del. Ch. 1969). Where the director no longer has a duty “to protect

and preserve the corporation,” he is no longer entitled to inspect the corporation’s

books. Farber v. Seiberling Rubber Co., 168 A.2d 310, 312 (Del. Super. 1961).

To make out a prima facie case under the statute, the plaintiff must show, among

other things, that he is a director of the corporation. Henshaw supra, at 129; Holdgreiwe v.

Nostalgia Network, Inc., 1993 WL 144604 at *3 (Del. Ch. 1993) (plaintiff makes out a prima

facie case that he is entitled to inspect corporate documents when, among other things

“he shows that he is a director . . . “). The plaintiff shows that he is entitled to inspect

corporate documents when he shows that he is a sitting director of the corporation.

Kortum v. Webasto Sunroofs, Inc., 769 A.2d 113, 118 (Del. Ch. 2000) (“a sitting director is

entitled to unfettered access to the books and records of the corporation for which he

sits . . . “ ) (emphasis added); Intieri v. Avatex, 1998 WL 326608 at *1 (Del. Ch. 1998) (“a

sitting director is entitled to unfettered access to the books and records of the

corporation for which he sits . . . “).

Once the director makes a §220 (d) demand that is refused, the director has made

out a prima facie case that he is entitled to inspect the corporate books and records, and

the burden shifts to the corporation to show why the director should not be permitted

D0235351.1 of 18

to exercise his rights under the statute. Kortum, supra, at 118 (citations omitted).

The plain language of §220 (d) entitles only a current director to inspect corporate

books. Delaware case law is clear: a plaintiff who is no longer a director or performing

the duties of a director has no standing under 8 DEL. C. § 220 (d) to demand the

inspection of the corporate books and records. Jacobson v. Dryson Acceptance Corp., 2002

WL 75473 at *4 (Del. Ch. 2002).2

The court’s ruling in Jacobson is instructive. In Jacobson, the plaintiff, Greg

Jacobson, was a director and shareholder of Dryson Acceptance Corp. (“Dryson”), a

special purpose corporation that originated and held mortgage loans in order to sell

them later at a discount. In April 1999, Jacobson left the corporation. On May 21, 1999,

he was removed as a director of the corporation. A dispute subsequently arose as to

certain sums that Jacobson claimed Dryson owed him. In December 1999, Jacobson

filed suit asserting, among other things, a count demanding to inspect Dryson’s books

and records under 8 DEL. C. §220 (d), premised on his status as a director of the

corporation. Dryson, for its part, filed a motion for summary judgment seeking

dismissal of all Jacobson’s claims, including his claim under §220 (d).

In ruling on Dryson’s motion for summary judgment, the court, found that

Jacobson was removed as a director prior to commencing the lawsuit demanding to

inspect the corporate documents. The court went on to find that, on the basis of his

2 “Delaware courts have held that questions of standing can be properly considered on a motion to dismiss.” Omnicare, Inc. v. NCS Healthcare, Inc., 809 A.2d 1163, 1168 (Del. Ch. 2002), citing Grobow v. Perot, 539 A.2d 180, 187 & n. 6 (Del. 1988).

D0235351.1 of 18

removal prior to the commencement of the lawsuit, Jacobson “lost his standing to

pursue his claim under Section 220 (d).” Id. at *4 (citing Everett v. Transnation

Development Corp., 267 A.2d 627, 630 (Del. Ch. 1970)).

For the same reasons that Jacobson's former director had no standing under 8

DEL. C. § 220 (d) to demand an inspection of Dryson’s corporate books, the plaintiff in

this action also has no standing under the statute to demand inspection of DAG’s

corporate books.

B. THE PLAINTIFF IS NOT A DIRECTOR OF DAG AND IS NOT ENTITLED TO EXAMINE DAG’S CORPORATE DOCUMENTS UNDER 8 DEL. C. §220 (d).

In the instant action, the plaintiff fails to make out a prima facie case under 8 Del.

C. § 220 (d) that he is a DAG director entitled to inspect DAG’s corporate records.

On December 18, 2003, the plaintiff was removed as a member of the DAG board

of directors. Complaint at Exhibit “I” (the “Removal Document”). At the same time, the

remaining DAG directors replaced the plaintiff with another director, Mr. Feka. See,

Complaint. at Exhibit “I.”

As noted earlier, in Delaware a “claim may be dismissed if allegations in the

complaint or in exhibits incorporated in the complaint effectively negate the claim as a

matter of law.” Malpiede, supra, at 1083 (citations omitted). There can be no doubt that

the Removal Document is an exhibit made part of the complaint. Nor can there be any

doubt that the Removal Document “effectively negate[s] the plaintiff’s claim” under the

statute, as a matter of law. The plaintiff is not now a director of DAG, has not been a

D0235351.1 of 18

director of DAG since December 18, 2003, and is not entitled to inspect DAG’s books

and records under 8 Del. C. § 220 (d).

Moreover, the plaintiff does not challenge his removal as a DAG director or the

validity of the Removal Document.3 The plaintiff does not allege that he was

improperly removed as a director, or that his removal did not comply with Delaware

law. He does not allege that the directors/shareholders who signed the Removal

Document were not authorized to remove him as a director or to appoint the new

director. Nor does the plaintiff allege that any of the signatures on the Removal

Document are not true signatures. He does not allege that the Removal Document fails

to comply with Delaware law. The plaintiff does not allege that Mr. Feka was not

appointed as the new, successor, replacement director. Most importantly, the plaintiff

does not allege he is a current director of the corporation. Just as importantly, the

Plaintiff concedes that he holds no stock in DAG. That is, he concedes that he is not a

DAG stockholder. This admission in the complaint compels the conclusion that the

plaintiff cannot, under any reading of the allegations, prevail. In other words, the

plaintiff does not allege any supporting factual basis for any such allegations.

In short, for the foregoing reasons, the plaintiff has failed, as a matter of law, to

establish a prima facie claim that he is a DAG director with standing to inspect the DAG

3 Plaintiff only purports to reserve “all rights with respect to the efficacy of the Removal Document and whether or not it complies with the Delaware General Corporate Law,” Complaint. at ¶36.

D0235351.1 of 18

corporate books and records under 8 DEL. C § 220 (d), and the complaint should be

dismissed with prejudice.4

C. AS A MATTER OF LAW THE COMPLAINT SHOULD BE DISMISSED AS IT FAILS TO STATE A PROPER PURPOSE AS REQUIRED UNDER 8 DEL. C § 220

Section 220 imposes few substantive burdens. Stating a "proper purpose" to

support a books and records request is, however, a core burden of §220. Here the

plaintiff describes his purpose as follows:

(a) to determine with certainty the period of time in which he served as a director of the Company;

(b) to determine what corporate actions were taken during the period

of time in which Mr. King served as a director of the Company; (c) to evaluate whether Mr. King’s signature was forged on any

documents; and (d) to determine whether any personal or corporate liability may exist

for any actions taken during the period of time in which Mr. King served as a director.

Complaint. at ¶ 34. To that end the plaintiff requested the following documents:

1. Copies of all documents evidencing corporate action by

DAG SPE's directors, officers and/or shareholders, including but not limited to all unanimous written consents, for the period between its incorporation and December 2003 or the date on which Mr. King ceased serving as director, whichever is later.

4 The complaint contains no counts sounding tort or contract law; nor does it contain any counts alleging statutory violations. The complaint contains no allegations of damages. Whatever other claims the plaintiff might have against DAG, if any, he does not assert them in this complaint. If plaintiff has other viable claims, he may well have a right to the discovery of some or all of the documents he seeks in connection with a lawsuit that pleads such claims. He does not, however, have a right to such documents as a former director of DAG under 8 DEL. C. §220 (d).

D0235351.1 of 18

2. Copies of all documents purportedly executed by Mr. King as DAG SPE's independent director and all records, including all correspondence, related thereto.

3. Copies of all minutes of any meetings of the Board of

Directors for the period from the date of DAG SPE's incorporation and December 2003 or the date on which Mr. King ceased serving as director, whichever is later.

4. Copies of all correspondence, including, but not limited to

notices of any meetings of the Board of Directors, sent to or received from Mr. King for the period from the date of DAG SPE's incorporation and December 2003 or the date on which he ceased serving as director, whichever is later.

5. Copies of DAG SPE's financial statements for the period

between its incorporation and December 2003 or the date on which Mr. King ceased serving as director, whichever is later.

6. Copies of all agreements entered into by DAG SPE for the

period between its incorporation and December 2003 or the date on which Mr. King ceased serving as director, whichever is later.

7. A list of all DAG SPE officers, directors and shareholders for

the period between its incorporation and December 2003 or the date on which Mr. King ceased serving as director, whichever is later.

8. All documents, including correspondence, analysis and

reports by any experts retained to conduct any analysis of any records executed by DAG SPE's directors, including, but not limited to analysis of any documents purportedly executed by Mr. King during his service as DAG SPE Independent Director.

See Complaint at Exhibit H. The corresponding document request is breathtaking in its scope. It is all the

more breathtaking considering the plaintiff’s stated purpose, and his lack of stock

ownership or status as a current member of the DAG board of directors.

Section 220 requires more than a conclusory driven purpose to rummage

D0235351.1 of 18

through the corporation's drawers. Security First Corp. v. United States Die Casting &

Develop. Co., 687 A.2d 563, 570 (Del. 1997); Helmsman Mgmt. Services, Inc. v. A & S

Consultants, Inc., 525 A.2d 160, 16667 (Del. Ch. 1987). The Supreme Court of Delaware

“has held that a §220 demand must be “targeted” and “circumscribed” with “rifled

precision” and must only seek books and records “necessary” and “essential” to the

shareholder’s proper purpose. Court of Chancery decisions echo these requirements

and hold that the shareholder making a Section 220 demand bears the burden of

proving that the request is limited to books and records necessary and essential to the

shareholder’s stated purpose.” Stephen A. Radin, The New Stage of Corporate Governance

Litigation: Section 220 Demands—Reprise, 28 CARDOZO L. REV. 1287, 133637 (2006)

(internal citations omitted). As the court stated in Beiser v. PMCSierra, Inc.,

At the pleading stage, however, a plaintiff must do more than merely state, in a conclusory manner, a generally accepted proper purpose. [A plaintiff] must state a reason for the purpose, i.e., what it will do with the information, or an end to which investigation may lead . . . Generally the end, in cases such as this, is to determine whether sufficient evidence exists to support a filing of a derivative lawsuit.

Beiser v. PMCSierra, Inc., 2009 WL 483321 at *3 (Del. Ch. 2009).

This burden may be satisfied by “a credible showing, through documents, logic

testimony or otherwise, that there are legitimate issues” worthy of further inquiry. See

Thomas & Betts Corp. v. Leviton Mfg. Co., 681 A.2d 1026, 1031 (Del. 1996). The plaintiff’s

articulated purpose, however, is nothing more than a hunt for information “to

determine” whether any purported, unspecified improprieties have occurred. The

complaint lacks any allegation, or even any insinuation, that more than nine years ago

D0235351.1 of 18

the DAG engaged in conduct that implicated the plaintiff's fiduciary obligations, if

any,5 as an independent director. That, however, is the plaintiff’s predicate for this

request. He makes no more than “[a] mere statement of a purpose [without insinuating

any] possible general mismanagement” that would now entitle him to inspect DAG’s

corporate books and records under §220(d). Security First, supra at 579.

What is also important here is what the plaintiff fails to allege. Specifically, he

does not allege a breach fiduciary duties by anyone; he does not allege corporate or

director malfeasance; he does not refer to thirdparty claims; he does not reference

stockholder claims or other litigation; he does not allege, let alone intimate, anything

that might be amiss. Without any credible evidence of possible mismanagement that

would warrant further investigation of the matter” the Plaintiff is not entitled to books

and records under § 220. Thomas & Betts supra, at 1031.

Finally, and more troubling, however, is that plaintiff is neither a stockholder nor

director. He is no different than any random person off the street. He has no current

relationship, and he alleges no current relationship, with DAG. His former status as an

independent director ended almost nine years ago. Hence, the traditional intellectual

pillars (that is, his status as a shareholder or director, and a proper purpose) that

support the right to review books and records are both missing. So too is the plaintiff's

5 It is worth noting here that, under the original Certificate of Incorporation that is attached as Exhibit A to the Complaint, an Independent Director "shall owe [no] fiduciary duty or other obligation to the initial stockholder(s) nor to any successive stockholder, and every stockholder, including initial stockholder(s) and each successive stockholder, shall be deemed to have consented to the foregoing by virtue of the stockholder's purchase of shares of capital stock of the Corporation . . ."

D0235351.1 of 18

need for those records. It follows then that absent either an investment interest or

fiduciary responsibility, the plaintiff has no need, nor any right, to DAG’s corporate

books and records. As such there can be no "proper purpose" cognizable under either §

220 or the common law. In sum, not only does the Plaintiff fail to state a proper

purpose, because he is neither a shareholder nor a director of DAG, he cannot state any

such proper purpose.

D0235351.1 of 18

III. CONCLUSION

Based on the foregoing, the defendant, DAG SPE Managing Member, Inc.,

respectfully requests that the Court enter an order in a form substantially similar to the

one proposed here and thereby dismiss the complaint and granting to the defendant

such other relief as might be supported in equity, under the law, and by and the facts.

Respectfully Submitted,

/S/ Bernard G. Conaway Bernard G. Conaway, Esquire (DE No: 2856) CAMPBELL & LEVINE, LLC 800 North King Street, Ste 300 Wilmington, DE 19801 Tel: (302) 4261900 Fax: (302) 4269947 Attorneys for the Defendant DAG SPE Managing Member, Inc.

DATE: September 4, 2012

dag motion to dismiss

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