Ares Special Situations Fund IV, L.P. v. Mastec, Inc.

• Court: Court of Chancery of Delaware
• Decided: April 14, 2023
• Docket: C.A. No. 2022-1130-PAF
• Status: Published

Opinion

COURT OF CHANCERY OF THE STATE OF DELAWARE PAUL A. FIORAVANTI, JR. LEONARD L. WILLIAMS JUSTICE CENTER VICE CHANCELLOR 500 N. KING STREET, SUITE 11400 WILMINGTON, DELAWARE 19801-3734

April 14, 2023

Daniel A. Mason, Esquire Martin S. Lessner, Esquire Elizabeth Wang, Esquire Caleb G. Johnson, Esquire Paul, Weiss, Rifkind, Wharton & Young Conaway Stargatt & Garrison LLP Taylor, LLP 500 Delaware Avenue, Suite 200 1000 North King Street Wilmington, Delaware 19801 Wilmington, Delaware 19801

J. Clayton Athey, Esquire Jason W. Rigby, Esquire Prickett, Jones & Elliott, P.A. 1310 North King Street Wilmington, Delaware 19801

Re: Ares Special Situations Fund IV, L.P. et al. v. Mastec, Inc. et al., C.A. No. 2022-1130-PAF

Dear Counsel:

I have reviewed the recent motions and exhibits and the parties’ emails to my

judicial assistant. If the objective was to get the court’s attention, the parties have

succeeded. The chippy emails between counsel are disheartening. It is apparent that

judicial intervention is necessary.

There are several pending motions, some fully briefed, some not. Having

assessed the situation, the court has determined as follows: Ares Special Situations Fund IV, L.P. v. Mastec, Inc., C.A. No. 2022-1130-PAF April 14, 2023 Page 2 of 5

1. The Defendants’ motion to dismiss for lack of subject matter jurisdiction

under Court of Chancery Rule 12(b)(1) is denied. There is an obvious

statutory basis for subject matter jurisdiction under 8 Del. C. § 111.

Defendants’ argument that Section 111 jurisdiction is discretionary is

without merit. See S’holder Representative Servs. LLC v. DC Cap. P’rs

Fund II, L.P., 2022 WL 439011, at *6 (Del. Ch. Feb. 14, 2022). Indeed,

former Vice Chancellor Lamb described such an argument as “essentially

frivolous.” Dawson v. Pittco Cap. P’rs, L.P., C.A. No. 3148-VCL, at *36

(Del. Ch. Dec. 7, 2007) (TRANSCRIPT). To the extent I am wrong and

the statute provides a discretionary basis for jurisdiction, I exercise my

discretion in favor of maintaining jurisdiction over this case in the

Delaware Court of Chancery.1

2. The April 11, 2023 scheduling order is hereby vacated.

3. Plaintiffs’ motion to strike Defendants’ motion to dismiss under Court of

Chancery Rule 12(b)(6) shall proceed as follows:

1 Nothing herein should be read as eliminating the possibility of this court appointing a member of the Complex Commercial Litigation Division of the Delaware Superior Court to sit by designation to preside over this action. See In re Designation of Actions Filed Pursuant to 8 Del. C. § 111 (Del. Feb. 23, 2023) (ORDER); Uptake Techs., Inc. v. 1000330811 Ontario, Inc., C.A. No. 2023-0245-AML (Del. Ch. Mar. 2, 2023). Ares Special Situations Fund IV, L.P. v. Mastec, Inc., C.A. No. 2022-1130-PAF April 14, 2023 Page 3 of 5

a. Defendants’ opposition shall be served and filed on or before May

1, 2023.

b. Plaintiffs’ reply shall be served and filed on or before May 12, 2023.

c. The court will advise the parties whether argument is necessary to

resolve the motion.

4. Briefing on the merits of Defendants’ Rule 12(b)(6) motion is suspended

pending resolution of Plaintiffs’ motion to strike.

5. Defendants’ second motion to stay discovery is denied. Any delay by

Defendants in providing discovery constitutes a violation of the court’s

March 27, 2023 orders that denied the first motion to stay discovery and

granted Plaintiffs’ motion to compel.

6. Having reviewed the correspondence between the parties, the court has

determined that specific discovery deadlines must be imposed. Discovery

as to all pending discovery requests shall proceed as follows and shall not

be subject to modification by the parties absent leave of court:

a. Responses to all pending discovery requests shall be served and filed

upon (i) the deadlines provided for in the Court of Chancery Rules Ares Special Situations Fund IV, L.P. v. Mastec, Inc., C.A. No. 2022-1130-PAF April 14, 2023 Page 4 of 5

or, (ii) if the deadline provided for in the Court of Chancery Rules

has passed, then ten days from the date of this order.

b. The parties shall meet and confer over search terms for

electronically stored information and document custodians within

five days of this order. Each side shall run the search terms and

provide hit reports within 30 days after the date of this order.

c. The parties shall meet and confer over hit reports and, if necessary,

provide refined search terms, within 10 days after delivery of the

initial hit report.

d. All responsive documents to the discovery requests, as narrowed

herein, shall be produced on or before June 20, 2023.

e. Privilege logs shall be served on or before July 15, 2023.

7. The parties shall not call or send any emails to my judicial assistant for any

reason except for a true emergency. All requests for judicial action shall

be by motion. Joint requests may be submitted by letter. Any violation of

this paragraph shall be deemed to be contempt of court and counsel that

violates the order will be held personally liable for any monetary sanction

that the court imposes for violating this paragraph. Ares Special Situations Fund IV, L.P. v. Mastec, Inc., C.A. No. 2022-1130-PAF April 14, 2023 Page 5 of 5

8. The court strongly encourages counsel to temper the rhetoric in their

emails to each other and in their submissions to the court.

IT IS SO ORDERED.

/s/ Paul A. Fioravanti, Jr. Vice Chancellor