CRE Niagara Holdings, LLC v. Resorts Group, Inc.

Opinion

SUPERIOR COURT OF THE STATE OF DELAWARE PAUL R. WALLACE NEW CASTLE COUNTY JUDGE COURTHOUSE 500 N. KING STREET, SUITE 10400 WILMINGTON, DELAWARE 19801 (302) 255-0660

Date Submitted: April 23, 2021 Date Decided: May 25, 2021

Richard P. Rollo, Esquire Garvan McDaniel, Esquire Travis S. Hunter, Esquire HOGAN MCDANIEL Dorronda R. Bordley, Esquire 1311 Delaware Avenue RICHARDS, LAYTON & FINGER, P.A. Wilmington, Delaware 19806 920 North King Street Wilmington, Delaware 19801 David S. Rosner, Esquire Paul J. Burgo, Esquire J. David Washburn, Esquire KASOWITZ BENSON TORRES LLP Charles L. Perry, Esquire 1633 Broadway Michael J. Chiusano, Esquire New York, New York 10019 Katten Muchin Rosenman LLP 2121 North Pearl Street, Suite 1100 Dallas, Texas 75201

David A. Crichlow, Esquire Katten Muchin Rosenman LLP 575 Madison Avenue New York, New York 10022

Re: CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD

Dear Counsel:

Last month, the Court issued its Memorandum Opinion (the “Opinion”) CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 2 of 25

resolving Resorts Group, Inc.’s (“RGI”) Motion to Dismiss.1 This Letter Order now

addresses RGI’s ensuing Motion for Reargument of that decision2 and its separate

Motion for Stay or Enlargement of Time.3 For the reasons that follow, both motions

are DENIED.

I. THE UNDERLYING DISPUTE4

This dispute arises from RGI’s 2017 sale of a resort and timeshare business to

Cerberus Capital Management, LP—the non-party equity fund that owns the

plaintiff entities. CRE Niagara Holdings, LLC, and its co-plaintiffs (collectively

“CRE”) bring this action charging RGI with fraud and breach of contract for alleged

false representations made in an effort to induce CRE to execute the contested

agreements.

In May 2017, RGI and CRE entered into a Unit Asset Purchase Agreement

(“UAPA”), through which CRE Niagara Holdings, LLC, acquired certain timeshare

1 CRE Niagara Holdings, LLC v. Resorts Grp., Inc., 2021 WL 1292792 (Del. Super. Ct. Apr. 7, 2021). 2 Def.’s Mot. for Reargument, Apr. 16, 2021 (D.I. 76). 3 Def.’s Mot. for Stay or Enlargement of Time, Apr. 19, 2021 (D.I. 77). 4 For a fuller recitation of the facts underlying the dispute in this litigation, refer to Section I of the Opinion: CRE Niagara, 2021 WL 1292792, at *1-3. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 3 of 25

resort assets and ownership of certain entities, including CRE Bushkill, LLC.5 CRE

Niagara purchased the timeshare business and existing contracts with the timeshare

members and RGI retained the majority right to the payment stream on those existing

contracts.6 This transaction was effectuated via multiple written agreements. The

agreements relevant here are:7 (1) the UAPA, through which CRE purchased the

assets of the timeshare resorts and acquired ownership of certain entities including

the CRE Bushkill Group, LLC;8 (2) the Servicing Agreement that addressed the

servicing of receivables from sales by RGI;9 and (3) the Participation Agreement

that provided CRE an interest in the receivables collected by RGI from the Servicing

Agreement. 10 The Servicing Agreement and Participation Agreement are hereafter

referred to as the “Ancillary Agreements.”11

5 First Am. Compl. ¶ 2, Sept. 15, 2020 (D.I. 40). 6 Id. ¶¶ 23-25. 7 The Court fully recognizes that there are other operative agreements between the parties, namely the First Supplemental and Second Supplemental Agreements. But the Court did not include these other agreements in the Opinion’s factual recitation because they bear little weight on the specific claims now before the Court. 8 First Am. Compl. ¶ 16. 9 Id. ¶ 25. 10 Id. ¶ 23. 11 Id. ¶ 17. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 4 of 25

At the crux of the dispute now before this Court are the representations and

warranties made in section 4.11 of the UAPA, entitled “Absence of Certain

Changes.”12 According to CRE, prior to closing, RGI began selling timeshare

interests to purchasers who were markedly less creditworthy than the pool of past

buyers.13 Further, CRE learned that RGI had, pre-closing, “dramatically relaxed its

underwriting standards and intentionally entered into Timeshare Contracts with

obligors with extremely low or non-existent FICO Credit scores . . .”14 These

practices, according to CRE, were directly contrary to the representations and

warranties made by RGI in the UAPA.15

CRE filed this action on May 18, 2020, setting forth claims of fraudulent

inducement and breach of contract, as well as, a request for declaratory judgment.16

That same day, RGI filed its complaint in the United States District Court for the

Southern District of New York asserting claims for breach of contract,

12 See First Am. Compl., Ex. A § 4.11 (UAPA). 13 First Am. Compl. ¶ 28. 14 Id. ¶ 30. 15 Id. ¶ 28. 16 Compl., May 18, 2020 (D.I. 1). CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 5 of 25

indemnification, fraudulent inducement, and tortious interference relating to the

Ancillary Agreements.17 The next day, RGI filed a separate action in the United

States District Court for the District of Delaware.18 In August 2020, both federal

actions were dismissed for lack of diversity jurisdiction.19 As a result, RGI refiled

its claims in New York state court on August 12, 2020 (the “New York Action”). 20

RGI then sought to dismiss this action on the grounds that the claims were

time-barred by contractual provisions and, alternatively, failed to allege fraud with

Superior Court Civil Rule 9(b) particularity.21 RGI also moved for dismissal under

Superior Court Civil Rule 12(b)(3), insisting this Court was not the correct forum

for this suit.22 And lastly, RGI contended that the action should be dismissed or

stayed under the doctrine of forum non conveniens.23 After considering the record

17 Def.’s Mot. to Dismiss at 10, Oct. 15, 2020 (D.I. 47). 18 Id.; First Am. Compl. ¶ 10. 19 Pls.’ Opp’n Br. at 5, Nov. 5, 2020 (D.I. 56). 20 Def.’s Mot. to Dismiss at 10-11. 21 Def.’s Mot. to Dismiss at 12-15, 19-28. 22 Id. at 28-29. 23 Id. at 31-33. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 6 of 25

and the parties’ arguments, the Court denied RGI’s motion, concluding that CRE

filed its action in the proper venue, and properly pled its fraudulent inducement claim

and the notice requirements so as to survive RGI’s motion to dismiss and its

time-bar argument.24 Additionally, the Court declined to address the overripeness

argument RGI raised for the first time (for this specific motion to dismiss) at oral

argument.25 Further, the Court found that both parties waived their rights to claim

Delaware an inconvenient forum in the operative agreements.26 Now before the

Court is RGI’s Motion for Reargument filed under Superior Court Civil Rule 59, as

well as, what RGI generously terms a separate Motion for Stay or Enlargement of

Time.

II. THE PARTIES’ CONTENTIONS NOW

A. RGI’S MOTION FOR REARGUMENT

RGI posits three reasons for reargument. First, RGI contends that when the

Court found that the UAPA’s Delaware forum selection clause applies to this action

24 CRE Niagara, 2021 WL 1292792, at *5-7, *8-11. 25 Id. at *4 n. 52. RGI raised this argument in its first motion to dismiss, filed in May 2020, and CRE thereafter amended its complaint. RGI then buried the argument when briefing its second dismissal motion, only to strategically resurrect it at argument with the rather unreasonable expectation that the Court would then entertain it. 26 Id. at *7-8. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 7 of 25

–because the UAPA was the later-executed document—the Court overlooked the

two Supplemental Agreements the parties entered into a year and a half after they

entered into the UAPA and Ancillary Agreements.27 The Supplemental Agreements

are relevant here, in RGI’s view, as those documents relate to CRE’s fraudulent

inducement claim (Count II) and its declaratory judgment claim (Count III).28 So,

RGI says, either Supplemental Agreement may pertain to CRE’s fraudulent

inducement claim “inasmuch as it relates to the UAPA and ‘related documents.’”29

With regard to CRE’s declaratory judgment claim, RGI insists that the Supplemental

Agreements are critical to its claims (pending in the New York Action) and, in turn,

for resolving CRE’s requested declaration that it has not breached the agreements

between the parties.30 RGI contends that the First Supplemental Agreement

mandates New York as the exclusive jurisdiction for disputes arising out of that

agreement and because it incorporates the Ancillary Agreements (collectively the

“Performance Agreements”), it can only mean that the parties intended to include

27 Def.’s Mot. for Reargument at 1-3. 28 Id. at 2. 29 Id. 30 Id. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 8 of 25

disputes regarding these agreements within the Supplemental Agreement’s forum

selection clause.31 Thus, as the “jurisdiction is exclusive in New York for [CRE]’s

Performance Agreements claims, or at the very least, their Supplemental

Agreements claims, RGI seeks clarification as to whether the [Opinion] applies to

them.”32

CRE responds to this first argument by maintaining that the UAPA’s forum

selection clause controls here and that RGI is just rehashing its prior arguments.33

CRE contends that RGI’s Supplemental Agreements argument fails to recognize that

CRE Niagara Holdings, LLC, is not a party to either of the Supplemental

Agreements.34 CRE argues that RGI ignores the fact that the Court properly

disposed of its arguments when it found that the UAPA’s forum selection clause

applies here since CRE’s affirmative claims are based on an alleged breach of the

UAPA.35 Moreover, says CRE, the forum selection clause in the First Supplemental

31 Id. at 2-3. 32 Id. at 3. 33 Pls.’ Opp’n to Mot. for Reargument ¶ 4, Apr. 22, 2021 (D.I. 78). 34 Id. ¶ 6. 35 Id. ¶ 7. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 9 of 25

Agreement is limited to claims arising out of that agreement alone, just like the

forum selection clauses in the Ancillary Agreements. Similarly, CRE asserts that

the Court’s analysis that the UAPA encompasses a broader scope applies with regard

to any analysis of the Supplemental Agreements as well.36 CRE contends that RGI

missed the fact that “Transactions” is specifically defined in the UAPA to mean the

purchase and sale of specified assets “and the other transactions contemplated by

this Agreement and the Ancillary Agreements.”37 Thus, as RGI predicted, CRE

insists that the Supplemental Agreements are incorporated into the Ancillary

Agreements and are subject to the UAPA’s forum selection clause.38

RGI’s second argument on reargument is that the UAPA’s forum selection

clause is far from “crystalline,” so either Delaware or New York is a proper forum

36 Id. ¶ 8; see CRE Niagara, 2021 WL 1292792, at *7 (“Second, the UAPA is the later-executed document, and its forum selection clause delimits a broader scope than the Participation and Servicing Agreements. Indeed, Section 9.6 of the UAPA provides that the claims “arising out of this Agreement, any Ancillary Agreement or the Transactions” belong in Delaware. In contrast, the Ancillary Agreements restrict New York jurisdiction to their terms alone. Even more, UAPA Section 9.6’s plain language itself includes the Ancillary Agreements within its forum selection clause. And the UAPA plainly defines the Ancillary Agreements to include the Servicing and Participation Agreements. This can only mean the parties intended to include disputes regarding these two (or too) within the UAPA's forum selection clause.” (citations omitted)). 37 Pls.’ Opp’n to Mot. for Reargument ¶ 9; First Am. Compl., Ex. A at 11 (UAPA). 38 Pls.’ Opp’n to Mot. for Reargument ¶ 9; Def.’s Mot. for Reargument at 3 n.3. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 10 of 25

and the UAPA’s waiver-of-venue objections shouldn’t bar its forum non conveniens

arguments.39 RGI contends that while it did not challenge that Delaware was a

permitted forum for CRE’s UAPA claims, the UAPA is “less than crystalline” in

regard to the Performance Agreement claims and that no one agreement supersedes

the other.40 Further, RGI claims that a motion challenging venue in light of a parallel

action is not strictly a forum non conveniens motion subject to the UAPA’s waiver

provision.41 Rather, RGI says that the forum non conveniens factors are merely

considered by the Court to determine whether to stay in the interests of comity and

that its filing of UAPA claims in the New York Action further militates in its favor.42

In response, CRE insists that RGI simply is attempting to recycle old

arguments made below.43

In its last argument on its motion, RGI seeks leave to reargue (or actually, to

now brief) its overripeness contention suggesting now that overripeness is a

39 Id. at 3-4. 40 Id. at 4. 41 Id. at 5. 42 Id. 43 Pls.’ Opp’n to Mot. for Reargument ¶ 11. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 11 of 25

threshold jurisdictional issue the Court might have a “positive duty” to raise.44 RGI

contends that because this action was filed for tactical advantage—in apparent

anticipation of other pending proceedings—and CRE may assert its claims in the

New York Action without prejudice, it is overripe to proceed here.45

In response, CRE points out that RGI raised this issue in a previous motion to

dismiss and made a tactical decision to abandon this argument when it had the

opportunity to raise it in its amended motion to dismiss the original complaint and

its ultimately unsuccessful motion to dismiss.46 Moreover, CRE contends that

overripeness is not a question of subject matter jurisdiction but rather a discretionary

doctrine that permits the Court to evaluate whether it is desirable to decline

exercising existing jurisdiction.47 CRE argues that, as the Court noted in the

Opinion, an overripeness determination is made after the consideration of various

factors, an examination that did not occur because RGI chose not to advance the

overripeness argument in its briefing.48 Thus, CRE insists that RGI should not get a

44 Def.’s Mot. for Reargument at 5. 45 Id. at 6. 46 Pls.’ Opp’n to Mot. for Reargument ¶ 13. 47 Id. ¶ 14. 48 Id. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 12 of 25

do over of this tactical decision. 49

B. RGI’S MOTION FOR STAY OR ENLARGEMENT OF TIME

In addition to reargument, RGI also seeks to stay this action or for an

enlargement of time to answer CRE’s amended complaint until the New York court

rules on a pending motion to dismiss in the New York Action—that is, a stay with a

enlargement-of-time label.50 RGI reports that in February 2021, it amended its

complaint in the New York Action out of necessity to assert additional claims, and

to include UAPA claims in order to avail itself of New York’s saving statute.51 CRE

has moved to dismiss the amended complaint and the issue has been fully briefed

and is awaiting the New York court’s decision.52

RGI claims that a stay or an enlargement of time to file its answer will assist

in providing clarity as to which of its counterclaims are compulsory, as the New

York court is currently undergoing a first-to-file analysis.53 RGI insists that its

49 Id. 50 Def.’s Mot. for Stay or Enlargement of Time at 1. 51 Id. at 2. 52 Id. at 2-3. 53 Id. at 3. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 13 of 25

claims should be deemed simultaneously commenced with CRE’s claims because:

(i) the two parties claims were filed close in time together; (ii) CRE’s action was

“anticipatory and defensive”; and, (iii) the convenience factors and interests of the

state strongly favor the New York Action.54 RGI contends that until the New York

court rules on the first-filed issue, it lacks guidance and is presented with a

“Hobson’s choice” of risking the waiver of over $35 million in claims or abdicating

its choice of forum before any court decides whether it is required to do so.55

Additionally, RGI says that either this Court’s ruling on this reargument

motion or the New York court’s ruling on CRE’s motion to dismiss will determine

whether New York has exclusive jurisdiction over its claims or whether it would

need to assert its claims in this Court as counterclaims.56 And, according to RGI,

the resolution of the pending motions to dismiss in the New York Action will provide

guidance as to the interpretation of relevant contracts and inform it of whether it has

adequately pled its torts claims and that the Cerberus defendants are alter egos.57

54 Id. at 4. 55 Id. at 4-5. 56 Id. at 5. 57 Id. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 14 of 25

RGI suggests that this stay, or “enlargement of time” won’t prejudice CRE

and will only streamline issues concerning the validity and necessity of its potential

counterclaims.58

In response, CRE insists that this motion is just an additional (and untimely)

motion for reargument as the Court has already denied RGI’s previous motion to

dismiss or stay in favor of the New York Action.59 CRE argues that RGI has failed

to demonstrate that litigating in Delaware would cause overwhelming hardship;60

which, CRE says, RGI must do because this action is the first-filed and longest

standing action, the parties agreed to litigate in Delaware, and the Ancillary

Agreements New York forum provisions do not address all the claims raised in this

case.61

Finally, CRE contends that RGI’s argument that it will be precluded from

pursuing relief in Delaware absent a stay is meritless and a direct result of its own

58 Id. 59 Pls.’ Opp’n to Mot. for Stay or Enlargement of Time ¶ 7, Apr. 23, 2021 (D.I. 79). 60 CRE invokes the factors applied in LG Elecs. Inc. v. InterDigital Commc’ns, Inc., 114 A.3d 1246, 1252 (Del. 2015). 61 Pls.’ Opp’n to Mot. for Stay or Enlargement of Time ¶¶ 9-10. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 15 of 25

actions.62 Specifically, says CRE, RGI’s contention that it would not be able to raise

its veil-piercing claims in Delaware is of no moment because judges of this Court

have presided over equitable claims in Chancery via temporary appointment.63

Further, CRE argues that RGI’s “Hobson’s choice” argument lacks merit as well

because RGI could file its claims right now in this Court. Or alternatively, should

the New York court dismiss RGI’s claims there, CRE suggests that RGI might then

add those claims here.64

III. DISCUSSION

A motion for reargument permits a trial court an opportunity to reconsider its

findings of fact, conclusions of law, or judgment.65 Still “Delaware law places a

heavy burden on a [party] seeking relief pursuant to Rule 59.”66 The moving party

has the burden to demonstrate that the Court must correct an error of law or prevent

62 Id. ¶ 12. 63 Id. 64 Id. 65 See Ramon v. Ramon, 963 A.2d 128, 136 (Del. 2008) (“A motion for reargument is the proper device for seeking reconsideration by the Trial Court of its findings of fact, conclusion of law, or judgment.” (internal quotation marks and citations omitted)). 66 Kostyshyn v. Comm’rs of Town of Bellefonte, 2007 WL 1241875, at *1 (Del. Super. Ct. Apr. 27, 2007) (citations omitted). CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 16 of 25

manifest injustice occasioned by its judgment.67 But “[a] Rule 59(e) application is

not an avenue for the moving party to raise new arguments or to rehash arguments

already decided by the Court.”68 And such motion will be denied unless the Court

has “overlooked a controlling precedent or legal principles,” or “has

misapprehended the law or facts such as would affect the outcome of the decision”

challenged.69 Upon a Rule 59(e) reargument motion, the Court “will determine from

the motion and answer whether reargument will be granted.”70

1. The UAPA Controls.

A Rule 59 reargument motion isn’t an appropriate vehicle for rehashing

arguments the Court already considered and rejected when deciding the preceding

substantive motion. Nor is such a motion a stall device to avoid the consequences

of an adverse ruling or, even worse, to obtain the relief—here time—sought, but

67 See Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969) (“The manifest purpose of all Rule 59 motions is to afford the Trial Court an opportunity to correct errors. . . .”). 68 Maravilla-Diego v. MBM Constr. II, LLC, 2015 WL 5055955, at *1 (Del. Super. Ct. Aug. 27, 2015) (citations omitted); see id. at *1 n.4 (collecting authority). 69 Cummings v. Jimmy’s Grille, Inc., 2000 WL 1211167, at *2 (Del. Super. Ct. Aug. 9, 2000) (citation omitted). 70 Del. Super. Ct. Civ. R. 59(e). CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 17 of 25

denied, in the first round. No, the proper purpose of a Rule 59 motion is to allow

the Court to correct overlooked controlling precedent, legal principles, or facts. Not

one of those was missed here.

RGI argues that the Court’s Opinion overlooked the existence of the

Supplemental Agreements entered into by the parties long after the execution of the

UAPA and Ancillary Agreements.71 RGI contends that CRE is partially to blame

for this as its Amended Complaint does not mention the Supplemental Agreements

aside from its prayer for relief where it requests the Court to declare that it is not in

default of breach of the UAPA, Ancillary Agreements, or any supplement thereto.72

The Court was well aware of the Supplemental Agreements’ existence. They

were discussed throughout RGI’s dismissal briefings and oral argument.73 The First

Supplemental Agreement was attached as an exhibit to CRE’s Amended

Complaint.74 And despite RGI’s view, the Court didn’t overlook—or, in reading

between the lines of RGI’s motion—ignore the Supplemental Agreements. When

71 Def.’s Mot. for Reargument at 1. 72 First Am. Compl. at 26. 73 Arg. Tr. at 23-25, 29-30, 54, Jan. 7, 2021 (D.I. 67). 74 First Am. Compl., Ex. J (Supplemental Agreement). CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 19 of 25

selection clause. And the Court found that in addition to the UAPA being the

contract at issue here, the UAPA’s forum selection clause also contains broader,

more encompassing language. Under UAPA Section 9.6 claims “arising out of this

agreement, any Ancillary Agreements or the Transactions” belong in Delaware;78

the language of the forum selection clauses in the Ancillary Agreements restrict New

York jurisdiction to their terms alone.79 And the forum selection clause of the First

Supplemental Agreement contains the same limiting language as the Ancillary

Agreements: “Each Party hereto hereby irrevocably and unconditionally submits,

itself and its property, to the exclusive jurisdiction of the Supreme Court of New

York sitting in New York County and of the United States District Court for the

Southern District of New York, . . . in any action or proceeding arising out of or

relating to this Supplemental Agreement . . .”80 So no matter which other agreement

is compared thereto, the UAPA contains the broader, more encompassing forum

selection clause.

78 First Am. Compl., Ex. A § 9.6 (UAPA); CRE Niagara, 2021 WL 1292792, at *7. 79 Id.; First Am. Compl., Ex. B § 8.6 (Participation Agreement); Ex. C § 6.6 (Servicing Agreement). 80 First Am. Compl., Ex. J § 10 (Supplemental Agreement). CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 20 of 25

As CRE’s claims in this action directly pertain to the to the representations

and warranties made in the UAPA and the UAPA is the contract at issue here,

reargument on this point is not warranted.

2. The Parties Waived Forum Non Conveniens.

In contending that the Court may consider forum non conveniens factors here,

RGI rehashes its “less than crystalline” argument raised in briefing and at oral

argument.81 But the Court still detects no ambiguity in the UAPA’s controlling

forum selection clause or its plain waiver of forum non conveniens challenges.82

And where the UAPA’s forum selection clause applies, the entirety of the clause

applies—including the clause’s waiver of inconvenient forum challenges.83

3. RGI Can’t Revive the Overripeness Argument it Waived.

In contesting the Court’s decision to eschew its overripeness claim, RGI

seems to forget the rules for litigating a claim in this Court (or any court). It usually

81 Def.’s Mot. to Dismiss Reply at 19-20, Nov. 19, 2020 (D.I. 58); Arg. Tr. at 32-33. 82 CRE Niagara, 2021 WL 1292792, at *7-8. 83 RGI insists that its February 2021 filing of UAPA claims in the New York Action further supports its contention that New York is in more convenient forum. See Def.’s Mot. for Reargument at 4-5 & n.6. But RGI’s unilateral decision to file its UAPA claims elsewhere in explicit derogation of the UAPA’s forum selection clause neither adds weight to its argument nor alters any forum non conveniens analysis the Court might engage in this instance. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 21 of 25

goes like this: a party authors a pleading complete with all its arguments; the parties

fully brief the issues raised in that pleading; they then present oral argument on those

briefed issues; and then, the Court either rules from the bench or takes the matter

under advisement to issue a written decision.

Here, during the December 2020 oral argument, RGI raised an issue it once

abandoned. RGI says it raised the “overripeness” issue in its July 8, 2020 motion to

dismiss.84 But that motion was directed at a complaint that was later amended. And

after amendment, RGI filed two more motions to dismiss that excluded

(intentionally, one must assume) the very overripeness argument it seeks to press

now.85 RGI cannot now revive an argument it strategically chose not to champion

when twice before given the opportunity.86

84 Def.’s Mot. for Reargument at 5 n.9. 85 Pls.’ Opp’n to Mot. for Reargument ¶ 13. 86 Saunders v. Preholdings Hampstead, LLC, 2012 WL 1995838, at *3 (Del. Super. Ct. May 23, 2012) (“[I]ssues not addressed in briefing, and raised for the first time during oral argument, are deemed waived.” (citing King Constr., Inc. v. Plaza Four Realty, Inc., 976 A.2d 145, 155 (Del. 2009))). And RGI’s call for the Court to honor a “positive duty” to engage and adopt its peculiar view on jurisdiction despite its own failure will go unanswered. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 22 of 25

B. RGI’S MOTION TO STAY IS JUST A MISLABELED MOTION FOR REARGUMENT.

In its unsuccessful motion to dismiss, RGI asked that, in lieu of dismissal, the

Court stay this action until the resolution of the New York Action on the basis of

forum non conveniens.87 In analyzing the forum non conveniens factors from

Schmidt v. Washington Newspaper Publishing Company, LLC,88 RGI argued that

“most importantly, where, as here, there are similar actions pending in other

jurisdictions, including actions whose outcome might affect the outcome in this case,

the sixth [Schmidt] factor mandates a dismissal or stay.”89 The Court denied the stay

request.

Now, RGI is back again seeking a stay (or an enlargement of its time to

answer—which are just more words describing a stay), until the New York court

resolves CRE’s motion to dismiss in the New York Action.90 While adding some

new facts and arguments to its motion, RGI again essentially argues that a stay or

87 Def.’s Mot. to Dismiss at 29. 88 2019 WL 4785560, at *6 (Del. Super. Ct. Sept. 30, 2019). 89 Def.’s Mot. to Dismiss at 33 (internal quotation marks omitted) (quoting Hurst v. Gen. Dynamics Corp., 583 A.2d 1334, 1339-40 (Del. Ch. 1990)). 90 Def.’s Mot. for Stay or Enlargement of Time at 3. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 23 of 25

enlargement of time might assist in determining the outcome of this case. RGI says

the delay is appropriate because it will: (1) help RGI determine which claims it will

need to eventually bring in this Court; (2) settle which court has exclusive

jurisdiction over these claims; and, (3) resolve which action is deemed to be

“first-filed.”91 And once again, RGI argues that the convenience factors and interests

of the two states strongly favor the New York Action.92 No matter RGI’s label on

this separate filing, the Court will treat it as precisely what it is: a motion for

reargument of its earlier stay request.

The only issue on a motion for reargument under Rule 59(e) “is whether the

Court overlooked something that would have changed its earlier decision.”93

A motion for reargument is not an instrument through which the disappointed party

raises new arguments. 94 Nor is it a tool for rehashing previously-made arguments.95

91 Id. at 3-4, 5. 92 Id. at 4 (citing to its pleadings from the underlying motion to dismiss). 93 Long v. Johnson & Johnson Servs., Inc., 2020 WL 2850205, at *1 (Del. Super. Ct. June 2, 2020) (jnternal quotation marks omitted) (quoting Ferko v. McLaughlin, 1999 WL 167827, at *1 (Del. Super. Ct. Feb. 19, 1999)). 94 Maravilla-Diego, 2015 WL 5055955, at *1. 95 Id. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 24 of 25

And beyond doubt, a prayer for reargument should never be used as a device to

extract the relief—here, delay—a party failed to wrest through its substantive

predecessor.

Here, RGI repeats its earlier arguments as to why the New York Action is the

more-favored action and once again characterizes CRE’s claims here as merely

anticipatory and defensive.96 But RGI adds now a “comity” and “interests of justice”

gloss to suggest a couple more reasons it should get its stay.97

The Court’s already denied RGI’s motion to stay. And no deep exploration

of RGI’s reconstituted arguments is required.

The UAPA’s forum selection clause still applies to this action.98 And under

the plain language of the UAPA’s forum selection clause, the parties waived their

rights to contest their chosen forum.99 Having engaged in this second look, there

was no misapprehension of law or fact, nor any failure to recognize controlling

precedent or legal principles that misled the Court to so decide.

96 Def.’s Mot. for Stay or Enlargement of Time at 4. 97 Id. at 2. 98 CRE Niagara, 2021 WL 1292792, at *6-7. 99 Id. at *7-8. CRE Niagara Holdings, LLC, et al v. Resorts Group, Inc. C.A. No. N20C-05-157 PRW CCLD May 25, 2021 Page 25 of 25

RGI’s decision to take its UAPA claims to New York with the risk of those

claims being eventually dismissed on improper venue grounds is RGI’s own tactical

choice. Too, whatever counterclaims RGI decides to bring in to or exclude from its

answer in this action, again, is RGI’s own tactical choice. The Court will not rescue

a party from its own strategy calls, nor will it give that party any advice on how to

avoid its own litigation peril.

IV. CONCLUSION

Given that RGI failed to shoulder Rule 59’s heavy burden, and that the Court

did not misinterpret or overlook any facts or law when deciding RGI’s dismissal

motion, RGI’s Motion for Reargument thereof is DENIED. Further, given that

RGI’s Motion for Stay or Enlargement of Time is just another motion for reargument

and RGI has failed to meet that same Rule 59 burden, the Motion for Stay is

DENIED. RGI shall, in accordance with Superior Court Civil Rule 12(a)(1), file its

answer to CRE’s amended complaint within ten (10) days of this Order.

IT IS SO ORDERED.

_______________________ Paul R. Wallace, Judge cc: All Counsel via File and Serve