Lamark Media Group, LLC v. MPUSA, LLC

• Court: Superior Court of Delaware
• Decided: October 17, 2025
• Docket: N24C-08-153 CEB
• Status: Published

Opinion

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

LAMARK MEDIA GROUP, ) LLC, ) ) Plaintiff, ) ) C.A. No. N24C-08-153 CEB v. ) ) MPUSA, LLC, ) Defendant. ) ) )

Submitted: September 3, 2025 Decided: October 17, 2025

MEMORANDUM OPINION

Upon Consideration of Plaintiff’s Motion to Dismiss; DENIED.

Upon Consideration of Defendant’s Motion to Amend; GRANTED.

Damien N. Tancredi Esq., FLASTER GREENBERG, PC, Wilmington, Delaware. Attorney for Plaintiff. Geoffrey G. Grivner Esq., BUCHANAN, INGERSOLL & ROONEY, PC, Wilmington, Delaware. Attorney for Defendant.

Butler, R.J. Lamark Media Group, LLC (“Lamark” or “Plaintiff”) has filed suit in

Superior Court alleging that Defendant MPUSA, LLC (“MPUSA” or “Defendant”)

owes it money. MPUSA filed an Answer to the Complaint and along with it, a

counterclaim against Lamark alleging breach of contract and breach of the covenant

of good faith and fair dealing.

Lamark moved to dismiss the counterclaim. After argument, MPUSA filed a

proposed Amended Counterclaim, along with its arguments why the Amended

Counterclaim should survive the motion to dismiss. Lamark has filed its response

to that briefing. The Court here rules on the motion to dismiss Defendant’s Amended

Counterclaim.

Background

According to the Complaint, MPUSA is a “developer and provider of cooling

gears such as hats and towels, designed to provide users with more comfort while in

hot and humid environments.”1 Lamark “specializes in digital marketing and

advertising programs for its clients that facilitate brand and product awareness, and

consumer engagement.”2 Lamark says it is “a full-service firm that provides

1 Compl. ¶ 9. 2 Id. ¶ 8. 2 performance-focused marketing and advertising initiatives across a variety of

platforms.”3

MPUSA sought to increase sales through the use of electronic media and, to

that end, entered into a “Master Services Agreement” (the “Contract”) with Lamark.4

It appears things started off well enough, because the parties subsequently signed

two “Insertion Orders” that apparently expanded the scope of services to which

Lamark committed.

Alas, the honeymoon did not last. MPUSA stopped paying Lamark’s invoices

about six months after the second Insertion Order was signed, racking up about

$300,000 in unpaid bills.5 Lamark has filed suit for monies owed.

All of this is easy enough to digest: this is an action on a debt. The Defendant

hasn’t paid its bills. But Defendant’s response adds a Counterclaim, alleging that

Plaintiff breached the contract – thus excusing payment – and has acted in bad faith.

Plaintiff has moved to dismiss the Counterclaims. As to the breach of contract

claim, it says Defendant has not identified any particular contract term that was

allegedly breach.6 As to the good faith and fair dealing claim, Plaintiff says it is

3 Id. 4 Id. ¶10; Compl., Ex. A. 5 Compl. ¶16. 6 Pl.’s Mot. to Dismiss, D.I. 13, ¶7 (hereinafter Pl.’s MTD). 3 merely a repetition of the breach of contract claim and that is an insufficient basis

upon which to pin a good faith and fair dealing claim.7

Defendant responded to the motion. It argues that the rules require only notice

pleading and it is entitled to all reasonable inferences and judged by that standard,

its counterclaim survives.8 It also proposed to amend the counterclaim to include

more specificity in its allegations of breach of contract. It likewise argues that

Plaintiff’s breach of contract had catastrophic effects on Defendant’s business.9

Therefore, it argues the bad faith claim must be allowed to proceed.

Analysis

1. The Amended Counterclaim adequately states a claim for breach of contract.

Plaintiff’s Complaint is simply stated as a debt action on invoices not paid.

Defendant’s Counterclaim for breach of contract must necessarily dig into the

contract between the parties to explain what the Plaintiff did that breached the

agreement.

While it is certainly arguable that the original Counterclaim gave Plaintiff

notice that Defendant believed Plaintiff had breached the agreement, the Amended

7 Pl.’s Letter in Further Support of Mot. to Dismiss Countercls, D.I. 31, at 5. 8 Def.’s Opp’n to Pl.’s Mot. to Dismiss Countercls, D.I. 17, ¶¶4-5. 9 Id. ¶6. 4 Counterclaim states explicitly that Plaintiff failed to exert “reasonable best efforts”

on Defendant’s behalf. This term, “reasonable best efforts,” appears to be the metric

by which Plaintiff’s performance under the contract would be judged and, one might

reasonably expect that the term will be at the center of this dispute should it proceed

to trial. Defendant has cited to Delaware cases that have allowed the breach of a

“reasonable best efforts” standard to support a breach of contract case.10 It therefore

follows that Defendant has placed Plaintiff on adequate notice of its complaint and

the motion to dismiss the counterclaim on breach of contract grounds cannot be

granted.

2. The Counterclaim alleging breach of the covenant of good faith and fair dealing will not be dismissed at this stage.

Plaintiff’s motion to dismiss the good faith and fair dealing claim, like

Defendant’s claim itself, is sparse. Plaintiff says “where, as here, the express terms

of the contract at issue contradict the allegations, the claim for breach of the implied

covenant fails.”11 The argument presumes that the express terms of the contract do

contradict Defendant’s allegations, but that is not necessarily true.

10 E.g., Williams Cos., Inc. v. Energy Transfer Equity, L.P., 2016 WL 3576682 (Del. Ch. June 24, 2016), aff'd, 159 A.3d 264 (Del. 2017); WaveDivision Holdings, LLC v. Millennium Digital Media Systems, LLC, 2010 WL 3706624, at *17-18 (Del. Ch. Sept. 17, 2010); Hexion Specialty Chemicals, Inc. v. Huntsman Corp., 965 A.2d 715, 748-50 (Del. Ch. 2008). 11 Pl.’s MTD ¶10. 5 The Court agrees that bad faith claims are frequently alleged but rarely survive

discovery and remain for trial. As the Supreme Court has said:

The implied covenant, however, is a “cautious enterprise.” As we have reinforced on many occasions, it is “a limited and extraordinary legal remedy” and “not an equitable remedy for rebalancing economic interests that could have been anticipated.” It cannot be invoked “when the contract addresses the conduct at issue.”12 But those comments came in reviewing a voluminous record in a case that

went to trial. Here, the allegations are only that: allegations. The Court is duty

bound to allow the pleader to take discovery and to adjudicate the viability of the

allegations against a more fulsome record.

3. Defendant’s Motion to Amend the Counterclaim is Granted.

Plaintiff’s opposition to Defendant’s motion to amend the Counterclaim is that

the proposed amended is futile.

The purpose of the amendment was to respond to Plaintiff’s complaint that

the initial counterclaim did not cite to any specific contract language that was

allegedly breached. The amendment did that, as well as fleshing out more detail

about its complaint. Plaintiff’s opposition to amendment seeks to argue the merits

of these additional allegations but loses sight of the fact that these are bare, initial

pleadings, merely putting the parties on notice of the claim. There will be time and

12 Glaxo Group Limited v. DRIT LP, 248 A.3d 911, 920 (Del. 2021). 6 space enough to argue the more technical terms of the agreement after discovery has

been taken and the parties can cite to a record for support. For now, the Court will

permit the amendment to the counterclaim.

Plaintiff’s Motion to Dismiss is DENIED

Defendant’s Motion to Amend the Counterclaim is GRANTED.

IT IS SO ORDERED.

/s/ Charles E. Butler Charles E. Butler, Resident Judge