On v. Kulak

• Court: Supreme Court of Delaware
• Decided: March 14, 2025
• Docket: 95, 2025
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ITSHAK ON and KEREN-OR ON, § § Defendants Below, § No. 95, 2025 Appellants, § § Court Below—Court of Chancery v. § of the State of Delaware § KEVIN KULAK, § C.A. No. 2023-0011 § Plaintiff Below, § Appellee. §

Submitted: February 28, 2025 Decided: March 14, 2025

Before VALIHURA, TRAYNOR, and LEGROW, Justices.

ORDER

After consideration of the notice of appeal from an interlocutory order, it

appears to the Court that:

(1) The appellants, Itshak On and Keren-Or On, are defendants in an action

alleging breaches of fiduciary duty and fraudulent inducement. The Ons were

previously represented by counsel, but they have been proceeding pro se since

March 2024. On August 8, 2024, plaintiff Kevin Kulak requested leave to move for

partial summary judgment. The Court of Chancery granted leave on December 5,

2024. The Ons moved for reconsideration, which the court denied on January 21,

2024. On February 7, 2025, after briefing by the parties regarding scheduling, the Court of Chancery entered a scheduling order governing summary judgment

briefing.

(2) The Ons then filed an application for certification of an interlocutory

appeal from the scheduling order. Kulak opposed. The Court of Chancery denied

certification. The court determined that the scheduling order did not decide a

substantial issue of material importance;1 the costs of interlocutory review would

outweigh the benefits;2 and the Ons had not established that any of the factors set

forth in Supreme Court Rule 42(b)(iii) supported certification.

(3) We agree that interlocutory review is not warranted in this case.

Applications for interlocutory review are addressed to the sound discretion of this

Court.3 In the exercise of its discretion and giving great weight to the trial court’s

view, this Court has concluded that the application for interlocutory review does not

meet the strict standards for certification under Supreme Court Rule 42(b). The

Court of Chancery’s February 7, 2025 scheduling order does not decide a substantial

issue of material importance because it does not go to the merits of the case and

merely concerns a routine scheduling matter within the trial court’s discretion.4

1 DEL. SUPR. CT. R. 42(b)(i). 2 Id. R. 42(b). 3 Id. R. 42(d)(v). 4 See McCann v. Emgee, Inc., 1993 WL 541922, at *1 (Del. Dec. 22, 1993) (refusing an interlocutory appeal from an order governing discovery and stating that “[a]n interlocutory order must determine a substantial issue and establish a legal right in order for it to be appealable”); Schagrin Gas Co. v. Evans, 418 A.2d 997, 998 (Del. 1980) (holding that administrative board’s ruling “dealing solely with the procedural matter of trial scheduling” did not determine a

2 Exceptional circumstances that would merit interlocutory review of the scheduling

order do not exist,5 and the potential benefits of interlocutory review do not outweigh

the inefficiency, disruption, and probable costs caused by an interlocutory appeal.

NOW, THEREFORE, IT IS ORDERED that the interlocutory appeal is

REFUSED.

BY THE COURT:

/s/ Gary F. Traynor Justice

substantial issue or establish a legal right); Cede & Co. v. Technicolor, Inc., 2001 WL 515106, at *3 (Del. Ch. May 7, 2001) (“[T]his Court fails to understand how the scheduling of a trial determines a substantial issue, establishes a legal right, or satisfies any of the other criteria required by Supreme Court Rule 42.”). 5 DEL. SUPR. CT. R. 42(b)(ii).