Delaware Business Litigation Report

Chancery Reasons Rule 15(aaa) Does not Contemplate Moving to Amend After the Responsive Brief is Filed and Before the Court Rules on a Motion to Dismiss

Wells Lory Hillblom, f/k/a Nguyen Be Lory vs Wilmington Tr. Co., 2021-1034-MTZ (Del. Ch. Dec. 6, 2022).
Rule 15(aaa), a rule unique to the Court of Chancery, requires plaintiffs faced with a motion to dismiss for failure to state a claim to either (i) stand on their complaint and answer the motion; or (ii) amend their complaint before the response to the motion is due. Plaintiffs could also seek to amend the complaint under Rule 15(aaa) after the Court decides that dismissal is warranted but only upon a showing of good cause why dismissal with prejudice is not just under all the circumstances.

Here, plaintiff sought to amend the Complaint after the motion to dismiss was fully briefed and argued, and the parties were instructed to submit supplemental briefing. The Court explained that a request for supplemental briefing without more does not support granting a leave to amend. The Court accordingly denied the motion to amend. But because the Court rejected the defendant’s arguments for dismissal and the case would proceed, the denial of the motion to amend was without prejudice to a future Rule 15(a) motion.

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