Full Opinion (html_with_citations)

                                          COURT OF CHANCERY
                                                OF THE
                                          STATE OF DELAWARE
ABIGAIL M. LEGROW
 MASTER IN CHANCERY                                                             NEW CASTLE COUNTY COURTHOUSE
                                                                               500 NORTH KING STREET, SUITE 11400
                                                                                   WILMINGTON, DE 19801-3734




                                    Final Report: December 19, 2014
                                      Submitted: October 29, 2014

      Alan L. Lucas                                      Theodore J. Tacconelli
      Linn County Correctional Center                    Rick S. Miller
      P.O. Box 608                                       Ferry Joseph & Pearce, P.A.
      Cedar Rapids, IA 52406-0608                        P.O. Box 1351
                                                         Wilmington, DE 19899


                Re:   Alan L. Lucas, et al. v. Alan Hanson, et al.
                      C.A. No. 9424-ML

      Dear Counsel and Parties:

                Following the issuance of my final report dated July 1, 2014, which recommended

      that the Court dismiss the amended complaint without prejudice, the plaintiff, Alan L.

      Lucas, filed a second amended complaint (“the Second Amended Complaint”). Alan

      Hanson, Patty Hanson, and Marcella Hosch (the “Hanson and Hosch Defendants”) have

      moved to dismiss the Second Amended Complaint on the basis that Mr. Lucas lacks

      standing to pursue this matter (the “Motion to Dismiss”). After the Motion to Dismiss

      was fully briefed, Mr. Lucas filed an “Application for Temporary Stay of Proceedings”

      (the “Motion to Stay”) because he was exploring whether to retain counsel and because

      he understood that other parties might intervene in the case. For the reasons that follow, I

      recommend that the Court grant the Motion to Dismiss and deny the Motion to Stay.
C.A. No. 9424-ML
December 19, 2014
Page 2

BACKGROUND

       The facts underlying the parties‟ dispute were summarized in my July 1, 2014

Final Report and need not be repeated in detail here. To briefly summarize, Covenant

Investment Fund LP (“Covenant”) is a Delaware limited partnership.                    In earlier

complaints, Mr. Lucas alleged that Prosapia Capital Management LLC (“Prosapia

Capital”) is the general partner of Covenant and that Mr. Lucas is the operating manager

of Prosapia Capital.1 The defendants are or were limited partners of Covenant.2

       In June 2011, Mr. Lucas was charged in Iowa with theft and ongoing criminal

conduct associated with the expenditure and liquidation of Covenant‟s funds and assets.3

Mr. Lucas was convicted on October 23, 2013 and was sentenced on March 14, 2014 to

25 years in prison.4 In connection with the criminal proceedings, Iowa declared “that the

entire amount [of] cash in [Covenant‟s] account was the property of the [named

defendants] and that Lucas, as General Partner, should have distributed it to [the named

defendants] and dissolved Covenant upon Lucas becoming General Partner.” 5 As in his

previous complaints, Mr. Lucas alleges in the Second Amended Complaint that the State

of Iowa has seized Covenant‟s assets and intends to distribute those assets to the




1
  See First Am. Compl. for Declaratory J. and Prelim. Inj. (hereinafter “First Am. Compl.”) ¶¶ 1,
2.
2
  Second Am. Compl. for Declaratory J. and Prelim. Inj. (hereinafter “Second Am. Compl.) ¶¶ 3-
5.
3
  Id. ¶ 26.
4
  Id. ¶¶ 31, 33.
5
  Id. ¶ 26.
C.A. No. 9424-ML
December 19, 2014
Page 3

defendants.6 Mr. Lucas seeks a number of declarations regarding his interpretation of

Delaware law governing limited partnerships,7 as well as an injunction prohibiting the

defendants from receiving disbursement of Covenant‟s assets until the issues in this case

have been resolved.8

       I recommended that the Court grant the first amended complaint without prejudice

on the basis that Mr. Lucas did not therein allege he was either a general partner or a

limited partner of Covenant. In the Second Amended Complaint, Mr. Lucas alleges he is

both a general and limited partner of Covenant, although his response to the Motion to

Dismiss confirms that he is not pursuing a derivative action and is not relying on his

alleged position as a limited partner to confer standing in this action.9 In their Motion to

Dismiss, the Hanson and Hosch defendants dispute Mr. Lucas‟s position as general

partner of Covenant, pointing to filings with the Delaware Secretary of State that

identified Prosapia Capital as Covenant‟s only general partner.10

       On August 27, 2014, Mr. Lucas purported to file with the Delaware Secretary of

State an Amendment to the Certificate of Limited Partnership that identified both Alan

Lucas and Prosapia Capital as Covenant‟s general partners as of that date (the




6
  Id. “Prayer for Relief Request for Immediate Preliminary Injunction.”
7
  Id. “Prayer for Relief” ¶¶ 1-8.
8
  Id. “Prayer for Relief, Request for Immediate Preliminary Injunction” ¶ 4.
9
  See Plaintiff‟s Reply to Defs.‟s Mot. to Dismiss Second Am. Compl. (hereinafter “Answering
Br.”) at 12-13.
10
   Defs.‟s Mot. to Dismiss Second Am. Compl. (hereinafter “Opening Br.”), Ex. A. None of the
other named defendants have answered the Second Amended Complaint. It is not clear that the
remaining defendants properly were served with the Second Amended Complaint.
C.A. No. 9424-ML
December 19, 2014
Page 4

“Certificate of Amendment”).11 Mr. Lucas also contends that he became Covenant‟s

general partner on May 18, 2010, attaching as evidence a one page document that he

signed as Covenant‟s General Partner.12 In their reply brief in support of the Motion to

Dismiss, the Hanson and Hosch Defendants argue that the belated filing of the Certificate

of Amendment was not sufficient to confer standing on Mr. Lucas as of the time the

Second Amended Complaint was filed and therefore the motion to dismiss should be

granted and this case dismissed with prejudice.

       On October 24, 2014, Mr. Lucas filed the Motion to Stay, arguing that the Court

should defer ruling on the Motion to Dismiss because Mr. Lucas was exploring whether

to retain counsel and because either Prosapia Capital or Covenant had indicated they

might move to intervene in this action.13 To date, no counsel has entered an appearance

on behalf of Mr. Lucas and no motion to intervene has been filed.

ANALYSIS

       Pursuant to Rule 12(b)(6), this Court may grant a motion to dismiss for failure to

state a claim if a complaint does not assert sufficient facts that, if proven, would entitle

the plaintiff to relief. The governing pleading standard in Delaware to survive a motion

to dismiss is “reasonable „conceivability.‟”14 When considering such a motion, a court

must


11
   See Answering Br. Ex. C-1.
12
   Answering Br. Exs. A, B.
13
   Plaintiff‟s Application for Temporary Stay of Proceedings at 2.
14
   Central Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC,
27 A.3d 531, 537
 (Del.
2011) (footnote omitted).
C.A. No. 9424-ML
December 19, 2014
Page 5

              accept all well-pleaded factual allegations in the Complaint as
              true, accept even vague allegations in the Complaint as “well-
              pleaded” if they provide the defendant notice of the claim,
              draw all reasonable inferences in favor of the plaintiff, and
              deny the motion unless the plaintiff could not recover under
              any reasonably conceivable set of circumstances susceptible
              of proof.15

This “conceivability” standard asks whether there is a “possibility” of recovery. 16 If the

well-pleaded factual allegations of the complaint would entitle the plaintiff to relief under

a reasonably conceivable set of circumstances, the Court must deny the motion to

dismiss.17

       In the Second Amended Complaint, Mr. Lucas alleges he is a general partner of

Covenant. He did not attach or incorporate by reference in his complaint any documents

relating to his appointment as general partner.        Only after the Hanson and Hosch

defendants relied on the filings on record with the Delaware Secretary of State did Mr.

Lucas (1) file the Certificate of Amendment and (2) provide additional factual allegations

and documents that he contends support a reasonable inference that he became a general

partner on May 18, 2010.

       In resolving a motion to dismiss, I cannot look outside the complaint for facts to

support it.18 The only “facts” properly before the Court are (1) Mr. Lucas‟s allegation

that he is a general partner and (2) the filings with the Delaware Secretary of State, which

do not identify Mr. Lucas as a general partner as of the date the Second Amended

15
Id.
 (citing Savor, Inc. v. FMR Corp.,
812 A.2d 894, 896-97
 (Del. 2002)).
16
Id.
 at 537 & n.13.
17
   Id. at 536.
18
   Shintom Co., Ltd. v. Audiovox Corp.,
2005 WL 1138740
, at *4 n.8 (Del. Ch. May 4, 2005).
C.A. No. 9424-ML
December 19, 2014
Page 6

Complaint was filed. Mr. Lucas provided factual allegations and additional documents in

his answering brief, including signature pages for Covenant‟s partnership agreement

dated in 2010, but the Court may not consider allegations outside the pleadings or take

judicial notice of those documents, unlike documents on file with the Secretary of State.

Although Mr. Lucas may have a valid basis to allege that he became a general partner

before the Certificate of Amendment was filed, I cannot draw a reasonable inference to

that effect based on the allegations in the complaint. Alternatively, the Hanson and

Hosch Defendants may have a valid argument that Mr. Lucas was not admitted as a

general partner, if at all, until the Certificate of Amendment was filed, but the parties

have not had an opportunity to brief that issue because the facts that underlie it were not

presented to the Court until Mr. Lucas filed his answering brief.

       I therefore recommend that the Court grant the Motion to Dismiss without

prejudice, giving Mr. Lucas one final opportunity to amend the complaint. Because this

is the second time I have recommended dismissal of the complaint, I also recommend

that, if Mr. Lucas files an amended complaint and that amendment is dismissed by this

Court, the dismissal be with prejudice.      This recommendation, in my view, fairly

balances Mr. Lucas‟s status as a self-represented litigant with the defendants‟ interest in

achieving finality in these proceedings.

       Because I have recommended that the Court grant the motion to dismiss without

prejudice, Mr. Lucas‟s Motion to Stay is moot. If he wishes to do so, Mr. Lucas may
C.A. No. 9424-ML
December 19, 2014
Page 7

retain counsel to assist him in this action going forward. I do not view the possibility that

other parties may move to intervene as a basis to grant the Motion to Stay.

CONCLUSION

       For the foregoing reasons, I recommend that the Court grant the Motion to

Dismiss without prejudice and deny the Motion to Stay as moot. This is my final report

and exceptions may be taken in accordance with Court of Chancery Rule 144.

                                                  Sincerely,

                                                  /s/ Abigail M. LeGrow
                                                  Master in Chancery