Mera USA, LLC v. MCS Burbank LLC

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE MERA USA, LLC ) ) Plaintiff, ) ) v. ) C.A. No. 2024-0188-MTZ ) MCS BURBANK, LLC ) ) Defendant. ) ) ) MCS BURBANK, LLC, individually ) and derivatively on behalf of MERA ) RD LLC, ) ) Counterclaim-Plaintiff/ ) Third-Party Plaintiff, ) ) v. ) ) MERA USA LLC, ) ) Counterclaim-Defendant, ) ) and ) ) MERA RD2, LLC, MERA RD3, LLC, ) MERA RD4, RAPHAEL AQUIRRE ) and ALEX MOLET WARSCHWASKI ) ) Third-Party Defendants, ) ) and ) ) MERA RD LLC, ) ) Nominal Third-Party ) Defendant.  MEMORANDUM OPINION Date Submitted: May 29, 2026 Date Decided: August 28, 2026 Sarah R. Martin, GREENBERG TRAURIG, LLP, Wilmington, Delaware; Justin K. Victor, Richard F. Walker, GREENBERG TRAURIG, LLP, Atlanta, Georgia, Attorneys for Plaintiffs, Counterclaim Defendant, and Third-Party Defendants MERA USA, LLC, MERA RD2, LLC, MERA RD3, LLC, MERA RD4, Rafael Aquirre, and Axel Molet Warschawski. Peter H. Kyle, Caleb G. Johnson, Daniel P. Klusman, DLA PIPER LLP (US), Wilmington, Delaware, Eduardo G. Roy, PROMETHEUS PARTNERS LLP, San Francisco, California, Attorneys for Defendant/Counterclaim-Plaintiff MCS Burbank, LLC. ZURN, Vice Chancellor.1 1 Sitting by designation under Del. Const. art. IV, § 13(2). Docket item (“D.I.”) 127. 2  Two groups formed a joint venture to operate in the airport concessions market at Raleigh-Durham International Airport (“RDU”). The venture’s limited liability company consisted of one majority member and two minority members. The relationship soured quickly, then ended when the majority member removed one of the minority members from the LLC. That minority member asserts that the majority member, its affiliated special purpose entities, and their human representatives schemed for years to use the minority member to enter the U.S. airport concessions market with the intention to squeeze the minority member out. On the defendants’ motion to dismiss, this opinion trims the minority member’s many legal theories down to a breach of contract claim against the majority member. The Court has limited personal jurisdiction over the majority member’s human representatives; there are no claims against the affiliated special purpose entities; and the parties’ contracts foreclose claims for fraud, estoppel, and breach of the implied covenant. 3  I. BACKGROUND 2 Defendant/counterclaim-plaintiff MCS Burbank, LLC (“MCS”) is a certified Airport Concessions Disadvantaged Business Enterprise (“ACDBE”) that operates 2 Unless otherwise noted, the facts as alleged are drawn from counterclaim-plaintiff MCS Burbank, LLC’s Third Amended and Supplemental Verified Counterclaims, available at Docket Item (“D.I.”) 60 [hereinafter “TACC”], as well as the documents attached and integral to it. See Wal-Mart Stores, Inc. v. AIG Life Ins. Co., 860 A.2d 312, 320 (Del. 2004). Third party defendants Rafael Felipe de Jesus Aguirre Gomez and Axel Molet Warschawski submitted affidavits in support of their motions to dismiss under Court of Chancery Rules 12(b)(2) and 12(b)(6). D.I. 72, Ex. 1 [hereinafter “Gomez Aff.”]; id. Ex. 3 [hereinafter “Warschawski Aff.”]. Nonparty Rafael Aguirre De La Torre also submitted an affidavit. Id. Ex. 2 [hereinafter “De La Torre Aff.”]. The De La Torre Affidavit and Warschawski Affidavit also had several exhibits attached. See D.I. 72. On the Rule 12(b)(6) motion, I have considered the exhibits only if those documents are integral to MCS’s counterclaims; I have not considered the affidavits. Addy v. Piedmonte, 2009 WL 707641, at *6 (Del. Ch. Mar. 18, 2009). On the Rule 12(b)(2) motion, I have considered the affidavits and exhibits solely to determine if each moving defendant is subject to this Court’s jurisdiction. Ryan v. Gifford, 935 A.2d 258, 265 (Del. Ch. 2007). Citations in the form “MOB” refer to counterclaim-defendant MERA USA, LLC’s Opening Brief in support of its Partial Motion to Dismiss Counterclaim-Plaintiff MCS Burbank, LLC’s Third Amended and Supplemental Verified Counterclaims, available at D.I. 69. Citations in the form “TOB” refer to Third Party Defendants’ Opening Brief in support of their Motion to Dismiss the Third Amended and Supplemental Verified Counterclaims under Rules 12(b)(2) and 12(b)(6), available at D.I. 72. Citations in the form “AB” refer to MCS Burbank, LLC’s Consolidated Answering Brief in Opposition to (i) Counterclaim Defendant Mera USA, LLC’s Partial Motion To Dismiss, and (ii) Third-Party Defendants’ Motion to Dismiss Pursuant to Rules 12(b)(2) and 12(b)(6), available at D.I. 113. Citations in the form “MRB” refer to Mera USA’s Reply Brief in Further Support of Motions to Dismiss for Failure to State a Claim, available at D.I. 115. Citations in the form “TRB” refer to Third Party Defendants’ Reply Brief in Further Support of Motion to Dismiss for Lack of Personal Jurisdiction and Failure to State a Claim, available at D.I. 117. Citations in the form “Hr’g Tr.” refer to the transcript of the oral argument on the motions to dismiss, available at D.I. 126. 4 in airports in the United States. 3 The Federal Aviation Administration’s (“FAA”) ACDBE program is federally funded and regulated under 49 C.F.R. Parts 23 and 26.4 MCS partnered with plaintiff/counterclaim-defendant MERA USA, LLC (“MERA”) to operate concessions at multiple airports. MCS alleges MERA, MERA RD2, LLC (“RD2”), MERA RD3, LLC (“RD3”), MERA RD4 (“RD4”), Rafael Felipe de Jesus Aguirre Gomez (“Gomez”),5 and Axel Molet Warschawski (without MERA, “Third-Party Defendants,” and with MERA, “Counterclaim Defendants”) orchestrated a scheme to induce MCS to partner with MERA so that 3 TACC ¶ 16. 4 TACC ¶¶ 13, 16. 5 The Third-Party Defendants expressed their understanding that by naming “Raphael Aquirre” in the caption, MCS intended to sue Raphael Aguirre De La Torre, not Rafael Felipe de Jesus Aguirre Gomez. TOB at 1 n.1. But the weight of MCS’s papers indicate it intended to sue Gomez. TACC ¶ 8 (“Mr. Aguirre [] was the Chief Executive Officer of MERA” and was “a manager of the Joint Venture”); AB at 8 (“Third-Party Defendant Rafael Felipe de Jesus Aguirre Gomez is the Chairman and Chief Executive Officer of Mera USA. Mr. Aguirre also is a manager of the Joint Venture.” (citing TACC ¶ 8)); id. at 11 (“Mr. Aguirre is a principal and owner of MERA USA.”); id. at 56 (“Counterclaim Defendants are part of a single joint enterprise controlled by Mr. Aguirre, and are agents, employees, and representatives of Mr. Aguirre’s entities. . . . [T]he Mera Affiliates are indirectly owned by Mr. Aguirre . . . .”); id. at 58 (“Mr. Aguirre concedes that he owns [MERA] through another entity he wholly controls.” (citing Gomez Aff. ¶¶ 5–6)); Gomez Aff. ¶¶ 3, 6, 8 (providing Gomez is the indirect beneficial owner of MERA, and controls the parent entities that control Mera Hollywood, LLC, Mera RD, LLC, RD2, and MERA); Gomez Aff. ¶¶ 5–6 (stating that the “Sole Member” is the only member of MERA, and Gomez is “the indirect beneficial owner of the Sole Member, which holds a 100% ownership interest in MERA”). This opinion proceeds with the understanding Gomez is a Third-Party Defendant. It also spells Axel Warschawski’s name correctly, which the caption does not. 5 MERA could enter the ACDBE market, then replace MCS with its preferred ACDBE. A. MERA and MCS Join Forces. In or around April 2016 and October 2016, MERA’s CEO and representative Gomez spoke with MCS representatives Steve Mora, Sam Mora, and Tamara Mora about MERA’s plan to expand its airport concessions operation in the United States.6 MCS already had concession agreements with multiple airports, including the Burbank Airport in California.7 MCS alleges that Gomez represented to Steve Mora that if MCS entered into a consulting agreement with MERA, MCS would receive the first right and option to partner with MERA and its affiliates in all their future concession arrangements in the United States (the “ROFR”), and further that MERA would not compete with MCS or its affiliates.8 MCS agreed to enter a consulting agreement. On May 3, 2017, MCS and its subsidiary, nonparty MERA Hollywood, LLC, entered into a Joint Operations Agreement governing their relationship regarding a concession in the Burbank Airport (the “JOA”). 9 The JOA states that if MCS, MERA Hollywood, or affiliates of either party “enter[] into a new Airport Contract,” the other party 6 TACC ¶ 21. 7 Id. 8 Id. 9 See generally De La Torre Aff. at Ex. 1 [hereinafter “JOA”]; TACC ¶ 21. 6 “shall have the right to become a JV Partner with respect to such Airport Contract” subject to certain conditions.10 In 2021, MCS and nonparty MERA Hollywood amended and restated the JOA (“A&R JOA”).11 The A&R JOA reaffirmed that if MCS, MERA Hollywood, or affiliates of either party “enters into a new Airport Contract,” the other party “shall have the first right to become a JV Partner with respect to such Airport Contract” subject to certain conditions. 12 The parties also agreed that “[e]xcept as provided . . . no provision of this Agreement shall be construed to limit any manner the Parties in carrying on their respective businesses or activities.”13 B. The Raleigh-Durham Joint Venture In or about August 2019, MCS invited MERA to bid on a concession opportunity solicited by the Raleigh-Durham International Airport Authority (“RDUA”).14 That invitation led to the formation of nominal defendant MERA RD LLC (the “JV”). 15 10 JOA §§ 3.1–3.2. 11 See generally De La Torre Aff. at Ex. 2 [hereinafter “A&R JOA”]. 12 Id. §§ 3.1–3.2. 13 Id. § 8.8. 14 TACC ¶ 22. 15 Id.; TACC Ex. 1 [hereinafter “JV Agr.”]. 7  1. The JV Agreement In December 2019, the JV’s three members, MCS, MERA, and nonparty La Farm Bakery Bistro RD, LLC (“La Farm”), entered into a Delaware-governed LLC agreement (the “JV Agreement”),16 as contemporaneously amended by a letter agreement (the “Letter Agreement”). 17 The JV’s purpose is “to finance, manage, establish[,] and operate a La Farm restaurant in the [RDUA].”18 The JV is a manager-managed LLC with five managers (the “Managers”).19 The JV Agreement grants MERA the right to appoint three Managers, and MCS and nonparty La Farm the right to each appoint one Manager. 20 As a result, MERA selects a majority of the Managers. 21 The MERA-appointed Managers are Rafael Aguirre De La Torre, Gomez, and Gabriel Ernesto Marques De La Torre.22 MCS appointed Tamara Mora as its JV Manager.23 16 See generally JV Agr. 17 TACC Ex. 2 [hereinafter “Letter Agr.”]; TACC ¶ 28. 18 JV Agr. § 2.2 (registered trademark symbol omitted). 19 Id. §§ 1.26, 10.1. 20 Id. § 1.26. 21 Id.; see also id. § 1.25. 22 AB at 11; D.I. 26 Ex. 1 [hereinafter “Jan. 25 WC”] at 1–3, 5. 23 AB at 11; Jan. 25 WC at 2. 8  The JV Agreement grants the Managers broad power. Managers make day- to-day business and operational decisions for the JV; 24 have the exclusive authority to initiate and defend all litigation on the JV’s behalf; 25 and shall “open and maintain LLC bank accounts.”26 The JV shall pay for “all [its] expenses . . . reasonably incurred in conjunction with carrying out its business.” 27 The JV Agreement further authorizes the Managers to appoint “Members or Managers” to serve as an Officer or Operational Director of the JV.28 The Managers may remove any Officer or Operational Director “with or without cause at any time.” 29 When a Member or its representative ceases to serve as an Operational Director “for any reason,” the Member becomes a “Terminated Member.”30 The JV may repurchase any Terminated Member’s membership 24 JV Agr. §§ 10.1, 11.1 (“Except as otherwise provided in this Agreement, Members shall take no part in the control, conduct or operation of the [JV] and shall have no right or authority to act for or bind the [JV], including during the winding up period following dissolution of the [JV].”); id. § 7.2 (“Except as provided by law, Members shall not be liable either severally or jointly for any expenses, obligations or liability of the [JV].”). 25 Id. § 10.1(a)(8). 26 Id. § 10.1(a)(10). 27 Id. § 7.1(b); id. § 7.1(a) (“The [JV] shall reimburse the Managers for the actual cost of goods and materials used for or by the [JV] in accordance with Schedule ‘A.’”); see id. § 7.1(b)(vi) (providing six illustrative examples of reimbursable expenses). 28 Id. § 10.4.1. 29 Id. 30 Letter Agr. ¶ 8; JV Agr. § 9.7. 9 interest at the “Interest Purchase Price.”31 Pursuant to the Letter Agreement, the Interest Purchase Price “shall be determined by the mutual agreement of a Majority of the Members on an annual basis,” or, in the case of no such agreement, “by a neutral CPA . . . as appointed by mutual agreement [of] the Members.” 32 If a neutral CPA is not appointed, “each Member shall appoint one CPA, and each such CPA shall vote to appoint a neutral CPA . . . such appointed CPA shall act as the neutral CPA for purposes” of determining the Interest Purchase Price.33 The JV Agreement explicitly delineates and assigns certain responsibilities to specific members.34 MCS is “100%” responsible for some of the JV’s tax reporting obligations and for all “administrative functions, including payroll, accounts receivable, accounts payable, [and] required reporting to RDU.”35 MERA has “100%” responsibility to “[d]efend, prosecute, compromise, settle . . . and defend any and all judicial, administrative, or other actions or claims in favor of or against the [JV] or relating to the [JV]’s business.”36 31 Letter Agr. ¶¶ 3, 8; JV Agr. §§ 1.20, 9.7. 32 Letter Agr. ¶ 3; JV Agr. § 1.25 (defining a “Majority” as “Members collectively holding more than 50% of the Percentage Interests of all the Members”). 33 Letter Agr. ¶ 3. JV Agr. §§ 10.4.3–10.4.4; JV Agr. Ex. D; JV Agr. Ex. F (defining “[r]oles” for MERA, 34 MCS, and La Farm). 35 JV Agr. Ex. F. 36 Id. 10  The JV Agreement also prohibits Managers and Officers from competing with the JV in certain situations. 37 It provides that: Without the consent of the Members, no Manager or Officer or Operational Director may, while such Person is a Manager or Officer or Operational Director and for a period of two years thereafter, directly or indirectly, participate in the management or operation of any airport concession within the State of North Carolina in which the [JV] has concession rights or otherwise does business, excluding any restaurants or concessions existing as of the date of this [JV] Agreement and any restaurants or concessions currently operating or to be operated in connection with that certain RDU Terminal 2 Interim Food Service Leasing Opportunity.38 Other than those specifically prohibited activities, Managers and their Affiliates39 may “participate in any activities,” and such participation “shall not constitute a breach of any duty that the Managers owe . . . to the [JV] or the Members.” 40 2. The Lease Agreement In January 2021, the JV entered a Terminal Concessions Lease (the “Lease Agreement”) with the RDUA.41 Consistent with the JV Agreement, the JV agreed 37 Id. § 13.11(b). 38 Id. 39 Id. § 1.5 (defining “Affiliates” as “to any Person, another Person who, directly or indirectly, controls, is controlled by or is under common control with, the first Person”); id. § 1.39 (defining “Person” as “[a] natural person, corporation, trust, partnership, joint venture, association, limited liability company or other business or other legal entity of any kind”). 40 Id. § 10.6(b); see id. § 10.7 (“The Managers and any of their Affiliates may deal directly or indirectly with the LLC in carrying out LLC business, provided that any agreement or transaction between the LLC and any Manager or any of their Affiliates is approved by a Majority vote of the Members.”). 41 TACC ¶ 36; D.I. 60 at Ex. 3 [hereinafter the “Lease Agr.”]. 11 it “will not terminate an ACDBE for convenience without the [RDUA’s] prior written consent.”42 The JV further agreed that it “cannot terminate or otherwise change the terms of its ACDBE commitments without the prior written consent of the [RDUA].”43 As required by the Lease, RDUA reviewed and later approved the JV Agreement. 44 The RDUA required the JV establish a bank account to support its concession operations. 45 On or about February, MERA’s manager Warschawski requested MCS open a bank account to support the JV.46 MCS alleges Warschawski represented that MCS would control the JV’s bank account. 47 This representation was allegedly “material” to MCS’s decision to open the account and 42 Lease Agr. § 21.3; JV Agr. § 4.7 (stating that “in no event shall the percentage interest held by MCS be diluted to less than 26.4% . . . , in each instance subject to the approval of RDU”). 43 Lease Agr. § 21.3. 44 Lease Agr. § 21.5 (“The Concessionaire shall not alter or amend the approved joint venture agreement without the approval of the Authority.”); TACC ¶ 40. 45 TACC ¶¶ 23, 39–40. 46 AB at 2. 47 Id.; TACC ¶ 23. Warschawski submitted an affidavit directly challenging the allegation that he represented to MCS that they would enjoy total control of the JV’s bank account. Warschawski Aff. ¶ 14 (“I never represented to Steve Mora, in February 2020, February 2021, or any other time, that, in exchange for MCS opening bank accounts on behalf of Mera RD, Mera USA would allow MCS to have exclusive control over the bank accounts.”). Under Rule 12(b)(6), Warschawski’s affidavit cannot be, and is not, considered as creating a disputed issue of fact. See Windsor I, LLC v. CWCapital Asset Mgmt. LLC, 238 A.3d 863, 873–74 (Del. 2020). 12 MCS’s principals Steven Mora and Tamara Mora’s grant of “personal guarantees” in connection with the account and Lease Agreement. 48 C. The Relationship Between MERA and MCS Deteriorates. Within a year of the JV Agreement, the relationship between MCS and MERA began to break down.49 MCS claims that as early as 2021, MERA began diverting the JV’s funds, goods, and personnel to its other businesses, competing with the JV through the MERA Affiliates, and separating from MCS altogether. 50 MCS alleges MERA tried to inappropriately convert funds from the JV starting in January 2021.51 This includes attempting to access and control the JV’s bank accounts in order to support MERA’s other businesses. 52 MCS also alleges Warschawski attempted to become a signatory and take control of the JV’s credit card processing account in January 2024.53 Other alleged inappropriate uses of funds include charging the JV for unrelated business expenses, including for travel 48 TACC ¶¶ 23, 39, 41. 49 See TACC ¶ 43. 50 TACC ¶¶ 23, 25, 43, 45, 55, 60–66. 51 TACC ¶¶ 25, 61–66. 52 TACC ¶¶ 25, 42–44. The Third-Party Defendants contend MERA’s representatives acted with MCS’s authorization and on its instruction, offering the Court emails to that effect. Warschawski Aff. at Exs. 3–7; see TOB at 4. 53 TACC ¶¶ 47–48; see D.I. 112 at Ex. F at 1 (“I am writing to formally request a change in the account information for our credit card processing services. Mera USA, LLC is the majority owner of Mera RD, LLC and it has come to our attention that the current account signer is our minority partner . . . . we kindly request that you update the account 13 and employee searches for other businesses. 54 MCS contends that MERA also commandeered goods and personnel to use at their competing businesses. 55 Within the last three years, Counterclaim Defendants allegedly misappropriated the JV’s Indeed account, “removing ads for employees needed by the La Farm Restaurant and plac[ing] ads for needed employees at their competing restaurant.”56 Other alleged actions include transferring a key JV employee to a competing business, 57 ordering JV employees to train employees of “another MERA affiliate” in excess of their permissible hours and in breach of MERA’s promise not to compete with MCS,58 and harassing and acting discriminatorily towards JV employees.59 MCS contends that MERA has attempted to financially “cripple” MCS.60 MCS is currently waiting on “over $500,000” in capital improvement and startup costs, and “several hundred thousand dollars” of corporate profits allegedly due to details to reflect our ownership status as the majority owner of the company and therefore [signer] in the account.”). 54 TACC ¶¶ 61, 64. 55 See id. ¶¶ 62–63. 56 Id. ¶ 64. 57 Id. ¶ 66. 58 Id. ¶ 62. 59 Id. ¶ 65. 60 Id. ¶ 68. 14 MCS. 61 And before October 2022, Counterclaim Defendants allegedly “unilaterally” decided to engage in a $650,000 La Farm patio expansion project, ballooning the price to over $850,000 by failing to obtain competitive bids, in order to prevent profit distributions to MCS. 62 MERA has also been dissatisfied with the relationship. In 2024, MERA Hollywood sued MCS in California state court for breach of the A&R JOA, including by failing to provide certain financial reports (the “California Action”).63 In December, MERA submitted an “ACDBE Replacement Letter” to the RDUA, seeking to terminate MCS as the JV’s ACDBE partner.64 The request was 61 Id. ¶¶ 68–71. 62 Id. ¶ 67. Here too, Third-Party Defendants tell a different story, submitting documents that tend to show the patio expansion was at least disclosed to MCS. Warschawski Aff. at Ex 8; see TOB at 54. 63 TACC ¶ 42; MOB at Ex. 1; De La Torre Aff. at Ex. 3 ¶¶ 41–42. The California Action is referenced in the TACC (TACC ¶ 42), part of the public record, and appropriate for judicial notice. See, e.g., Aequitas Sols., Inc. v. Anderson, 2012 WL 2903324, at *3 n.17 (Del. Ch. July 10, 2012) (taking judicial notice of a pleading filed in a California bankruptcy proceeding); Baca v. Insight Enters., Inc., 2010 WL 2219715, at *1 (Del. Ch. June 30, 2010) (considering court filings in related derivative and federal securities actions); Nelson v. Emerson, 2008 WL 1961150, at *2 n.2 (Del. Ch. May 6, 2008) (taking judicial notice of “documents filed in the related federal court proceedings” on a motion to dismiss); Orloff v. Shulman, 2005 WL 3272355, at *12 (Del. Ch. Nov. 23, 2005) (taking judicial notice of pleadings in a related bankruptcy proceeding). 64 TACC ¶ 46; De La Torre Aff. at Ex. 4 (attaching the JV’s December 12, 2022 request). The December 12 request is integral to the Counterclaims. Fortis Advisors LLC v. Allergan W.C. Holding Inc., 2019 WL 5588876, at *3 (Del. Ch. Oct. 30, 2019). MCS’s TACC mentions it and relies on it to claim “RD2 fraudulently requested consent to replace MCS.” TACC ¶ 59. Once again, the Third-Party Defendants offer their side of the story: they add that RDUA granted the request and authorized “MERA and MCS to 15 rejected. 65 The RDUA cited a lack of “evidence that MCS has not performed in a way consistent with normal industry standards,” emphasizing that any termination of MCS must comply with the terms of the Lease. 66 D. The JV Removes MCS’s Manager, Operational Director, and Vice President. On January 25, 2024, MERA as majority member, and MERA’s designated Managers constituting a majority of the JV’s managers, executed a written consent (the “January 25 Written Consent”) removing MCS’s designee Tamara Mora as Operational Director, Vice President, and MCS’s appointed Manager.67 The January 25 Written Consent also purported to repurchase MCS’s membership interest. 68 It determined the Interest Purchase Price by retaining a valuation firm selected by the “Majority of the Members.” 69 MCS played no role in the selection separate their status as team members,” but that MERA and MCS were still eligible for bidding on similar projects. De La Torre Aff. at Ex. 5; see TOB at 10. 65 TACC ¶¶ 46, 60 (bolding and italics omitted). 66 TACC ¶¶ 46, 60 (bolding and italics omitted); see Lease Agr. § 21.5; D.I. 112 at Ex. C at 2 (“[T]he ability to replace an ACDBE member of the Joint Venture is also governed by federal regulations. Per 49 CFR 26.53(f), the [RDUA] cannot permit the termination of an ACDBE firm operating a concession at the Airport without the [RDUA’s] prior written consent. The [RDUA] may grant its consent only for documented ‘good cause.’”). 67 Jan. 25 WC at 1–2; see MERA USA, LLC v. MCS Burbank, LLC, 2026 WL 1894905 (Del. Ch. June 15, 2026) [hereinafter “MJOP Order”] (holding the January 25 Written Consent validly accomplished those tasks). 68 Jan. 25 WC at 2–3. 69 Id. 16 process and did not appoint its own valuation expert. 70 The next day the Managers agreed by written consent to seek RDUA’s approval to remove MCS and its designee from the JV.71 The written consents were executed by Gomez and nonparties Rafael Aguirre De La Torre and Gabriel Ernesto Marques De La Torre. 72 After receiving notice of the JV’s request to seek its removal, MCS objected to the RDUA, to no avail.73 On April 2, the RDUA approved the JV’s request to remove MCS. 74 The RDUA “determined that MERA ha[d] provided documentation sufficient to demonstrate ‘good cause’” and that the removal request complied with 49 CFR Parts 23 and 26.75 MCS again objected, claiming the RDUA’s good cause finding was unlawful.76 E. Litigation Ensues. On February 29, 2024, MERA initiated this action with a focus on MCS’s removal. 77 MCS filed counterclaims claiming the parties’ entire relationship was 70 Id.; see Letter Agr. ¶ 3. 71 D.I. 26 at Ex. 2 [hereinafter “Jan. 26 WC”]. 72 Jan. 25 WC at 5; Jan. 26 WC at 3. 73 TACC ¶¶ 49, 53. 74 TACC ¶ 52; D.I. 68, Ex. 4 at 5. 75 Id. 76 TACC ¶ 53. 77 D.I. 1. 17 a fraudulent scheme.78 For months, the parties circled around each other at the pleading stage, moving to dismiss each other’s claims and amending their own.79 The fight spilled into the FAA and other courts.80 This action was stayed on MCS’s representation that RDUA’s approval of its removal was being appealed before the FAA.81 The stay was lifted on October 9, 2025. 82 On May 28, 2026, MCS submitted a letter from the FAA stating the FAA would defer jurisdiction to this Court, and MCS could refile with the FAA after termination of this proceeding if it did not result in a merits decision or settlement.83 On June 15, I entered an order granting MERA’s motion for a partial judgment on the pleadings, confirming the January 25 Written Consent had validly removed MCS’s representative as Operational Director, Vice President, and Manager (the “MJOP Order”).84 The MJOP Order also found the purported repurchase of MCS’s membership interest violated the JV Agreement, as amended by the Letter Agreement, because “MCS has the right to have a neutral CPA 78 See generally D.I. 14. 79 See, e.g., D.I. 12; D.I. 23; D.I. 25; D.I. 30; D.I. 37; D.I. 44; D.I. 48; D.I. 59; TACC; D.I. 65; D.I. 66. 80 MJOP Order, 2026 WL 1894905, at *1–3, *2 n.32. 81 D.I. 88. 82 D.I. 99. 83 D.I. 123 at Ex. A. 18 determine the Interest Purchase Price.”85 MCS’s Third Amended and Supplemental Counterclaims (“TACC”) are now before the Court. MCS presses nine claims against MERA, Gomez, Warschawski, and the MERA Affiliates. 86 Count I asserts MERA representatives fraudulently induced MCS to partner with MERA by (i) misrepresenting to MCS that it would control the JV’s bank account; (ii) claiming MERA would not compete against MCS; and (iii) misrepresenting MCS’s ROFR to partner with MERA on future concession ventures. 87 Count II alleges the Counterclaim Defendants engaged in unfair business practices in violation of 6 Del. C. § 2513; MCS withdrew that claim.88 Count III alleges the Counterclaim Defendants breached the JV Agreement by (i) improperly removing MCS in violation of Sections 10.2.2, 9.9, and 4.7; (ii) failing to reimburse MCS in violation of Section 7.1(b); and (iii) competing against MCS in contravention of Section 13.11.89 Count IV alleges the Counterclaim Defendants breached the implied covenant of 84 D.I. 125; see generally MJOP Order, 2026 WL 1894905. 85 MJOP Order, 2026 WL 1894905, at *8; Letter Agr. ¶ 3. 86 See generally TACC. 87 Id. ¶¶ 74–79; AB at 16–19. 88 TACC ¶¶ 80–85; AB at 6 n.1 (“MCS does not oppose dismissal of Count II of its Counterclaims and has reached out to Counterclaim Defendants’ counsel to advise and coordinate dismissal accordingly.”). 89 TACC ¶¶ 86–104. 19 good faith and fair dealing. 90 Count V alleges Gomez and Warschawski breached fiduciary duties owed to the JV by: (i) usurping business opportunities belonging to the JV; (ii) misappropriating the JV’s resources; (iii) inappropriately removing MCS’s representative from all of her JV positions; and (iv) seeking to repurchase MCS’s JV membership interest. 91 Counts VI and VII assert claims for promissory and equitable estoppel against the Counterclaim Defendants.92 Count VIII seeks a declaration of MCS’s rights under the JV Agreement and an order compelling the Counterclaim Defendants to account for funds purportedly misappropriated from the JV. 93 Count IX alleges the Counterclaim Defendants committed conversion.94 MCS brings Counts V and IX derivatively, on behalf of the JV.95 The Counterclaim Defendants divided into two factions and filed two motions to dismiss. The Third-Party Defendants moved to dismiss under Court of Chancery Rules 12(b)(2) and 12(b)(6) (“Third-Party Defendants’ Motion”).96 MERA moved to dismiss Counterclaim Counts I, II, IV, VI, VII, and IX for failure to plead demand futility and failure to state a claim (“MERA’s Motion,” and with 90 Id. ¶¶ 105–13. 91 Id. ¶¶ 114–20. 92 Id. ¶¶ 121–32. 93 Id. ¶¶ 134–38. 94 Id. ¶¶ 139–43. 95 Hr’g Tr. 43–45; see TACC ¶¶ 3, 120, 143; AB at 50–51. 96 D.I. 65. 20 Third-Party Defendants’ Motion, the “Motions”).97 II. ANALYSIS After a journey through personal jurisdiction, demand futility, and the merits, all of MCS’s counterclaims are dismissed except its claims against MERA for breach of the JV Agreement (Count III), and a declaratory judgment to that effect and an accounting (Count VIII). A. Personal Jurisdiction The Third-Party Defendants moved to dismiss MCS’s counterclaims for lack of personal jurisdiction under Rule 12(b)(2). The Court has personal jurisdiction over all Third-Party Defendants except Warschawski. It will exercise personal jurisdiction over Gomez only insofar as the claims relate to his duties as JV Manager. When personal jurisdiction is challenged under Rule 12(b)(2), “the plaintiff bears the burden of showing a basis for the court’s exercise of jurisdiction over the defendant[s].”98 The court may consider the pleadings, affidavits, and any 97 D.I. 66; see MOB at 3–8; D.I. 115 at 5 (“MERA USA did not move to dismiss MCS’s contract claim (Count III)”). 98 Gifford, 935 A.2d at 265; Werner v. Miller Tech. Mgmt., L.P., 831 A.2d 318, 326 (Del. Ch. 2003); Newspan, Inc. v. Hearthstone Funding Corp., 1994 WL 198721, at *3 (Del. Ch. May 10, 1994) (“Although a plaintiff is not required to plead personal jurisdiction, once a defendant has moved to dismiss the complaint for lack of personal jurisdiction the plaintiff bears the burden of showing that the court has personal jurisdiction over the defendant.”). 21 discovery of record. 99 “All allegations of fact concerning personal jurisdiction are presumed true, unless contradicted by affidavit.” 100 Where a defendant challenges the plaintiff’s allegations of personal jurisdiction, “the plaintiff may not rely solely on its complaint, but must support those assertions with affirmative proof.” 101 “If, as here, no evidentiary hearing has been held, plaintiffs need only make a prima facie showing of personal jurisdiction[,] and ‘the record is construed in the light most favorable to the plaintiff.’”102 1. The MERA Affiliates Because the MERA Affiliates are Delaware limited liability companies, this Court has general jurisdiction over them. 103 General jurisdiction exists where a company’s “continuous corporate operations within a state [are] so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those 99 Gifford, 935 A.2d at 265; Cornerstone Techs., LLC v. Conrad, 2003 WL 1787959, at *3 (Del. Ch. Mar. 31, 2003). 100 Crescent/Mach I P’rs., L.P. v. Turner, 846 A.2d 963, 974 (Del. Ch. 2000). 101 Newspan, 1994 WL 198721, at *3 (Del. Ch. May 10, 1994); see also Optimalcare, Inc. v. Hightower, 1996 WL 417510, at *3 (Del. Ch. July 17, 1996) (denying a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction relying solely on facts as alleged in plaintiff’s complaint). 102 Gifford, 935 A.2d at 265. 103 TACC ¶¶ 5–7. 22 activities.”104 General jurisdiction exists where a defendant is “essentially at home” in the forum state. 105 An entity is “at home” where it is formed.106 “[T]he ‘paradigm’ fora for general jurisdiction over a corporation are its place of incorporation and its principal place of business because those affiliations are ‘unique’ and ‘easily ascertainable.’”107 The MERA Affiliates’ only argument against personal jurisdiction invokes 104 Genuine Parts Co. v. Cepec, 137 A.3d 123, 129 (Del. 2016) (quoting Int’l Shoe Co. v. State of Wash., Office of Unemployment Comp. & Placement, 326 U.S. 310, 318 (1945)). 105 Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011); see In re Talc Prod. Liab. Litig., 2018 WL 4340012, at *3 (Del. Super. Sept. 10, 2018) (noting “a corporation is certainly ‘at home’ in its place of incorporation or its principal place of business”). 106 Genuine Parts, 137 A.3d at 127 (“Businesses select their states of incorporation and principal places of business with care, because they know that those jurisdictions are in fact ‘home’ and places where they can be sued generally.”); Slingshot Techs., LLC v. Acacia Rsch. Corp., 2021 WL 979539, at *3 (Del. Ch. Mar. 15, 2021) (noting a Delaware limited liability company “is already subject to general jurisdiction in Delaware” as “[g]eneral jurisdiction will exist in Delaware when the entity is incorporated here or has its principal place of business here; otherwise, general jurisdiction generally will not exist over a foreign entity”); Wolf Invs. Fund, LLC v. Cap. Source 2000, Inc., 2025 WL 429900, at *3 (Del. Super. Ct. Feb. 3, 2025) (“The Court finds that it has general jurisdiction over Capital Source, 2000 [I]nc., and CS2K, LLC. . . . . Here, Capital Source 2000, Inc. and CS2K, LLC are both Delaware entities. Capital Source 2000, Inc. is incorporated in the State of Delaware and CS2K, LLCs registered in Delaware. Thus, because both entities are ‘at home’ in Delaware the Court can exercise general jurisdiction over the entities.” (internal citation omitted)). 107 Genuine Parts, 137 A.3d at 129 (quoting Daimler AG v. Bauman, 571 U.S. 117, 137 (2014)); In re Talc Prod. Liab. Litig., 2018 WL 4340012, at *5; iBio, Inc. v. Fraunhofer- Gesellschaft zur Förderung der Angewandten Forschung E.V., 2018 WL 6493503, at *2 (Del. Ch. Dec. 10, 2018) (“Courts may exercise general or specific jurisdiction over a defendant. State courts exercise general jurisdiction over a defendant corporation when the corporation is incorporated in or has its principal place of business in that state.” (citing Daimler AG, 571 U.S. at 137)). 23 the concept of minimum contacts. 108 But the Daimler standard does not require “continuous and systematic contacts” when an entity is incorporated or has a principal place of business in the forum.109 The MERA Affiliates are incorporated in Delaware, so that is the end of the inquiry. 110 The Third-Party Defendants’ Motion under Rule 12(b)(2) is denied as to the MERA Affiliates. 2. Gomez and Warschawski MCS contends this Court may exercise personal jurisdiction over Gomez and Warschawski as managers of the JV under 6 Del. C. § 18-109(a).111 For nonresident defendants, Delaware courts resolve questions of personal jurisdiction using a two-step analysis.112 First, the Court must “determine that service of 108 Hr’g Tr. 19; see TOB at 15–16, 24–26; TRB at 11–14. 109 See Altabef v. Neugarten, 2021 WL 5919459, at *4 (Del. Ch. Dec. 15, 2021) (“In Daimler AG v. Bauman, the United States Supreme Court explained that courts can only exercise general jurisdiction over an entity defendant if the entity has one of a ‘limited set of affiliations with [the] forum [to] render [the] defendant amenable to all-purpose jurisdiction.’ Three forms of affiliation subject an entity defendant to general jurisdiction: (i) it is incorporated in the forum; (ii) it h