In re Swisher Hygiene, Inc. ( 2020 )

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947
September 4, 2020
Kevin M. Gallagher Richard A. Barkasy
John M. O’Toole SCHNADER HARRISON SEGAL &
Christian C.F. Roberts LEWIS LLP
RICHARDS, LAYTON & FINGER, P.A. 824 North Market Street, Suite 800
One Rodney Square Wilmington, DE 19801
920 North King Street
Wilmington, Delaware 19801 Richard A. Rowzie
#1080129
Deerfield Correctional Center
21360 Deerfield Drive
Capron, VA 23829
Isaac Bensimon
520 SW 1st Ave
Hallandale Beach, FL 33009
John Mattera, obo Ann Mattera
Reg # 97650-004
FPC Atlanta
PO Box 150160
Atlanta, GA 30315
Carlyle Johnson
AU-4855
P.O. Box 5248 / B1-1-4-Low
Corcoran, CA 93212
Charles Jeffery Rhodes
Sean Herrmann, Esquire
HERRMANN & MURPHY, PLLC
1712 Euclid Avenue
Charlotte, NC 28203
RE: In re Swisher Hygiene, Inc.; 2018-0080-SG; Motion to Reconsider
Dear Litigants:
Swisher Hygiene, Inc. (“Swisher”) is a Delaware corporation in the process
of dissolution. It moved this Court for an Order permitting an interim distribution,
which caused me to consider remaining creditor claims against Swisher under
Section 280 of the DGCL. 1 That review was to determine an appropriate reserve of
funds to address liabilities, and to determine whether an interim distribution was
appropriate. In my resulting Letter Opinion of June 12, 2020 (the “June Opinion”),
among the creditor claims addressed, I declined to order a reserve in way of a
creditor claim filed by Isaac Bensimon. 2 Briefly, Bensimon alleged that, 35 years
ago, and unbeknownst to him, Yogen Fruz Worldwide, Inc. (“Fruz”) mysteriously
issued stock in his name; just as mysteriously, six days later, the shares were
canceled, utilizing a forged signature purporting to be Bensimon’s. Sometime
thereafter, Swisher acquired Fruz, presumably in a manner that provided Fruz
stockholders with Swisher stock.3 Bensimon’s claim is that the 1985 issuance of
1
8 Del. C. § 280.
2
June Opinion 5–6.
3
I make this assumption because it is necessary to support the relief Bensimon seeks, not
because I am aware of anything in the record regarding the terms of the acquisition.
2
Fruz stock to him was valid, the cancellation was void, and that he should be
considered an equity holder in Swisher—he described this as a “fraud” claim against
Swisher. I found that his allegations did not state a creditor claim against Swisher,
and declined to order a reserve in relation to Bensimon’s allegations, “without
prejudice to the legal issues therein or his ability to pursue his fraud claim against
any fraudster.”4
More than five days thereafter, Bensimon, who appears here pro se, filed a
pleading styled “Motion to Reconsider” the June Opinion (the “Motion”). In fact
the Motion is a motion for reargument, and I treat it as such. The Motion has been
briefed and submitted for decision.
Under Court of Chancery Rule 59(f), a party may move for reargument within
five days after the Court issues an opinion. 5 Reargument is warranted only where
“the Court has overlooked a decision or principle of law that would have controlling
effect or . . . [has] misapprehended the facts or the law so the outcome of the decision
would be different.”6 “A motion for reargument is not a mechanism to present new
arguments or to relitigate claims already considered by the Court.”7
4
June Opinion 5–6.
5
Ch. Ct. R. 59(f) (“A motion for reargument setting forth briefly and distinctly the grounds therefor
may be served and filed within 5 days after the filing of the Court’s opinion or the receipt of the
Court’s decision.”).
6
Pontone v Milso Indus. Corp., 2014 WL 4352341, at *1 (Del. Ch. Sept. 3, 2014).
7
Cabela’s LLC v. Wellman, 2018 WL 6680972, at *1 (Del. Ch. Dec. 19, 2018).
3
Bensimon’s Motion is untimely under Court of Chancery Rule 59(f).8 To the
extent that fact is not fatal to its consideration, the Motion does not satisfy Rule 59(f).
The Motion does not cite any law. It does not point to any fact I overlooked or
misapprehended.9 The Motion simply restates Bensimon’s claim, notes the Court’s
holding, and requests a different outcome. A motion for reargument is not the proper
mechanism for such a request. I note here, as I did in the June Opinion, that nothing
here is in prejudice of Bensimon’s rights, if any, to bring litigation to determine
ownership of stock, or for fraud against any fraudster. Bensimon’s motion for
reargument is DENIED.
To the extent the foregoing requires an order to take effect, it is SO
ORDERED.
Sincerely,
/s/ Sam Glasscock III
Sam Glasscock III
8
The June Opinion was docketed on June 12, 2020; Bensimon’s motion was mailed on June 26,
2020 and filed on June 29. Rule 59(f) provides that motions for reargument “may be” filed
within five days of the filing or receipt of a judicial decision.
9
In his single-page Reply to Pet’r’s Opp’n to Isaac Bensimon's Mot. for Recons., Bensimon
states that I overlooked the facts set out above, and in the June Opinion. See June Opinion 5.
4