D'Agostino v. Zephyrus Aviation Capital LLC

SUPERIOR COURT
OF THE
STATE OF DELAWARE

VIVIAN L. MEDINILLA LEONARD L. WILLIAMS JUSTICE CENTER
JUDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DE 19801-3733
TELEPHONE (302) 255-0626

October 23, 2024

Kelly A. Green, Esq. Frederick Rosner, Esq.
Laura A. Ferguson, Esq. Zhao (Ruby) Liu, Esq.
1000 West Street, Suite 1501 824 Market Street, Suite 810
Wilmington, Delaware 19801 Wilmington, Delaware 19801

Re: Damon D’Agostino v. Zephrus Aviation Capital LLC, et al.
C.A. No. N24C-06-156 VLM CCLD

Dear Counsel:
On September 24, 2024, the Court held a virtual hearing on Plaintiff’s Motion
to Strike Defendants’ Counter-Statement of Facts (“Motion”). For the reasons stated
below, the Motion is GRANTED, with leave to amend as discussed during oral
arguments.
This is a breach of contract action brought by Plaintiff D’Agostino against his
former employer Zephyrus Aviation Capital, LLC (“Zephyrus”) for breaches of his
Employment Agreement, and alternatively, his Separation Agreement and General
Release.1 Plaintiff is also seeking declaratory judgment against three companies
with which he entered into Profits Interest Agreements in connection with his
employment with Zephyrus.2
On June 25, 2024, Plaintiff initiated this case by filing a Complaint for
Damages and Declaratory Judgment against Defendants.3 On August 20, 2024,

1
Unless otherwise noted, this Court’s recitation is drawn from Plaintiff’s Complaint (“Compl.”)
and all documents the parties incorporated by reference. D.I. 1.
2
Id. at 28-33.
3
Id.

1
Defendants filed their Original Answer and Affirmative Defenses. 4 Defendants did
not file a counterclaim. The Answer included responses to each averment of the
Complaint, a general denial, and six affirmative defenses. Defendants also included
a Counter-Statement of Facts comprising 35 stand-alone paragraphs. 5

On September 9, 2024, Plaintiff filed this Motion, 6 arguing the Counter-
Statement is not permissible under Delaware Superior Court Civil Rules 7 and 8.
Defendants filed their response on September 18, 2024. 7 Conceding during oral
arguments on September 24 that albeit lengthy, the Counter-Statement were relevant
statements intended only to explain its affirmative defenses. If permitted, they
requested leave to move certain paragraphs with their affirmative defenses.

Defendants’ Counter-Statement—as presented—deviates from standard
practice under applicable Rules of this Court.8 As filed, there is no mechanism by
which Plaintiff can respond, which creates potential prejudice to Plaintiff.
Defendants may file an Amended Answer under Rule 15 with its Affirmative
Defenses that adheres to the Rules.

Plaintiff’s Motion to Strike is GRANTED.

/s/ Vivian L. Medinilla
Vivian L. Medinilla
Judge
oc: Prothonotary

4
D.I. 16.
5
Id. at 48-61.
6
D.I. 24.
7
D.I. 25.
8
See Super. Ct. Civ. R. 7 and 8.
2