Petition for Writ of Certiorari — Radmore v. Aegis Communications Group, Inc.

me Court, U.S.

Supren ILE 5

09 748 ~~ DEC 22 2008

OFFICE OF THE CLERK

IN THE SUPREME COURT

OF THE UNITED STATES

DOCKET NO.

JAMES RADMORE

Petitioner

Vv.

AEGIS COMMUNICATIONS GROUP, INC.

Respondent

On Petition for Writ of Certiorari to the

Supreme Court of the United States

—

PETITION FOR WRIT OF CERTIORARI

JAMES R. RADMORE, ESQUIRE

LAW OFFICE OF JAMES R. RADMORE, PC

TWO PENN CENTER, SUITE 312

1500 JFK BOULEVARD

PHILADELPHIA, PA 19102

COUNSEL OF RECORD

(215) 568-9900

FAX (215) 568-4546

QUESTION PRESENTED FOR REVIEW

Section 253 of the Delaware General Corporation Law

allows a party with a ninety (90%) percent interest in

a corporation to acquire and “freeze-out” the interests

of the remaining shareholders without prior notice to

said minority shareholders. The question presented

is: Whether due process requires notice to minority

shareholders of an impending merger before the

merger takes place and the minority’s property rights

are affected?

(Answered in the negative by the Court below)

THE PARTIES TO THE PROCEEDING

James Radmore

Two Penn Center Plaza — Suite 300

1500 John F. Kennedy Blvd.

Philadelphia, PA 19102

Petitioner

Aegis Communications Group, Inc

8001 Bent Branch Drive

Irving TX 75063

Respondent

CORPORATE DISCLOSURE STATEMENT

Plaintiff is not a corporation

il

TABLE OF CONTENTS

Page

Questions Presented for Review ....................00000000+- i

The Parties to the Proceeding..................0....00...002- il

Corporate Disclosure Statement................c0ecceeeeees ll

ee ciinsiser dese sp vetntsstnaisciebeeeneoiioneen ili

ee Oe FD itis estcrsitnrcn dae vi

Citations to the Orders and Opinions Below ......... 1

Statement of Jurisdiction in this Court.................. 1

Constitutional Provisions and Statutes Involved ..2

Statement of the Case ................cccccccececseccccsceccsceeces 5

Basis for Federal Jurisdiction In the

Court of First Instance ............. 0.0.0 cccccccccccccccceccecceee 5

1. Procedural] Background.........................00000- 5

Fe a NE I iii sncsetetee en 6

THE REASONS RELIED ON FOR

ALLOWANCE OF THE WRIT

Section 253 of the Delaware General

Corporation Law allows a party with a

ninety (90%) interest in a corporation to

acquire and “freeze-out” the interests of the

remaining stockholders without prior notice

to said minority shareholders. Said statute is

violative due process clause of the Fourteenth

Amendment where minority shareholders

were not informed of an impending merger

before the merger took place and the minority’s

property rights were affected. Said statute

failed to meet the reasonable notice standard

of Mullane v. Central Hanover Bank & Trust

Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed.

865 (1950), even though the requirements of

the statute were followed ............... 9

Se uaueadavaneaveansnemamiuneinwens 18

APPENDIX

The Order and Memorandum Opinion of the

United States District Court for the Eastern

District of Pennsylvania, Timothy J. Savage

entered December 4, 2008, granting the

FE OU BID c.scssdianedsscscetercintisvecccnnciion la

1V

The Judgment and Memorandum Opinion

of the United States Court of Appeals for the

Third Circuit, Sloviter, Fuentes and Smith,

Circuit Judges, entered September 24, 2009,

affirming the decision of the District Court. . .16a

T E A IT

Constitutional Provisions, Statutes and Rules:

Fourteenth Amendment of the Constitution.......... 2

Seventh Amendment of the Constitution................ 2

oe er ee, Ce REED... cc cndusdasawensusstesecseevees ]

Be I Oe IE sin sscic conponncnuseiiasnnnsnchavccaecbsanienin 15

Securities and Exchange Act, 15 U.S.C. §78)........ 15

OF Speke cies ee RD BD oi ccsevicccevecccnccccacsscvesessves 15

Re CN A, A Me I soc acacescsacnnesacsvavesonsnsonsvens 14

Del. Code Ann. Tit. 8 Section 258 (a)....... 3,9, 10, 15

Del. Code Ann. Tit. 8 Section 262 (d.................. 3, 11

Federal Rule of Civil Procedure 12 (b)..................... 2

Federal Rule of Civil Procedure 12 (b)(2) ........2, 3, 6

Federal Rule of Civil Procedure 12 (b)(6) ........ 2, 3,6

Cases

Berger v. Pubco Corp., 976 A.2d 132

REPRE SEE a RnR ae 16

CA, Inc, v. AFSCME Employees Pension Plan,

ae ee re Eo, is cnsndceansoseientasennsedecs 14

Glassman v Unocal Exploration Corporation,

vreau % ¢ |. 5. | Ss eet 10, 15

Grannis vy. Ordean, 234 U. S. 385, 394 (1914)....... 16

Green v Santa Fe 533 F.2d 1283, 1289 (2d Cir. 1976),

reu d on other grounds, 430 U.S. 462, 97 S.Ct.

1292, 51 L.Ed.2d 480 (1977) .......... 9, 10, 11, 13, 15, 16

Mennonite Board of Missions v. Adams,

462 U.S. 791, 103 S.Ct. 2706,

Fe ee He iiecastetenicineteinsinscscvmniotcnicensenits 14

Mullane v. Central Hanover Bank & Trust Co.

339 U.S. 306, 314, 70S. Ct. 652,

94 L. Ed. 865 (1950) ......ccccccccecseceseseeseeeeeees 9, 12, 13, 16

Santa Fe Industri Inc. v. Gr '

430 U.S. 462, 87 &. Ce. BGR C177) ....0.cccccccccccescccceess: 15

Tulsa Professional Collection Services, Inc.

v. Pope 485 U.S. 478, 484, 108 S.Ct. 1340 (1988).... 12

ARTICLES AND TREATISES

Holland, Randy J. Journal of Corporation Law,

Spring Edition, April 1, 2009 at p. 15-16. ............ 13

Holland, Randy J. The Delaware Constitution,

A Reference Guide, note 49, at 141

Vill

CITATIONS TO THE OFFICIAL AND

UNOFFICIAL REPORTS OF THE OPINIONS

AND ORDER ENTERED IN THE CASE

The Order and Opinion of the United States

District Court for the Eastern District Court for the

Eastern District of Pennsylvania entered December

4, 2008 was not reported and is set forth in the

Appendix at page la.

The Judgment and Memorandum Opinion of

the United States Court of Appeals for the Third

Circuit, Sloviter, Fuentes and Smith, Circuit

Judges, entered September 24, 2009, affirming the

judgment of the District Court was not reported.

The Judgment and Memorandum Opinion are set

forth in the Appendix at page 16a.

STATEMENT OF THE BASIS FOR

THE JURISDICTION IN THIS COURT

The Judgment sought to be reviewed was

entered by the Court of Appeals for the Third Circuit

on September 24, 2009.

The statutory provision believed to confer

jurisdiction on this Court to review on a writ of

certiorari the judgment of the Court of Appeals is 28

U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Section One of the Fourteenth Amendment

of the United States Constitution provides:

“No State shall make or enforce any law

which shall...deprive any person of life, liberty, or

property, without due process of law....”

The Seventh Amendment of the United

States Constitution provides:

In Suits at common law, where the value in

controversy shall exceed twenty dollars, the right of

trial by jury shall be preserved, and no fact tried by

a jury, shall be otherwise reexamined in any Court

of the United States, than according to the rules of

the common law.

Federal Rule of Civil Procedure 12 (b) provides

in pertinent part:

b) How Presented. Every defense,

in law or fact, to a claim for relief

in any pleading, whether a claim,

counterclaim, crossclaim, or third-

party claim, shall be asserted in the

responsive pleading thereto if one is

required, except that the following

defenses may at the option of the

pleader be made by motion:

2

(2) lack of personal jurisdiction;

(6) failure to state a claim upon which

relief can be granted

Del. Code Ann. Tit. 8 Section 253 (a) provides:

In any case in which at least 90% of the

outstanding shares of each class of the

stock of a corporation or corporations

is owned by another corporation

. the corporation having such stock

ownership may either merge the other

corporation or corporations into itself

and assume allofits ortheir obligations,

or merge itself, or itself and 1 or more

of such other corporations, into 1 of the

other corporations ...

Del. Code Ann. Tit. 8 Section 262 (d) provides:

If the merger or consolidation was

approved pursuant to ... § 253 of

this title, then either a constituent

corporation before the effective date

of the merger or consolidation or the

surviving or resulting corporation

within 10 days thereafter shall notify

each of the holders of any class or series

of stock of such constituent corporation

who are entitled to appraisal rights

of the approval of the merger or

consolidation and that appraisal rights

are available for any or all shares of

such class or series of stock of such

constituent corporation, and shall include

in such notice a copy of this section....

STATEMENT OF THE CASE

7 is for Federal Jurisdictio

in The Court of First Instance

The district court had jurisdiction pursuant to

diversity of citizenship, 28 U.S.C. § 1332 (a).

The Facts Material to Consideration

of the Questions Involved

1. Procedural Background

This matter was commenced by Petitioner, James

Radmore, against Aegis Communicaticns Group, Inc,

World Focus and Essar Investments. Aegis is part

of a multi-billion dollar conglomerate headquartered

in India. The action was also commenced against

members of the board of directors of defendant

corporations but said individuals were subsequently

dismissed from the case by Agreement. The matter

was commenced in the Court of Common Pleas of

Philadelphia County, Pennsylvania and removed

to the United States District Court for the Eastern

District of Pennsylvania.

The Complaint sought damages against

defendants arising from their alleged intentional

wrongful acts and breach of their fiduciary duties of

loyalty, duty of care and good faith to plaintiff and

others. The Complaint also alleged the transaction

lacked fair dealing and fair process. The matter

arose from the purchase by World Focus of 100

percent of the stock of Aegis Communications

Group for $0.05 per share. Pursuant to the terms

of the merger, World Focus converted Aegis, a

publicly traded Corporation, into a privately held

Corporation. Prior to the merger, World Focus

had diluted the value of the shares so that, at the

time of the merger, there were over a billion shares

of common stock outstanding. Petitioner asserted

the value per share was at least $1.05 per share and

sought damages to be compensated for the proper

market value of his investment.

Respondents filed a Motion to Dismiss

pursuant to Federal Rules of Civil Procedure 12 (b)

(6) and 12 (b) (2) and the “internal affairs doctrine”

of the Commonwealth of Pennsylvania. On or about

December 4, 2008, Judge Savage entered an Order

granting Motions to Dismiss and dismissing the

action as to all defendants. On September 24, 2009,

the Third Circuit affirmed. In the relevant part,

the Court ruled Petitioner did not need to receive

notice.

2. The Material Facts

Petitioner was at all relevant times a minority

shareholder of Aegis Communications Group,

Inc. The matter arose from a short form merger

pursuant to the Delaware General Corporation law.

In the transaction, World Focus converted Aegis, a

publicly traded Corporation, into a privately held

Corporation. Prior to the merger, World Focus

had diluted the value of the shares so that, at the

time of the merger, there were over a billion shares

of common stock outstanding. Of those shares,

over ninety (90%) percent were held by World

Focus and the balance was held by minority public

shareholders. The number of outstanding shares

was increased tenfold prior to the completion of the

shortform merger thereby further diluting the share

value. Pursuant to the Schedule 13E-3 filing of Aegis

with the Securities and Exchange Commission, only

the holders of the stock of World Focus would have

the opportunity to participate in the future earnings

and growth, if any, of Aegis.

Despite Petitioner holding significant shares

in Aegis, he was unable to object to the short-form

merger pursuant to statute. His interest was

directly affected and the value of his investment

reduced to virtually nothing. Petitioner learned of

this transaction through other sources and a dissent

was therefore filed on his behalf.

The Notice sent to Petitioner’s agent advised

that on November 3, 2006 “ACG Acquisition, Inc.,

a Delaware Corporation (“ACG”), was merged (the

“Merger”) with and into Aegis Communications

Group, Inc., a Delaware corporation (the “Company”)

with the Company continuing as the surviving

corporation (the “Surviving Corporation”).” It was

the merger of the “Surviving Company’, Aegis, into

World Focus, which was the subject of this lawsuit.

The conduct of respondents herein as

delineated in the Complaint constituted a series of

fraudulent acts and petitioner was deprived of his

rights by said fraudulent acts and the breach of

fiduciary duty of Respondent. The statute which

permitted the shortform merger to be consummated

violated the requirement of fair notice under the due

process clause of the Fourteenth Amendment of the

U.S. Constitution.

THE REASONS RELIED ON FOR THE

ALLOWANCE OF THE WRIT

Section 2530fthe DelawareGeneralCorporation

Law allows a party with a ninety percent

(90%) interest in a corporation to acquire and

“freeze-out” the interests of the remaining

stockholders without prior notice to said

minority shareholders. Said statute is violative

of the due process clause of the Fourteenth

Amendment where minority shareholders

were not informed of an impending merger

before the merger took place and the minority’s

property rights were affected. Said statute

failed to meet the reasonable notice standard

of Mullane v, Central Hanover Bank & Trust

Co., 339 U.S. 306, 314, 70 S. Ct. 652, 94 L. Ed. 865

(1950), even though the requirements of the

statute were followed.

Delaware’s short form merger law, Del, Code

Ann. Tit. 8 § 253 (a), has been the subject of much

litigation over the years. In none of these cases

has the failure of the Act to meet the fair notice

requirements of the Fourteenth Amendment of the

U.S. Constitution been the basis for the decision of

the Court.

The very purpose of the Act is to facilitate the

squeezing out of minority shareholders. See Green

v_ Santa Fe 533 F.2d 1283, 1289 (2d Cir. 1976),

reud on other grounds, 430 U.S. 462, 97 S.Ct. 1292,

51 L.Ed.2d 480 (1977). In Glassman v Unocal

Exploration Corporation, 777 A 2d 242 (Del

2001), the Supreme Court of Delaware noted at p.

247 that:

The problem is that §253 authorizes a

summary procedure that is inconsistent

with any reasonable notion of fair

dealing. In a short-form merger, there

is no agreement of merger negotiated by

twocompanies; there is only a unilateral

act — a decision by the parent company

that its 90% owned subsidiary shall

no longer exist as a separate entity.

The minority stockholders receive no

advance notice of the merger; their

directors do not consider or approve it;

and there is no vote. Those who object

are given the right to obtain fair value

for their shares through appraisal.

The Court in Glassman held at p. 248 that

absent fraud or illegality, appraisal was the exclusive

remedy available to a minority stockholder who

objects to a short-form merger.

Petitioner asserts that the short-form merger

law can be, as it was in this case, a blueprint to

defraud minority shareholders. The second circuit in

Green described the purpose of the Act as follows:

10

The salient feature of this short-

form merger was that a majority of 90%

of the shareholders could eliminate the

10% minority without any vote of the

shareholders, without prior notice to

the minority shareholders, without any

statement of corporate purpose and by

fixing an amount to be paid per share

to the minority shareholders, who were

given the option of selling their shares

at the stipulated price or demanding

an appraisal under the auspices of the

Delaware Court of Chancery, pursuant

to the terms of Section 262 of the

Delaware Corporation Law. We are

told that the avowed purpose of these

laws was to wipe out the minority. The

Delaware courts have held that the sole

remedy of the minority shareholders is

to demand the appraisal and be paid

the amount per share fixed by the

appraisal. No opportunity is afforded

the minority shareholder in advance

of the date when the merger becomes

effective to apply to any court for

injunctive relief to stop the merger, nor

is there any provision for rescission or

other relief. Green, supra, p. 1289

1]

Thus the Act as written permitted the majority

shareholders to follow the letter of the law and still

take the minority shareholders shares without due

process.

This Court has recognized in Mullane v.

Central Hanover Bank & Trust Co., 339 U.S.

306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950), that

a state action affecting property must generally

be accompanied by notification of that action: “An

elementary and fundamental requirement of due

process in any proceeding which is to be accorded

finality is notice reasonably calculated, under all the

circumstances, to apprise interested parties of the

pendency ofthe action and afford them an opportunity

to present their objections.” This Court has since

“adhered to these principles, balancing the “interest

of the State” and “the individual interest sought to

be protected by the Fourteenth Amendment.” Ibid.

The focus is on the reasonableness of the balance,

and, as Mullane itself made clear, whether a

particular method of notice is reasonable depends on

the particular circumstances. Tulsa Professional

Collection Services, Inc. v. Pope 485 U.S. 478,

484, 108 S.Ct. 1340 (1988).

There are essentially two parts to the

Delaware shortform merger process. Initially,

the parent corporation amasses ninety percent of

the outstanding stock and completes the merger

generally through the use of a shell corporation.

The minority shareholder receives no notice of this

proceeding and has no right to object. The “avowed

12

purpose” of the Act as noted by the Court in Green,

was to “wipe out the minority.” In the second part of

the process, the minority shareholder finally receives

notice of the merger and is given the opportunity to

file for an appraisal. Obviously, at this point in the

proceedings, the merger itself is a fait accompli. The

Court of Appeals sanctioned this procedure at p. 7

of its Opinion (Appendix, p. 25a). This is contrary

to this Court’s holding in Mullane, supra and its

progeny.

The record shows this is precisely what

occurred in this matter. The parent corporation

formed a shell corporation known as ACG Acquisition,

Inc. It was this shell corporation which was merged

into Aegis Communication Group, Inc. Petitioner

would obviously be unaware of the existence of ACG

Acquisition or the purpose for which it was formed.

In fact, the shell corporation was formed for the very

purpose of freezing out the interest of petitioner and

the other minority shareholders.

This law permitting the taking the property

of a minority shareholder without notice should be

reviewed by this Court as Delaware is the jurisdiction

which courts around the country look to for guidance

on corporate issues. As noted by Randy J. Holland

in an article in the Journal of Corporation Law,

Spring Edition, April 1, 2009 at p. 15:

13

The Delaware Constitution vests the

State’s Supreme Court with the power

to accept and decide certified questions

of law. Del. Const. art. IV, § 11(8)....

In 1983, the jurisdiction of the Supreme Court of

Delaware to answer certified questions of law from

the Delaware state trial courts was expanded to

include certifications from the United States District

Court for the District of Delaware. Ten years later,

the Delaware Constitution was amended to permit

the Delaware Supreme Court to hear and determine

certified questions from all federal courts, including

the United States Supreme Court, as well as from

the highest appellate court of any other state.

Randy J. Holland, The Delaware Constitution,

A Reference Guide, note 49, at 141. In 2007,

the Delaware Constitution was further amended

to authorize the SEC to certify questions of law to

the Delaware Supreme Court. Del. Const. art. IV, §

11(8).

The Securities and Exchange Commission

also has certified cases to the Delaware Supreme

Court beginning in 2008 in CA, Inc. vy. AFSCME

Employees Pension Plan, 953 A.2d 227 (Del.

2008). Thus, in addition to the due process issue

presented, this matter also presents an important

issue of federal law as the Federal Courts and SEC

look to Delaware for guidance.

In Mennonite Board of Missions v. Adams,

462 U.S. 791, 103 S.Ct. 2706, 77 L.Ed.2d 180 (1983),

14

this Court noted that “actual notice is a minimum

constitutional precondition to a proceeding which

will adversely affect the liberty or property interests

of any party, whether unlettered or well versed in

commercial practice, if its name and address are

reasonably ascertainable.” /d., at 800, 103 S. Ct., at

2712 (emphasis in original).

There is no question that the rights of

Petitioner as a minority stockholder were adversely

affected without notice. The parent corporation

had diluted the value of the shares so that, at the

time of the merger, there were over a billion shares

of common stock outstanding. Having used this

process to secure an interest of over ninety percent

(90%), respondent then completed the short-form

merger. Petitioner had no recourse and this was

all done without the knowledge of Petitioner. This

series of transactions designed to freeze-out minority

shareholders without notice was completely legal

under § 253.

It is clear that this procedure has troubled

the Courts. Both the Glassman and Green Courts

pointed out the purpose of the Act was to wipe out

the minority and there was no reasonable notion of

fair dealing. This Court in Santa Fe Industries,

Inc. v. Green, 430 U.S. 462, 97 S. Ct. 1292 (1977)

reversed the Court of Appeals and held a breach of

fiduciary duty by majority stockholders, without any

deception, misrepresentation, or nondislosure, did

not violate Rule 10b-5, 17 C.F.R. § 240 Rule 10b-5,

promulgated under the Securities and Exchange Act,

15

15 U.S.C. §78). Green had been brought under 10b-5

and the Court held Congress did not seek to regulate

transactions which constituted no more than internal

corporate mismanagement. The issue of reasonable

notice under the Fourteenth Amendment was not

decided or addressed in any way in Green.

The Supreme Court of Delaware has again

discussed the short-form merger procedure in Berger

v. Pubco Corp., 976 A.2d 132 (Del., 2009). There

the issue was the consequence of the controlling

stockholder’s failure to disclose the facts material

to an informed shareholder decision whether or not

to elect that exclusive remedy. The Court struggled

with the issue of the remedy if full disclosure was

not given pursuant to Section 253.

This Court clearly has concerns regarding the

short-form merger process having previously granted

certiorari in Green. As previously stated, the issue

there was whether the process violated 10b-5 in the

absence of deception or full disclosure. This Court

has traditionally been troubled by failure to give

reasonable notice and has stated “[t]he fundamental

requisite of due process of law is the opportunity

to be heard.” Grannis vy. Ordean, 234 U. S. 385,

394 (1914). This right to be heard has little reality

or worth unless one is informed that the matter

is pending and can choose for himself whether to

appear or default, acquiesce or contest.” Mullane,

supra, 339 US at p. 314.

16

The short-form merger process accomplishes

none of these notice requirements. Rather, at the

time a minority shareholder first learns ofthe merger,

it is a fait accompli. The minority shareholder is

powerless to stop it no matter how severely his

property rights have been violated.

The issues herein are important and relate to

significant issues worthy of this Court’s attention.

Petitione~ no longer is a stockholder in respondent

corporation and he has been deprived of this property

without reasonable notice. It is acknowledged the

purpose of the Delaware short-form merger statute

is to “freeze out” minority shareholders. Due process

requires a minority shareholder have the right to

object before the merger becomes final. This matter

therefore presents an important question of federal

law that should be settled by this Court.

17

CONCLUSION

WHEREFORE, Petitioner prays this Court

grant a Writ of Certiorari to the United States Court

of Appeals for the Third Circuit.

Respectfully submitted,

LAW OFFICKS oe R. RADMORE P.C.

Pia %

BY: JAMES R\RADMORE, ESQUIRE

Counsel of record

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

JAMES R. RADMORE : CIVIL ACTION

Vv.

AEGIS COMMUNICATIONS =:

GROUP, INC., et al. : NO. 08-1616

MEMORANDUM OPINION

Savage, J. December 4, 2008

In this action brought by a former shareholder

of a Delaware corporation alleging that the price

paid for the stock by the corporation that acquired

the company was far below the actual market value,

we must decide whether the Delaware short-form

merger statute, Del. Code Ann. tit. 8 § 253(a), limits

the minority shareholder’s remedy to an appraisal

action, which would preclude any other form of

challenge to the fairness of the merger. Before we

reach that issue, we must determine whether there

is personal jurisdiction over the two foreign corporate

defendants.

The plaintiff, James R. Radmore

(“Radmore”), a former minority shareholder of

Aegis Communications Group, Inc. (“Aegis”), seeks

compensatory damages for the difference between

la

the price he was paid and the alleged actual value

of his shares, as well as punitive damages. Among

those named as defendants are Aegis and Aegis’s

parent corporations, Essar Services (Mauritius)

(f.k.a. World Focus) (“World Focus”) and Essar

Investments Ltd. (“Essar”).! He alleges that the

defendants breached their fiduciary duties in the

execution of Aegis’s merger with World Focus.

After removing the state court action, the

defendants moved to dismiss it. Both World Focus

and Essar have raised lack of personal jurisdiction

pursuant to Fed. R. Civ. P. 12(b)(2). Additionally, the

three corporate defendants have moved to dismiss

for failure to state a claim upon which relief can be

granted because, under Delaware law, Radmore’s

sole remedy is an appraisal action in the Delaware

Court of Chancery. The defendants also contend that

the Pennsylvania internal affairs doctrine precludes

the court from exercising jurisdiction in order to

avoid interfering in the internal affairs of a foreign

corporation.

Because there is no personal jurisdiction over

World Focusand Essar, the motiontodismisspursuant

to Fed. R. Civ. P. 12(b)(2) will be granted as to those

two defendants. The action against the remaining

' Radmore had also named ten former and current members of Aegis’s

board of directors (“individual defendants’) At oral argument, Radmore

conceded lack of personal jurisdiction over the individual defendants. Tr

20:24 — 23:2 Oct. 14, 2008. He subsequently filed a Notice of Dismissal

concerning these individual defendants. See Notice of Dismissal (Dec.

No. 33), filed Oct. 31, 2008.

2a

defendant, Aegis, will be dismissed pursuant to Fed.

R. Civ. P. 12(b)(6) because Radmore’s sole remedy

is appraisal in Delaware state court. Finally,

Radmore’s motion to amend his complaint will be

denied because, based upon his representations

that the amendment would not change any factual

allegations in the complaint but only the name of

one defendant, his proposed amendment would be

futile.

Background and Procedural History

On November 3, 2006, World Focus, which

then held over 94% of Aegis’s voting stock, converted

Aegis, a Delaware corporation, into a privately held

corporation pursuant to a short-form merger under

Delaware law.? Compl. 44 2, 17, 19-20, 28. Aegis’s

minority shareholders were paid five cents per share.

Id. ¥ 33.

Radmore, a Pennsylvania resident, filed suit in

Pennsylvania state court, alleging that the price paid

to minority shareholders after the short-form merger

“was blatantly unfair and fraudulent and was grossly

inadequate compensation for the shares at issue.” Id.

4] 34. Heclaims that at the time of the merger, the real

market value was at least $1.05 per share. Id. 4 46.

He seeks compensatory damages for the difference

2 In pertinent part, Delaware law allows a corporation owning “at least

90% of the outstanding shares of each class of another corporation’s vot-

ing, stock to “merge the other corporation” into the stockholder corpora-

tion. Del. Code Ann. tit 8§ 253(a).

3a

in the alleged real value of his 1,065,500 shares and

what World Focus paid for them.

Personal Jurisdiction

World Focus and Essar, both foreign

corporations, contest personal jurisdiction. They

aver that they have no contacts, let alone minimal

ones, with Pennsylvania.

The defendants having challenged personal

jurisdiction, Radmore bears the burden of

demonstrating facts establishing a basis for the

exercise of jurisdiction. O’Connor v. Sandy Lane

Hotel Co., Lid., 496 F.3d 312, 316 (3d Cir. 2007);

Kehm Oil Co. v. Texaco, Inc., 537 F.3d 290, 300-01 (3d

Cir. 2008). Bald assertions and legal conclusions are

insufficient and Radmore must show the existence of

sufficient contacts between each defendant and the

forum. Kanter v. Barella, 489 F.3d 170 (3d Cir. 2007)

(quoting Evancho v. Fisher, 423 F.3d 347, 350 (8d

Cir. 2005)); see, e.g., Time Share Vacation Club v.

Atlantic Resorts, Ltd., 735 F.2d 61, 66 (3d Cir. 1984)

(rejecting plaintiffs “bald, self-serving statement”

concerning the defendants’ contacts with the forum).

Thus, to meet his burden, Radmore must present

“competent evidence” showing that each defendant

has therequisite minimal contacts with the forum

to warrant the exercise of personal jurisdiction over

each defendant. Miller Yacht Sales, Inc. v. Smith,

384 F.3d 93, 101 n.6 (3d Cir. 2004) (citing Patterson

v. FBI, 893 F.2d 595, 603-04 (3d Cir. 1990)); BP

Chems. Lid. v. Formosa Chem. & Fibre Corp., 229

F.3d 254, 259 (3d Cir. 2000).

4a

Radmore argues that Essar and World Focus

are subject to general jurisdiction in this forum.

Radmore has not asserted nor is there any basis for

specific jurisdiction, which arises when the cause of

action is related to or arises out of the non-resident

defendant’s contacts with the forum and the injury

is related to those contacts. General Electric Co. v.

Deutz A.G., 270 F.3d 144, 150 (8d Cir. 2001); Pinker

vu. Roche Holdings Ltd., 292 F.3d 361, 368 (8d Cir.

2002).

The focus of general jurisdiction is on the

relationship between the defendant and the forum

state, not on the relationship of the claims to the

forum. See Mesalic v.Fiberfloat Corp., 897 F.2d 696,

699 (3d Cir. 1990). General jurisdiction exists where

the nonresident has substantial, continuing and

systematic contacts with the forum. Provident Natl

Bank v. California Fed. Savs. & Loan Ass’n, 819

F.2d 434, 437 (8d Cir. 1987). Once these contacts are

established, the defendant can be answerable for any

claim even if thecause of action has no relationship

to the forum. Penzoil Prods. Co. v. Colelli Assocs.,

Inc., 149 F.3d 197, 200 (8d Cir. 2004). Thus, general

jurisdiction is not premised onconduct related to the

litigation, but on the defendant’s unrelated contacts

in the forum.

Sa

Radmore has presented no evidence that either

World Focus or Essar does business in or has any

contacts with Pennsylvania.’ Rather, he relies on

the parent-subsidiary relationship, arguing that

“[ajs Aegis is a wholly owned subsidiary, the parent

corporation, Essar, has clearly indicated it does

business in Pennsylvania” and “World Focus, by its

actions in taking majority ownership of Essar, also

subjected to the jurisdiction of the Commonwealth

of Pennsylvania.” Pl.’s Opp’n at 6. Even after

jurisdictional discovery, Radmore posits nothing

more than “World Focus is the parent of Essar, the

multi-nation conglomerate which has substantial

business interests in the United States including the

Commonwealth of Pennsylvania.” Pl.’s Supp. Mem.

at 5. He has proffered no specific evidence of these

alleged Pennsylvania interests. He cites contacts by

Aegis, which does not contest that it is registered

to do business in Pennsylvania, and, without any

evidentiary basis, argues that these contacts should

be imputed to Essar and World Focus, the parent

corporations. The fact that Aegis does business

within Pennsylvania “does not confer jurisdiction

* Essar is a privately held company formed and existing under

the laws of India, where it has its principal place of business.

World Focus is a privately held company established under the

laws of the Republic of Mauritius, where its principal place of

business is also located.

6a

over its nonresident parent, even if the parent is

the sole owner.” Kehm Oil, 537 F.3d at 301 (quoting

Escude Cruz v. Ortho Pharm. Corp., 619 F.2d 902,

905 (1st Cir. 1980)); cf. Keeton v. Hustler Magazine,

Inc., 465 U.S. 770, 781 n.13 (1984) (“jurisdiction over

a parent company [does not] automatically establish

jurisdiction over a wholly owned subsidiary.”).

As a general rule, a subsidiary’s contacts may

not be imputed to the parent. See Craig v. Lake

Asbestos of Quebec, Ltd., 843 F.2d 145, 150 (3d Cir.

1988). To warrant imputing the subsidiary’s contacts

for jurisdiction, the parent must control the business

operations and affairs of the subsidiary, effectively

making it the parent’s alter ego. Arch v. Am. Tobacco

Co., Inc., 984 F. Supp. 830, 836 (E.D. Pa. 1997).

Examining whether an alter ego relationship

exists requires a comprehensive evaluation of all

factors bearing on the intimacy of the relationship

between the parent and the subsidiary. It looks

to the legal relationship between the entities, the

parent’s ability to control and its actual exercise

of control over the subsidiary, the administrative

and organizational structures, the respective

performance of functions, and the public’s perception

of the companies. Simeone v. Bombardier-Rotax

GmbH, 360 F. Supp. 2D 665, 675 (E.D. Pa. 2005).

Radmore has failed to provide any evidentiary

basis for concluding that Aegis is the alter ego

of World Focus and Essar. He has not pleaded

or established any of the indicia of an alter ego

relationship. Accordingly, Essar and World Focus

will be dismissed for lack of personal jurisdiction.

7a

Failure to State a Claim

World Focus acquired Aegis as a wholly owned

subsidiary “through a short-form merger that was

not subject to fairness review” under § 253 of the

Delaware General Corporation Law. Compl. 4 28.

Section 253 provides that a company owning at least

90% of the voting stock of another corporation may

merge the subsidiary into itself without providing

notice of the merger to minority shareholders. Del.

Code Ann. tit. 8, § 253(a). The majority shareholder

need only notify the minority shareholders of their

right to seek an appraisal once the merger has taken

place. Id. § 253(d). Minority shareholders cannot

prevent the merger nor object to it. They can only

contest the valuation of the shares after the merger

and demand appraisal in the Delaware Court of

Chancery. Id.; Glassman v. Unocal Exploration

Corp., 777 A.2d 242, 248 (Del. 2001).

In a similar action brought by another Aegis

minority sharsholder, the Delaware Court of

Chancery dismissed the case, holding that “the

sole remedy to a minority shareholder challenging

a short-form merger is appraisal.” Matulich v.

Aegis Commc’ns Group, Inc., Civ. A. No. 2601-

CC, 2007 WL 1662667, at *9 (Del. Ch. May 31,

2007), affd on other grounds, 942 A.2d 596,

598 (Del. 2008)* (citing Glassman, 777 A.2d at

* Because the Matulich plaintiff did not appeal the Court of

Chancery’s holding that his sole remedy was appraisal if World

Focus had the authority to complete the short-form merger, the

Delaware Supreme Court did not reach this issue.

8a

248). The Matulich Court applied the rule that

absent fraud or illegality in a short-form merger, a

minority shareholder may not seek, as the plaintiff

does in this action, a fairness review.

Unlike the plaintiff in Matulich, Radmore

argues that he has alleged fraud. Pl.’s Opp’n at

3.5 However, he has failed to plead fraud with the

necessary particularity. At oral argument, to support

his claim of fraud, Radmore referred specifically

to three paragraphs of the complaint. Tr. 24:8-24.

These paragraphs state that the defendants (1)

“with malice and forethought increased the shares

of Aegis . . . for no purpose,” (2) the price per share

“was blatantly unfair and fraudulent and was

grossly inadequate,“ and (3) “[t]he transaction herein

lacked fair dealing and fair process.” Compl. {{

18, 34, 40.

Radmore’s allegations fall far short of that

required to allege fraud pursuant to Fed. R. Civ.

P. 9(b), especially given that the “bald assertions

or legal conclusions improperly alleged in the

complaint” need not be credited. In re Rockefeller

Ctr. Props., Inc. Sec. Litig., 311 F.8d 198, 216

(3d Cir. 2002) (citing In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1429 (83d Cir.

> Radmore also claims to have alleged illegality. Pl.’s Opp’n at

3. Notably contrary to this assertion however, the complaint

does not reference any potentially illegal acts by any of the de-

fendants. Therefore, there is no cause to consider whether al-

legations of illegality would entitle the plaintiffs complaint to

a remedy other than appraisal.

9a

1997)). To comply with the requirements of Rule

9(b), a complaint must state “the date, place or time

of the fraud,” or otherwise inject “precisicn or some

measure of substantiation into [the] allegations

of fraud.” Lum v. Bank of Am., 361 F.3d 217, 224

(3d Cir. 2004) (quoting Seville Indus. Mach. Corp.

v. Southmost Mach. Corp., 742 F.2d 786, 791 (3d

Cir. 1984)). Radmore has offered nothing more than

conclusory allegations, which will not suffice.

Furthermore, Radmore admitted at oral

argument that the only fraud about which he

complains is the dilution of the shares. Tr. 34:23-

35:13. Under Delaware law, a dispute as to share

value does not constitute fraud. Glassman, 777 A.2d

at 245 (citing Stauffer v. Standard Brands Inc., 187

A.2d 78, 80 (Del. 1962)).6 Indeed, the valuation of

shares is subject to an appraisal that is exclusively

within the purview of the Delaware Chancery

Court.

Radmore’s sole remedy in disputing Aegis’s

short-form merger is an action for appraisal in

Delaware state court. Thus, he has failed to state

a claim in this forum upon which relief can be

granted.

® Even though previously overruled, the Delaware Supreme

Court return(ed) to Stauffer in Glassman, thus resurrecting

the Stauffer decision as good law. Glassman, 777 A.2d at 248.

10a

Notice Required by Del. Code Ann. tit. 8 § 262(d)

At oral argument, Radmore, for the first time,

contested having received the requisite notice of

his appraisal rights. Tr. 37:13-41:21; 58:19-24; see

Del. Code Ann. Tit. 8 § 262(d).’ He conceded that

the notice requirement can be satisfied by notice to

the stockholder’s broker, and he admitted that he

did not “know whether [his] broker” received such

notice. Tr. 59:6-7. Rather, he argued that it was the

defendants’ “burden” to show that he received the

proper notice and that, unless they met this burden,

his remedy was not limited to appraisal. /d. 59:20-

60:12. He represented that he would not assert that

the required notice was not given if the defendant

had proof. Jd. 60:17-21 (“They don’t have a copy of a

notice that was sent to the broker. Let’s see it. They

can show it to me and I'll withdraw that argument.

I don’t see it here.”),

On October 23, 2008, the defendants

supplemented the record with the notice provided to

Radmore’s broker ofhis appraisal rightssubsequent to

theshort-form merger. SeeDefs.’Supp. Mem.ofLaw Re:

Notice at 4. This notice provided record shareholders

’ Radmore argued that he pleaded lack of notice in his com-

plaint. See Tr. 58:6-11. However, the complaint only alleges

that “(t]he minority shareholders including plaintiff were not

given any notice of the impending merger or any vote on the

merger prior to its consummation,” Compl. § 42. Such notice

is not required by § 262(d) for a § 253 short-form merger.

lla

with information concerning their right to appraisal

subsequent to the merger between Aegis, and ACG

Acquisition, Inc., a wholly-owned subsidiary of World

Focus.* Radmore did not argue that this notice was

deficient or untimely. Instead, shifting his argument

to avoid implication of judicial estoppel, he contends

that he was never a shareholder of ACG Acquisition

and that the notice produced by the defendants was

not related to the merger between Aegis and World

Focus. Pl.’s Reply at 1. He argues that it was the

merger of Aegis into World Focus, and not Aegis into

ACG Acquisition, that “is the subject of this lawsuit.”

Id.

Radmore’s latest argument is contradicted by

the facts. The Schedule 13E-3, filed withthe Securities

and Exchange Commission and citedin the complaint,

makes clear that the merger involved “Aegis

Communications Group, Inc. and ACG Acquisition,

Inc,” a“wholly-owned subsidiary of World Focus.”’ The

defendants have produced evidence, which Radmore

® An exhibit attached as Exhibit I to Radmore’s Memorandum

of Law on issue of Personal Jurisdiction (Doc. No. 15) and Ex-

hibit | to Radmore’s Motion to Amend/Correct Complaint (Doc.

No. 16) noted that ACG Acquisition was a special purpose ve-

hicle crested for the purpose of merging Aegis into a World Fo-

cus subsidiary.

° Because Radmore cites Schedule 13E-3 in his Complaint, it

may be considered for purposes of dismissing this action. See

Winer Family trust v. Queen, 503 F. 3d 319. 327 (3d Cir. 2007)

(when deciding a motion to dismiss, courts consider documents

incorporated into the complaint by reference).

12a

does not dispute, that he received the notice through

his broker. His attempt to avoid this undisputed

evidere by arguing that the notice applied to some

other merger is disingenuous.

Leave To Amend

Radmore has moved to amend his complaint to

“substitute Essar Global Limited as party defendant”

rather than Essar Investments. PI.’s Mot. 4 10. The

plaintiff, however, has failed to attach a proposed

amended complaint to his motion, which “is fatal to

a request for leave to amend.” Fletcher-Harlee Corp.

v. Pote Concrete Contractors, Inc., 482 F.3d 247,

252 (3d Cir. 2007). Normally, without the proposed

amended complaint, a court cannot “determine

whether amendment would be futile.” Jd.; see also

Kanter, 489 F.3d at 181 (stating the well-established

rule that motions to amend may be denied “where

pleading deficiencies would not [be] remedied by

proposed amendments’).

Nevertheless, at oral argument, Radmore

was given the opportunity to explain the scope of

his proposed amended complaint. He stated that

he seeks only to amend the caption and there is “no

change to the body of the Complaint itself.” Pl.’s

Reply at 1. Radmore has admitted that the proposed

complaint alleges no new facts nor any allegations

that would affect the jurisdictional inquiry. Tr.

8:4-21; 10:3-18. Rather, Radmore seeks to properly

designate the Essar defendant. Jd. 10:19-11:6.

No matter what name is ascribed to the Essar

l3a

defendant - Essar Investments Ltd. or Essar Global

Limited - there is no personal jurisdiction over that

defendant. Additionally, Radmore has not fleshed

out any claims of fraud. Accordingly, even absent

a copy of the proposed amended complaint, we can

determine that the proposed amendment would be

futile because it does not change anything in the

original complaint that would alter the disposition

of this motion.

CONCLUSION

There is no personal jurisdiction over World

Focus and Essar. As to the defendant Aegis, Radmore

has failed to state a claim upon which relief can be

granted. Therefore, the action will be dismissed.

l4a

IN THE UNITED STATES DISTRICT

COURT FOR THE EASTERN DISTRICT OF

PENNSYLVANIA

JAMES R. RADMORE : CIVIL ACTION

vi. )

AEGIS COMMUNICATIONS |

GROUP, INC., et al. : NO. 08-1616

ORDER

AND NOW, this 4th day of December, 2008,

upon consideration of the Defendants’ Motion to

Dismiss (Document No. 4), the plaintiffs response,

supplemental briefing, and after oral argument, it is

ORDERED that the motion is GRANTED and the

complaint is DISMISSED.

/s/ Timothy J. Savage

TIMOTHY J. SAVAGE, J.

15a

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 08-4751

JAMES RADMORE,

Appellant

Vv.

AEGIS COMMUNICATIONS GROUP, INC.,

ET AL.,

Appellees

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 08-cv-01616)

District Judge: Honorable Timothy J. Savage

Submitted Under Third Circuit L.A.R. 34.1(a),

September 15, 2009

Before: SLOVITER, FUENTES, and SMITH,

Circuit Judges.

(Opinion Filed: September 24, 2009)

OPINION OF THE COURT

FUENTES, Circuit Judge:

Appellant James Radmore appeals the

District Court’s dismissal of his claim charging

l6a

Aegis Communications Group, Inc., (“Aegis”), Essar

Services (Mauritius) (f.k.a. World Focus), (“World

Focus”), and Essar Investments Ltd., (“Essar,”

collectively “appellees”), with breaches of their

fiduciary duties of loyalty, care and good faith in

connection with the 2006 short-form merger wherein

World Focus converted Aegis into a privately held

corporation. First, the District Court dismissed

Radmore’s claims against World Focus and Essar

pursuant to Fed. R. Civ. P. 12(b)(2), holding that

it lacked personal jurisdiction over these foreign

corporations. Second, the District Court dismissed

Radmore’s claims against Aegis pursuant to Fed. R.

Civ. P. 12(b)(6) for failure to state a claim upon which

relief could be granted because the court determined

that Radmore’s sole remedy was an appraisal action

in Delaware’s Court of Chancery. For the foregoing

reasons, we affirm the District Court’s judgment.

I.

The District Court had jurisdiction over this

case pursuant to 28 U.S.C. § 13832(a) and we have

jurisdiction to hear this appeal under 28 U.S.C. §

1291. We exercise plenary review of the District

Court’s order granting appellees’ motion to dismiss.

See Santiago v. GMAC Mortgage Group, Inc., 417

F.3d 384, 386 (3d Cir.2005).

17a

II.

Because we write primarily for the parties,

we discuss the facts only to the extent necessary for

resolution of the issues on appeal.

This suit stems from the 2006 short-form

merger, executed pursuant to Section 253 of

Delaware General Corporation Law, whereby

World Focus acquired Aegis’s outstanding minority

common stocks by merging World Focus’s wholly-

owned subsidiary ACG Acquisition into Aegis. As a

result, Aegis was converted into a privately owned

company. Radmore, a minority shareholder, held

1,065,500 shares at the time of the merger. Pursuant

to Section 262(d)(2) of Delaware General Corporation

Law, Computershare mailed a Notice of the short-

form merger via first class U.S. mail to all of Aegis’s

record holders of common stock. The document sent

to record holders was entitled “Notice of Merger

and Appraisal Rights.” The first page on this Notice

indicated Aegis’s minority shareholders were to be

paid five cents per share. Because Radmore was

a beneficial owner of the stock, Notice was sent to

Cede & Co., his broker and the holder of record.

Radmore commenced this’ action= in

Pennsylvania state court, accusing appellees of

breaching their fiduciary duties of care, loyalty and

good faith. He further contended that the merger

lacked fair dealing and fair process. Radmore

also stated that the five cent cash-out price was

18a

“blatantly unfair and fraudulent and_ grossly

inadequate compensation for the share’and a dollar

below market value. (App. 13). Appellees removed

the action to federal court and subsequently filed

a motion to dismiss the complaint, contending, in

relevant part, that: (1) the District Court lacked

personal jurisdiction over World Focus and Essar,

and (2) Radmore failed to state a claim because he

did not plead fraud with the 1 Aegis conceded the

District Court’s jurisdiction. 2 Essar Investments is

a privately held Indian company. It owns no shares

of World Focus. (App. 397). sufficient particularity

required by Fed. R. Civ. P. 9. !

The District Court granted appellee’s

motion to dismiss. Citing Provident Nat’] Bank v.

California Fed. Savs. & Loan Ass’n, 819 F.2d 434,

437 (3d Cir. 1987), the Court ruled that it lacked

general jurisdiction over foreign corporations

World Focus and Essar, because Radmore failed

to offer competent evidence demonstrating that

either corporation had “substantial, continuing and

systematic contacts with the forum.” (App. 201).

See also Reliance Steel Prods. Co. v. Watson, Ess,

Marshall & Engass, 675 F.2d 587, 588-89 (3d Cir.

1982). The District Court also rejected Radmore’s

argument that its personal jurisdiction over Aegis

could be imputed onto parent corporations World

' Aegis conceded the District Court’s jurisdiction

19a

Focus and Essar,” because he failed to demonstrate

the requisite alter ego relationship. Thus, the

District Court dismissed Radmore’s claims against

World Focus and Essar.

Next, the District Court granted Aegis’s Rule

12(b)(6) motion to dismiss for failure to state a

claim. Relying on Glassman v. Unocal Exploration

Corp., 777 A.2d 242, 248 (Del. 2001), the District

Court noted that Delaware’s short-form merger

statute permits a majority shareholder of at least

90% of another company’s voting stock to merge

that corporation into itself without providing notice

to the minority shareholders of the merger. See Del.

Code. a. Tit. 8 § 253(a). Absent fraud or illegality,

Delaware law proscribes a minority shareholder from

preventing a short-form merger. The shareholder

may, however, challenge the valuation of his or her

shares in Delaware Chancery Court via an appraisal

action. Despite Radmore’s protestations to the

contrary, the District Court held that his allegations

were bald and conclusory, falling “far short of that

required to allege fraud pursuant to Fed. R. Civ. P.

9(b).” (App. 204). Having failed to adequately plead

fraud or illegality, the District Court concluded that

appraisal rights were the exclusive remedy available

to Radmore.

2 Essar Investments is a privately held Indian company. It

owns no shares of World Focus. (App.397).

20a

Finally, the District Court rejected Radmore’s

assertion that notice was deficient because it related

to a merger between Aegis and ACG Acquisition, and

not a merger of Aegis into World Focus. The Court

reasoned that Radmore’s claim of inadequate notice

was “disingenuous” because the Schedule 13E-3,

filed with the Securities and Exchange Commission

and cited in his complaint, makes clear that the

merger involved ‘Aegis . . .and ACG Acquisition,

Inc.,’ a ‘wholly owned subsidiary of World Focus.”

(App. 207). Furthermore, The District Court noted

that Radmore did receive notice through his broker.

Therefore, The District Court granted Aegis’s motion

to dismiss.

Hil.

On appeal, Radmore argues that the

District Court erred because: (1) evidence revealed

“substantial and significant contacts [between

World Focus, Essar and] the Commonwealth of

Pennsylvania; (2) the complaint met Rule 9(b)’s

heightened pleading standard; and (3) Aegis’s notice

was deficient. We consider each argument in turn.

A. The District Court Properly Granted

‘or Lack of Jurisdicti

The District Court properly ruled that it lacked

personal jurisdiction over World Focus and Essar.

Radmore correctly notes that the focus of general

jurisdiction is on the defendant’s relationship with

2la

the forum state. See Mesalic v. Fiberfloat Corp., 897

F.2d 696, 699 (3d Cir. 1990). He continues to advance

his argument that jurisdiction can be conferred on

World Focus and Essar through their relationships

with Aegis. See Appellant’s Brief. at 20. Assuming,

ayguendo, that a district court could impute personal

jurisdiction to a parent through its subsidy because

the subsidy was the parent’s alter ego, Radmore has

failed to offer competent evidence demonstrating that

such a relationship existed between World Focus,

Essar and Aegis. The only specific piece of evidence

Radmore cites in support of his alter-ego theory is

an e-mail from Aegis employee and Pennsylvania

resident Daniel Mattson to Essar employee Sandip

Sen, wherein Mr. Mattson requested approval of an

expense voucher. See Appellant’s Brief at 20. This

lone piece of evidence certainly does not demonstrate

that Essar maintained continuous and substantial

contacts with Pennsyivania such that the District

Court had personal jurisdiction over appellees.

Finally, Radmore’s attempt to confer

personal jurisdiction through World Focus’s and

Essar’s relationships with Essar Global Ltd. and

Essar Group, see Appellant’s Brief at 20-24, also

fails because neither Essar Global Ltd. nor Essar

Group is a party to this action. Likewise, Radmore’s

reliance on the failed bid of Essar Steel to Purchase

Pennsylvania corporation Wheeling Pittsburgh

does not alter our analysis since he did not name

22a

Essar Steel as a defendant in this action.’ Therefore,

the District Court properly granted World Focus’s

and Essar’s motion to dismiss for lack of personal

jurisdiction.

B. The Court Properly Granted Aegis’s Motion

ismiss for Fai tate a Claim

Next, the District Court correctly concluded

that Radmore failed to plead fraud with the

necessary particularity required by Rule 9Q(b).

Indeed, the District Court properly characterized

Radmore’s allegations as bald assertions, conclusory

statements, and improper legal conclusions. See

Compl. at 4/4] 34, 40 (“Said price was .. . fraudulent.

..-The Transaction . .. lacked fair dealing and fair

process.”) (App.13-14). Furthermore, the District

Court correctly rejected Radmore’s only specific

allegation — that Aegis fraudulently increased shares

of Aegis in order to dilute minority shareholders’

interests — because a dispute over share value does

not taint a short-form merger such that appraisal

rights would no longer be a minority shareholder's

exclusive remedy . See Glassman, 777 A.2d at 245.

3 Likewise, Radmore’s reliance on the failed bid of Essar Steel

to Purchase Pennsylvania corporation Wheeling Pittsburgh

does not alter our analysis since he did not name Essar

Steel as a defendant in this action.

23a

Additionally, the “context” of the complaint

Radmore contends provides the particularity

required by Rule 9(b) demonstrates Appellant's

fundamental misunderstanding of Delaware’s short-

form merger statute. Radmore faults the legality of

the short-form merger because it was not subject

to fairness review and because Aegis did not send

out advance notice seeking minority shareholders’

approval of the merger. See Appellant’s Brief at 17.

In advancing these arguments, Radmore completely

ignores Glassman’s conclusion that “(bly enacting

a statute that authorizes the elimination of the

minority without notice, vote, or other traditional

indicia of procedural fairness, [Delaware] effectively

circumscribed the parent corporation’s obligations

to the minority in a short-form merger.” 777 A.2d

at 243. Aegis was under no legal obligation to seek

Radmore’s approval of the merger or afford him

advance notice of the transaction. Thus, Aegis’s

supposed inaction cannot serve as the basis for

pleading fraud or illegality such that appraisal rights

would not remain Radmore’s exclusive remedy.

Finally, the District Court correctly held that

Radmore had received proper notice of the short-

form merger. First, for the reasons noted above and

contrary to Radmore’s assertions in paragraphs 31

and 42 of his complaint, Aegis was under no legal

obligation to give minority shareholders advance

notice of the short-form merger. Second, the

District Court correctly held that Aegis complied

with 8 Del. C. § 262(d)(2), Delaware's appraisal

statute. Computershare timely mailed a Notice to

24a

Radmore’s broker. The Notice clearly set forth the

merger’s terms, including the corporations involved,

the purchase price of minority shareholder’s stock,

and Radmore’s right to seek appraisal. Radmore’s

reliance on Gilliand v. Motorola Inc., 859 A.2d 80

(Del. Ch. 2004), is misplaced because that case is

readily distinguishable. Unlike the deficient notice

in Gilliand, which only contained “the statutorily

mandated information about the mechanics of

perfecting a demand for appraisal and no other

information relating to the value of the merged

entity or its securities,” the Notice at bar contained

detailed disclosures. 859 A.2d at 82.

IV.

For the foregoing reasons, we affirm the

judgment of the District Court.

25a