IN RE: NAVIDEA BIOPHARMACEUTICALS LITIGATION

Background

In a March 25, 2024 opinion, the Court decided the parties’ cross-motions for summary judgment, which ask whether the evidence requires judgment without a trial. The Court denied Navidea’s motion for summary judgment on Goldberg’s breach-of-contract counterclaim based on Navidea’s alleged failure to issue certain Navidea shares. The Court granted Navidea’s motion for summary judgment on Goldberg’s breach-of-contract claim based on the alleged failure to issue Macrophage Super Voting Shares.

Navidea moved for reconsideration of the denial concerning the Navidea shares. It argued that the Court’s finding that Goldberg breached the implied duty of good faith and fair dealing should prevent him from pursuing his contract claim against Navidea. Goldberg opposed that motion.

Goldberg cross-moved for reconsideration of the ruling concerning the Macrophage Super Voting Shares. He argued that the Court had overlooked controlling Delaware law regarding his claim against Macrophage.

Legal standard

The Court explained that reconsideration is available only under a strict standard. The moving party must identify a controlling decision or information the Court overlooked, an intervening change in controlling law, new evidence, a clear error, or a need to prevent serious unfairness. A reconsideration motion is not a chance to repeat rejected arguments, introduce new arguments that could have been made earlier, or add new facts.

Navidea’s motion

The Court agreed that its earlier opinion could have explained more clearly why it denied summary judgment on Goldberg’s claim concerning the Navidea shares. It nevertheless denied reconsideration.

The Court had found that Goldberg breached the implied duty of good faith and fair dealing by entering into the Challenged Transactions. That finding prevented Goldberg from maintaining his contract claim against Macrophage because he may have breached first. But the Court said it did not necessarily resolve whether Goldberg’s conduct was a prior material breach that barred his separate claim against Navidea.

The provisions concerning the two types of shares were different. The agreement stated that Navidea would issue Goldberg 23.5 million shares, including five million shares on January 2, 2019. The agreement and related transaction-document provision were ambiguous about whether completion of the transactions was a condition that had to occur before Navidea had any obligation to issue the shares.

Because of that ambiguity, the Court held that a factual dispute remained about which party breached first. If Goldberg’s interpretation were accepted, Navidea may have breached first by failing to issue the five million shares on January 2, 2019. Goldberg entered into the Challenged Transactions on February 5, 2019. If, however, Navidea established at trial that completion of the transactions was a condition to its obligation to issue any shares, Goldberg’s breach would result in a verdict for Navidea. The Court concluded that this issue could not be resolved on summary judgment.

Goldberg’s motion

The Court denied Goldberg’s motion for reconsideration. First, it held that the motion was untimely. Local Rule 6.3 required a reconsideration motion to be filed within fourteen days of the challenged decision, but Goldberg filed his motion twenty-eight days after the March 25 decision. The Court rejected the argument that filing the motion in response to Navidea’s timely reconsideration motion automatically extended the deadline.

The Court also held that the motion would fail on the merits even if the deadline were excused. Goldberg did not identify controlling law or new evidence that the Court had overlooked. Instead, he presented a new argument that the undisputed facts showed Macrophage had to issue the shares before February 6, 2019, or that a factual dispute existed about that obligation. The Court held that this argument was not appropriate on reconsideration because Goldberg had not raised it earlier.

Disposition

The Court denied both motions for reconsideration and directed the clerk to terminate the motions at docket entries 342 and 346. The opinion did not change the earlier summary-judgment rulings.