SWSZ Holding Inc. v. SZ Global Inc (May 27, 2026)

Case details
Country
United States
Jurisdiction
Delaware (DE)
Court
Delaware Supreme Court
Decided
May 27, 2026
Disposition
Motion Denied
SWSZ HOLDING INC., Plaintiff, Counterclaim Defendant, v. SZ GLOBAL INC., Defendant,..., Not Reported inAtl. Rptr. (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.12026 WL 1482293Only the Westlaw citation is currently available.UNPUBLISHED OPINION. CHECKCOURT RULES BEFORE CITING.Superior Court of Delaware.SWSZ HOLDING INC., Plaintiff,Counterclaim Defendant,v.SZ GLOBAL INC., Defendant,Counterclaim Plaintiff,v.STEPHEN WICH AND ANTTIUUSIHEIMALA, Third-Party Defendants.C.A. No. N25C-05-105 SSA|Submitted: May 22, 2026|Decided: May 27, 2026MEMORANDUM OPINIONJudge Sonia Augusthy*1 The Court must determine if a Third-Party Defendantwho has filed numerous motions in this matter can nowassert a defense for lack of personal jurisdiction. The Courtmust also determine if a forum selection clause within thenon-disclosure agreement (“NDA”) requires this Third-PartyComplaint to be brought in New York instead of Delaware.Finally, the Court must consider whether the Third-PartyComplaint's dismissal is warranted where the CounterclaimPlaintiff's corporate status was purportedly void at the time offiling but later revived.Procedural HistorySWSZ Holding, Inc. (hereinafter “Plaintiff”) commencedthis action on May 5, 2025, against SZ Global Inc.(hereinafter “Defendant”) for breach of contract.1 OnJuly 4, 2025, Defendant responded with its Answer,Counterclaims, and Third-Party Complaint.2 The latter filingnamed Mr. Uusiheimala (hereinafter “Movant”) as a Third-Party Defendant. Count IV seeks damages for Movant'salleged breach of provisions under two agreements—a Non-Disclosure Agreement (“NDA”) and a Non-CircumventionAgreement (“NCA”).3Appearing pro se, Movant submitted his first filingson August 27, 2025.4 These comprised a Motionand “Memorandum of Law in Support of Motion toDismiss” (collectively the “First Motion”).5 Under theMotion, he moved “to seal or redact improper and defamatorymaterial” within the Third-Party Complaint, under SuperiorCourt Civil Rules 5(g), 12(f), “and the Court's inherentequitable authority to seal or redact specific portions....”6Within the attached Memorandum of Law in Support, Movantasserted four defenses.7 However, he did not object to theCourt's exercise of jurisdiction over his person. Instead, whileseeking dismissal or alternative relief on other grounds, hechallenged the merits,8 even noting he “stands preparedto introduce [preserved evidence] at deposition or trial ifnecessary.”9*2 At this point, an issue arose regarding Movant's citationto nonexistent legal authorities to this Court. The Courtconvened an in-person hearing on October 15, 2026. TheCourt could not verify or locate quoted language from sevencases cited by Movant in the First Motion. The hearing's focuswas to clarify that despite Movant's pro se status, the Courtwill not tolerate citation to nonexistent authorities. Therefore,the First Motion to Dismiss was denied, without prejudice.10Recognizing Movant's pro se status, the Court provided leaveto refile by November 14.11But Movant took other routes first. Within days of his in-person appearance at the hearing, Movant filed a Letterasserting his intention to seek sanctions.12 Movant argued theThird-Party Complaint was filed while the corporate charterwas “forfeited.”13 Movant sought discovery concerning theThird-Party Complaint's filing and Defendant's corporatestatus.14On the same day, Movant filed what he deemed a“Supplemental Motion” (hereinafter the “Second Motion”)challenging this litigation on several fronts.15 This new filingraised entirely distinct arguments for dismissal, centering on
SWSZ HOLDING INC., Plaintiff, Counterclaim Defendant, v. SZ GLOBAL INC., Defendant,..., Not Reported inAtl. Rptr. (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.2Defendant's corporate status. Once again, he did not raise lackof personal jurisdiction as a defense.Several weeks later, Movant filed a “Motion to Dismissfor Lack of Personal Jurisdiction and to Protect HisConstitutional Right to Due Process.”16 In this Motion—the“Third Motion”—Movant challenged the Court's exercise ofpersonal jurisdiction over him.17 He revisited his argumentthat New York is the proper forum for this action, per theNDA.18 Some time elapsed: Defense Counsel withdrew,19new Counsel entered.20 The Court heard argument at an in-person hearing on May 14.21Defenses and Objections Under Rule 12Superior Court Civil Rule 12(b) establishes the defense oflack of jurisdiction over the person “shall be asserted in theresponsive pleading ... [or] by motion[.]” Further, Rule 12(g)states that “[i]f a party makes a motion under this Rule butomits therefrom any defense or objection then available tothe party which this Rule permits to be raised by the motion,the party shall not thereafter make a motion based on thedefense or objection so omitted, except[ing]” the defensesidentified under Rule 12(h)(2).22 A defense asserting lack ofpersonal jurisdiction is not within the exceptions establishedin Rule 12(h)(2). To put a finer point on the matter, Rule12(h)(1) provides that “[a] defense of lack of jurisdictionover the person ... is waived” in two scenarios. The first,under (h)(1)(A), contemplates “the circumstances describedin subdivision (g)”—i.e., where a party moves under Rule12 but omits defenses then available. The second scenarioimputes waiver where the party fails to raise the defense viamotion, responsive pleading, or permitted amendments to thepleading.In short, Rule 12(h)(1) is “quite clear.”23 As this Courthas described the Rule: “[i]t advises a litigant to exercisegreat diligence in challenging personal jurisdiction, venue,or service of process. If he wishes to raise any of thesedefenses he must do so at the time he makes his firstdefensive move—whether it be a Rule 12 motion or aresponsive pleading.”24 Failure to exercise diligence on thisfront carries consequences: “[i]n Delaware issues questioningthe Court's jurisdiction over the person of the defendant havehistorically been required to be raised at the earliest time inthe proceedings. And if the party overlook it, and take stepsin the cause, he cannot afterward turn back and object.”25*3 As for the defense of improper venue under Rule12(b)(3), “this Court ‘may consider materials outside thecomplaint.’ ”26 “When ruling on such a motion, the Courtshould ‘give effect to the terms of private agreements toresolve disputes in a designated judicial forum out of respectfor the parties’ contractual designation.’ ”27AnalysisPersonal JurisdictionMovant failed to exercise the diligence required to challengepersonal jurisdiction. At the outset, Movant filed a Motionto Strike and Dismiss under Rules 12(f), (b)(3), and (b)(6).28 These filings were silent on the matter of personaljurisdiction. The Court finds waiver under Rule 12(h)(1)(A).Beyond waiver, his conduct has indicated assent to personaljurisdiction.29 On October 15, Movant appeared beforethis Court for a hearing regarding his filings. After thatappearance, Movant copied this Court on his correspondencewith Counsel, asserting his intention to seek sanctions andlimited discovery. He filed a second Motion to Dismiss, basedon an entirely new argument, which still did not challenge theCourt's jurisdiction over his person. Movant's filings indicatehis participation as “an ‘active actor’ in this litigation.”30He has taken numerous steps that are inconsistent with anobjection to personal jurisdiction: omitting the defense fromhis first two Motions, making a general in-person appearance,and directing litigation.31 Thus, he cannot now object onpersonal jurisdiction grounds.*4 Movant now suggests his Third Motion relates back tohis earlier filings. Specifically, since the Court gave him leaveto refile his First Motion, he suggests he did not waive thedefense. The Court disagrees. Raising entirely new arguments(after dismissal because the merits could not be reached dueto Movannt's citation to nonexistent authorities) does notconstitute a refiling. The Court gave Movant a chance tocorrect his misrepresentations—not a chance to begin the caseanew.Venue
SWSZ HOLDING INC., Plaintiff, Counterclaim Defendant, v. SZ GLOBAL INC., Defendant,..., Not Reported inAtl. Rptr. (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.3The First and Third Motions raised the issue of venue.Quoting the NDA, Movant argues “[t]his permissive clauseauthorizes New York jurisdiction and, by implication, negatesDelaware jurisdiction.”32 While the argument from Movantconflates venue and personal jurisdiction, the Court willconsider the pro se filing liberally and conduct a venueanalysis. Because the parties contracted for the application ofNew York law, interpretation of the at-issue forum selectionclause is governed by the law of New York.33The NDA states “[t]his Agreement shall be governed by thelaws of the State of New York without regard to principles ofconflicts of law. Receiver [Movant] consents to jurisdictionand venue in Manhattan, New York, USA.”34 Further,paragraph four states “[i]f Receiver [Movant] violates orthreatens to violate this Agreement, the Company shall beentitled to an injunction or similar equitable relief to be issuedby any court of competent jurisdiction....”35Choice of law is our starting point, since that analysis willprovide the framework for interpreting the forum selectionclause. Our Supreme Court has articulated “a three parttest to determine the choice of law in a dispute before theDelaware courts....”36 This Court need only employ the firstpart—whether “the parties made an effective choice of lawthrough their contract”—given that the second and thirdsteps address conflicting laws in the absence of a contractualagreement.37 Under that inquiry, “Delaware courts enforcecontractual choice of law provisions” so long as “there is amaterial connection between the chosen jurisdiction and thetransaction.”38New York has a material connection to the transaction at issue.The contracting parties are both materially connected to thestate: Movant resides in New York, and Defendant's principalplace of business is in New York.39 Accordingly, New Yorklaw will govern the NDA's forum selection clause.*5 Delaware Courts have previously considered acontractual forum selection clause applying New York law.Although “the topic of the clause can be characterized as‘procedural[,]” ’ the chosen law “must be applied wheninterpreting the Forum Selection Clause.”40 “The court doesrecognize that under New York law[ ] a forum selection clauseshould be deemed exclusive if it contains ‘[a]ny languagethat reasonably conveys the parties’ intention to select anexclusive forum.’ ”41 New York recognizes the public policy“of respecting forum selection clauses....”42The Court finds the parties intended application of NewYork law, therefore the above-cited standard for interpretationof a forum selection clause governs this analysis. Evenunder that standard—which differs from that under Delawarelaw43— the Court does not find the language of thisNDA reasonably conveys an intent to select New Yorkas the exclusive forum. Paragraphs four and six compelthis conclusion. Specifically, paragraph four references “anycourt of competent jurisdiction,” and paragraph six merelyindicates Movant “consents” to jurisdiction in New York.For language to be exclusive, it necessarily limits othercourts from hearing an action; however, paragraph fourplainly allows the parties to take action outside of NewYork. Further, paragraph six lacks mandatory language.Consequently, venue is proper.Motion to Dismiss for Lack of Corporate CapacityMovant asserts “[p]ublic records of the Delaware Divisionof Corporations show that [Defendant's] certificate ofincorporation had been forfeited for failure to comply withstatutory franchise tax/reporting obligations prior to July 4,2025 and that the Certificate of Revival was not issued untilJuly 9, 2025.”44 As addressed at oral argument, the documentMovant relied upon and filed as an exhibit does not say much.Specifically, Exhibit A notes it is “Not an Official Certificateof Status.”45 Moreover, this document indicates the entity isin good standing as of July 9, 2025.Even assuming Movant is correct that Defendant's certificatewas at one point forfeited or void, he still is not entitled todismissal. 8 Del. C. § 312(e) addresses revival:*6 [R]evival shall validate all contracts, acts, mattersand things made, done and performed within the scopeof its certificate of incorporation by the corporation, itsdirectors or members of its governing body, officers, agentsand stockholders or members during the time when itscertificate of incorporate was forfeited or void pursuant tothis title, with the same force and effect and to all intentsand purposes as if the certificate of incorporation had at alltimes remained in full force and effect.Therefore, by statute, even if the certificate was void at thetime of the filing of the Third-Party Complaint, since it is now
SWSZ HOLDING INC., Plaintiff, Counterclaim Defendant, v. SZ GLOBAL INC., Defendant,..., Not Reported inAtl. Rptr. (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.4in good standing, Defendant's action is validated.46 Movantacknowledged Defendant's revival on July 9, 2025; further,his own paperwork demonstrates Defendant is now in goodstanding.ConclusionThe Motions to Dismiss for lack of personal jurisdictionand improper venue are hereby DENIED. The SupplementalMotion to Dismiss for lack of corporate capacity is alsoDENIED.IT IS SO ORDERED.All CitationsNot Reported in Atl. Rptr., 2026 WL 1482293Footnotes1Compl., D.I. 1. The Complaint also states several claims in the alternative to the breach of contract claim.2SZ Global Inc.’s Answ., Affirmative Defenses, Countercis., and Third-Party Compl., D.I. 5.3Id. at 52. The NDA and NCA are attached to the Third-Party Complaint as Exhibits 3 and 5.4Mot., D.I. 10; Mem. of Law in Support of Mot. to Dismiss, 11. The referenced date is when the Office of the Prothonotaryaccepted the filings. Movant dated the documents August 11. At any rate, the exact date is not relevant to the Court'sconclusion.5D.I. 10, 11.6D.I. 10, 1. None of Movant's filings are paginated. Where possible, the Court employs the section and paragraphnumbers for pincites. Where those identifiers are unavailable, the Court designates page number one as starting at thecover page.7D.I. 11. Movant cites Rules 12(b)(3) and 12(b)(6) for improper venue and failure to state a claim. He also argued overthe facts and requested that certain allegations be struck under Rule 12(f). Id. at 1, 5-6, 11-22.8See D.I. 11, § II, 11 (framing the Third-Party Complaint as “a retaliatory action”); id. § II, 14 (“The NDA and non-circumvention agreement at the center of [Defendant's] theory is time-limited by its own terms.”); id. § III, 26 (“[Factsasserted by Movant] directly undermine [Defendant's] present claims of circumvention, interference, or breach. Theydemonstrate a transparent, collaborative dynamic that only became ‘misconduct’... after litigation was threatened.”) (citingto “Exhibits O—S”).9D.I. 11, at 22.10Judicial Action Form, D.I. 31.11Id.12Rule 11 Safe-Harbor Notice, Preservation Demand, and Request for Withdrawal/Explanation, D.I. 32.13Id. at 2.14Id. at 1-2. See also id. at 2-4.15Supplemental Mot. to Dismiss, D.I. 34.16Mot. to Dismiss, D.I. 39.
SWSZ HOLDING INC., Plaintiff, Counterclaim Defendant, v. SZ GLOBAL INC., Defendant,..., Not Reported inAtl. Rptr. (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.517Id. at 1-9.18Id. at 8.19D.I. 48, 49.20D.I. 61. Counsel for Defendant opposed Movant's Motion to Dismiss. Resp. and Opp'n to Mot. to Dismiss, D.I. 72.21Judicial Action Form, D.I. 73.22Super. Ct. Civ. R. 12(g) (emphasis added). Rule 12(h)(3) provides an exception for lack of subject matter jurisdiction.23Mason v. Allstate Indem. Co., 2024 WL 4563935, at *3 (Del. Super.) (citations omitted) quoting Mergenthaler v. AsbestosCorp. of Am., 1989 WL 158501, at *2 (Del. Super.).24Id. (alteration to punctuation) (citations omitted) quoting Mergenthaler, 1989 WL 158501, at *225Id. quoting Mergenthaler, 1989 WL 158501, at *3.26Degregorio v. Marriott Int‘l, Inc., 2018 WL 3096627, at *5 (Del. Super.) quoting Simon v. Navellier Series Fund, 2000WL 1597890, at *4 (Del. Ch.).27Nachbar v. Coronados Pool Plaster Inc., 2025 WL 1863255, at *1 (Del. Super.) (citations omitted) quoting Loveman v.Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super.).28See D.I. 10, 11. Once again, he did not raise personal jurisdiction.29Massey v. Ball, 595 A.2d 390, 394 (Del. 1991) quoting Ins. Corp. of Tr., Ltd. v. Compagnie des Bauxites de Guinee, 456U.S. 694, 703-04 (1982). See also City of Wilmington v. Baker, 1986 WL 3635, at *3 (Del. Ch.) (citations omitted) (“Itis settled law that the entrance of a general appearance by a defendant is a submission to the in personam jurisdictionof the Court....”). “[T]he ordinary meaning of the word ‘appearance’ in law imports ... submission [to jurisdiction over theperson].” Sands v. Lefcourt Realty Corp., 117 A.2d 365, 368 (Del. 1955) (citations omitted). Although “mere physicalappearance ... may not constitute an appearance[,]” courts have held that “an appearance is effectuated” where one“seeks in any way to participate in the case....” 6 C.J.S. Appearances § 27 (citations omitted). “An appearance at ...hearing signifies an overt act by which a person against whom suit has commenced submits himself ... to the jurisdictionof the court.” Id. § 30 (citation omitted). Similarly, “a motion to dismiss on an issue other than jurisdiction is a requestwhich invokes the power of the court and is a ‘general appearance’ conferring jurisdiction.” Id. § 31 (citation omitted).30Sussex Farms Ltd. v. Mbanefo, 2022 WL 2126228, at *2 (Del. Super.) (citations omitted). See generally HornbergerMgmt. Co. v. Haws & Tingle Gen. Contractors, Inc., 768 A.2d 983, 988 (Del. Super. Ct. 2000) (citations omitted) quotingAlger v. Hayes, 452 F.2d 841, 844 (8th Cir. 1972) (“[A] substantial body of law ... holds that a defendant can waive adefense of lack of personal jurisdiction because the defendant's conduct did ‘not reflect a continuing objection to thepower of the court to act over the defendant's person.’ ”).31See D.I. 11, at 22 (emphasis added) (“[Movant] has preserved extensive contemporaneous documentation, third-party witness statements, and corroborating materials, and stands prepared to introduce them at deposition or trial ifnecessary.”); D.I. 32, at 5 (emphasis added) (providing that Letter filed “is given without waiver of any rights, remedies, orclaims [Movant] may have, including the right to seek expedited relief from the Court....”); D.I. 34, at 5 (“[Movant] thereforeseeks fees and other relief if the record so warrants.”). Cf. Hornberger Mgmt. Co., 768 A.2d at 989 quoting Yeldell v. Tutt,913 F.2d 533, 539 (8th Cir. 1990) (“The personal jurisdiction defense ‘may be lost by failure to assert it seasonably, byformal submission in a cause, or by submission through conduct.’ ”).32D.I. 39, at 8. Movant draws from the NDA for “consent[ ] to the jurisdiction and venue in Manhattan, New York, US.” Id.
SWSZ HOLDING INC., Plaintiff, Counterclaim Defendant, v. SZ GLOBAL INC., Defendant,..., Not Reported inAtl. Rptr. (2026) WESTLAW   © 2026 Thomson Reuters. No claim to original U.S. Government Works.633See D.I. 5, Ex. 3. By contrast, Delaware law governs the NCA—and “disputes arising under or in connection with thisAgreement shall be resolved in the courts of Delaware.” Id., Ex. 5. The Court's analysis accordingly addresses only theNDA.34D.I. 39, Ex. 3, 6.35Id. 4. Of course, this Court does not traditionally hold the power of equitable relief, but the issue of subject matterjurisdiction has not been raised, and, at this time, the Court will not sua sponte conduct such analysis.36Stillwater Mining Co. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa, 289 A.3d 1274, 1283 (Del. 2023) citing CertainUnderwriters at Lloyds, London v. Chemtura Corp., 160 A.3d 457, 464 (Del. 2017).37Id. quoting Certain Underwriters at Lloyds, London, 160 A.3d at 464.38MTA Can. Royalty Corp. v. Compania Minera Pangea, S.A. de C.V., 2020 WL 5554161, at *3 (Del. Super.) citing Edelistv. MBNA Am. Bank, 790 A.2d 1249, 1256 (Del. 2001).39D.I. 5, at 4, 28. This analysis should not be conflated with the personal jurisdiction inquiry. New York's connection to theNDA does not change Movant's submission to this Court's jurisdiction.40Fitzgerald v. Cantor, 1998 WL 842304, at *1 (Del. Ch.). See also Brastor Mercantile, Ltd. v. Cent. Citrus S/A, 1989 WL70971, at *5 (Del. Super.) (citations omitted) (applying Ontario law to surmise “the forum selection clause here does notvest exclusive jurisdiction in Ontario and Brazilian courts....”).41Troy Corp. v. Schoon, 2007 WL 949441, at *4 (Del. Ch.) (emphasis removed) quoting Fitzgerald, 1998 WL 842304, at *2.42Del Pharms., Inc. v. Access Pharms., Inc., 2004 WL 161355, at *8 (Del. Ch.) citing Babcock & Wilcox Co. v. ControlComponents, Inc., 614 N.Y.S.2d 678 (N.Y. Sup. Ct. 1993).43Delaware law provides that “[i]f a forum selection clause validly limits a plaintiff to a single forum, that clause operatesto divest a court that otherwise has jurisdiction of its status as a proper venue for the plaintiff to sue.” Del Pharms.,Inc., 2004 WL 161355, at *5 quoting Simon v. The Navellier Series Fund, 2000 WL 1597890, at *4 (Del. Ch.). UnderDelaware law, this Court should only dismiss “where the parties use express language clearly indicating that the forumselection clause excludes all other courts before which those parties could otherwise properly bring an action.” In re BayHills Emerging Partners I, L.P., 2018 WL 3217650, at *4 (Del. Ch.) quoting Scanbuy, Inc. v. NeoMedia Techs., 2014 WL5500245, at *2 (Del. Ch.). The specific language used within the forum selection clause matters, as it “may be permissiveor mandatory.” Id. at *5.44D.I. 34, at 3.45D.I. 35, Ex. A.46In short, revival will “retroactively validate all actions that occurred since [the corporation] became void.” Paul Rivera &Kalibrr, Inc. v. Angkor Cap. Ltd., 2024 WL 3873050, at *9 n.90 (Del. Ch.) citing 8 Del. C. § 312(e). See also Dorsey v.Jones, 2026 WL 850417, at *4 n.31 (Del. Ch.) (citations omitted).End of Document© 2026 Thomson Reuters. No claim to original U.S.Government Works.
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