The filing in the Office of the Secretary of State of a certificate of limited partnership executed, and the execution thereof, by a resident or nonresident of the State of Delaware which names such person as a general partner or a liquidating trustee of a limited partnership constitute such person's consent to the appointment of the registered agent of the limited partnership (or, if there is none, the Secretary of State) as such person's agent upon whom service of process may be made as provided in this section.
G REIT, Inc., through its operating partnership, G REIT, L.
P, engages in the acquisition, management, and investment in office, industrial, and service real estate properties in the United States.
Pending is the defendants' motion to dismiss for lack of personal jurisdiction, or, in the alternative, to dismiss Count III of the Complaint for failure to make a demand.
At the time the plaintiff (which is a limited partner), filed this action in 1997, it did not attempt to effect service of process upon the defendants under Delaware's long-arm statute, but instead effected service under 6 Del. The law, however, is that statutory amendments do not operate retroactively unless the General Assembly explicitly so provides. Ed.2d 683 (1977) (acceptance of a position as a corporate director or officer "does not demonstrate that appellants have `purposely avail(ed themselves) of the privilege of conducting activities within the forum state' in a way that would justify bringing them before a Delaware Tribunal....").7. A "single act" statute is a type of long-arm statute that establishes jurisdiction over nonresidents on the basis of a single act done or transaction engaged in by the nonresident within the state.14.
The jurisdictional issue arises against the following background: Before September 1, 1988, there was no method for obtaining personal jurisdiction over nonresident general partners of a Delaware limited partnership, other than the procedure prescribed in Delaware's general "long-arm" statute, 10 Del. by a resident or nonresident of the State of Delaware which names such person as a general partner ... Supr., 99 A.2d 255 (1953), the Delaware Supreme Court ruled that changes to the service of process requirements in the 1953 version of 10 Del. § 3112, an implied consent statute, affected substantive rights, namely, the right to notice. Technicolor, Inc., 663 A.2d 1156, 1162 (1995), and the nature or amount of recovery after the establishment of tort liability, Mayer v.
Because the Court grants the defendants' motion to dismiss on personal jurisdiction grounds, it does not reach the demand question. That situation changed on September 1, 1988, when 6 Del. § 17-109 became effective, and was added to the Delaware Revised Uniform Limited Partnership Act ("DRULPA")[t]he filing in the Office of the Secretary of State of a certificate of limited partnership... Jur.2d Process § 176 (1990) (collecting cases that state that "implied consent" statutes have generally been held not to operate retroactively).
Because in this case the General Assembly did not specifically provide that § 17-109 would be retroactive, for that statute to operate retrospectively, there must be strong public policy considerations that justify reaching the Supreme Court of Delaware held that, "Delaware courts have recognized the general principle that statutes will not be retroactively applied unless there is a clear legislative intent to do so." "[A] statutory amendment is remedial, and may be applied retroactively, when it relates to practice, procedure or remedies and does not affect substantive or vested rights." namely, that such statutes do not affect any substantive rights, and therefore are procedural in nature and may be applied retroactively. The trial court in Eudaily so recognized, holding that, "[t]he distinction between `implied consent' statutes and `single act' statutes is a critical one, for it has been utilized to hold the latter type of statutes applicable retrospectively despite precedent requiring prospective application of implied consent statutes." The statute at issue here affects a substantive right (the assertion of personal jurisdiction), because 6 Del. Lastly, the plaintiff argues that the Court has jurisdiction over the Evans Company, Mc Clure, and Mc Mahon, the three non-resident general partners of the Delaware limited partnership, because they "(a) executed and filed a certificate of limited partnership in Delaware; (b) accepted the benefits of acting as the general partners of a Delaware limited partnership for nearly ten years; and (c) entered into a limited partnership agreement governed by Delaware law with other Delaware entities as limited partners." Had the plaintiff attempted to effect service of process under 10 Del. § 3104, Delaware's general long-arm statute, these arguments might be relevant, but they are not because here the plaintiff has proceeded only under § 17-109. 115, 125 (1936)) ("It is a time honored principle that [the Delaware Supreme Court] `will not infer an intention to make an act retrospective,' and that `to give an act a retrospective operation would be contrary to well settled principles of law applicable to the construction of statutes unless it be plainly and unmistakably so provided by the statute.'")6.
The General Assembly explicitly provided that the § 17-109 would become effective on September 1, 1988, and did not provide for its retroactive application.
October 12, 2017 | James Sprow | Blue Vault On October 10, 2017, KBS Real Estate Investment Trust, Inc.