Burden v. Dunson,
2016 NCBC 33.
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAYNE 14 CVS 59
("DGAF Action")
DILLARD/GOLDSBORO ALUMNI )
AND FRIENDS, INC., )
Plaintiff )
)
v. )
)
RAYMOND E. SMITH, JR. and )
NATHANIEL MOORE, )
Defendants )
STATE OF NORTH CAROLINA IN THE GENERAL COURT OF JUSTICE
SUPERIOR COURT DIVISION
COUNTY OF WAYNE 14 CVS 340
("Burden Action")
PATRICIA BURDEN, WINSTON BARNES )
and MINERVA WOODARD, Directors for )
and on Behalf of The Dillard/Goldsboro )
Alumni and Friends Association, Inc., )
Plaintiffs )
)
v. )
)
SEDRICK DUNSON, JOHN HICKS, The )
Dillard/Goldsboro Alumni and Friends )
Association, Inc, as a Nominal Defendant, )
Defendants )
OPINION AND ORDER ON MOTION FOR SUMMARY JUDGMENT
IN THE BURDEN ACTION
THIS CAUSE, designated a mandatory complex business case by Order of the Chief
Justice of the North Carolina Supreme Court, pursuant to N.C. Gen. Stat. § 7A-45.4(b)
(hereinafter, references to the North Carolina General Statutes will be to "G.S."), and
assigned to the undersigned Special Superior Court Judge for Complex Business Cases,
comes before the Court upon Defendants Sedrick Dunson, John Hicks, and the
Dillard/Goldsboro Alumni and Friends Association, Inc.'s ("Defendants") Motion for
Summary Judgment in the Burden Action ("Burden Action Motion").1
THE COURT, after considering the Burden Action Motion, briefs in support of and in
opposition to the Burden Action Motion, the record evidence filed by the parties,2 and other
appropriate matters of record, CONCLUDES that the Burden Action Motion should be
GRANTED for the reasons stated herein.3
Haithcock, Barfield, Hulse & Kinsey, PLLC by Glenn A. Barfield, Esq. and M. Bryan
King, Esq. for Plaintiffs Patricia Burden, Winston Barnes, and Minerva Woodard.
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP by Rosemary G. Kenyon,
Esq. and Jang H. Jo, Esq. for Defendants Sedrick Dunson, John Hicks, and
Dillard/Goldsboro Alumni and Friends Association, Inc.
McGuire, Judge.
A. Introduction.
1. Dillard/Goldsboro Alumni and Friends, Inc. ("DGAF") is a nonprofit
corporation comprised of former students of Dillard High School and Goldsboro High School
which, historically, has provided fellowship among its members and scholarships to students
in the Wayne County, North Carolina area. Recently, however, this organization, its
directors, national officers, and members, have been embroiled in a series of disputes that
has resulted in the filing of four separate civil actions in Wayne County since January 2014,
all of which having been assigned to the undersigned. This lawsuit ("Burden Action") and
1 The Burden Action was consolidated with the DGAF Action (Wayne 14 CVS 59) for pretrial purposes
by Order of this Court dated April 4, 2014. A separate opinion and order is being issued this same
date regarding the summary judgment motion filed in the DGAF Action.
2 Plaintiffs did not file any affidavits, depositions, or other evidentiary material in response to the
Burden Action Motion. Nevertheless, the Burden Action is consolidated with the DGAF Action.
Accordingly, the Court will consider the affidavits and evidentiary material filed by Plaintiffs in
response to the DGAF Action Motion.
3 John Hicks resigned from the DGAF Board in October of 2014. Since the only claims against Hicks
in the Burden Action are for injunctive relief related solely to his role as a member of the DGAF Board,
those claims are now moot. Accordingly, the Court GRANTS Defendants' motion for summary
judgment to the extent it seeks dismissal of claims against Hicks.
the three related lawsuits arise from a governance dispute between rival factions of the
DGAF Board of Directors represented on the one hand by Directors Sedrick Dunson and John
Hicks ("Dunson/Hicks faction"), and on the other by Raymond E. Smith, Jr. ("Smith")4 and
Directors Patricia Burden, Winston Barnes, and Minerva Woodard ("Smith/Burden faction").
The dispute largely centers on the division of authority between the DGAF Board of Directors
and the National President, and a major source of contention is whether the DGAF Board
had authority to remove the National President from office. On that point, the Dunson/Hicks
faction contends that Smith was properly removed as National President on November 7,
2013, but that he refused to acknowledge his removal. Smith instead undertook a course of
conduct intended to obstruct and disrupt the DGAF Board. For its part, the Smith/Burden
faction contends that the board members who voted to remove Smith were from chapters that
were not properly constituted under DGAF's by-laws.5 Accordingly, the Smith/Burden
faction contends that Smith's removal as National President was invalid. In this lawsuit,
Plaintiffs seek a broad variety of injunctive relief relating to this ongoing dispute between
two factions of DGAF's Board of Directors.
B. Factual and Procedural Background.
2. The factual background of this action, and the underlying dispute between the
parties has been set forth in a number of previous Court orders, and that background is
incorporated herein by reference. Only that background necessary to provide context to and
decide the Burden Action Motion will be discussed below.
3. DGAF is a nonprofit corporation, organized under Chapter 55A of the North
Carolina General Statutes. DGAF has six local chapters. The home chapter is in Goldsboro,
4 At times material, Smith held the office of DGAF's National President.
5 The contention is based on the Smith/Burden factions claims that certain chapters had failed to file
with the national office various lists of members and other reports required by the DGAF Constitution.
North Carolina. DGAF also has chapters in Atlanta, New York, New Jersey, Philadelphia,
and Washington, D.C. DGAF has adopted a written Constitution and By-Laws ("Constitution
and By-Laws") which were last revised and amended in March 1999.
4. The Constitution and By-Laws provide that the DGAF Board of Directors is
comprised of the National President of DGAF, the president of each of the six chapters and a
"member-at-large" from each chapter, and the National Treasurer, National Scholarship
Chairperson, National Financial Secretary, National Recorder, and the Vice Chairman (the
National Treasurer, Financial Secretary, Scholarship Chairperson, Recorder and Vice
Chairman are collectively referred to as "Officers"). The Constitution and By-Laws provide
that the National President and the 12 chapter members of the Board of Directors are "Voting
Members" of the Board,6 and that the other national officers on the Board are "Non-voting
Members." The Constitution and By-Laws state that the Board of Directors "is the absolute
governing body of the organization."7
5. In May 2013, DGAF's members elected Smith as DGAF's National President,
and on October 5, 2013, Smith took office. Shortly thereafter, a disagreement arose
concerning the appointment of the remaining national officers of DGAF.8 On October 16,
2013, the DGAF Board appointed Elizabeth Williams as the National Treasurer.9 The
Dunson/Hicks faction contends that Smith refused to cooperate with Williams as National
Treasurer. The Smith/Burden faction asserts that Smith tried to work with Williams, but
that Williams unreasonably refused to work with Smith.10
6 The National President is listed as a Voting Member of the Board of Directors, but is permitted to
vote "only to break ties" among the other Voting Members. Const. and By-Laws, Art. IV and V.
7 Const. and By-Laws, Art. V.
8 Pursuant to DGAF's Constitution and By-Laws, the National President is elected by the national
membership, while all other national officers are appointed by the DGAF Board. See Const. and By-Laws, p. 12.
9 Smith Aff. (Apr. 1, 2014) ¶ 9.
10 Id. at ¶¶ 14, 30-35.
6. On November 7, 2013, the DGAF Board met and voted to remove Smith from
the office of National President. Nevertheless, Smith refused to comply with the Board's
requests that he step down as National President.11
7. On December 24, 2013, the DGAF Board of Directors held a meeting
("December 24 Meeting"). Notice for the December 24 Meeting was sent to the chapter
presidents and members-at-large of those chapters.12 The notice of the December 24 Meeting
was not sent to Smith.13 The notice stated that the purpose of the meeting was to address
DGAF Board governance issues, including "approving next steps to complete the transition
for the removal from office of the former President . . . and retaining counsel to advise and
represent the organization."14 Nine members of the Board of Directors attended the December
24 Meeting, including eight Voting Members.15 The eight Voting Members of the DGAF Board
who were present voted to authorize Dunson and Hicks to retain counsel to represent the
organization.16
8. On January 14, 2014, the Dunson/Hicks faction filed the DGAF Action seeking
declaratory and injunctive relief related to the DGAF Board's attempts to remove Smith as
National President. Plaintiff in the DGAF Action was, and continues to be, represented by
Smith, Anderson, Blount, Dorsett, Mitchell & Jernigan, LLP ("Smith Anderson").17 On
January 27, 2014, a hearing was held before the Honorable Jack Jenkins on the parties'
respective requests for preliminary injunctions and Smith's motion to dismiss. On February
11 The details regarding the November 7, 2013 meeting and Smith's subsequent conduct are set out in
Judge Jenkins' February 21, 2014 Order.
12 Harris Aff. (Feb. 5, 2014) ¶ 4, Ex. A.
13 Id.
14 Id. at ¶ 6, Ex. A.
15 Id. at ¶ 8, Ex. B.
16 Id. at ¶ 9, Ex. B.
17 The circumstances surrounding the retention of Smith Anderson are more fully discussed in the
Court's Order on Motion to Strike Appearance, entered on March 17, 2015.
21, 2014, Judge Jenkins issued a preliminary order concluding that the DGAF Board's
removal of Smith on November 7, 2013, was invalid because a quorum of the Board was not
present at the time the vote was taken, and that Smith remained DGAF's National President.
9. Defendants noticed a Board of Directors meeting for March 5, 2014, for the
purpose of discussing and taking action regarding the DGAF Action, including ratifying
Dunson and Hicks' retention of counsel and their filing the DGAF Action, and other matters
("March 5 Meeting").18 Smith presided over the March 5 Meeting. Smith requested that each
DGAF Board member provide documentation of his or her proper election by their chapter,
and that any votes taken be conditioned on verification of proper election of the directors.19
Dunson and members from other chapters refused to provide the documentation.20
10. During the March 5 Meeting, Dunson and other Board members moved that
Defendants' actions in retaining the Smith Anderson law firm and filing the DGAF Action be
ratified by the Board of Directors.21 Smith demanded that Defendants provide the Board
with copies of the retainer agreements with Smith Anderson, but the agreements were not
produced at the March 5 Meeting. Smith refused to permit a vote on the motion.22 Order
could not be kept and the meeting was adjourned.23
11. Following the March 5 Meeting, several members of the DGAF Board
attempted to call a special meeting of the board for March 12, 2014. The sole purpose of this
meeting was to "consider a motion to remove Raymond Smith as National President."24
18 Smith Aff. (Apr. 1, 2014) ¶ 37; Dunson Aff. (Apr. 2, 2014) ¶ 20, Ex. M.
19 Dunson Aff. (Apr. 2, 2014) ¶ 20, Ex. M.
20 Smith Aff. (Apr. 1, 2014) ¶ 40.
21 Id. at ¶ 42.
22 Id. at ¶ ¶ 43, 46, 53.
23 Id. at ¶ 54.
24 Dunson Aff. (Apr. 2, 2014), Ex. P.
However, before this meeting could be held, Plaintiffs filed their Complaint in the Burden
Action, and obtained a temporary restraining order enjoining the meeting set for March 12.25
12. On March 11, 2014, Patricia Burden, Winston Barnes, and Minerva Woodard
("Plaintiffs") filed their Complaint for Injunctive Relief ("Complaint"). Plaintiffs filed the
action derivatively on behalf of DGAF.26 The Complaint does not set out specific legal claims
against Defendants, but instead seeks injunctive relief: prohibiting Defendants and "certain
person . . . from acting as directors of DGAF without having been duly elected;" prohibiting
"the corporation" from ratifying Defendants retention of Smith Anderson and filing the DGAF
Action; prohibiting Defendants from "attempts to usurp the authority of the National
President and to conduct and control meetings of the DGAF Board;" prohibiting Dunson from
"frustrating the deliberative process by loud, abusive, and disruptive behavior;" and,
"enforcing Plaintiffs' rights of inspection of the books and records of the corporation."27
13. On March 15, 2014, the Board of Directors held a meeting ("March 15
Meeting").28 The undisputed facts establish that seven of the thirteen Voting Members
boycotted the meeting.29 Seven members of the Board of Directors were present at the
commencement of the March 15 Meeting including six Voting Members.30 The president of
the New York chapter appointed a stand-in member from the New York chapter for purposes
of conducting business at the March 15 Meeting pursuant to Article V of the Constitution
and By-Laws, and the Board subsequently voted to suspend the Atlanta, New Jersey, and
25 As noted in the Court's April 8, 2014 Order on Preliminary Injunction and Briefing Schedule, this
temporary restraining order expired on April 3, 2014.
26 As explained further below and in the Order issued in the DGAF Action (14 CVS 59), the parties
dispute just who has the authority to file lawsuits on behalf of DGAF. In the DGAF Action, the
Defendants in this lawsuit brought suit directly on behalf of DGAF.
27 Compl. pp. 1-2.
28 The March 15 Meeting is discussed in greater detail in the Court's Opinion and Order on the DGAF
Action Motion (¶¶ 37-40).
29 Smith Aff. (Nov. 12, 2014), Ex. A.
30 Id.
Philadelphia chapters for failure to comply with certain requirements of the Constitution and
By-Laws.31 The Court has concluded that a jury will have to determine whether the three
chapters were properly suspended in the March 15 Meeting.32
14. On May 14, 2014, Defendants filed their Answer.
15. On August 14, 2015, Defendants filed the Burden Action Motion, seeking
summary judgment in Defendants' favor on all relief sought by Plaintiffs in the Complaint.
The Burden Action Motion has been fully briefed and is ripe for determination.33
C. Discussion.
16. The standard for granting a motion for summary judgment is well established
in this State. "Summary judgment is appropriate 'if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that any party is entitled to a judgment as a
matter of law.'" Variety Wholesalers, Inc. v. Salem Logistics Traffic Servs., LLC, 365 N.C.
520, 523,
723 S.E.2d 744, 747 (2012) (quoting Rule 56(c)). Under this standard, the moving
party bears "the burden of clearly establishing lack of a triable issue" to the trial court. N.C.
Farm Bureau Mut. Ins. Co. v. Sadler,
365 N.C. 178, 182,
711 S.E.2d 114, 116 (2011) (quoting
N.C. Nat'l Bank v. Gillespie,
291 N.C. 303, 310,
230 S.E.2d 375, 379 (1976)). The moving
party may meet this burden by "proving an essential element of the opposing party's claim
does not exist, cannot be proven at trial, or would be barred by an affirmative defense."
Variety Wholesalers, Inc., 365 N.C. at 523,
723 S.E.2d at 747 (quoting Dobson v. Harris,
352
N.C. 77, 83,
530 S.E.2d 829, 835 (2000)).
31
Id.
32 Opinion and Order on DGAF Action Motion (April 27, 2016) ¶ 48.
17. In the Burden Action Motion, Defendants seek summary judgment as to the
injunctive relief sought by Plaintiffs on the grounds that Plaintiffs lack standing to pursue
derivative claims on behalf of DGAF because they failed to make a pre-suit demand on the
DGAF Board. Alternatively, Defendants contend that the relief sought by Plaintiffs in their
Complaint has been rendered moot by previous action of this Court or other intervening
events. In their Memorandum of Law in Opposition to Defendants' Motion for Summary
Judgment, Plaintiffs respond only that they made a pre-suit demand for the engagement
letter and other information regarding Defendants retention of Smith Anderson, and that
their demand for information about the engagement is not moot because "Defendants
continue to withhold material information as to the cost and expense of such counsel."34
Plaintiffs make no specific argument regarding the other injunctive relief that they seek.
18. "A 'derivative proceeding' is a civil action brought . . . 'in the right of' a
corporation, . . . while an individual action is . . . [brought] to enforce a right which belongs
to [plaintiff] personally." Morris v. Thomas, 161 N.C. App. 680, 684,
589 S.E.2d 419, 422
(2003) (quoting Norman v. Nash Johnson & Sons' Farms, Inc.,
140 N.C. App. 390, 395,
537
S.E.2d 248, 253 (2000)). The North Carolina Nonprofit Corporation Act (the "Act") includes
procedural requirements for initiating a derivative action. Specifically, the Act requires a
derivative plaintiff to "allege with particularity the efforts, if any, made by the plaintiff to
obtain the action the plaintiff desires from the directors or comparable authority and the
reasons for the plaintiff's failure to obtain the action or for not making the effort." G.S. § 55A-
7-40(b).35 To satisfy the requirements of bringing a derivative action, a demand must
"contain specific requests for action by the Board of Directors," and must "be made with
34 Pls.' Br. Opp. Burden Action Mot., passim.
35 As Defendants note, the Act's current demand requirement is identical to the Business Corporation
Act's pre-1995 demand provision. See G.S. § 55-7-40 (1994).
sufficient clarity and particularity to permit the corporation . . . to assess its rights and
obligations and determine what action is in the best interest of the company." Greene v.
Shoemaker,
1998 NCBC LEXIS 4, *9-10 (N.C. Super. Ct. Sep. 24, 1998). Not only must the
demand be sufficiently clear and specific when made to the corporation, the plain language
of the Act requires that the demand, or the reasons for failing to make the demand, be pleaded
with particularity. G.S. § 55A-7-40(b).
19. In order to determine whether Plaintiffs have sufficiently alleged, or produced
evidence of, a proper demand, the Court first must determine "the action the plaintiff[s]
desire[ ]," and then whether plaintiff made specific and particularized requests for such
action to DGAF's "directors or other authority." G.S. § 55A-7-40(b). "In determining whether
the demand requirement has been met, the Court must compare the derivative claims
asserted in a complaint against the specific demands a plaintiff has made prior to filing suit."
Greene, 1998 NCBC LEXIS 4, at **9. Accordingly, the Court must compare each of the types
of declaratory relief sought by Plaintiffs in the Complaint with the allegations and evidence
regarding the requests Plaintiffs made to the Board of Directors for actions.
20. The Court must also consider Defendants' contention that certain of the relief
requested by Plaintiffs is now moot. "[T]he exclusion of moot questions from determination
is not based on a lack of jurisdiction but rather represents a form of judicial restraint." In re
Peoples, 296 N.C. 109, 147-48,
250 S.E.2d 890, 912 (1978). "Whenever, during the course of
litigation it develops that the relief sought has been granted or that the questions originally
in controversy between the parties are no longer at issue, the case should be dismissed, for
courts will not entertain or proceed with a cause merely to determine abstract propositions
of law."
Id. (citations omitted). "Unlike the question of jurisdiction, the issue of mootness is
not determined solely by examining facts in existence at the commencement of the action. If
the issues before a court or administrative body become moot at any time during the course
of the proceedings, the usual response should be to dismiss the action."
Id. (citations omitted).
"A case is considered moot when 'a determination is sought on a matter which, when
rendered, cannot have any practical effect on the existing controversy.'" Lange v. Lange,
357
N.C. 645, 647,
588 S.E.2d 877, 879 (2003) (quoting Roberts v. Madison Cty. Realtors Ass'n,
344 N.C. 394, 398-99,
474 S.E.2d 783, 787 (1996)).
21. Each of Defendants' arguments for summary judgment must be applied
separately to the facts surrounding each of Plaintiff's requests for relief. Accordingly, the
Court will consider individually each of Plaintiffs' individual claims for injunctive relief.
a. Injunction prohibiting Defendants and "certain persons . . . from acting as
directors of DGAF without having been duly elected as such."
22. The Court interprets Plaintiffs' request as one for an injunction prohibiting
Dunson, Hicks, and the members of the Board of Directors from the New Jersey and
Philadelphia chapters from acting as DGAF directors solely on the grounds that they have
not provided the Board with documentation that they were elected, either as chapter
president or as member-at-large, by their respective chapters. The Court concludes that
Plaintiffs have sufficiently alleged in the Complaint that a demand was made to the Board
of Directors to require the members of the Board to provide documentation of their respective
elections.36 In addition, record evidence establishes that requests for such documentation
were made on several occasions, both at meetings of the DGAF Board and otherwise. The
Court concludes that, at a minimum, the evidence is sufficient to create a question of fact as
to whether a pre-suit demand that the DGAF Board members from the Atlanta, New Jersey,
and Philadelphia chapters provide the Board with documentation of their elections by their
respective chapters. Accordingly, summary judgment cannot be granted to Defendants on
36 Compl. ¶¶ 17-19, 40.
the grounds that the undisputed evidence establishes that Plaintiffs did not make a sufficient
pre-suit demand to support a derivative action.
23. The Court further concludes that the undisputed facts establish that Sedrick
Dunson provided documentation of his election as president of the Atlanta chapter in or
around late March 2014.37 Accordingly, Defendants' motion for summary judgment regarding
the request that Sedrick Dunson be prohibited from acting as a director of DGAF "without
having been duly elected" should be GRANTED, and that request for relief should be
dismissed with prejudice.
24. The evidence, however, establishes that the facts ae in dispute regarding
whether DGAF Board members from the New Jersey and Philadelphia chapters have
provided documentation of their elections by their respective chapters. Accordingly,
Defendants' motion for summary judgment regarding Plaintiffs' requested injunctive relief
as it relates to the members of those chapters should be DENIED.38
b. Injunction prohibiting the corporation from ratifying Defendants retention of
Smith Anderson and filing the DGAF Action.
25. The Court has previously concluded that the DGAF Board of Directors
approved the retention the Smith Anderson firm to represent DGAF in the DGAF Action
during the December 24 Meeting, that no further ratification of the retention by the Board of
Directors was required, and that the Smith Anderson firm did not have a conflict of interest
that prevented them from representing DGAF.39 The Court concludes that the request for an
37 Dunson Aff. (Apr. 2, 2014) ¶¶ 2, 23, Ex. A.
38 The Court notes that, as discussed in the Opinion and Order regarding the DGAF Action Motion
issued today, the question of whether the members of the Board of Directors from the New Jersey and
Philadelphia chapters are currently properly serving on the DGAF Board is dependent on whether
those chapters were suspended by the Board on March 15, 2014. That issue must be determined by a
jury. Opinion and Order on DGAF Motion (April 27, 2016) ¶ 48.
39 Order on Motion to Strike Appearance (March 17, 2015). In the Order, the Court also noted that
Smith Anderson had subsequently provided to the DGAF Board of Directors copies of both of the
engagement letters at issue. Plaintiffs do not dispute that the engagement letters were provided.
injunction prohibiting the corporation from ratifying DGAF's retention of Smith Anderson
and filing of the DGAF Action is moot. Accordingly, Defendant's motion for summary
judgment regarding Plaintiffs' request for an injunction prohibiting the corporation from
ratifying the retention of Smith Anderson and the filing of the DGAF Action should be
GRANTED, and that request for relief should be dismissed with prejudice.
c. Injunction prohibiting Defendants from "attempts to usurp the authority of the
National President and to conduct and control meetings of the DGAF Board."
26. In the Opinion and Order on the DGAF Motion, the Court concluded that the
DGAF Board of Directors properly removed Smith as National President at the Board
meeting held November 7, 2013.40 Accordingly, the requests that Defendants be enjoined
from "attempts to usurp" Smith's authority as National President and from conducting and
controlling meetings of the DGAF Board of Directors are now moot. Accordingly, Defendant's
motion for summary judgment regarding Plaintiffs' request for an injunction prohibiting
Defendants from "attempts to usurp the authority of the National President and to conduct
and control meetings of the DGAF Board" should be GRANTED, and that request for relief
should be dismissed with prejudice.
d. Injunction prohibiting Dunson from "frustrating the deliberative process by
loud, abusive, and disruptive behavior."
27. The Complaint does not allege, and Plaintiffs have provided no evidence, that
they made efforts to get the DGAF Board of Directors to take action to control Dunson's
conduct during Board meetings or in any other setting in which Plaintiffs were engaged in
the "deliberative process." G.S. § 55A-7-40(b). Accordingly, Plaintiffs' derivative claim for an
injunction prohibiting Dunson from "frustrating the deliberative process by loud, abusive,
and disruptive behavior" fails. Defendants' motion for summary judgment regarding
40 Opinion and Order on DGAF Motion (April 27, 2016) ¶ 28.
Plaintiffs' request for an injunction prohibiting Dunson from "frustrating the deliberative
process by loud, abusive, and disruptive behavior" should be GRANTED, and that request
for relief should be dismissed with prejudice.
e. Injunction "enforcing Plaintiffs' rights of inspection of the books and records of
the corporation."
28. Plaintiffs have not alleged what "books and records of the corporation" they
wish to inspect, nor have they alleged that they made any pre-suit efforts to get the Board of
Directors to provide them access to books and records. There is no evidence in the record that
Plaintiffs demanded access to DGAF's books and records or that they were denied access to
books and records.41 Accordingly, Defendants' motion for summary judgment regarding
Plaintiffs' request for an injunction "enforcing Plaintiffs' rights of inspection of the books and
records of the corporation" should be GRANTED, and that request for relief should be
dismissed with prejudice.
THEREFORE, IT IS ORDERED that Defendants' Motion for Summary Judgment is
GRANTED, in part, and DENIED, in part, as follows.
29. As to Plaintiffs' request for an injunction prohibiting Defendants and "certain
persons . . . from acting as directors of DGAF without having been duly elected as such,"
Defendants' Motion for Summary Judgment is DENIED, as it relates to the members of the
New Jersey and Philadelphia chapters, and GRANTED, as it relates to Sedrick Dunson.
30. As to all other relief sought in Plaintiffs' Complaint, Defendants' Motion for
Summary Judgment is GRANTED.
41 To the extent that Plaintiffs' request for inspection of books and records was intended to encompass
the request that Defendants provide the DGAF Board of Directors with copies of the engagement
letters between Defendants and the Smith Anderson firm, it is undisputed that the engagement letters
have now been provided and, accordingly, that request for relief is moot.
This the 27th day of April, 2016.
/s/ Gregory P. McGuire
Gregory P. McGuire
Special Superior Court Judge
for Complex Business Cases
