Opinion
C.A. No. 18116.
Date Submitted: October 23, 2000.
Date Decided: February 15, 2001.
Douglas A. Shachtman, Esquire, Douglas A. Shachtman Associates, Wilmington, Delaware,
Richard D. Levin, Esquire, Connolly Bove Lodge Hutz LLP, Wilmington, Delaware.
Dear Counsel:
Pending is a motion to dismiss the complaint in this action. The essence of the complaint is that the defendants are wrongfully interfering with the plaintiffs contractually-granted right of access to a private road. The plaintiff, accordingly, seeks a preliminary and a permanent injunction and damages.
The defendants have moved to dismiss the complaint on three grounds. The first is that the complaint was not verified and therefore must be dismissed under Court of Chancery Rule 65(a)(1). The second is that the plaintiff has failed to allege immediate and irreparable harm. The third is that this Court lacks subject matter jurisdiction because the plaintiff has failed to allege the absence of an adequate legal remedy. I address these arguments separately.
1. Must the Complaint Be Verified?
Court of Chancery Rule 65(a)(1) directs that a complaint be verified for the plaintiff to seek a preliminary injunction. But, that Rule also permits a party to proceed by filing a motion for that relief supported by affidavits. Here, the complaint is not verified. Despite that, the defendants' motion to dismiss on that ground is premature because the plaintiff is not currently seeking interim injunctive relief. If after discovery is completed the plaintiff moves for a preliminary injunction supported by affidavits, no verified complaint would be required. If, on the other hand, the plaintiff chooses not to move for a preliminary injunction, the defendants will not be prejudiced by the continued presence of the prayer for preliminary injunctive relief in the complaint, since the plaintiff will have elected to demonstrate its entitlement to a permanent injunction at a final hearing.
2. Must the Complaint Allege Immediate and Irreparable Harm?
As the defendants correctly point out, the complaint does not specifically allege immediate and irreparable harm. But, fairly read, the complaint does sufficiently (albeit inferentially) plead irreparable harm. The plaintiff alleges that it has a right to use the access road, that the defendants have blocked that road in two places, and that the road is the only means of access to a vital part of the plaintiffs business. Assuming, as I must, that those facts are true, the plaintiff is being irreparably harmed because it is disabled from operating its planned business on its property. To avoid any further controversy on this point, the Court will grant the plaintiff leave to amend its complaint to allege irreparable harm with specificity.
3. Must the Plaintiff Allege the Absence of an Adequate Legal Remedy?
Lastly, the plaintiff has not specifically alleged that it has no adequate remedy at law. The defendants suggest that this Court lacks subject matter jurisdiction because an action at law for ejectment is available and would be adequate. But that cannot be concluded as a matter of law on this record. The remedy that the plaintiff appears to be seeking is specific performance of a contractual agreement to provide access, cast in the form of a prayer for injunctive relief to prevent continued deprivation of access. Both of those remedies are equitable in nature and cannot be granted at law. Thus, the absence of an adequate legal remedy, while not pled specifically, is inferable from the nature of the alleged harm and the relief that would be required to remedy that harm. Again, however, the absence of an adequate legal remedy (like irreparable harm) should have been pled. To avoid further controversy on the issue, the plaintiff will be granted leave to plead with specificity the absence of a legal remedy.
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The defendants' motion to dismiss will be denied. IT IS SO ORDERED. The plaintiff is, however, granted leave (and is strongly encouraged) to amend its complaint as suggested herein.
Very truly yours, Jack B. Jacobs cc: Register in Chancery