Summary
dismissing a pro se plaintiff's complaint for failure to state a claim
Summary of this case from Batchelor v. Alexis Props., LLCOpinion
C.A. No. 01C-07-050
January 4, 2002
ORDER
This 4th day of January, 2002, after consideration of the motion to dismiss submitted by Defendants Nicholas A. DiPasquale and the Delaware Department of Natural Resources and Environmental Control ("Defendants") in the above- captioned matter, as well as the arguments of the parties, it appears that:
Facts
1. Plaintiff filed this suit on July 31, 2001, apparently as a class action, in order to mandate certain State agencies to perform administrative functions under Title 7 (Conservation) of the Delaware Code. Numerous statutory provisions are cited by Plaintiff under which he claims legal rights.
2. By Order, dated October 19, 2001, this Court denied class-action certification in this matter. By a second Order, on the same date, the Court also dismissed all claims against all parties in this matter except for the claims against the present Defendants.
3. Defendants now move the Court to dismiss this action on the basis of insufficient and improper service under 10 Del. C. § 3103, and under Del. Super.Ct.Civ.R. 12(b)(4), and (5). Moreover, Defendants move to dismiss for the reason that the complaint does not state a claim upon which relief can be granted under Del. Super.Ct.Civ.R. 12(b)(6). Defendants argue that there are no facts in the complaint under which they may be held liable to Plaintiff.
Improper Service
4. Defendants maintain that under 10 Del. C. § 3103, any summons initiating a lawsuit against the State or any State officer must be served personally on the Attorney General, Chief Deputy, or State Solicitor in addition to service upon the Defendants. Defendants allege that no such proper service was made.
5. The Defendants maintain that, under Rule 12(b)(4), and (5), the complaint may be dismissed because Plaintiff's service was insufficient. No summons was attached to the complaint. Additionally, Plaintiff served the documents himself without requesting the appointment of a special process server as required under Rule 4.
6. The right to question irregularities in, or sufficiency of, service of process is well settled in Delaware. The Sheriff's return is prima facie proof of proper service; however, Plaintiff did not serve process by Sheriff here. Under Super.Ct.Civ.R. 4(a), and (d), the process must be specified in the praecipe and issued by the Prothonotary to the Sheriff to effectuate service. Service by other than the Sheriff must be done by special process server, a person especially appointed by the Court to serve it. No person shall be specially appointed by the Court to make service unless the conditions are established as in Rule 4(d).
Cohen v. Brandywine Raceway Ass'n., Del. Super., 238 A.2d 320 (1968).
Id.
7. The Plaintiff attempted to accomplish service here, himself, without permission of the Court. Service was not accomplished under the proper statute or court rule. In this case, the Court may quash Plaintiff's writ as to both Defendants. The Court, however, chooses to hear the merits of the motion to dismiss rather than simply dismiss this case on the basis of insufficient process.
Gosnell v. Whetsel, Del. Super., 198 A.2d 924 (1964).
Failure to State A Claim
8. The Court must analyze Plaintiff's complaint to see if there is a viable cause of action. As this Court has previously stated:
The test for sufficiency of a complaint challenged by a motion to dismiss under Superior Court Civil Rule 12(b)(6) is a general, broad test . . . "whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint." When applying this test, all of the well-pleaded allegations must be accepted as true by the Court.
Crowhorn v. Nationwide Mut. Ins. Co., Del. Super., C.A. No. 00C-06-010, Witham, J. (Apr. 26, 2001) Order at 4-5.
Spence v Funk, Del. Supr., 396 A.2d 967, 968 (1978).
Id.
9. It must be determined if Plaintiff alleged sufficient facts to recover under any reasonably conceivable set of circumstances susceptible to proof under the complaint. The Court may exercise some degree of leniency with respect to pro se appeals. However, at a minimum, the pleading must be adequate so the Court may conduct a meaningful consideration of the merits of Plaintiff's claim.
The Delaware Supreme Court (commenting upon the brief of a pro se appellant) "recognize[d] that some degree of leniency should be granted for pro se appeals, [however,] at a minimum, briefs must be adequate so that this Court may conduct a meaningful review of the merits of appellant's claim." Forst v. Wooters, Del. Supr., No. 181, 1993, 1993 WL 370865, Moore, J. (Sep. 9, 1993) (ORDER).
Id.
10. Plaintiff's action against Defendants appears to be related to his purported easement or right to gain access to certain private property in order to go fishing. He has sued to insure that Defendants act to enforce the allegedly applicable provisions of the Delaware Code.
11. Plaintiff, however, has not established a right to bring suit under any of the statutory provisions he has cited. First, the Plaintiff has not shown how the statutes under which he has sought relief give rise to a private cause of action. Plaintiff has no authority under case law or the cited statutes to bring the actions he has brought in this Court.
12. Secondly, the Court notes that much of the relief Plaintiff appears to seek is properly found in the Court of Chancery as opposed to Superior Court. This is because Plaintiff seeks an injunction, and indicates that he has some sort of adversary right (either by prescription or otherwise) to go on private property to conduct his fishing.
13. Plaintiff also incorrectly seeks injunctive relief under 7 Del. C. § 6615. He has no authority to do so under that provision because, as noted above, this is the wrong court for such relief (under the particular statute and under common law) and, more importantly, this statute only authorizes the Secretary of the Department of Natural Resources to bring such a suit. Plaintiff has no right to injunctive relief on the basis he puts forth. Likewise, this Court cannot give such relief.
14. Finally, the Court notes that Plaintiff seeks a writ of mandamus, apparently to force Defendants to take the steps which he believes are necessary to protect the environment as it relates to the private property in question. Plaintiff has not cited a mandatory duty that Defendants must undertake. Rather, he seeks to compel the enforcement of discretionary tasks which he believes Defendants should perform. This is an improper use for mandamus.
Therefore, for the reasons set forth above, the motion to dismiss of Defendants Nicholas A. DiPasquale and the Delaware Department of Natural Resources and Environmental Control is granted.
IT IS SO ORDERED.