Opinion
C.A. No. 01C-07-050
October 19, 2001
ORDER
This 19th day of October, 2001, after consideration of the motions to dismiss submitted by Defendants Kent County Planning Office and Lawrence S. and Mary Francis Foley (the Foley Defendants) in the above-captioned matter, Plaintiff's answer thereto, as well as the arguments of the parties, it appears that:
Facts
1. Plaintiff filed a complaint on July 31, 2001, naming the Foleys and Kent County Planning Office (hereinafter referred to as "KCPO") as Defendants in the above-referenced matter. This action appears to be about mandating State agencies to perform administrative functions to protect the environment/wetlands under Title 7 (Conservation) of the Delaware Code. Numerous statutory provisions as cited by Plaintiff under which he claims legal rights.
This Court has already determined that this is not a class action matter.
2. Defendant KCPO moves this Court to dismiss this action on the basis of insufficient and improper service under Del. Super. Ct. Civ.R. 12(b)(4), (5); because Plaintiff's complaint fails to name a necessary party under Del. Super. Ct. Civ.R. 12(b)(7); for the reason that it does not state a claim upon which relief can be granted under Del. Super. Ct. R. 12(b)(6); and because KCPO has immunity under 10 Del. C. § 4010, 4011.
3. KCPO argues that there are no facts in the complaint under which it may be held liable to Plaintiff. Plaintiff responds that there are allegations which impose liability.
4. The Foleys also move to dismiss under Del. Super. Ct. Civ.R. 12(b)(1), (4), (6), on the basis that Plaintiff has not sought relief that this Court can grant; has not stated a cause of action upon which relief can be granted; and that service was improper.
Improper Service
5. KCPO and the Foleys maintain that, under Rule 12(b)(4), (5), the complaint may be dismissed because Plaintiff's service was insufficient. No Summonses were attached to the Complaint. Additionally, Plaintiff served the documents himself without requesting the appointment of a special process server as required under Rule 6. The Foleys move to dismiss on the basis that the complaint has never been served on either of the Foley Defendants.
7. 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), (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). The Plaintiff attempted to accomplish service here, himself, without permission of the Court. In this case, the Court may quash Plaintiff's Writ as to both Defendants.
Cohen v. Brandywine Raceway Ass'n., Del. Super., 238 A.2d 320 (1968).
Id.
Gosnell v. Whetsel, Del. Super., 198 A.2d 924 (1964).
8. However, the Court chooses to hear the merits of the motions to dismiss rather than simply dismiss this case on the basis of insufficient process.
Necessary Party
9. KCPO next alleges that Plaintiff cannot sue without the addition of Kent County; therefore, the action must be dismissed for failure to join a necessary party to the litigation. This, however, is not a fatal flaw as Kent County could possibly be joined under Rule 19. Although the real issue here is whether a cause of action could be stated against Kent County and KCPO, the Court encourages the Plaintiff, while acting pro se, to carefully review the Rules and to follow the Rules, as he is expected to do, as any other litigant in this Court. Failure to State A Claim 10. 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.
Kojro v. Sikorski, Del. Super., 267 A.2d 603 (1970) (holding that dismissal must be granted where absence of indispensable party cannot be cured by joinder).
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.
11. 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 could 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.
12. Here, Plaintiff has not alleged a cause of action under which he can recover. First, Plaintiff makes no specific allegations against the Kent County Planning Office or the Foleys other than identifying them as Defendants.
13. The only possible allegation as to KCPO appears at page 5 of the Petition and Complaint where Plaintiff alleges the Kent County Planning Office "has implemented such plans as are contrary to Delaware law under [ 7 Del. C. § 6618] and whereas inconsistent laws in the State of Delaware are superseded in specific reference to application of 7 § 6618 (sic)." This statute in the "Wetlands" section of Title 7 states that all laws or ordinances inconsistent with any provision of the wetlands chapter of Title 7 are superseded.
14. The test to deny a complaint for failure to state a claim is whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the Complaint. Spence v. Funk. Plaintiff is suing the County and the Foleys to insure they act consistently with the provisions of the Delaware code as Plaintiff has interpreted it; however, he has not established a right to bring suit under any of the statutory provisions he has cited. No reasonable person would believe that Plaintiff has authority under statute or case law to do what he is trying to do.
15. The Court would also note that much of the relief that Plaintiff appears to be asking for is properly to be heard in the Court of Chancery, as opposed to the Superior Court, since Plaintiff is seeking an injunction, and indicates that he has some sort of adversary right (either by prescription or otherwise) to go on Mr. and Mrs. Foley's property to conduct his fishing.
At the hearing on the motions to dismiss Plaintiff testified: "I'm not trying to get any money out of Mr. Foley. . . . All I'm trying to do is to maintain use of a particular piece of property for a legal use that I have used for a 25-year undisturbed period. That's the issue. . . ." Hr'g Tr. at 54-55
16. KCPO and the Foleys also maintain that Plaintiff incorrectly seeks injunctive relief under 7 Del. C. § 6615. Obviously, this is the wrong court for such relief (under the statute and under common law). 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. Thus, it would not assist the Plaintiff to merely transfer this case to the Court of Chancery.
17. Therefore, for the reasons set forth above, the Court does not reach Defendants KCPO's claim that they are granted immunity, and the motions to dismiss of Kent County Planning Office and the Foleys are granted. IT IS SO ORDERED.
ORDER
This 19th day of October, 2001, upon consideration of the pleadings and arguments of the parties, it appears that:1. Plaintiff has identified this matter as a class action in his complaint. Plaintiff has not, however, moved this Court for class certification, nor has he averred facts showing that the prerequisites for certification are met (as required under Superior Court Civil Rule 23(a)); therefore, as of this date, Plaintiff's action has not been certified as a class action.
2. The Court can at any time, make the determination regarding class certification, preemptively, and the Court is required to do so in a prompt manner. The Court is not subject to any party making the motion. It can make the class certification decision in its discretion.
3. In order for a class action to be conditionally certified under Delaware Superior Court Civil Rule 23(a), certain criteria must be satisfied before the action may be pursued on behalf of a class. One or more members of a class may sue, or be sued, as representatives on behalf of all of the designated class if: (1) the class is so numerous that joinder of all members is impractical; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties fairly and adequately represent the class; and (4), the focus of the analysis here, the plaintiff must show that his representation will fairly and adequately protect the interests of the class.
The circumstances for maintaining a class certification are covered in Delaware Super. Ct. Civ.R. 23(b). The Court must determine whether a class action can be maintained as soon as practicable.
Delaware Super. Ct. Civ.R. 23(a).
4. The Court finds that to certify the proposed class all certification requirements must be met (that is the representative must also comply with those requirements). The four prerequisites are required to certify the class, and the representative of the class must, of course, be a member of the class.
5. In this case, the Court is going to zero in on the representative parties-will the representative parties fairly and adequately represent the class? The focus is going to be on the adequacy of protection. Under Super. Ct. Civ.R. 23(a)(4), the plaintiff must show that his representation will fairly and adequately protect the interests of the class. The Court does not need to examine the other remaining prerequisites, under Super. Ct. Civ.R. 23(a), if one of the prerequisites cannot be maintained.
6. When determining the adequacy of representation, the Court will consider the quality of the plaintiff's case as well as the caliber of legal representation and the issues of nonfeasance by the plaintiff. Class actions are very complicated matters. In view of the fact that the plaintiff has filed this action informa pauperis, and has difficulty in meeting procedural requirements, the Court cannot find that Plaintiff has the resources and legal expertise to fairly and adequately protect the interest of the class. The Court has allowed Plaintiff to pay his current court costs by making payments on a monthly basis. Plaintiff will incur substantial additional expense in order to have this matter certified, and to keep this matter certified.
L. C. Parker Realtors, Inc. v. Dutch Village, Inc., Del. Super., 174 A.2d 320 (1961).
7. Class action litigation, by definition, is legally demanding on the part of an attorney as well as the class representative. In this case, we have the class representative acting as his own attorney. If the plaintiff were going to maintain this as a class action, plaintiff would have to properly identify all members of the class that plaintiff describes as "American citizens of color" (a large class, and plaintiff testified, as well, that he is not really sure of the dimensions of the class).
At the hearing on the motion to dismiss plaintiff's complaint, the plaintiff testified that he was trying to create a class of American citizens of color. This broad-based class definition certainly raises issues with respect to the "commonality" and "typicality" requirements of Super. Ct. Civ.R. 23(a), and regarding the "predominance" requirement for maintenance of the class action under Super. Ct. Civ.R. 23(b); however, the Court does not reach these issues as the certification decision here can be decided on the issue of adequacy of representation under Super. Ct. Civ.R. 23(a).
8. Plaintiff would not only have to identify the class members, but would have to communicate with them. He would have to establish procedures under which he would be able to obtain acceptance as well as exclusion from the proceeding, as may be deemed appropriate, and determine what would be acceptable in resolving the controversy. This will be expensive in both time and monetary cost. A person proceeding informa pauperis, by definition alone, is not going to have the funds to support a class action.
The class representative must perform vigorous, tenacious prosecution throughout. Gonzales v. Cassidy, 5th Cir., 474 F.2d 67 (1973). The representative must be fully qualified to handle the case. Legal ability and training are important. Id. Considerations include the ability of the representative to bear costs, as the plaintiff must bear the substantial costs of notice to the class. For example, due process requires that notice be made in the best method possible under the circumstances, which can include costly personal notice to all members instead of notice by publication. Eisen v. Carlisle Jacquelin, 417 U.S. 156 (1974); Oppenheimer Fund v. Sanders, 437 U.S. 340 (1978).
9. The plaintiff has not set forth sufficient facts to allow this Court to appoint him or certify him as the class representative.
10. For the foregoing reasons, under Super. Ct. Civ.R. 23(a)(4), this Court will not conditionally certify this as a class action; therefore, this case will not proceed as a class action. IT IS SO ORDERED.
ORDER
This 19th day of October, 2001, after consideration of Plaintiff's motion and argument, it appears that:FACTS
1. The pertinent facts are as follows. On August 16, 2001, the Plaintiff in the above-captioned matter filed a Motion to Recuse the Assigned Judge for Cause.
Subsequently, Plaintiff filed a Second Motion to Recuse which was stricken by Order of this Court dated September 27, 2001, under Superior Court Civil Rule 12(f) for matters redundant, immaterial, impertinent or scandalous. In that second motion, Mr. Alston submitted material which was not authorized to be filed before this Court.
2. Plaintiff alleges that the assigned trial Judge should recuse himself because a cause of action has been filed by the Plaintiff in the 3rd Circuit Court of Appeals. That Federal cause of action purportedly includes a charge against this Judge for "wrongful actions," decisions related to an earlier unrelated proceeding instituted in Superior Court by the Plaintiff. This Judge presided over the previous State court matter which was decided adversely against Plaintiff. For these reasons, Plaintiff requests "to be heard before a trier of fact and law who has not demonstrated bias and indiscretion against Plaintiff."
3. Although not specifically stated in Plaintiff's motion, the apparent basis for recusal is Delaware Judges' Code of Judicial Conduct Canon 3(C).
DISCUSSION
4. A brief discussion may be appropriate. Canon 3(C) of the Delaware Judges' Code of Judicial Conduct provides that judges must be free from personal bias, and must be disqualified in a proceeding in which the judge's impartiality might reasonably be questioned.
Canon 3(C) of the Delaware Judges' Code of Judicial Conduct provides in pertinent part: (1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) The judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
5. In Los v. Los, the Delaware Supreme Court set out a two-prong test to insure against personal bias, or the appearance of bias, under Canon 3(C). First, the Judge must, as a matter of subjective belief, be satisfied that he or she is free of bias or prejudice concerning the Plaintiff. Second, the Court must ensure that there is not an objective appearance of bias that is sufficient to cast doubt upon the Court's impartiality.
Del. Supr., 595 A.2d 381, 384-385 (1991).
6. In applying the analysis set forth in Los to the instant case, I find that Plaintiff's Motion to Recuse must be denied.
7. Here, the Court is satisfied that the first prong of the Los test is met. This Court, as a matter of subjective belief, determines that it is able to adjudicate the issues before it in a disinterested manner with no bias or prejudice toward any of the parties-regardless of the Federal action or prior rulings in the Superior Court related to this Plaintiff in any other matters before this Court that may have been filed previous or subsequent to the filing of the instant litigation.
8. The second Los prong is also satisfied. This Court has performed an objective analysis to insure that there is no appearance of bias under Delaware law. Plaintiff suggests that this Court cannot appear unbiased because Plaintiff has made allegations against this Judge in another action, or in an action filed subsequent to the instant case. "[T]here is a compelling policy reason for the Judge not to disqualify himself at the behest of a party who initiates litigation against a judge. In the absence of genuine bias, a litigant should not be permitted to `judge shop' through the disqualification process." Certainly, it may be viewed that once a party asks for recusal, then files an action against the Judge (apart from the case at hand), such can be viewed as judge shopping, and the Court does view it as such in this case.
Id. at 385.
9. Moreover, simply because this Judge may have decided adversely against Plaintiff in a prior action, does not create sufficient appearance of bias to require recusal by this Judge in the present suit.
Weber v. State, Del. Supr., 547 A.2d 948, 951 (1988).
10. For example, in Weber v. State, the criminal defendant was charged with various crimes including kidnaping, theft and assault. The judge assigned to his current trial had presided over the defendant's previous trial for second degree murder. In that case the defendant had been convicted in the previous trial. For this reason, the defendant wanted the judge recused because he "would feel `more comfortable' if another judge presided." The Delaware Supreme Court stated: the bias envisioned by Canon 3C(1) is not created merely because the trial judge has learned facts or made adverse rulings during the course of [another] trial.
Id.
Id. at 952 (citations omitted).
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There is no general rule that a judge is disqualified per se because of an adverse decision in a former case involving entirely different and unrelated . . . charges [but involving] the same party.
This reasoning is equally persuasive with respect to the civil Plaintiff in this case.
11. Therefore, for the reasons set forth above, Plaintiff's Motion to Recuse the Assigned Judge for Cause Stated is denied. IT IS SO ORDERED.
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(e) . . . or has expressed an opinion concerning the merits of the particular case in controversy.