Opinion
C.A. No. 99C-11-114 WCC
Submitted: May 25, 2001
Decided: October 31, 2001
On Defendants Corporate Interiors, Inc. and First USA's Motion to Dismiss. DENIED.
Clifford B. Hearn, Jr., Esquire, Attorney for Plaintiffs.
Sean P. McDevitt, Esquire, Attorney for Defendant First USA.
Louis J. Rizzo, Esquire, Cathy L. Reese, Esquire, Attorneys for Defendant Corporate Interiors, Inc.
MEMORANDUM OPINION
Defendants filed a Motion to Dismiss pursuant to Delaware Superior Court Civil Rule 12(b)(6) for failure to state a claim upon which relief can be granted relating to Counts 1 through 7 and Counts 10 through 12 of the plaintiff's complaint.
On June 21, 2000, this Court heard the Motion and in a bench ruling dismissed Counts 3, 4, 5, 6, 7, 10, 11, and 12, but reserved decision as to Counts 1 and 2. The parties were required to provide additional briefing regarding the alleged underlying tort that supports the civil conspiracy allegations in Counts 1 and 2 of the plaintiffs' complaint. This decision was subsequently delayed to allow for related motions to be considered. For the reasons set forth below, the defendant's Motion to Dismiss Counts 1 and 2, is DENIED.
FACTS
Raymond Della Vella (hereinafter "Della Vella") and William Corazo (hereinafter "Corazo") were employed by Local No. 98, International Brotherhood of Electrical Workers (hereinafter "Local No. 98") (collectively hereinafter "Plaintiffs").
On March 16, 1998, Plaintiffs began handbilling activities at First USA, a Bank One Company (hereinafter "First USA") to elicit the general public's support to boycott First USA. First USA had hired a contractor, Corporate Interiors of Delaware, Inc., (hereinafter "Corporate Interiors") who apparently paid less than the prevailing area wages maintained by Delaware electricians. According to Plaintiffs, on April 6 and 7, 1998, under the direction of a First USA employee, employees of Corporate Interiors, accosted, harassed, confronted, threatened, shoved, and pushed the Plaintiffs during their handbilling activities.
Corporate Interiors and First USA (hereinafter "Defendants") argue that to sustain a civil conspiracy count, Plaintiffs must allege an actionable underlying wrong. Defendants assert that the alleged harassment, intimidation, and threats were not actionable, and thus, Counts 1 and 2 fail to state a claim upon which relief can be granted. Plaintiffs argue that the civil conspiracy counts are based upon the assault counts set forth in Counts 8 and 9, and thus are legally sufficient.
The Defendants filed no opposition to the Plaintiffs' supplemental letter memorandum.
STANDARD OF REVIEW
For a motion to dismiss for failure to state a claim upon which relief can be granted, all allegations in the complaint must be accepted as true. In addition, such a motion will not be granted if the plaintiff may recover under any reasonably conceivable set of circumstances susceptible of proof under the complaint. And, dismissal will not be granted if the complaint "gives general notice as to the nature of the claim asserted against the defendant." "Vagueness or lack of detail," by itself, is insufficient to dismiss a claim, and if there is a basis upon which the plaintiff may recover, the motion is denied.DISCUSSION
Civil conspiracy is the combination of two or more persons or entities for an unlawful purpose or for the accomplishment of a lawful purpose by unlawful means, resulting in damage. Civil conspiracy is not an independent cause of action in Delaware. Instead, it must embody an underlying wrong that would be actionable in the absence of the conspiracy. "The gravamen of an action in civil conspiracy is not the conspiracy itself but the underlying wrong which would be actionable absent the conspiracy." As such, the issue is whether there are actionable underlying wrongs alleged in Counts 1 and 2 that would sustain the civil conspiracy counts.Count 1 of Plaintiffs complaint alleges that Defendants conspired "to engage upon a course of abusive and threatening conduct to intimidate and harass Plaintiff Della Vella, and to force Plaintiff Della Vella to cease his lawful handbilling activity." Plaintiffs allege in Count 2 that Defendants conspired "to engage upon a course of abusive and threatening conduct intended to intimidate and harass Plaintiff Corazo, and to force Plaintiff Corazo to cease his lawful handbilling activity."
Plaintiff's Complaint at 6.
Plaintiff's Complaint at 7.
The Court finds that while Counts 1 and 2 do not use the word "assault" in describing the underlying actionable wrong, the language set forth above could reasonably be construed to be sufficient to encompass such conduct as more specifically set forth in Counts 8 and 9 of the complaint. An assault, in a civil context, has been defined as "the attempt by a person, in a rude and revengeful manner, to do an injury to another person, coupled with the present ability to do it."
Count 8 of Plaintiff's complaint states that "[b]y accosting, harassing, confronting and threatening Plaintiff Corazo, Defendants John Doe No. 1-16, both individually and in concert with and under the direction of Defendants First USA and Corporate Interiors, did assault Plaintiff Della Vella, placing him in imminent fear of bodily harm, intending to, and knowing that such threats and contact were likely to, place Plaintiff Della Vella in imminent fear of bodily harm. Count 9 states that "[b]y accosting, harassing, confronting and threatening Plaintiff Corazo, Defendants John Doe No. 1-16, both individually and in concert with and under the direction of Defendants First USA and Corporate Interiors, did assault Plaintiff Corazo, placing him in imminent fear of bodily harm, intending to, and knowing that such threats and contact were likely to, place Plaintiff Corazo in imminent fear of bodily harm."
St. Anthony's Club v. Scottsdale Ins. Co., Del. Super., C.A. No. 97C-07-112, Herlihy, J. (July 15, 1998) (Mem. Op.) at 6(citing Hendle v. Geiler, Del. Super., 50 A. 632, 632 (1895)).
In addition, the newly published Pattern Civil Jury Instructions define assault as causing one "to be in fear of an immediate harmful or offensive contact."
Id. at 6 (quoting Pattern Jury Instructions for Civil Practice at 163).
While it is disturbing that Counsel did not incorporate Counts 8 and 9 into Counts 1 and 2 if it was their intention to use these as the underlying torts, the Court will not dismiss the Counts simply because the complaint was poorly drafted by counsel. However, because of the arguments made by Plaintiff, it should be clear that if Counts 8 and 9 subsequently are dismissed or fail to be established, the conspiracy counts will also fail.
c.f. Continental Casualty v. Alexis I. duPont School District, 317 A.2d 101, 105 (1974) (noting that "[the Court] did not suggest that the plaintiff necessarily must have couched his claim in the technical verbiage peculiar to an action for defamation in order to bring it within the purview of the policy, but [that the Court was] convinced that [the plaintiff's] complaint, read as a whole, [did] not charge any offense insured against under the terms of the policy, [and thus it followed] that [the insurance company] was not obligated to defend [the insured]."