Opinion
C.A. No. 05C-02-028 WLW.
Submitted: July 20, 2007.
November 5, 2007.
Upon Plaintiffs' Motion for Substitution of Party. Denied. Upon Defendant's Motion to Dismiss. Granted. Upon Plaintiffs' Motion for Summary Judgment. Moot. Upon Defendant's Motion for Summary Judgment. Moot.
Craig T. Eliassen, Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware; attorneys for the Plaintiffs.
David L. Ormond, Jr., Esquire, Department of Justice, Dover, Delaware; attorneys for the Defendant.
ORDER
Plaintiffs Wayne B. Mulford (W. Mulford) and his son John O. Mulford (J. Mulford) filed a Complaint for Declaratory Judgment against the Department of Natural Resources and Environmental Control (DNREC) on February 21, 2005. They specifically requested that this Court declare that W. Mulford has full transfer rights to his commercial food fishing license and food fishing equipment permit for gill nets and ask that the Court grant further relief to the extent it deems just and proper. They also request that the Court grant a motion to substitute party. On the latter, the Court denies. On the former the Court first finds that the case should be dismissed for lack of ripeness but also notes that a plain reading of the statute prohibits W. Mulford from transferring his license and permit to anyone, regardless of their state of residence. The Court therefore need not address whether it holds the jurisdictional authority to direct DNREC to allow the transfer.
Delaware Declaratory Judgment Act, 10 Del.C. §§ 6501 to 6513.
W. Mulford, a resident of New Jersey, holds a commercial food fishing license and a food fishing equipment permit for gill nets that are issued to him annually by the State of Delaware through DNREC pursuant to 7 Del. C. § 915(h). W. Mulford wishes to transfer his gill net fishing license to his son, J. Mulford, a resident of the State of Delaware, upon his death. The primary issue of this action involves the statutory interpretation of 7 Del. C. § 915 (e) and (h). The filings in reaction to this motion include a Plaintiff's Motion for Summary Judgment, Defendants' Motion for Summary Judgment, Defendants' Motion to Dismiss, and their respective responses. A secondary issue regards a Motion for Substitution of Party filed on April 14, 2005.
Plaintiff W. Mulford is 90-years-old at the time of the Civil Motion oral arguments held in July 2007.
The Complaint for Declaratory Judgment states that W. Mulford wishes to transfer his permit to his son John O. Mulford of Delaware. Four documents that were submitted with the Plaintiffs' Stipulation to Submit Four Documents, filed by the Prothonotary on August 16, 2007, contains three documents that contradict this request, but this fact is inconsequential. For completion, they are the following: a direction to Delaware Division of Fish and Wildlife (DFW) to transfer upon W. Mulford's death his permit to (a) his son J. Mulford of Hockesson, Delaware (dated February 12, 1997); (b) to his grandson Kenneth W. Hassler of Salem, New Jersey dated (March 6, 2000) (stating that it supercedes any earlier directives); and (c) to his daughter Joan M. Hasser of Salem, New Jersey (dated January 31, 2002). The fourth document is from DNREC concluding that a § 915(h) permit is not transferable.
Discussion I. Plaintiffs' Motion for Substitution of Party
The Plaintiffs' requested a Motion for Substitution of Party pursuant to Superior Court Civil Rule 25(c), announcing that they have transferred their interest in this litigation to Leonard Voss, "a Kent County waterman with an interest in the outcome of the litigation." Their reason is that they no longer wish to continue as named parties in this lawsuit against DNREC. This motion was filed more than two and one-half years ago and according to the docket, has not yet been ruled upon. Subsequent filings between the original Plaintiffs and Defendant, including an affidavit from Voss dated July 12, 2007, suggest that the motion is still alive. The Court denies Plaintiffs' Motion for Substitution of Parties.
Pls.'s Mot. for Substitution of Party, ¶ 2 (April 14, 2005).
Pls.'s Mot. for Substitution of Party, ¶ 3.
The Court does not find this affidavit helpful to the Plaintiffs' case in any way. The affidavit simply states that Voss is a self-employed Kent County waterman who is familiar with the gill net permitting process; that he has personal knowledge of the apprenticeship program; explains that the total number of gill net permits authorized by the statute is 111; and argues that this includes permits issued under both subsections (e) and (h) together. First, the Court does not see how his affidavit is applicable to the Motion for Substitution. Second, Voss has not demonstrated sufficient credentials to analyze the statutory construction of 7 Del.C. § 915 or of DNREC's permitting policies as it applies to § 915 (e) and (h).
Superior Court Rules of Civil Procedure, Rule 25(c) Transfer of Interest states that:
In case of any transfer of interest, the action may be continued by or against the original party, unless the Court upon motion directs the person to whom the interest is transferred to be substituted in the action or joined with the original party. Service of the motion shall be made as provided in subdivision (a) of this Rule.
Del. Sup. Ct. R. 25(c).
The Third Circuit has held that a transfer of interest occurs when, for example "one corporation becomes the successor to another by merger or other acquisition of the interest the original party had in the lawsuit," or when the substituting party is the transferee of a litigated patent. "Although granting substitution of one party in litigation for another under Rule 25(c) is a discretionary matter for the trial court . . . such discretion may not be abused by allowing substitution in the absence of a transfer of interest." The above cases suggest that Rule 25(c) contemplates the "transfer or assignment of a tangible interest."
In re Northwestern Corp. 2006 WL 2849776, *1 (D.Del.) ( quoting Luxliner P/L Export, Co. v. RDI/Luxliner, Inc., 13 F.3d 69, 72 (3d Cir. 1993)).
Id. ( citing Hazeltine Corp. v. Kirkpatrick, 165 F.2d 683, 685 (3d Cir. 1948)).
Id. ( quoting State Bank of India v. Chalasani, 92 F.3d 1300, 1312 (2d Cir. 1996)).
Id. ( quoting Chalasani at1312).
Plaintiffs have not given any indication as to how they have transferred the interest in this litigation to Voss. Voss is a Delaware resident and therefore is expressly not eligible for a license under 7 Del.C. § 915(h). Furthermore, Rule 25(c) allows substitution to a person with an "interest" in, not an "interest in the outcome" of, the case. The motion only states that Voss has an interest in the outcome of the litigation and provides no more than this conclusive statement. The Court does not see how Plaintiffs transferred their interest to Voss. Plaintiffs' Motion for Substitution of a Party is denied.
II. Defendant's Motion to Dismiss
Defendant argues that the Court should dismiss this action because the Superior Court has no jurisdiction over the subject matter and that the Plaintiff has failed to state a claim upon which relief can be granted. Under the Delaware Declaratory Judgment Act and long-standing interpretation, in order for a declaratory judgment to be issued, an actual controversy must exist. An actual controversy requires that (1) there be a controversy involving the rights or other legal relations of the party seeking declaratory relief; (2) the controversy is one in which "the claim of right or other legal interest is asserted against one who has an interest in contesting the claim;" (3) "the controversy must be between parties whose interests are real and adverse;" and (4) "the issue involved in the controversy must be ripe for judicial determination." If one of these elements is not met, the Court's decision would be merely an advisory opinion. Delaware law does not permit its Courts to render advisory opinions.
Del. Sup. Ct. R. 12(b)(1), (6).
See Stroud v. Milliken Enterprises, Inc., 552 A.2d 476, 479 (Del. 1989).
Id. at 479-480 ( citing Rollins Int'l, Inc. v. Int'l Hydronics Corp., 303 A.2d 660, 662-63 (Del. 1973)).
Id. at 480.
In the case sub judice, Plaintiffs desire to transfer the license upon W. Mulford's death. Until the death of W. Mulford, he can change his mind as to whether he wants to transfer his permit and as to whom; or J. Mulford could predecease W. Mulford. This issue is not yet justiciable. Therefore the Court's position on this issue can only be advisory. Defendant's Motion to Dismiss should be granted. Therefore Plaintiffs' and Defendant's Motions for Summary Judgment are rendered moot.
If the Plaintiffs were to attempt to transfer the license right now, they would be expressly prohibited by statute. The transferability of W. Mulford's license and permit depends on the interpretation of § 915(h); specifically, whether the transferability language appearing in § 915 (e) applies to (h).
Title 7 Del.C. § 915 (e) and (h) provide:
(e) The Department shall not issue any food fishing equipment permits for gill nets to any commercial fisherman unless a commercial fisherman can, on the basis of credible evidence provided to the Department, establish that he or she has previously engaged in commercial gill net fishing involving the sale of their catch during an y 4 of the 5 calendar years preceding 1984. Food fishing equipment permits for gill nets when issued hereunder shall be renewed on an annual basis, subject to the payment of license and permit fees. No food fishing equipment permits for gill nets shall be issued to new commercial fishermen after calendar year 1984 unless the total number of existing food fishing equipment permits for gill nets issued to commercial fishermen is less than 111, the number issued in 1999. The Department shall issue additional food fishing equipment permits for gill nets to individuals who have completed a commercial fishing apprenticeship program of at least 150 days in no less than a 2-year period with an active commercial fisherman licensed by the Department, not to exceed a total of 111 in number, under and pursuant to a lottery conducted by the Department. Food fishing equipment permits for gill nets may be transferred to a spouse or a child of the permit holder or to an individual who has completed the apprenticeship program of at least 150 days in no less than a 2-year period with an active commercial fisherman licensed by the Department.
. . .
(h) Notwithstanding subsection (e) of this section, the Department is authorized between January 1, 1990 and April 1, 1990 to issue up to 7 food fishing equipment permits for gill nets to residents of the State of New Jersey to fish no more than 600 ft. of gill net in only that portion of the Delaware River east of the center line of the shipping channel and north of 39 degrees 30' north latitude and who provides credible evidence to the Department that he or she has previously engaged in commercial gill net fishing involving the sale of his or her catch during any 4 of the 5 calendar years preceding 1984.
In construing a statute, courts attempt to ascertain and give effect to the intent of the legislature. Where the language of the statute is unambiguous, no interpretation is required and the plain meaning of the words controls. If there is uncertainty, however, the statute must be construed as a whole in a manner that avoids absurd results.
7 Del.C. § 915 (e), (h).
Ingram v. Thorpe, 747 A.2d 545, 547 (Del. 2000) ( citing State v. Cephas, 637 A.2d 20 (Del. 1994)).
Id. ( citing Spielberg v. State, 558 A.2d 291 (Del. 1989)).
Id. at 293.
The issue here is narrow: whether the transferability language of (e) applies to (h). Section 915 (h)'s first six words, "Notwithstanding subsection (e) of this section" makes it clear that (h) stands alone, and therefore the transferability language of (e) does not apply to (h). Black's Law Dictionary defines "notwithstanding" as "despite; in spite of; i.e., notwithstanding the conditions listed above, the landlord can terminate the lease if the tenant defaults." Merriam Webster's Dictionary defines "notwithstanding" as "despite; i.e., notwithstanding their inexperience, they were an immediate success; often used after its object: the motion passed, our objection notwithstanding." There is no ambiguity in § 915(h).
BLACK'S LAW DICTIONARY (8th ed. 2004).
Available at http://m-w.com/dictionary/notwithstanding (last visited October 31, 2007).
These distinctions create two eligibility paths for obtaining a food fishing equipment permit for gill nets, 7 Del.C. 915 (e) and (h). Eligibility for a permit under (e) occurs if the applicant has a history of engaging in certain commercial fishing activity preceding 1984 such that the total number of permits issued does not exceed 111. If there are fewer than 111 permits issued at any one time, then permits will be issued based on a lottery system for which applicants must have completed an apprenticeship program. Once issued, these permits may be transferred to spouses or to a child of the permit holder so long as they have completed the apprenticeship program. Eligibility under (h), on the other hand, is specifically limited to seven particular New Jersey residents having engaged, prior to 1984, in commercial shad fishing activities on the New Jersey side of the Delaware Bay.
Even if ambiguity could be found between (e) and (h), the differing design of the two provisions support the conclusion that they are to be read independently of each other. Food fishing equipment permits for gill nets under (h) are issued more restrictively than those issued under (e). Subsection (h) allowed DNREC to issue permits under the section to NJ residents only for a short specific time period (January 1 — April 1 1990), and in contrast, subsection (e) provides a mechanism for issuing new permits whenever there are less than 111 outstanding permits. Further, the legislative history makes clear that the General Assembly desired to treat the subsections separately and purposely left out (e)'s transferability language from (h). The oral legislative debate on subsection (h) illustrates that the legislature intended to benefit only 7 particular New Jersey residents when enacting (h). (This intent is expressed in (h) as authorizing the Department to issue "up to 7 food fishing equipment permits for gill nets to residents of the State of New Jersey.")
"[W]here a provision is expressly included in one section of a statute, but is omitted from another, it is reasonable to assume that the Legislature was aware of the omission and intended it." Giuricich v. Emtrol Corp., 449 A.2d 232, 238 (Del. 1982).
Memorandum from Charles Lesser, Director, DNREC Division of Fish and Wildlife, to George Carey, State Representative, Regarding the New Jersey Gill Net Bill (June 29, 1989).
The statute clearly outlines the Legislature's intent to limit the number of gill net licenses for Delaware fishermen to 111 and to limit further out of state licenses. The statute was designed so that the number of out of state licenses would eventually drop to zero and the Delaware licenses would remain stable at 11. There can be only one conclusion: that the two subsections are to be read independently. Therefore the transferability language of (e) cannot be read into (h).
Conclusion
The Court holds that there is no actual controversy for lack of ripeness and therefore that Defendant's Motion to Dismiss should be granted. In the event that this issue has become ripe since the oral arguments of July 20, 2007, the Court declares that the transferability language of (e) does not apply to (h) and therefore Plaintiffs do not have a right to transfer W. Mulford's license and permit.
IT IS SO ORDERED.