Opinion
C.A. No. 05C-04-142-FSS Non-Jury Trial.
Submitted: April 15, 2005.
Decided: August 11, 2005.
Upon Plaintiff's Motion to Proceed In Forma Pauperis — GRANTED; Upon Review of Complaint Against Plaintiff's Former Counsel — COMPLAINT DISMISSED, Without Prejudice.
ORDER
Plaintiff, pro se, seeks permission to file suit without paying any court costs. Plaintiff's prospective complaint is atypical. Originally, Plaintiff was charged with drug-related offenses and a probation violation, for which he was convicted. Defendant was Plaintiff's defense lawyer. Plaintiff's proposed complaint, however, does not directly allege legal negligence. It alleges negligent and intentional infliction of emotional distress.
According to the complaint, Defendant, without permission, settled an ancillary claim for return of property, a car, seized by the police when Plaintiff was arrested. Under the settlement, Defendant agreed, again without Plaintiff's permission, that Plaintiff would pay $1,500 to the State. And not only did Defendant unilaterally settle the case, thus obligating Plaintiff to pay money, Defendant took too long doing it.
As indicated above and discussed below, the court has reviewed the proposed complaint and on its face, the complaint fails to state a cause of action upon which relief can be granted. Accordingly, the court will DISMISS the proposed complaint without prejudice to Plaintiff's re-filing the rejected complaint along with the required filing fees, or to Plaintiff's filing a complaint stating a cause of action.
I.
Reading the proposed complaint in the light most favorable to Plaintiff, it appears that when Plaintiff was arrested on September 26, 2003, the Wilmington police seized his niece's car, a 1997 Mazda, and its contents. In December 2003, Defendant filed a motion for return of the property. Dissatisfied, however, with Defendant's efforts and his alleged non-responsiveness, Plaintiff filed his own petition on June 9, 2004.
On August 11, 2004, apparently without notice to Plaintiff, the court held a hearing and consolidated the cases filed by Plaintiff and Defendant. Then, on August 25, 2004, also without notice, Defendant and the State entered a stipulated order dismissing "the civil forfeiture matter." According to the order, attached to the Complaint, the State agreed to return the car and Plaintiff was ordered to pay $1,500 to the Special Law Enforcement Assistance Fund.
In December 2004, when Plaintiff allegedly first learned about what had happened in August, "Plaintiff filed a motion for relief from judgment or order of August 25, 2004." Again without a hearing, the court denied the motion on December 16, 2004. Despite the complaint's allegations that directly and indirectly question the way the forfeiture case was treated by counsel and the court, the complaint does not allege that Plaintiff filed an appeal. Instead of continuing to try and straighten out the situation when he had the chance, Plaintiff filed this action on April 15, 2005.
As mentioned, the court must accept the complaint at face value. Taking judicial notice of its records, however, the court observes that some dates alleged in the complaint do not square with the dockets. The discrepancies, however, are trivial. More importantly, the complaint reaches different degrees of coherence. For example, Plaintiff alleges that Defendant "inflicted proximate cause of personal injury when he inflicted emotional distress and anxiety upon the plaintiff and his family." That is Plaintiff's attempt to plead causation. The court can see around most of the proposed complaint's technical problems.
What truly matters here is that there are several fatal flaws in the proposed complaint. As discussed below, the complaint simply does not allege a cause of action upon which relief can be given to Plaintiff. Therefore, there is no reason to make the Sheriff serve the complaint, to require Defendant to answer it, and for the court to give this case further consideration. If Plaintiff drafts an actionable complaint or he pays the costs, that will be another matter.
II.
The proposed complaint includes two counts, as mentioned. Both allegedly concern Defendant's intentional and negligent infliction of emotional distress. Count 1, captioned " NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS ," actually makes no claims about emotional distress to Plaintiff, even in conclusory fashion. Count 1 speaks about Defendant's negligence and incompetence. It generally alleges Defendant acted in "bad faith" and with neglect. Along the same line, it claims that Defendant "has not acted with diligence, promptness and due care. . . ." Count 1 cites three of The Delaware Lawyers' Rules of Professional Conduct relating to competence and diligence.
As to specifics, the proposed complaint first alleges in Count 1, paragraph 17:
defendant took it upon himself to represent plaintiff in the forfeiture proceeding without entering appearance; or serving the plaintiff reasonable notice, representation to protect the clients interest in the matter.
In paragraph 18, the proposed complaint alleges that Defendant:
settled the matter without due process and informed the plaintiff about the actions [Defendant] was about to take and negotiate a non-favorable stipulated agreement. . . .
Paragraph 19 claims that Defendant:
did knowingly and willing[ly] agree with the . . . State on questionable undertakings that the plaintiff shall agree to pay $1500.00 . . . to the State for towing and storage expenses [for which Plaintiff cannot be held responsible, as a matter of law.]
Count 1 concludes that Defendant:
did not seek, receive approval or consent from the plaintiff to accept the stipulated agreement and dismissal of the forfeiture proceedings[.]
The only mention in Count 1 of any fact relating to emotional distress is paragraph 19(b):
When in fact the defendant would advise the plaintiff's niece to speak with the leading investigators for the release of the vehicle; but [she] would come home without the vehicle and [with] feelings of embarrassment, shame, threats of arrest and humiliation by the [police].
That allegation, by its own terms, concerns his niece's distress. It is unlikely that even the niece could legally attribute her feelings to Defendant or establish a claim for damages in her own right. Defendant, however, has no standing to complain on her behalf and he can bring no claim in his name, based on bother and embarrassment that Defendant caused to Plaintiff's niece.
Plaintiff's claim for negligent infliction of emotional distress, if he has one, would arise because he learned that his niece had to struggle to get her car returned and was embarrassed, shamed, threatened with arrest and humiliated. First, Plaintiff's niece is not part of Defendant's nuclear family and the complaint does not allege that she and Plaintiff are even close. Moreover, Plaintiff does not even allege first-hand knowledge of his niece's struggles. In other words, he does not allege that he personally saw what happened to her. Someone, other than Defendant, told him about it. Plaintiff does not allege, nor can he plausibly claim, that he suffered emotional, much less physical, harm based on his learning about what his niece endured.
Finally, under the circumstances alleged, Defendant's conduct was not so terrible that it can be characterized as outrageous. Nor can it be said that it proximately caused compensable, emotional distress to Plaintiff. At worst, defendant's failure to pursue the niece's claim was very aggravating to her and Plaintiff was sympathetic.
The law concerning unintentional or negligent infliction of emotional distress is evolving. Originally, before a plaintiff could pursue a claim based on the effect that a wrongdoer's negligence toward someone else had on the plaintiff, the third person had to be in plaintiff's immediate family, the causative event had to be truly shocking, the plaintiff had to have witnessed the shocking event, and the shock had to have been so severe it caused physical harm to the plaintiff.
A classic example of a claim for negligent infliction of emotional distress involving a third person concerns a mother's witnessing her child being struck by a negligently operated truck. If the mother could show that what she witnessed made her physically ill, she had a claim against the truck driver for negligent infliction of emotional distress. That, of course, is a far cry from an uncle's hearing about his niece's struggles with red tape, or a client's learning that his lawyer mistakenly cost him $1,500.
Over time, a trend toward relaxing some of the standards has emerged. For example, in some places, courts now recognize claims where plaintiffs have witnessed shocking events involving close family members, not just immediate family. Similarly, several courts no longer require that plaintiffs prove their shock was so great it made them physically ill. There is room to argue that Delaware is part of the emerging trend, or that it should be. Nevertheless, even under the most lenient pleading requirements, people are still expected to tolerate aggravation without suing someone. In short, the proposed complaint does not come close to making out a claim for negligent infliction of emotional distress. Plaintiff's claim falls short on all axis.
At best, in Count 1 Defendant almost pleads a legal negligence (malpractice) claim on his own behalf. Again, what Defendant did to Plaintiff, taking Plaintiff's claims as true, is that without Plaintiff's permission Defendant signed a stipulation calling for Plaintiff to pay $1,500 to SLEAF. The proposed complaint does not allege that Plaintiff paid anything to SLEAF, nor that SLEAF is likely to seek any money from Plaintiff, much less that Plaintiff will ever be required to honor a stipulation not bearing his signature, and which he repudiates. And so, Count 1 fails to state a claim.
Finally as to Count 1, the court cautions Plaintiff that if he wishes to redraft the complaint to allege legal negligence, it is settled that those claims must be supported by expert testimony. Plaintiff will have to establish the standard of care owed by Defendant and that Defendant failed to meet it, which caused actual damages. Plaintiff will not be able to establish the standard of care, much less that Defendant violated it, merely by citing to the Code of Professional Responsibility.
III.
Count 2 is captioned " INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS. " That claim fails for several, related reasons. First, apart from its conclusory accusations about Defendant's doing things intentionally or recklessly that "inflicted emotional distress and anxiety upon plaintiff and his family." Count 2 neither alleges nor pleads facts from which anyone can conclude that Defendant intended to cause emotional distress and anxiety. To the contrary, Count 2 alleges that Defendant:
[has caused] negligent infliction of emotional distress upon plaintiff and family for the past (18) months of empty promises for the release of the seized vehicle and payment for any and all damages of the property while in custody of the State, to no avail.
Even if every fact alleged in the proposed complaint were true, it does not support a finding that Defendant meant to cause distress to Plaintiff. And, as already discussed, Defendant's conduct cannot be fairly characterized as outrageous, nor can Plaintiff's emotional discomfort be characterized as unendurable.
As also discussed above, the worst Defendant can be accused of is filing a court document falsely purporting to make Plaintiff responsible for $1,500. That does not amount to intentional infliction of emotional distress. No matter how badly Defendant botched the niece's claim for her car's return, Plaintiff has no claim for emotional distress, intentional or otherwise.
All of the above assumes, of course, that Defendant did what Plaintiff alleges. Actually, it appears from some of the attachments to the proposed complaint that Defendant denies wrongdoing. But for now, Defendant's denials are beside the point.
IV.
This decision demonstrates, to excess, that the court is willing to take a pro se, in forma pauperis complaint seriously. It also demonstrates that the court will not allow Plaintiff to start something he cannot possibly finish.
If Mr. Witherell has actually cost Mr. Santini money, $1,500 or otherwise, Mr. Santini can file a new complaint over that, which this court or the Court of Common Pleas will recognize and for which process will issue. A claim for money damages based on emotional injury, however, is borderline frivolous and clearly without merit.
The fact that American justice gives indigents free access to the courts does not mean that taxpayers must underwrite legal fliers. The court will not spend more time on such a claim, not unless Mr. Santini pays the costs. And even then, it does not appear a redrafted complaint for general damages will survive a dispositive motion.
V.
For the foregoing reasons, the Prothonotary shall docket the proposed complaint, but service of process shall not issue and the complaint is DISMISSED without prejudice. Plaintiff has leave either to re-file the complaint, as is, paying all required costs and fees, or Plaintiff may file a new complaint, in forma pauperis, provided that it states a cause of action upon which relief can be granted to Plaintiff.