Opinion
C.A. No. 2223-N.
Submitted: November 22, 2006.
Decided: December 13, 2006.
Patricia R. Uhlenbrock, Esquire Morris James LLP, Wilmington, DE.
James F. Young, Middletown, DE.
Dear Ms. Uhlenbrock and Mr. Young:
The court has reviewed the parties' submissions in connection with the pro se defendant's October 30, 2006 motion to dismiss the plaintiff's verified complaint in the above referenced action. As detailed below, the defendant's motion is wholly without merit and will be denied.
Background
On June 14, 2006, the plaintiff, Weichert Co., a Pennsylvania corporation engaged in the real estate sales business, filed a verified complaint against James F. Young, Jr., Colonial Real Estate Services, LLC, and Colonial Real Estate Group, LLC. The complaint alleges that Young, the former manager of Weichert's office in Bear, Delaware, along with his newly-formed business entities, "hired, accepted for employment, contracted with, retained the services of and/or solicited" several of Weichert's employees or independent contractors within a 25-mile radius of Weichert's Bear office. Further, the complaint alleges that Young "retained and is utilizing Weichert's confidential and proprietary business information." These actions, according to the complaint, blatantly violate several restrictive covenants that Young entered into during his former employment with Weichert.
The complaint alleges claims for breach of contract, tortious interference, unjust enrichment, and unfair competition. Weichert prayed for injunctive relief and monetary damages.
Before a scheduled hearing, the parties agreed to the terms of a Stipulation and Consent Order, which the court entered on June 21, 2006. The Order provided that Young and the other defendants would not solicit or hire any more Weichert employees within a 25-mile radius of the Bear office and would return all of Weichert's confidential information.
With its claims for injunctive relief seemingly resolved, Weichert continues to seek monetary damages against the defendants. Specifically, Weichert seeks damages allegedly caused by the defendants' prior wrongful conduct, including lost sales, training and employee replacement costs, attorney's fees, and a $29,533 severance payment that Weichert made to Young on the condition that Young abide by the aforementioned restrictive covenants.
The defendants' counsel withdrew from the case on August 25, 2006. Young has proceeded as a pro se litigant since that time. Colonial Services and Colonial Group remain unrepresented and do not join in Young's motion.
On August 30, 2006, Weichert served interrogatories, document requests, and deposition notices on the defendants. On September 11, 2006, Young wrote to Weichert's counsel requesting a 120-day extension to provide discovery responses. Weichert rejected this request, but did agree to a 30-day extension. On October 30, 2006, Young served Weichert with a motion to dismiss along with extensive written discovery requests. A week later, Weichert's counsel advised Young that he and the other defendants had missed the deadline for submitting discovery responses. On November 8, 2006, Young told Weichert's counsel that he had no intention of complying with discovery until 15 days after the defendants received responses to their discovery requests. The defendants currently remain delinquent in providing any responsive information to Weichert's August 30 discovery demands.
Discussion
Without making any semblance of a legal argument, Young's motion to dismiss contends that Weichert has instigated this litigation solely for the purpose of harassment. In making that contention, Young repeatedly relies on information outside the pleadings.
For instance, the motion to dismiss states that Weichert's office in Bear has "lost 20 agents out of 35," that Young can produce "at least one witness" who will testify as to Weichert's purported purposes of harassment and oppression, and that Weichert manipulated the procedural rules of the Court of Chancery to trick him.
When a motion to dismiss relies on information not found in any of the pleadings, a court will treat that motion as one for summary judgment. Summary judgment is only proper if there is no dispute as to any material fact in the case. In applying the summary judgment standard, a court must accept the non-moving party's version of any disputed facts and must make reasonable inferences in that party's favor.
See, e.g., In re Tri-Star Pictures, Inc., 634 A.2d 319, 326 (Del. 1993).
Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
Merrill v. Crothall-American, Inc., 606 A.2d 96, 99-100 (Del. 1992).
Applying that standard, the court must deny Young's motion. Giving the benefit of all reasonable inferences to Weichert, the facts the court must accept at this point of the litigation illustrate that, despite two contractual agreements limiting such behavior, Young solicited and hired Weichert employees in violation of the geographic and temporal restrictions that he voluntarily accepted in exchange for valid consideration from his former employer. Weichert now simply seeks to be made whole through an award of monetary damages, a form of relief specifically contemplated by the terms of those same contracts. It hardly rises to the level of "harassment" to prosecute one's legally enforceable rights. In the court's view, that is all Weichert is doing here.
Conclusion
For the foregoing reasons, Young's motion to dismiss is DENIED. IT IS SO ORDERED.