Riad v. Brandywine Valley SPCA, Inc. ( 2023 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOSEPH RIAD, )
)
)
Plaintiff, )
)
v. ) C.A. No: S21C-02-032 MHC
)
BRANDYWINE VALLEY SPCA, )
Inc., A Delaware Corporation, )
)
)
)
Defendant. )
MEMORANDUM OPINION
Submitted: May 11, 2023
Decided: June 22, 2023
Upon Consideration of Plaintiff’s Motion for Partial Summary Judgment,
DENIED.
Upon Consideration of Defendant’s Motion for Summary Judgment,
GRANTED.
Heather A. Long, Esquire, Long & Greenberg, LLC, Newark, Delaware, Richard
E. Schimel, Pro Hac Vice, Esquire, Law Offices of Richard E. Schimel, LLC.,
Bethesda, Maryland, Mickala Rector, Pro Hac Vice, Esquire, Rector Law, Kennett
Square, Pennsylvania, Attorneys for Plaintiff.
Kevin J. Connors, Esquire, Marshall Dennehey Warner Coleman & Googin, P.C.,
Wilmington, Delaware, Attorney for Defendant.
CONNER, J.
INTRODUCTION
Before this Court are Cross Motions for Summary Judgment. Joseph Riad
(“Plaintiff”) has moved for summary judgment regarding Count I, strict liability.
Brandywine Valley SPCA (“Defendant”) has moved for summary judgment
regarding Count I, strict liability, and Count II, negligence. For the following
reasons Plaintiff’s Motion for Partial Summary Judgment is DENIED and
Defendant’s Motion for Summary Judgment is GRANTED.
An additional matter regarding a discovery dispute requires the Court’s
attention. The dispute was brought to light at the pretrial conference and led to an
oral order at the conclusion of the conference, followed by a subsequent Motion
for Relief. The dispute further led to a second oral order of the Court to Plaintiff
that has gone unfulfilled. This issue is addressed at the end of this opinion.
FACTUAL AND PROCEDURAL HISTORY
Defendant is a non-profit animal welfare organization that provides
veterinary and adoption services. As part of its organization, Defendant takes in
stray dogs, gives them needed medical care and screens them for potential
adoption. Ceelo, the dog at issue, arrived at the SPCA on February 4, 2019, as an
abandoned dog.1 After first arriving, Ceelo was noted to be very large and scared.2
1
Def. Mot. for Summ. J. at 2.
2
Id.
1
Staff were able to administer some medications, but one vaccination had to be
postponed due to Ceelo lunging at the veterinarian.3 On February 13, 2019, Ceelo’s
kennel behavior was noted to be “hard stares” or “aggressive behavior.”4 However,
staff continued working with Ceelo through interaction and treats until Ceelo no
longer barked or growled.5 Ceelo was able to be leashed in the play yard with no
issues.6 Ceelo continued to interact calmly, permitted staff to handle him and even
enjoyed training exercises such as “sit down” and “shake.”7
On February 27, 2019, Laura Miles (“Miles”) adopted Ceelo from
Defendant.8 After owning Ceelo for a few days, Miles brought the dog back to the
SPCA on March 3, 2019, intending to return the dog because it was chasing her
cats.9 While Miles was standing in the lobby with Ceelo on a leash next to her,
Plaintiff entered the facility.10 Plaintiff had come to the SPCA that day with an
interest in adopting a dog.11 Upon coincidentally seeing Ceelo in the lobby,
Plaintiff expressed an interest in him and was then given a form to fill out as a
precondition to the adoption process.12 It appears that initial form he was given,
3
Id.
4
Id.
5
Id. at 2-3.
6
Id. at 3.
7
Id.
8
Pl. Mot. for Partial Summ. J. at 3.
9
Id. at 2.
10
Id. at 3.
11
Id.
12
Id.
2
also referred to as the “Getting To Know You Questionnaire”, was never
completed by Plaintiff.13
Alexandria Floyd14 (“Floyd”) was also present in the lobby during this
time.15 According to deposition testimony of Julie Landy, CFO of Brandywine
Valley SPCA, Floyd came in to the SPCA that day with Miles.16 Floyd worked for
Defendant as a Kennel Attendant and is also the daughter of Miles.17 Since
Plaintiff expressed an interest in Ceelo, Floyd took Ceelo, using the leash Miles
had brought him in on, back to Defendant’s play yard.18 Plaintiff accompanied
Floyd and Ceelo where he interacted with Ceelo for approximately ten minutes
without issue.19 After the interaction, Plaintiff, Floyd and Ceelo all returned to the
reception area.20
Plaintiff remained interested in Ceelo after their positive play yard
interaction, even exclaiming to the receptionist his interest in the dog.21 Plaintiff
then left the lobby and walked out to his car to supposedly retrieve his driver’s
13
Def. Mot. for Summ. J. Ex. L, Deposition of Julie Landy at 79.
14
Her name in the record is unclear. She is also referred to as Alexandra Ford and Alexandria
Ford many times.
15
Pl. Mot. for Partial Summ. J. at 4.
16
Def. Mot. for Summ. J. Ex. L at 82.
17
Pl. Mot. for Partial Summ. J. at 4. See also; Ex. A, Deposition of Lauren Campbell at 5; Ex. B,
Deposition of Joanna Miller at 5; Ex. C, Deposition of Julie Landy at 6.
18
The play yard is an area within the BVSPCA facility where potential adopters can interact with
available dogs outside of their kennels. Pl. Mot. for Partial Summ. J. at 4.
19
Id.
20
Id.
21
Id. at 5.
3
license.22 Upon returning, Plaintiff reached down to pet Ceelo and Ceelo bit
Plaintiff’s hand.23 Plaintiff then hurried away.24 After Ceelo bit Plaintiff, Floyd
removed the dog from the lobby area.25 Records reflect that shortly after the bite
occurred, Ceelo was transferred into Defendant’s custody by Miles signing the
Return Contract.26
Plaintiff filed his Motion for Partial Summary Judgment on August 31,
2022. Defendant filed its Motion for Summary Judgment on August 31, 2022. The
Court held a pretrial office conference with the parties on November 3, 2022,
where concern was expressed over Plaintiff’s lack of response to Defendant’s
assertion regarding the need for expert testimony to establish negligence. Plaintiff
admitted his failure to respond to the need for an expert, explaining it was due to
not retaining an expert and the negligence claim not being Plaintiff’s focus, as it is
the weaker of the two claims. After the Court made its position known, Plaintiff
was permitted to submit supplemental briefing on the need for expert testimony in
relation to Defendant’s alleged negligence. Plaintiff submitted his Memorandum of
Law as to Negligence Claim on December 2, 2022. Defendant replied on January
11, 2023.
22
Id.
23
Pl. Mem. of Law as to Negligence Claim Ex. 4.
24
The incident is caught on surveillance video from Defendant’s lobby cameras. The Court was
able to watch what occurred. Id.
25
Def. Mot. for Summ. J. Ex. L at 93.
26
Id. at 95.
4
Also at the pretrial conference, Defendant raised a discovery issue regarding
Plaintiff’s lack of response for Plaintiff’s financial records, specifically Plaintiff’s
taxes. Counsel for Plaintiff represented they would produce the taxes. The Court
held oral argument on all issues on March 27, 2023, reserving its decision.
STANDARD OF REVIEW
Motions for summary judgment are reviewed pursuant to Superior Court
Civil Rule 56. The Court must determine “whether, when viewing the facts in the
light most favorable to the nonmoving party, the moving party has demonstrated
that there are no material issues of fact in dispute and that the moving party is
entitled to judgment as a matter of law.”27 Summary judgment will not be granted
if material facts are in dispute or if further inquiry into the facts is needed.28
Cross-motions for summary judgment do not alter the standard of review29
nor do the cross-motions act as a per se concession that there is an absence of
factual disputes.30 “The mere filing of a cross motion for summary judgment does
not serve as a waiver of the movant’s right to assert the existence of a factual
dispute as to the other party’s motion.”31
27
Super. Ct. Civ. R. 56(c); Shuba v. United Servs. Auto Ass’n, 77 A.3d 945, 947 (Del. 2013).
28
Capano v. Lockwood, 2013 WL 2724634, at *2 (Del. Super. May 31, 2013).
29
Id.30
United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997).
31
Id.5
DISCUSSION
I. Strict Liability
The issue presented in Defendant’s motion is whether Defendant can be held
strictly liable for the injuries caused to Plaintiff. Strict liability for dog bite injuries
stems from 16 Del. C. § 3053F, otherwise known as the Dog Bite Statute. Section
3053F states in relevant part, “[t]he owner of a dog is liable for damages for any
injury, death, or loss to person or property that is caused by such dog . . . .” 32 This
statutory language came to be in 1998 after “well-publicized and shocking
problems caused by people who were irresponsibly keeping vicious dogs as
pets.”33 The intent of the General Assembly when creating the Dog Bite Statute
was the elimination of the one free bite rule.34
The Court concludes that the Dog Bite Statute does not apply to animal
welfare organizations such as Defendant. When analyzing a statute, it is the
Court’s responsibility to effectuate the Legislature’s intent.35 The Legislature’s
intent with respect to the Dog Bite Statute is clear. The intent was “to rein in
32
16 Del. C. § 3053F.
33
Tilghman v. Delaware State Univ., 2012 WL 3860825, at *10 (Del. Super. Aug. 15, 2012).
34
Id.35
Id.6
irresponsible dog owners who were keeping vicious dogs as pets by eliminating the
‘one free bite rule.’”36
In Tilghman v. Delaware State University, the Court held that the Dog Bite
Statute did not apply to a dog that was State-owned or in State service.37 The Court
determined, consistent with the intent of the Legislature, that the Dog Bite Statute
was not applicable to the working K-9 police dog because it was not a pet but
instead used solely for State law enforcement purposes.38
Although a slightly different factual situation, the analysis for the case at
hand remains the same. The intent of the Legislature can be broken down into three
questions: (1) is Defendant an irresponsible dog owner; (2) is Defendant keeping
vicious dogs; and (3) are the aforementioned vicious dogs being kept as pets? The
answer to the first question is no. Defendant is an animal welfare organization
whose sole purpose is to provide health and adoption services to stray animals,
including dogs. The answer to the second question is also no. Defendant is advised
and must abide by written protocols from licensed veterinarians on the appropriate
evaluation and testing of dogs when they arrive at the SPCA.39 Additionally, if an
36
Id. at *11.
37
Id.
38
Id.
39
16 Del. C. § 3002F(a) states in full, “[a]nimal shelters shall be advised by a licensed
veterinarian and shall adhere to a written veterinary protocol developed with a licensed
veterinarian, which protocol shall include appropriate evaluation and testing of newly impounded
7
animal exhibits severe aggression, a licensed veterinary or other appropriately
trained staff may deem it necessary to euthanize.40 Clearly, Defendant does not
keep nor place for adoption vicious dogs that are unable to benefit from treatment.
Lastly, the answer to the final question is no. The purpose of Defendant’s welfare
organization is not to keep any of the dogs as pets. In fact, the very opposite is true.
Defendant is providing welfare services to dogs until they can be adopted as pets.
It is obvious Defendant is not an irresponsible dog owner who is keeping vicious
dogs as pets. Accordingly, the Court will not stray from the Legislature’s intent
and will not apply the Dog Bite Statute to animal welfare organizations such as
Defendant.
As further support for the Dog Bite Statute being inapplicable to animal
welfare organizations, the Court can “determine whether public policy would be
violated by the application of the strict liability statute in certain circumstances.”41
If the Dog Bite Statute were applicable to animal welfare organizations, the
nonprofit’s work would be essentially impossible. Regardless of the screening dogs
are put through to test their temperaments, there is always a chance that a
seemingly appropriate for adoption dog could become vicious and ultimately bite
animals, disease control and prevention, and adequate veterinary care. The protocol shall be
updated as needed.”
40
16 Del. C. 3004F(c).
41
Russo v. Zeigler, 67 A.3d 536, 542 (Del. Super. 2013).
8
someone. Applying the Dog Bite Statute to animal welfare organizations would
violate public policy.
Lastly, Plaintiff conceded at oral argument that Defendant was not an
irresponsible dog owner and was not keeping Ceelo as a pet. Plaintiff vacillated
whether Defendant was keeping vicious dogs.
For the reasons articulated above, Plaintiff’s Motion for Summary Judgment
as to Count I, strict liability, is DENIED and Defendant’s Motion for Summary
Judgment as to Count I, strict liability, is GRANTED.
II. Negligence
In order for Plaintiff to allege negligence against Defendant, Plaintiff must
prove by a preponderance of the evidence that Defendant breached a duty of care
owed to Plaintiff and that Defendant’s breach proximately caused Plaintiff’s
injury.42 However, when the standard of care involves issues that are outside the
knowledge of a typical person, expert testimony is required.43
The Cross Motions for Summary Judgment were filed on August 31, 2022,
with Plaintiff failing to identify an expert by the cutoff date of November 8, 2021.
Again, at the pretrial office conference on November 3, 2022, the Court questioned
Plaintiff’s counsel as to their failure to respond to Defendant’s assertion that an
42
Spencer v. Goodill, 17 A.3d 552, 554 (Del. 2011).
43
Money v. Manville Corp. Asbestos Disease Comp. Tr. Fund, 596 A.2d 1372, 1375 (Del. 1991).
9
expert was required.44 Plaintiff’s counsel responded that they did not address the
expert issue in their reply brief because they did not think an expert was needed.45
Plaintiff’s counsel further stated they were more reliant on the strict liability count,
as “that’s the low-lying fruit in this case.”46 Plaintiff’s counsel even went so far as
to say they may dismiss the negligence claim, as it is the weaker claim since the
dog had not shown any bad interaction that day.47
With Plaintiff’s acknowledgment of the negligence claim being weak and
Plaintiff’s failure to meet the expert discovery deadline in mind, the Court allowed
Plaintiff to submit a Memorandum of Law regarding the need for an expert in this
case. Defendant was given a chance to respond. Plaintiff argues expert testimony is
not needed because the standard of care issue in this case is within the common
knowledge of a juror.48 Plaintiff goes on to argue that, based upon some
veterinarian records, Ceelo had a habit of lunging at strangers.49 Due to this
lunging habit, Defendant’s employee should have held the leash tighter to ensure
44
Tr. of Office Conference at 10:21-23.
45
Id. at 11:1-11.
46
Id. at 11:14-19.
47
Id. at 12:4-9.
48
Pl. Memorandum of Law as to Negligence Claim at 4.
49
Id. at 10.
10
Ceelo did not lunge and subsequently bite Plaintiff.50 Plaintiff posits that proper
leash holding is within the common knowledge of a juror.51
Defendant argues there is more to this case than simple leash handling and
restraint.52 Defendant contends it is an animal welfare organization that places
animals under specific screening tests prior to offering that animal for potential
adopter interaction.53 This screening includes temperament tests like the
“EthoTest”, “SAFER Test”, and “Am I Safe Test.”54 The purpose of these tests is
to ensure the animals do not exhibit any behavioral traits that would prohibit their
adoption.55 As previously mentioned, Defendant has to follow guidelines
established by a licensed veterinarian when determining what animals are suitable
for adoption.56 Defendant argues these veterinarian established testing guidelines
are outside the common knowledge of a juror and an expert is needed.57
The Court is in agreement with Defendant. Contrary to Plaintiff’s argument,
expert testimony is required to establish the standard of care applicable to the
screening and adoption of dogs because laypersons are not familiar with the
veterinarian established protocols employed before a dog is permitted to be
50
Id.
51
Id. at 14-15.
52
Def. Memorandum of Law in Resp. to Pl. Memorandum of Law as to Negligence Claim at 4.
53
Id.
54
Id. at 5.
55
Id.
56
16 Del. C. § 3002F(a), supra note 39.
57
Def. Memorandum of Law in Resp. to Pl. Memorandum of Law as to Negligence Claim at 5.
11
adopted. Plaintiff alleges in his Complaint, amongst other things, that Defendant
“knew, or should have known, that it had custody of a dog with vicious
propensities and would charge at people.”58 The knowledge about what vicious
propensities a dog may or may not possess stems from the tests Defendant must
perform on an animal before allowing any interaction with potential adopters.
These standards are curated by a licensed veterinarian and mandatory for
Defendant to follow. Whether Defendant properly followed the required testing
protocols with Ceelo is outside the common knowledge of a juror and must be
explained by an expert.
To further Plaintiff’s argument, Plaintiff suggests the negligent act was
solely Floyd’s failure in not holding Ceelo’s leash better. Plaintiff completely
disregards everything that happened with Ceelo prior. Plaintiff ignores that Ceelo
was treated medically and trained to a point where adoption was possible.
Additionally, Miles had Ceelo for three days without issue, except for Ceelo
chasing her cats. Ceelo and Plaintiff interacted for approximately ten minutes in
the play yard without incident.
In short, Plaintiff wrongly attempts to simplify the negligence claim. It is
clear why Plaintiff acknowledged the weakness of the negligence claim, so much
so that he even considered dismissing the claim himself.
58
Pl. Compl. ¶ 27(a).
12
Defendant’s Motion for Summary Judgment as to Count II, negligence, is
GRANTED for several reasons. First, Plaintiff failed to respond to the need for an
expert regarding the negligence claim by the deadline, and therefore waived a
timely response.59 Further, the need for an expert is obvious to establish Plaintiff’s
negligence claim.
DISCOVERY DISPUTE
As mentioned above, a discovery dispute arose at the November 3, 2022,
pretrial office conference. At the conference Defendant’s counsel represented to
the Court that it had made a request for Plaintiff’s tax returns as they are important
to Plaintiff’s claims of substantial economic loss.60 Defendant’s counsel sought the
tax returns because the bank statements and other financial documents provided by
Plaintiff were not helpful to Defendant’s economic expert.61 Plaintiff’s counsel
stated the issue with providing Plaintiff’s tax returns is that Plaintiff owns and
operates a business entity called Riad Ranch and his tax returns do not reflect a
59
See Emerald Partners v. Berlin, 726 A.2d 1215, 1224 (Del. 1999). (“Issues not briefed are
deemed waived.”).
60
Tr. of Pretrial Conference at 3:8-23.
61
The provided financial documents included a “Spreadsheet analysis” of foregone rental
income prepared by one of Plaintiff’s pro hac vice counsel, Mickala Rector, who is also
Plaintiff’s fiancé. Id.13
segregation of expenses.62 The Court expressed its feelings that Defendant was
entitled to the tax returns.63 Plaintiff’s counsel responded, saying:
MR. SCHIMEL: . . . [I]f the Court is insisting we produce them,
we’ll produce them. It’s plain and simple. Frankly, I need the cover of
the Court telling me that because the client is not really happy about
having to do it, not that he has anything to hide, but he feels his
privacy is being invaded.64
***
THE COURT: It sounds to me, and I do understand that there’s a
significant claim of economic loss, $3 million plus is a significant
claim, and it seems to me that they’re entitled to everything and in a
timely fashion so their expert witness can opine on it.65
Later on in the conference, Plaintiff’s counsel asked Defendant’s counsel how far
back the tax returns needed to go and Defendant’s counsel responded he needed to
check with his expert to ensure the appropriate years were given.66
62
Id. at 5:1-5.
63
Id. at 5:6-7.
64
Id. at 5:13-19.
65
Id. at 7:10-14.
66
Id. at 20:17-19.
14
Almost a month after the pretrial conference, Plaintiff filed a Motion for
Relief from Order on December 1, 2022, attempting to reargue the issue. In the
Motion Plaintiff states he attempted to comply with the Court’s order by contacting
his certified public accountant, Ayman Bekheit, to determine whether it would be
possible to provide both the personal and business tax returns requested by
Defendant.67 Plaintiff further explained all of his income and expenses are reflected
in tax returns for his business entities.68 If Plaintiff provided the tax returns for the
holding company, the papers would not contain the information Defendant seeks as
the revenue and expenses are not itemized by the different business entities
Plaintiff owns.69 Furthermore, Plaintiff is unable to provide his personal tax returns
as he did not file any and they do not exist.70 A letter from Mr. Bekheit was
attached to the Motion and reiterated what Plaintiff had explained.71 The most
important information gleaned from Plaintiff’s Motion for Relief from Order and
the attached letter from Mr. Bekheit is that Plaintiff represented his income and
expenses are reflected in tax returns filed by his holding company.72
67
Pl. Mot. for Relief from Order ¶ 7.
68
Id. ¶ 8.
69
Id.
70
Id.
71
Id. Ex. A.
72
Pl. Mot. for Relief from Order ¶ 8; See also Pl. Mot. for Relief from Order Ex. A. (emphasis
added).
15
The Court noted numerous concerns with Plaintiff’s Motion for Relief from
Order. First, the Motion was a disguised attempt to reargue which needed to be
filed within five days. Next, the Court was alarmed by the attached letter from
Plaintiff’s supposed certified public accountant, Ayman Bekheit. Just looking at
the letter would cause an objective person concern, as the letter contains
questionable syntax. Additionally, Mr. Bekheit signs the letter as accountant, not
certified public accountant. The Court took the time to inquire into Mr. Bekheit’s
credentials and was taken aback at its discoveries. The Texas address and Florida
phone number Mr. Bekheit listed on his letter appear to be associated with a Bono
Transport, LLC. Furthermore, the Court was unable to find any certified public
accountants by the name of Ayman Bekheit registered in Texas nor any other state.
In Plaintiff’s Motion Ayman Bekheit was referred to as a certified public
accountant, however it does not appear that Mr. Bekheit is a certified public
accountant. The Court was shocked at the lack of credential verification by
Plaintiff’s counsel and the grave misrepresentation in Plaintiff’s Motion.73
73
Due to the Court’s numerous concerns about representations made in this case, the Court
warns other courts about future Pro Hac Vice applications by Richard Schimel and Mickala
Rector. Ms. Rector is engaged to Plaintiff which appears to play a role in the lack of information
shared with Defense Counsel and the Court. The Court further notes local counsel needed to be
more diligent in her role for ensuring the discovery process was complete and the information
provided to the Court was accurate. Also, none of the attorneys representing Plaintiff took the
time to verify the credentials of Plaintiff’s supposed certified public account and instead took
Plaintiff at his word and represented in their papers that Ayman Bekheit was a CPA. This type of
practice cannot be tolerated in Delaware.
16
The Court held oral argument on the Motion for Relief from Order and the
Cross Motions for Summary Judgment. At oral argument, the Court questioned
Plaintiff about the inability to comply with the order to produce his tax returns.
Plaintiff’s counsel represented to the Court that Plaintiff does not file any type of
tax returns for his business or himself. The Court told Plaintiff’s counsel that in
Plaintiff’s deposition, Plaintiff was specifically asked:
MR. CONNORS: Okay. Does your ranch file tax returns?
PLAINTIFF: No.
MR. CONNORS: Do you file tax returns –
PLAINTIFF: Yes.
MR. CONNORS: -- personally?
PLAINTIFF: Yes.
MR. CONNORS: And do you report, on your personal income tax
returns, any income that you get from the operation of the farm?
PLAINTIFF: Yes.74
Plaintiff’s counsel was unable to provide a sound reason as to why Plaintiff
testified, under oath, that he did file personal income taxes, and stated his holding
74
Tr. of Pl. Dep. at 21:14-23.
17
company files taxes in his Motion for Relief from Order, but is now representing at
oral argument that no taxes of any type are filed personally or for his business.75
The Court again notes and takes issue with the extreme inconsistencies regarding
Plaintiff’s tax returns. The Court also remains confused on how Plaintiff, an
individual, can reside in and own a business in the United States and somehow not
file any taxes.
At the end of oral argument the Court denied Plaintiff’s Motion for Relief
from Order and allotted two weeks for Plaintiff to either gather both his personal
and business-related tax returns or documentation from the IRS proving he does
not file any taxes and turn either over to the Court. The Court made it extremely
clear that it wanted to see official documentation from the IRS regarding Plaintiff’s
tax status. The Court also requested Defense Counsel prepare an order for the
Court to sign that permitted Defense Counsel to contact the IRS and seek its own
copies of Plaintiff’s tax information.
On the eve of the two-week deadline, Plaintiff’s counsel wrote a letter to the
Court, providing a status update. Plaintiff’s counsel hired a new certified public
accountant, Michael Creamer, in an attempt to determine if and what Plaintiff filed
in taxes. Plaintiff’s counsel claimed to have been diligently working to meet the
deadline but did not have control over the IRS’s response time.
75
Id. See also Pl. Mot. for Relief from Order ¶ 8.
18
The Court then signed the order Defendant prepared giving Plaintiff an
additional 30 days to turn over: 1) Plaintiff’s personal federal income tax returns
for the years 2017 through 2022; 2) the federal income tax returns of Riad Ranch
from 2017 through 2022; 3) the federal income tax returns for Riad Holdings from
2017 through 2022 inclusive; 4) a properly and fully completed and executed IRS
Form 4506 Request for Copy of Tax Returns for the years 2017 through and
including 2022 for Plaintiff’s personal income tax returns; 5) a properly and fully
completed and executed IRS Form 4506 Request for Copy of Tax Returns for the
years 2017 through and including 2022 for Riad Ranch income tax returns; 6) a
properly and fully completed and executed IRS Form 4506 Request for Copy of
Tax Returns for the years 2017 through and including 2022 for Riad Holdings
income tax returns; 7) a properly and fully completed and executed IRS Form 4506
Request for Copy of Tax Returns for the years 2017 through and including 2022
for Riad Ranch/Joseph Riad income tax returns that have been filed and are filed as
part of a holding company as referenced in the letter dated 11/19/2022 from
Ayman Bekeit; 8) federal income tax returns from 2017 through 2022 inclusive for
the holding company, which Plaintiff shall identify by name, as referenced in the
letter dated 11/19/2022 from Ayman Bekheit; and 9) current contact information
19
for Ayman Bekheit and identification of what states or jurisdictions in which he is
a licensed accountant and/or certified public accountant (CPA).76
On the eve of the order’s deadline, Plaintiff’s counsel again wrote a letter to
the Court providing a status update. In this letter, Plaintiff’s counsel reiterates their
diligent attempts to comply with the Court’s order. Plaintiff’s counsel attached a
letter from the newly hired CPA, detailing Mr. Creamer’s attempts to retrieve
Plaintiff’s tax information. Mr. Creamer’s letter states, along with Plaintiff’s
counsel’s letter, that Plaintiff cannot produce any tax records because they do not
exist. As for Ayman Bekheit, Plaintiff’s counsel forwarded a copy of his passport
and a description of his accounting services to Defense counsel. However, a
passport and description of accounting services, which the Court has not seen, is
not a confirmation of Mr. Bekheit’s status as a certified public accountant. The
Court is left to assume that Mr. Bekheit is not a certified public accountant and his
status as such was misrepresented in Plaintiff’s papers.
It is now three months since the Court’s clear order at the oral argument and
subsequent orders. Plaintiff’s counsel, Richard Schimmel, cannot argue he
misunderstood what was requested. In fact, Mr. Schimmel disrespectfully failed to
76
The Court notes the signing of the order prepared by Defendant allotted Plaintiff an additional
30 days to turn over the requested documentation on top of the two weeks of time that Plaintiff
already had and thus failed to comply with the order dated April 12, 2023.
20
stand when stating that he understood the Court’s order. At the time of this
opinion, Plaintiff has still yet to supply the requested information from the IRS.
The Court refuses to continually expend judicial resources on this matter.
Plaintiff has blatantly failed to comply with the Court’s order to provide any
documentation from the IRS detailing whether or not Plaintiff files taxes. The
Court did not request a letter from an accountant stating Plaintiff’s taxes do not
exist. The Court specifically required documentation from the IRS. Instead of
complying, Plaintiff provided the Court with a letter from another hired
“accountant” and excuses.
CONCLUSION
As discussed above, pursuant to Superior Court Civil Rule 56, Defendant is
entitled to Summary Judgment on both counts of the Complaint. Strict liability is
not applicable to non-profit animal welfare organizations such as Defendant.
Therefore, Plaintiff’s Motion for Partial Summary Judgment as to Count I, strict
liability, is DENIED and Defendant’s Motion for Summary Judgment as to Count
I, strict liability, is GRANTED. Furthermore, Plaintiff has not only waived the
negligence claim, but also failed to produce an expert, thus being unable to
establish Defendant breached the standard of care owed. Accordingly, Defendant’s
Motion for Summary Judgment as to Count II, negligence, is GRANTED.
21
The Court also emphasizes if this case wasn’t dismissed on the merits, it
could be dismissed pursuant to Superior Court Civil Rule 37(b)(2)(C). Rule 37
states in part that the Court has discretion to issue sanctions or dismiss an action
against a disobedient party for failure to obey an order to provide discovery.77
Additionally, the Delaware Supreme Court has stated “[a] court is also vested with
inherent authority to dismiss a plaintiff’s action for failure to . . . comply with its
rules or orders.”78 The Court is far beyond issuing sanctions in this matter. Again,
the blatant disregard of the Court’s order and conflicting representations push this
Court to dismissal. The Court does not need to employ dismissal via Rule
37(b)(2)(C), but warns about the potential use of that Rule and its consequences.
IT IS SO ORDERED.
/s/ Mark H. Conner
Mark H. Conner, Judge
cc: Prothonotary
77
Super. Ct. Civ. R. 37(b).
78
Hoag v. Amex Assurance Co., 953 A.2d 713, 716-17 (Del. 2008).
22