Christianson v. Dart-Delaware Transit Corporation

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DAVID D. CHRISTIANSON,
C.A. No. K20C-04-028 WLW
Plaintiff,
V.
DART-DELA WARE TRANSIT
CORPORATION; JERRY HODGES, :
JOHN T. SISSON, CHARLES
MEGGINSON, JOHN SYRYLA,
BILL THATCHER,
Defendant.
Submitted: August 24, 2020
Decided: November 24, 2020
ORDER
Upon Defendants’ Motion to Dismiss
Pursuant to Superior Court Civil Rule 12(b).
Granted.
David D. Christianson, Plaintiff pro se
Stacey X. Stewart, Esquire of the Department of Justice, Wilmington, Delaware;
attorney for Defendants.
WITHAM, R.J.
David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
The Defendant, Delaware Transit Corporation (hereafter “DTC”), an agency
of the State of Delaware, and DTC employees Jerry Hodges, John T. Sisson, Charles
Megginson, John Syryla, and Bill Thatcher (collectively “the defendants”) bring this
Motion to Dismiss pursuant to Superior Court Civil Rule 12(b) asserting lack of
subject matter jurisdiction, failure to state a claim for which relief may be granted,
and failure to perfect service. The Plaintiff, David Christianson (hereafter
“Christianson”), responded to the motion. This Court has reviewed the pleadings and
presentations of the parties. As the facts stand presently, and for the reasons
explained below, this Court GRANTS Defendants’ Motion to Dismiss for lack of
subject matter jurisdiction and for insufficient service.
Factual and Procedural History
Christianson, a pro se plaintiff, initiated this case after being terminated by
DTC some five days before the end of the probationary period of his employment.
Christianson was hired by DTC as an automotive technician on October 30, 2017, and
on April 25, 2018, his employment was ended. No documentation of reprimand
during Christianson’s time of employment are present in the record other than
Christianson’s termination letter stating that he exhibited an “uncooperative attitude”
and “fail[ed] to improve [his] work performance compared to [his] peers.”
Christianson’s termination came after an incident involving Defendant Jerry
Hodges (hereafter “Hodges”). Hodges is alleged to be the Assistant South District
‘Plaintiff's Response at Ex. B.
David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
Maintenance manager which this Court assumes to be Christianson’s immediate
supervisor.” Hodges called a meeting with several employees, among which
Christianson was one. This meeting was in regards to the unspecified actions of other
employees. It is especially noted that Christianson’s complaint is devoid of facts
establishing what actions of other employees would give rise to his termination.
Christianson’s complaint indicated that he was not party to these unspecified actions.
Hodges encouraged the employees with whom he was meeting, including
Christianson, to disclose “defaming information” concerning the other employees
involved in the unspecified actions. Christianson had none to give and began to feel
pressured by Hodges to make disparaging remarks regarding the other employees.
Christianson observed Hodges become increasingly angry and frustrated with
Christianson before Hodges ended the meeting.
Christianson also witnessed a poster displayed near areas of the DTC work
facility that would be visible to all employees. The poster allegedly stated “your
coworkers are not your friends, get your money and go home.”
On April 25, 2018, Christianson was terminated from his employment with
DTC. Upon termination, Christianson sought an explanation from Hodges and was
told “don’t go there, or else I won’t give you a recommendation.”* During
*Plaintiff's Complaint at § 6.
Id. at 914.
“Id. at § 16.
David D. Christianson y. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
Christianson’s probationary employment with DTC, he was paying union dues to the
International Brotherhood of Electrical Workers (hereafter “IBEW”); however,
because his termination occurred five days before the end of his probationary period,
Christianson did not receive representation from the IBEW.
Christianson filed his complaint on April 24, 2020, alleging three counts: 1)
Malicious Termination; 2) Deprivation of Representation, and 3) Embezzlement. The
Delaware Department of Justice, representing DTC in this case, filed its Motion to
Dismiss on July 2, 2020, and Christianson responded on August 18, 2020.
Standard of Review
The Defendants and DTC argue for a Motion to Dismiss based on Superior
Court Civil Rules 12(b)(1), (5), & (6). These Rules are lack of subject matter
jurisdiction, insufficient service of process, and failure to state a claim for which
relief can be granted.” Each Rule requires this Court to adhere to specific standards
of review when making a determination.
Rule 12(b)(1) demands that the Court dismiss any claim if the movant can
show that the Court lacks jurisdiction over the claim.° Rule 12(b)(5) requires
dismissal of a claim if that claim’s service of process is insufficient as to the rules of
civil procedure in the State of Delaware. In the State of Delaware, “any summons
initiating a lawsuit against the State of Delaware or any state officer, must be served
Superior Ct. Civ. R. 12(b).
°Geo-Technology Associates, Inc. v. Capital Station Dover, LLC, 2020 WL 2557139 at *2
(Del. Super. May 15, 2020).
David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
upon the Attorney General, State Solicitor, or Chief Deputy Attorney General, in
addition to the Defendants.”’ Service to the above listed individuals is necessary to
properly complete service pursuant to 10 Del. C. § 3103(c), and failure to execute
such service results in service not being perfected.*
Rule 12(b)(6) requires that the movant “bears the burden of demonstrating that
‘under no set of facts which could be proven in support of its complaint would the
plaintiff be entitled to relief.’”’ When considering a 12(b)(6) Motion to Dismiss, this
Court will accept all well-pleaded facts as true, even vague allegations if the
allegations provide the opposing party notice of the claim; will make reasonable
inferences as to these well-pleaded facts in favor of the party not moving to dismiss;
and will dismiss only where the plaintiff would not be entitled to recovery based on
any reasonably provable circumstances.'° Finally, “conclusions will not be accepted
as true without specific allegations of fact to support them.”"!
Discussion
I. Lack of Subject Matter Jurisdiction
DTC and the Defendants argue that this Court lacks subject matter jurisdiction
"Wilson v. Metzger, 2019 WL 166687 at *1 (Del. Super. Jan. 4, 2019).
81d. at *2.
*Geo-Technology Associates, Inc., 2020 WL 2557139 at *2 (citations omitted).
Td.
"Solomon v. Pathe Communications Corp., 672 A. 2d 35 at 38 (Del. 1996).
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David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
because, as agents of the State of Delaware, they have not waived sovereign immunity
and the State Tort Claims Act bars the action.'? DTC and the Defendants cite case
law to support their assertion that failure to show both of these elements strips this
Court of subject matter jurisdiction.
State sovereign immunity is a doctrine that prohibits suing the State unless the
State has given its consent to be sued.'* Delaware Courts have been reluctant in the
past to apply this doctrine because it is one “which draws its strength from the notion
that the State is outside the law.”'* This reluctance to apply the doctrine has been
address by the General Assembly through revisions to the Delaware Code
Annotated.’°
The State Tort Claims Act, 10 Del. C. § 4001, codifies sovereign immunity by
prohibiting civil liability against the State or any public officer or employee when 1)
the offensive act was done during the performance of an official discretionary duty;
2) the act, while resulting in an offense, was done in good faith and in the belief that
the public interest was being served; and 3) was done without gross or wanton
"Def.’s Motion to Dismiss at 5.
Doe v. Cates, 499 A. 2d 1175 at 1176 (Del. 1985).
'4Id. at 1177.
'SId. In Cates, the Delaware Supreme Court gave a thorough explanation behind the passage
of 18 Del. C. § 6511, which takes away sovereign immunity as a defense if the risk or loss is covered
by insurance, and 10 Del. C. § 4001, which spells out when sovereign immunity can be used against
civil liability.
David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
negligence.’® The plaintiff must show each of these elements to overcome the State
Tort Claims Act prohibitions, and “any reasonable doubts as to the proper
construction of the statute should be resolved in favor of the State.”””
The Delaware Supreme Court has held that the legislative intent of the State
Tort Claims Act was not to find a waiver of sovereign immunity “in all cases where
a ministerial act was performed with gross or wanton negligence or in bad faith.”"®
The legislative purpose of the State Tort Claims act was to 1) codify common law
principles to which the State of Delaware absolutely adhered; 2) discourage the
chilling effect litigation would have on exercises of discretionary authority; and 3)
limit, not abolish completely, the doctrine where gross or wanton negligence occurred
or where discretionary authority was done in bad faith."
DTC and the Defendants argue that Christianson has failed to meet the
requirements showing that § 4001 does not apply to this situation. They argue that
their alleged actions were done in accordance with their discretionary power as a
State entity and as State employees, and, thus, protected by sovereign immunity.
Furthermore, they assert that Christianson has made no specific attempts to show that
DTC or the Defendants waived their defense of sovereign immunity. Finally, DTC
'$10 Del. C. § 4001.
"Cates, 499 A. 2d at 1180.
‘87d.
"Id. at 1180 - 81.
David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
has no insurance coverage for the claims alleged by Christianson, which further
suggests that sovereign immunity is available as a defense.”°
Christianson’s claim hinges on the assertion that the State employees violated
the duty of good faith and fair dealing in exercising their discretionary authority to
terminate his employment within the probationary period. Christianson’s complaint
that the covenant of good faith and fair dealing (hereafter “the Covenant”) was
breached must show “the conduct of the employer...constitut[ed] ‘an aspect of fraud,
deceit, or misrepresentation.”*' Christianson asserts that the bad faith stems from his
termination being based on “false, manufactured, and misleading information” and
not adhering to the standards set by the employee handbook.” Christianson’s
assertions in his complaint, however, are not sufficient to raise a claim of bad faith
and gross or wanton negligence by DTC and the Defendants on the basis of breach
of the Covenant.
Christianson’s complaint alludes to Hodges terminating Christianson during
his probationary period after Hodges falsified Christianson’s employment record for
not participating in the sullying of other DTC employees, but such an inference
cannot be made on the facts presented by the complaint. Courts are not obligated to
*°DTC and the Defendants have provided an affidavit by Mr. Frederick Bailey attesting to
the absence of insurance coverage for the type of liability alleged in the Complaint’s Count 1. See
Def.’s Motion to Dismiss at Ex. A.
*1E. I. DuPont de Nemours and Co. v. Pressman, 679 A. 2d 436 at 440 (Del. 1996).
Plaintiff's Complaint at J 15.
David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
accept as true conclusory statements in complaints that are not supported by some
fact.’ Christianson’s complaint shows that he had a good employment record, that
there was a heated altercation with Hodges, and then Christianson was terminated
during his probationary period for failure to adhere to the code of conduct in the
employee handbook. To conclude from the pleaded facts that this equates to
falsification of his employment record in order to create a paper trail on which to
justify Christianson’s termination, would be a “‘strained interpretation of the
allegations proposed by the plaintiff.’”** Christianson’s allegations point more to a
supervisor who held some dislike, hatred, or ill will toward Christianson, and such
emotions “alone, cannot be the basis for a cause of action for termination of an at-will
employee.””>
Finally, Christianson further argues that absence of insurance coverage for this
type of liability should not shield the State from liability for wrongful termination
because, “should all claims be determined actionable by insurance coverage alone,
then all claims could be denied if the Defendants just decide to purchase no insurance
at all.”’° Christianson’s assertion that lack of insurance should not be an avenue on
*Clouser v. Doherty, 2017 WL 3947404 at *4 (Del. 2017). This point of civil procedure is
further driven home by the U.S. Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, (2009), which
stated that, to survive a motion to dismiss, the plaintiff's complaint must have “facial plausibility”
from which the Court can draw “reasonable inferences.”
*Clouser, 2017 WL 3947404 at *4 (citation omitted).
°° Pressman, 679 A, 2d at 444.
*6Plaintiff's Response at 3.
David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
which DTC and the Defendants can pursue sovereign immunity as a defense is off
point. The lack of insurance coverage is not construed as a waiver to sovereign
immunity because “[s]uch an interpretation would expand the liability the State has
agreed to under 18 Del. C. ch. 65, and therefore, would be inconsistent with the stated
purpose and the title of the Tort Claims Act, limiting liability.”?’
IL. Insufficient Service of Process
DTC and the Defendants argue that Christianson failed to perfect service of
process due to this action involving a State entity and State employees and not being
served against the proper State officers. The proper procedure for service of process
against the State is to serve the Attorney General, the State Solicitor, or the Chief
Deputy Attorney General and all the Defendants.** Christianson, twice, makes an
admission to improper service in his response to the Motion to Dismiss. Although
this Court sympathizes with pro se parties, it cannot hold pro se parties to a lesser
standard than it would a licensed attorney in a similar situation.
III. Failure to State a Claim on Which Relief Could be Granted
DTC’s and the Defendants’ argument that Christianson failed to state a claim
on which relief could be granted is deemed moot as Christianson failed to overcome
the defendants’ other two 12(b) arguments in favor of dismissal.
7Cates, 499 A. 2d at 1181.
8 Wilson, 2019 WL 166687 at *1.
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David D. Christianson v. Dart-Delaware Transit Corp., et al.
C.A. No. K20C-04-028 WLW
November 24, 2020
Conclusion
WHEREFORE, because of the above stated reasons, Defendants’ Motion to
Dismiss for lack of subject matter jurisdiction and for insufficient service of process
is hereby GRANTED. Defendants’ Motion to Dismiss for failure to state a claim on
which relief may be granted is MOOT.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge
WLW/dmh
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