L.T. ASSOCIATES, LLC, A Delaware Limited Liability Company, Plaintiff,
SUSSEX COUNTY COUNCIL, GEORGE B. COLE, JOAN R. DEAVER, VANCE C. PHILLIPS, MICHAEL H. VINCENT and SAMUEL R. WILSON, JR., in their official capacity as Members of the Sussex County Council, and JOAN DEAVER, individually, Defendants.
MARY PAT THYNGE, Magistrate Judge.
I. FACTUAL BACKGROUND
L.T. Associates ("plaintiff") is a Delaware limited liability company located in Lewes, Delaware. Sussex County Council ("Council"), the government of Sussex County, Delaware, is composed of a five member panel consisting of George B. Cole ("Cole"), Joan R. Deaver ("Deaver"), Vance C. Phillips ("Phillips"), Michael H. Vincent ("Vincent"), and Samuel R. Wilson, Jr. ("Wilson"). The Council and all members are named defendants in this case (collectively "defendants"). Plaintiff applied to amend the Comprehensive Zoning Map ("CZM"), specifically regarding a 45.7 acre area of land in the Lewes and Rehoboth Hundred, denominated as C.Z. No. 1690 ("the land"). Plaintiff planned to convert the land from an AR-1 Agricultural Residential District to a CR-1 Commercial Residential District. On September 10, 2009, a public hearing occurred regarding the land before the Sussex County Planning and Zoning Commission ("the Commission"), which deferred action to defendants. On September 29, 2009, during a public hearing before defendants,  action was deferred on the application for further consideration to and recommendation by the Commission. On October 14, 2009, the Commission recommended defendants deny the application. On January 19, 2010, defendants denied plaintiff's application.
According to Count II of the complaint, Deaver is the councilmember who represents the district the land is located. Prior to her election on the Council, Deaver, as a representative of an organization opposed to a prior, similar request by plaintiff (C.Z. No. 1630) to amend the CZM at the same land site, sent a letter in opposition of the amendment to Council. Count II further claims Deaver, after her election, met with several opposition groups and attended several anti-commercial development meetings, and therefore should have recused herself from plaintiff's application process. Defendants maintain that although Deaver appeared at the such meetings, she was not meeting with oppositions groups and did not attend them during discussions about plaintiff's application.
II. PROCEDURAL BACKGROUND
Plaintiff filed a petition for declaratory judgment on March 12, 2010. On June 10, 2011, plaintiff amended its petition, seeking redress for violations of its constitutional rights, alleging due process violations. On September 2, 2011, plaintiff filed a notice of removal, moving the case from Chancery Court to the United States District Court for the District of Delaware. In February 2012, defendants amended their answers. On May 20, 2013, defendants filed a motion to dismiss Counts III and IV of plaintiff's complaint.
In Count III, plaintiff alleges Deaver "abused her official power in her capacity as a County Councilmember by establishing her bias and prejudice against petitioner and failing to recuse herself as required...." Count III further maintains Deaver purposefully tainted the procedural process for plaintiff's application, violating its civil rights. Finally, as a direct and proximate result of Deaver's intentional and unethical conduct, plaintiff suffered damages in connection with the deprivation of its constitutional rights.
Count IV alleges plaintiff is entitled to and has the right to use its property in accordance with applicable law and regulations. It also claims defendants knowingly and purposefully denied the application despite compliance with the County Code. Lastly, Count IV maintains defendants' "knowing refusal to approve a compliant application and imposition of inapplicable criteria is so arbitrary and capricious as to shock the conscience and to [sic] constitutes a violations [sic] of" plaintiff's right to substantive due process.
III. PARTIES' CONTENTIONS
A. Defendants' Contentions
Defendants filed a motion to dismiss Counts III and IV of the complaint, which requests compensatory damages under 42 U.S.C.A. §1983 for purported violations of plaintiff's due process rights. Defendants allege pursuant to this court's February 10, 2012 Scheduling Order, plaintiff was obligated to disclose the experts it planned to call regarding compensatory damages prior to July 1, 2012; however, this never occurred. Defendants argue because plaintiff failed to identify any experts regarding damages, it "is unable to prove lost profits, future damages, or other compensatory damages" which resulted from the alleged due process violations. Defendants further note they requested "[t]he contract, retainer agreement, or similar agreement for services between [p]laintiff and various known engineers, consultants, etc. who may have worked on the planning, preparation and presentation' of the change in zone application" in its interrogatories. Plaintiff, however, objected to defendants' request stating such documents were "irrelevant and immaterial, " and would not be "probative of any fact at issue during trial." Defendants claim there is no evidence of any compensatory damages because plaintiff, "by its own admission, " believes the documents to be irrelevant and immaterial. Defendants argue they are therefore entitled to a dismissal under Rule 12(b)(6) for failing to state a claim, implying that proof of compensatory damages through expert testimony is essential to a § 1983 action.
B. Plaintiff's Contentions
Plaintiff argues defendants' Rule 12(b)(6) motion should be denied for several reasons. First, defendants did not timely assert the Rule 12(b)(6) defense in its amended answer to plaintiff's complaint. Second, even if the timing restriction for the motion is ignored, it fails because it refers to matters entirely outside the pleadings. Plaintiff acknowledges a court may convert a motion to dismiss into a motion for summary judgment when matters outside the pleadings are presented under Rule 12(d); however, defendants would not succeed on Rule 56 motion.
In addressing summary judgment, plaintiff argues compensatory damages are not an essential element of a § 1983 claim, because damages may be nominal, compensatory, or punitive, and nominal damages are presumed in violation of due process cases. Plaintiff further maintains it sufficiently pleaded compensatory damages because it specifically requests them in its amended declaratory judgment complaint. Plaintiff points out defendants recognize compensatory damages are sought in Counts III and IV in their motion, essentially acknowledging the sufficiency of the complaint. Plaintiff also asserts compensatory damages may be proven through several identified fact witnesses who have knowledge of the expenses incurred. Plaintiff reiterates defendants could have deposed those fact witnesses listed in its ...