United States District Court, D. Delaware
GREGORY M. SLEET, District Judge.
The plaintiff, Karen Kimbleton ("Kimbleton"), filed this lawsuit against the Delaware Real Estate Commission (the "Commission"), a former commissioner of the Commission, Vincent White ("White"), and two investigators for the Delaware Department of State, Division of Professional Regulation ("DPR"), Layton Ward ("Ward") and Bud Mowday ("Mowday") (collectively, "Defendants") on July 24, 2012. (D.I. 1.) The Complaint raises a number of claims relating to complaints that were made to the DPR against Kimbleton, subsequent investigations related to such complaints, and the disciplinary action taken by the Commission as a result of such investigations. Specifically, Kimbleton asserts two separate claims under 42 U.S.C. § 1983: (1) a First Amendment retaliation claim against White alone, and (2) a Fourteenth Amendment due process claim against the Commission, White, and Ward for actions taken against Kimbleton in violation of her due process rights. ( Id. at¶¶ 78-87.) Additionally, Kimbleton asserts two state law claims for (1) tortious interference with business relations against all Defendants, and (2) fraudulent misrepresentation against investigators Ward and Mowday. ( Id. at ¶¶ 88-99.) Kimbleton has sued the Defendants individually and in their respective official capacities.
Presently before the court are the Defendants' motion to dismiss for failure to state claim and motion for summary judgment. (D.I. 7; D.I. 51). For the reasons stated below, the court will grant Defendants' motion for summary judgment and deny the motion to dismiss as moot.
In 1999, Kimbleton became a licensed real estate agent in the state of Delaware, and in approximately 2002, she became a licensed real estate broker in Delaware as well. (D.I. 56 at 1-2.) Since approximately 2002, Kimbleton owned a Re/Max branch located in Dover, Delaware. (D.I. 51 at 3). Between 2008 and 2009, three separate individuals made complaints against Kimbleton to the DPR-a division of Delaware's Department of State that oversees licensing of various professions. ( Id. at 3-4.) The complaints alleged various improper actions by Kimbleton, including failure to sign real estate listings, obtaining improper "assurance monies" from tenants, and filing suit against the buyers in a home purchase agreement. ( Id. at 4.)
Defendant Ward investigated the complaints, and ultimately the Delaware Department of Justice ("DOJ") merged the individual complaints into a single amended complaint, filed with the Commission. (Id.) A hearing was held on or about August 12, 2010, which was continued and resumed on August 23, 2010. ( Id ) Defendant White, who was Chairman of the Commission at the time, presided over the August 2010 hearings. (D.I. 56 at 6.) Throughout the hearing, Kimbleton was represented by counsel and had the opportunity to present and cross-examine witnesses. (D.I. 51 at 4.) After the conclusion of the hearing, the Commission found Kimbleton guilty and suspended her brokerage license for six months, during which time Kimbleton could remain as a real estate agent, but would be required to hire another broker to complete real estate transactions. (D.I. 56 at 6.) The Commission also imposed a probationary period after the six-month suspension ended. ( Id. )
Kimbleton subsequently appealed the Commission's decision to the Delaware Superior Court. (D.I. 51 at 5.) Furthermore, beginning in October 2010, Kimbleton, believing that the discipline and penalties imposed by the Commission were disproportionate, sent a series of letters to her state legislators and the ACLU, criticizing White, the Commission, and several members with DPR, including Ward. (D.I. 56 at 8.) In her letters, Kimbleton alleged that she was the victim of sex and age discrimination at the hands of the Defendants, and that she was being harassed, targeted, and unfairly disciplined. ( Id. Kimbleton asserts that she wrote to Delaware Senator Brian Bushweller, who allegedly followed up with the DPR about her concerns. The parties dispute whether White ever received noticed of Kimbleton's letters. (D.I. 51 at 13-14; D.I. 56 at 17 & n. 53)
During the six-month suspension and after Kimbleton filed her appeal, the DPR received additional complaints from the public about Kimbleton's practice. (D.I. 51 at 6). The new complaints included allegations that Kimbleton held herself out as a broker during a settlement, in violation of her suspension. ( Id. These complaints were again investigated by Ward for the DPR, and again forwarded to the DOJ for possible prosecution. ( Id. Again, the DOJ filed a complaint ("Second Complaint") seeking discipline with the Commission. ( Id. )
Faced with the apparent threat of a possible five-year suspension if found guilty of the charges in the Second Complaint, Kimbleton entered into a Consent Agreement with the DOJ. (D.I. 51 at 6). By signing the Consent Agreement, Kimbleton agreed to an additional suspension of nine months, thereby avoiding the alleged possible five-year suspension. ( Id. at 6-7.) The Consent Agreement provided that following the expiration of the nine-month suspensiOn, Kimbleton was could reapply for a salespersons' license, which was to be granted as long as Kimbleton completed an approved course on Delaware's Landlord Tenant Code and residential property management. ( Id. at 7.) As an additional condition of the Consent Agreement, Kimbleton stipulated to a voluntarily dismissal with prejudice of her appeal of the Commission's first punishment still pending before the Delaware Superior Court. ( Id. In filing this lawsuit, Kimbleton claims that she was coerced and under duress when she entered into the Consent Agreement. (D.I. 1, ¶ 46.) Counsel represented Kimbleton throughout the course of the second investigation, including entering into the Consent Agreement. (D.I. 51 at 6).
On or about November 2, 2011, Defendant White filed a complaint with the DPR. (D.I. 56 at 11.) Defendant White claimed that he anonymously received a printed map with advertisements indicating that Kimbleton was continuing to hold herself out as a broker, and he submitted a complaint to the DPR for further investigation. (D.I. 51 at 8). As part of the investigation, Defendant Ward went to Kimbleton's office and found a stack of phone books with advertisements, on which Kimbleton was listed as a broker. (D.I. 56 at 11.) Subsequently, at the request of Ward, Defendant Mowday visited Kimbleton's Re/Max office to further investigate. ( Id. at 12.) Pretending to be an interested homebuyer, Mowday requested some materials, including the phonebook advertisements and a map. ( Id. ) Neither Ward nor Mowday attempted to ascertain the age of these materials, nor did they determine whether Kimbleton intended to publicly disseminate them at the time. ( Id. As a result of these investigations, the DOJ brought new charges against Kimbleton, but the complaint was ultimately dismissed. ( Id. Although the original suspension has been served, Kimbleton has not reapplied for her broker's license with the Commission because she "did not feel [she] would get a fair shot" based on her experiences. (Kimbleton 3/5/14 Dep. at 114, 118.)
In her complaint, Kimbleton raises four causes of action against the Defendants. First, Kimbleton claims that White violated 43 U.S.C. § 1983 by retaliating against her for the exercise of Kimbleton's First Amendment rights. Specifically she argues that White's complaint to the DPR concerning the map with Kimbleton's advertisement was in response to letters that were critical of White, which Kimbleton submitted to legislators and the ACLU. (D.I. 1, ¶¶ 76-77.) Second, Kimbleton asserts a § 1983 action against the Commission, White, and Ward for violations of her Fourteenth Amendment Due Process rights. 43 U.S.C. § 1983. Specifically, Kimbleton argues that she was the subject of a biased investigation, that the Commission abused its discretion by imposing penalties that were disproportionate, arbitrary, and capricious. She further contends that her license was suspended without fair hearing or opportunity to be heard-all in violation of her substantive and procedural due process rights. (D.I. 1, ¶¶ 82-86.) Third, Kimbleton asserts a claim for tortious interference with business relationships under Delaware common law against all Defendants. Specifically, Kimbleton argues that the Defendants' actions interfered with her business relationships and resulted in economic harm. (ld ¶¶ 89-93.) Finally, Kimbleton accuses Ward and Mowday of fraudulent misrepresentation in violation of Delaware common law. Specifically, Kimbleton argues Ward and Mowday unlawfully misrepresented their identities to conduct an unjustified investigation of Kimbleton. ( Id. ¶¶ 96-99.)
III. STANDARD OF REVIEW
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the burden of proving that no genuine issue of material fact exists. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585 n.10 (1986). A fact is material if it "could affect the outcome" of the proceeding. Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011). There is a genuine issue "if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Id. When determining whether a genuine issue of material facts exists, the district court must view the evidence in the light most favorable to the nonmoving party and draw inferences in that party's favor. Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007). If the moving party is able to demonstrate an absence of disputed material facts, the nonmoving party must then "come forward with specific facts showing that there is a genuine issue for trial."' Matsushita, 475 U.S. at 587 (citing FED. R. CIV. P. 56(e)).
The mere existence of some evidence in support of the nonmoving party will not be sufficient for denial of a summary judgment motion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). Rather, the nonmoving party must present enough evidence to enable a jury to reasonably find for it on that issue. Id. The party opposing summary judgment must present more than just "mere allegations, general denials, or... vague statements" to show the existence of a genuine issue. Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991). As such, a nonmoving party must support their assertion that a material fact is in dispute by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"; or "(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible ...