Trina R. Gumbs
Delaware Department of Labor
In this case, Plaintiff asserts the Delaware Department of Labor, allegedly, engaged in unemployment discrimination and violated the Equal Pay Act ("EPA"). A motion to dismiss was filed, and the parties briefed their legal positions while the Court reserved decision.  In the interim, Plaintiff filed an amended complaint removing the cause of action regarding EPA violations, Count
II. Subsequently, Plaintiff filed suit in Federal District Court seeking relief under the EPA.
As for the present, I find the broad language of Rule 15(a) permits a party to amend their complaint once, as a matter of course, before a responsive pleading is filed.  Upon consideration of Stoppel v. Henry,  a Superior Court Case directly analyzing this procedural matter, I agree with the conclusion a motion to dismiss is not a responsive pleading. This principle is further bolstered by how parallel Federal Rules of Civil Procedure have been interpreted.
Consequently, the only remaining claim this Court must consider is whether the Defendant engaged in unemployment discrimination, Count I. This cause of action turns on whether state merit rules are preempted. As such, Count I presents a question of law.
Although, the motion to dismiss is moot and Defendant must file an answer, Defendant may elect to pursue a judgment on the pleadings. The standard for a motion for judgment on the pleadings is almost identical to the standard for a motion to dismiss. If that course is chosen, the parties should supplement their earlier memoranda.
Lastly, in addition to the cases cited more information is required on the preemption argument. I would suggest the parties confer and submit a stipulated schedule to that end. Thank you.
IT IS SO ORDERED.
Very truly yours,
Hon. Richard F. Stokes