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Guy v. Shabazz

United States District Court, D. Delaware

February 6, 2018

SAMUEL L. GUY, Plaintiff,
v.
HANIFA SHABAZZ, et al., Defendants.

         Superior Court of the State of Delaware in and for New Castle County Case No. 17C-05-103 WCC

          MEMORANDUM

         I. INTRODUCTION

         The plaintiff Samuel L. Guy ("Guy"), an attorney who proceeds pro se, filed this action in the Superior Court of the State of Delaware in and for New Castle County on May 8, 2017, alleging violations of the right to due process and equal protection under the United States Constitution and the Delaware Constitution. (D.I. 1). The defendants Hanifa Shabazz ("Shabazz"), Rysheema Dixon ("Dixon"), Loretta Walsh ("Walsh"), and the Wilmington City Council ("City Council") (collectively "the defendants") filed a notice of removal to this court on May 17, 2017. (Id.) Before the court is Guy's request for default and motion to remand to State Court and the defendants' motion to dismiss. (D.I. 3, 5, 6.)

         II. BACKGROUND

         Shabazz serves as president of the City Council and Dixon and Walsh are At-Large members of the City Council. (D.I. 1-1 at ¶¶ 1-4.) Walsh also serves as the president pro tempore. (Id. at ¶ 4.) Guy, Dixon, Walsh, and Ciro Adams ("Adams")[1] are recently elected At- Large members of the 107th Session of the Wilmington, Delaware City Council. (D.I. 1-1 at ¶ 14.) The court takes judicial notice that the newly elected At-Large Council members took office on January 3, 2017. See https://www.wilmingtonde.gov/Home/Components/News/News/ 293/225 (last visited Jan. 30, 2018). The City of Wilmington (the "City") is a municipality, organized under 22 Del. C. §§ 801, et seq. (Id. at ¶ 5.) Each City Council member is allotted a budget of $10, 000 for the fiscal year, and council members must allocate $8, 000 of discretionary funds for scholarships. (Id. at Exs. A, C.)

         Given that the fiscal year closes on June 30th (id. at Tab 7-8), the terms of the newly elected At-Large City Council members did not begin at the same time as the fiscal year. Guy alleges that a total of $15, 400 was not used by the previous At-Large Council members, and the money was distributed to the newly elected At-Large City Council members in a manner that violated the Equal Protection Clause and the Due Process Clause. (Id. at ¶ 11.) Guy calculates the $15, 400 resulted in an average of $3, 850 available for distribution to each At-Large Council Member. (Id. at ¶ 12.)

         Guy learned on January 24, 2017, that he was not allocated anything for scholarship and discretional funding. (Id. at ¶ 15.) Dixon was allocated $6, 500, Walsh was allocated $8, 650, and Adams was allocated $250. (Id. at ¶ 16.) Based upon Exhibit B of the complaint, it appears the newly elected At-Large City Council members inherit the discretionary funds of their predecessors and received money based upon whom they replace, in alphabetical order. (Id. at Ex. B.) Walsh was reelected so she retained the funds she had not used, $8, 650. Brown, Cabrera, and Wright were the former At-Large City Council members and they were replaced by Adams, Dixon, and Guy. Brown had $250 left in discretionary funds, and it was allocated to Adams; Cabrera had $6, 500 left in discretionary funds, and it was allocated to Dixon, and Wright had no money left in discretionary funds, and the zero amount was allocated to Guy. (See id.)

         Guy alleges the disparity in the allocations was concealed from him. (Id. at ¶ 22.) Shabazz and the City Council made a public announcement that the money was distributed in alphabetical order. (Id. at ¶ 19.) Guy alleges that the "alphabetical order classification" method for distribution of funds has no relationship to the amount of scholarship and discretionary financial resources distributed to At-Large City Council members. (Id. at ¶ 20.) He alleges that Shabazz "made up an alphabetical order rationale as her explanation to justify how she distributed the scholarship and discretionary funds." (Id. at ¶ 27.) He contends that Shabazz distributed the funds in a manner reflecting her personal preference knowing the funds belong to the citizens of Wilmington, Delaware. (Id. at 28.)

         Guy alleges that Shabazz, Dixon, and Walsh intentionally received, retained or disposed of scholarship and discretionary funds (the property of another At-Large City Council member), with the intent to deprive Guy and Adams of the funds, or to appropriate the funds knowing the funds were acquired under circumstances amounting to violations of the Equal Protection Clause and the Due Process Clause. (Id. at ¶ 24.) Guy alleges that Dixon and Walsh had an obligation to return any portion of scholarship and discretionary funds they received in violation of the United States and Delaware Constitutions. (Id. at ¶ 38.) Finally, Guy alleges that Shabazz did not administer the financial resources of the City Council in a manner consistent with the Equal Protection Clause and Due Process Clause and she and the City Council operated in an arbitrary and capricious manner. (Id. at ¶¶ 33, 43.)

         Guy seeks a declaratory judgment to find the current manner of allocating scholarship and discretionary funding for At-Large City Council members unconstitutional, and to determine a procedure that affords At-Large City Council members equal protection and due process.

         The defendants moves for dismissal pursuant to Fed.R.Civ.P. 12(b)(6) on the grounds that: (1) they are shielded from suit by reason of legislative immunity; and (2) Guy cannot state claims for violation of his due process and equal protection rights. (D.I. 3, 4.) Guy opposes the motion to dismiss and seeks leave to amend in lieu of dismissal. (D.I. 9.) On the same day the defendants filed their motion to dismiss, Guy filed a request for default and a motion to remand this matter to State Court. (D.I. 5, 6.)

         III. REQUEST FOR DEFAULT

         Guy moves for entry of default on the grounds that the defendants have not answered the complaint, failed to appear, or otherwise defend within the time allowed. (D.I. 5.) The defendants oppose noting that they have never been served and, further, they timely filed a motion to dismiss. (D.I. 7.)

         An entry of default must be entered due to the default of a party that has not answered the pleading or "otherwise defend[ed], " within the time required by the rules or as extended by court order. Fed.R.Civ.P. 55(a). Timely serving and filing a motion to dismiss under Fed.R.Civ.P. 12(b), precludes entry of default. See Francis v. Joint Force Headquarters Nat'l Guard, 2006 WL 2711459, (D.N.J. Sept.19, 2006), affdinpart, 247 Fed.Appx. 387 (3d Cir. 2007) (unpublished).

         The defendants appeared and filed a motion to dismiss the complaint. Entry of default is not proper and, therefore, the court will deny Guy's motion. (D.I. 5.)

         IV. MOTION TO REMAND

         Guy moves to remand this matter to State Court. (D.I. 6.) Guy does not dispute that the federal due process and equal protection claims are removable to this court. However, he contends that his due process and equal protection claims under the Delaware Constitution allow the court to exercise its discretion and remand all matters in which State law predominates under 28 U.S.C. § 1441(c).[2] The defendants oppose, noting ...


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