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Rogers v. Bushey

Superior Court of Delaware

February 7, 2018

LYNN J. ROGERS, Plaintiff,

          Submitted: November 14, 2017

         On Defendants' Motion to Dismiss Amended Complaint. GRANTED.

         On Plaintiffs Motion to Amend Trial Scheduling Order. DENIED.

          Gary W. Alderson, Esquire, Elzufon, Austin & Mondell, Wilmington, Delaware, Attorney for Plaintiff Lynn J. Rogers.

          Bradley P. Lehman, Esquire, McElroy, Deutsch, Mulvaney & Carpenter, LLP, Wilmington, Delaware, Attorney for Defendants John F. Bushey and Milton Fire Department, Inc.


          RICHARD R. COOCH, J.


         Lynn J. Rogers ("Plaintiff) filed a three-count claim in this Court in Sussex County against John F. Bushey ("Bushey") and Milton Fire Department, Inc. ("MFD") (collectively "Defendants") on February 15, 2017 originally alleging three causes of action: (1) defamation; (2) civil conspiracy; and (3) intentional infliction of emotional distress ("IIED"). Plaintiff filed a 177-paragraph amended complaint on April 24, 2017 adding a fourth due process claim against Defendants.[1] Plaintiffs claim stems from a decision of the Board of Directors of MFD ("the Board") on June 29, 2014 to revise Plaintiffs MFD membership, which he claims essentially "strip [ped] him of most of his rights and privileges as a Lifetime member and Chief Emeritus of MFD[, ]" as well as additional acts causing other reputational injuries.

         Defendants have moved to dismiss the amended complaint pursuant to Delaware Superior Court Rule 12(b)(6). Defendants' main argument is that all of the alleged events from which Plaintiffs claims are derived occurred outside of the applicable two-year statute of limitations, and should therefore be dismissed.

         This Court concludes that Plaintiffs claims are barred by the two-year statute of limitations. The Court grants Defendants' motion to dismiss the amended complaint.


         Plaintiff sets forth voluminous facts in paragraphs 19 through 134 of his amended complaint. The Court in this section states only the essential facts for purposes of this motion and sets out further facts as needed in the "Discussion" section of this opinion.

         As illustrative facts pled by Plaintiff, he has asserted that Plaintiff was a full member of MFD from 1969 until June 29, 2014. He had been MFD's Fire Chief from 1979 until approximately 2008. On June 29, 2014, the Board voted to enact a "revised status of membership" upon Plaintiff, which, he asserts, "effectively strip[ped] him of most of his rights and privileges as a [MFD member.]"[2] On three subsequent occasions, Plaintiff requested that the Board reinstate him. Plaintiffs first renewal request was on October 10, 2014, which the Board again denied by unanimous vote on June 8, 2015.[3] Plaintiff again requested the Board to renew his membership on February 4, 2016 and then again on February 29, 2016, which was two days after Plaintiffs wife died. MFD "refused to consider these requests."[4]

         Plaintiff alleges that certain MFD members, including Bushey, who is alleged to "ha[ve] control of and lead[] a portion of the MFD membership and heavily influence[] the actions of its Board[, ]" "have publicly and privately cast aspersions upon [Plaintiffs] leadership and firefighting capabilities, his personal matters and business affairs, and his governmental and political involvement."[5] In October 2014, Bushey had sent letters to various local firefighter associations

to inform them that [Plaintiff] had been placed on an inactive status of permanent honorary membership, and that while MFD understood that [Plaintiff] could be placed on [a]ssociation committees based on his past credentials and achievements within [these organizations], [Plaintiff] has no authority to directly represent the position of MFD in any matter considered under [the associations'] jurisdiction.[6]

         Bushey and certain MFD members allegedly made numerous negative remarks about Plaintiff "to other MFD members, other members of the fire service, and members of the public at large; at the MFD station, at public functions, at fire service functions and meetings, and even while 'holding court' at a local restaurant."[7] Plaintiff alleges in his Amended Complaint that there were multiple examples of "animus towards" him as early as 2009 and continuing through 2012.[8]

         When a former MFD member died in December 2015, Plaintiff was listed by the deceased as one of the desired pallbearers for the funeral. However, MFD informed Plaintiff "that MFD had a replacement pallbearer for [Plaintiff]."[9] Plaintiff nonetheless attended the funeral, served as a pallbearer, and wore his Class A firefighter uniform despite being told by MFD that he should wear a suit and tie.

         Plaintiff brought suit on February 15, 2017.[10] Plaintiff then filed an Amended Complaint on April 24, 2017, which set out four causes of action: (1) due process; (2) defamation; (3) civil conspiracy; and (4) IIED.

         Plaintiff later moved on October 20, 2017 to amend the trial scheduling order so that he could file a second Amended Complaint despite the fact that the deadline to amend the complaint had expired on July 11, 2017. Plaintiff wishes to amend his complaint again to add new facts and new causes of action that apparently have three-year statutes of limitations, as opposed to the two-year statute of limitations of the claims in his first Amended Complaint.[11] The new claims that Plaintiff wishes to assert are: breach of contract, promissory estoppel (in the alternative), breach of the duty of good faith and fair dealing, and breach of fiduciary duty.


         A. Defendants' Contentions

         Defendants move to dismiss for failure to state a claim, pursuant to Superior Court Civil Rule 12(b)(6), arguing primarily that Plaintiffs claims must be dismissed because they are barred by the applicable two-year statute of limitations.[12]

         First, Defendants argue that Plaintiffs due process claim must be dismissed because "Plaintiff alleges no conduct that occurred within two years prior to the filing of his original Complaint on February 1[5], 2017."[13] Defendants contend that "[a]ll actions attributed to Defendants and complained of in Count I of Plaintiff s Amended Complaint are alleged to have happened between 2011 and 2014[, ]" and that Plaintiff "cannot avoid the applicable statute of limitations by repeatedly renewing his request (through counsel, no less) that Defendants reconsider a decision that was made back in June 2014."[14]

         Second, Defendants argue that Plaintiffs defamation claim must be dismissed because "no defamatory statement are alleged to have been made within the two years immediately preceding the filing of Plaintiff s Complaint."[15] Defendants assert that "[t]he most recent allegedly defamatory statement complained of in Count II of Plaintiffs Amended Complaint is alleged to have been made in October 2014."[16]

         Third, Defendants argue that Plaintiffs civil conspiracy claim should be dismissed because it "is not an independent cause of action and can only be maintained in parallel with an underlying tort or statutory violation."[17] Defendants claim that Plaintiffs civil conspiracy claim should dismissed in conjunction with the three other claims.

         Fourth, Defendants argue that Plaintiffs IIED claim must be dismissed because it is barred by the two-year statute of limitations. Defendants assert that "the event that allegedly precipitated Plaintiffs IIED claim was MFD's June 29, 2014 decision to place Plaintiff on a revised status of membership. . . . [and] MFD's members in essence did nothing to reverse their June 2014 decision regarding his membership status after his wife passed away in 2016."[18] Defendants argue that "Plaintiff needed to file an IIED claim within two years after June 2014 and instead did nothing until the statutory period expired[.]"[19]

         Also, Defendants argue that no tolling doctrine applies here to elude the expiration of the statute of limitations. Defendants assert that "Plaintiff has not pled any facts to support an inference that some tolling doctrine should apply to his IIED claim which arose from the June 2014 decision to change his membership status."[20]Defendants argue that Plaintiff cannot avoid the statute of limitations issue by simply renewing the request that MFD revisit its decision to place him on a revised status of membership and getting denied."[21]

         B. Plaintiff's Contentions[22]

         Plaintiff initially argues that none of his four claims are barred by the statute of limitations because the statute of limitations does not begin to run until a defendant's last act pursuant to the "continuing treatment doctrine." Plaintiff appears to draw an analogy between the facts here and a medical negligence action to argue that "it is the last act of [a] defendant which activates the running of the statute of limitations."[23] Plaintiff argues that "there has not been and there cannot be any 'final' action sufficient to toll the statute because the impermissible acts taken against Plaintiff are continuous in nature and have repeatedly been reenacted and reaffirmed."[24]

         Plaintiff appears to apply the "continuing treatment doctrine" to the defamation and IIED claims as well by referring to "ongoing" conduct to argue that neither are barred by the statute of limitations.[25] Plaintiff also argues that the "discovery rule" applies to toll the statute of limitations as to the due process claim, stating

tolling is not at issue here, except possibly as to Count I, where it could be argued that the statute began to run upon the discovery of facts "constituting the basis of the cause of action or the existence of facts sufficient to put a person of ordinary intelligence and prudence on inquiry which, if pursued, would lead to the discovery" of such facts.[26]

         However, at oral argument on October 18, 2017, Plaintiff conceded that tolling, in fact, did not apply to any of his claims. "THE COURT: The plaintiff is not arguing the applicability of any tolling doctrine to any of the four counts? [COUNSEL FOR PLAINTIFF]: . . . yes, that is correct."[27] Plaintiff, however, the same day subsequently corrected his assertion that tolling is inapplicable to "any of the four counts" and maintains that tolling applies to his due process claim only.[28]

         Plaintiff agrees with Defendants' argument that civil conspiracy is not an independent cause of action and that the other counts fail, then the civil conspiracy claim also fails.


         Upon a motion to dismiss under Superior Court Rule 12(b)(6), the Court "(i) accepts all well-pleaded factual allegations as true, (ii) accepts even vague allegations as well-pleaded if they give the opposing party notice of the claim, (iii) draws all reasonable inferences in favor of the non-moving party, and (iv) only dismisses a case where the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances."[29] However, the Court will "ignore conclusory allegations that lack specific supporting factual allegations."[30]

         V. DISCUSSION

         Plaintiffs amended complaint must be dismissed because each of his claims therein are barred by the statute of limitations. The civil conspiracy claim must also be dismissed as it is not an independent cause of action and there is no underlying wrongful act that can give rise to it.

         A. The Statute of Limitations is not Tolled with Respect to ...

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