LYNN J. ROGERS, Plaintiff,
JOHN F. BUSHEY and MILTON FIRE DEPARTMENT, INC., Defendants.
Submitted: November 14, 2017
Defendants' Motion to Dismiss Amended Complaint.
Plaintiffs Motion to Amend Trial Scheduling Order.
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.
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. 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
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.
Court concludes that Plaintiffs claims are barred by the
two-year statute of limitations. The Court grants
Defendants' motion to dismiss the amended complaint.
FACTS AND PROCEDURAL HISTORY
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.
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.]" 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. 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
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." 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']
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." Plaintiff alleges in
his Amended Complaint that there were multiple examples of
"animus towards" him as early as 2009 and
continuing through 2012.
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]." 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.
brought suit on February 15, 2017. 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.
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. 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.
THE PARTIES' CONTENTIONS
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
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, 2017." 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."
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."
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
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." Defendants claim that Plaintiffs
civil conspiracy claim should dismissed in conjunction with
the three other claims.
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." Defendants argue that
"Plaintiff needed to file an IIED claim within two years
after June 2014 and instead did nothing until the statutory
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."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
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." 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
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. 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.
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." 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
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.
STANDARD OF REVIEW
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." However, the
Court will "ignore conclusory allegations that lack
specific supporting factual allegations."
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.
The Statute of Limitations is not Tolled with Respect to