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Tolliver v. Delmarva Foundation for Medical Care

United States District Court, D. Delaware

August 3, 2018

M. DENISE TOLLIVER, Plaintiff,
v.
DELMARVA FOUNDATION FOR MEDICAL CARE, et al., Defendants.

          Superior Court of the State of Delaware in and for Kent County No. K17C-11-010 NEP

          M. Denise Tolliver, Camden, Delaware. Pro Se Plaintiff.

          Joe P. Yeager, McCarter & English, LLP, Wilmington, Delaware. Counsel for Defendants.

          MEMORANDUM OPINION

          ANDREWS, U.S DISTRICT JUDGE.

         Plaintiff M. Denise Tolliver, who appears pro se, filed this action in the Superior Court of the State of Delaware in and for Kent County. It was removed to this Court on December 8, 2017, by Defendants Delmarva Foundation for Medical Care, Quality Health Strategies, and Terri Daly. (D.I. 1). The Court has jurisdiction pursuant to 28 U.S.C. § 1332. Pending is Defendants' motion to dismiss and Plaintiff's motion for expedited proceedings and relief. (D.I. 13, 22). The matters have been fully briefed. For the reasons discussed below, the Court will grant Defendants' motion and will deny Plaintiff's motion. Plaintiff will be given leave to file an amended complaint.

         FACTUAL AND PROCEDURAL BACKGROUND

         Plaintiff's Complaint contains claims that revolve around her employment with Delmarva Foundation for Medical Care. Plaintiff was hired on October 7, 2013, during year one of a two-year grant with a second-year renewal ending June 30, 2015. (D.I. 1-1 at ¶ 2). Funding for the second year was contingent. (Id.) Her employment was terminated on May 12, 2014. (D.I. 1-1 at ¶¶ 14, 15).

         Count I of the Complaint alleges Delmarva Foundation for Medical Care and Quality Health Strategies breached the implied covenant of good faith and fair dealing; Count II is raised against all Defendants and alleges a violation of Title 19, Section 1108(3) of the Delaware Code for failure to provide notice to Plaintiff that she would be deprived of unemployment compensation; Count III of the Complaint is raised against all Defendants and alleges defamation; and Count IV is raised against all Defendants and alleges disability discrimination and retaliation as prohibited by state employment discrimination law. (D.I. 1-1 at ¶¶ 20-39). Plaintiff seeks compensatory and punitive damages. [Id. at ¶ ii).

         Defendants move to dismiss on the grounds that: (1) Counts I, II, and III are time-barred; (2) Counts II and IV fail to state claims upon which relief may be granted; (3) the Court lacks personal jurisdiction over Quality Health Strategies; and (4) Daly was never served with the summons and complaint. (D.I. 14).

         Plaintiff has filed a motion to expedite the proceedings and relief. (D.I. 22). Plaintiff's motion will be dismissed as moot.

         LEGAL STANDARDS

         Rule 12(b)(2).

         Rule 12(b)(2) of the Federal Rules of Civil Procedure directs dismissal when the court lacks personal jurisdiction over the defendant. Fed.R.Civ.P. 12(b)(2). Once a jurisdictional defense has been raised, the plaintiff bears the burden of establishing, with reasonable particularity, that sufficient minimum contacts have occurred between the defendant and the forum to support jurisdiction. See Provident Nat'l Bank v. California Fed. Sav. & Loan Ass'n, 819 F.2d 434, 437 (3d Cir. 1987). To meet this burden, the plaintiff must produce "sworn affidavits or other competent evidence," since a Rule 12(b)(2) motion "requires resolution of factual issues outside the pleadings." Time Share Vacation Club v. Atlantic Resorts, Ltd., 735 F.2d 61, 66 n.9 (3d Cir. 1984). A plaintiff "need only establish a prima facie case of personal jurisdiction" when the court has not held an evidentiary hearing. O'Connor v. Sandy Lane Hotel Co., 496 F.3d 312, 316 (3d Cir. 2007).

         To establish personal jurisdiction, a plaintiff must produce facts sufficient to satisfy two requirements by a preponderance of the evidence, one statutory and one constitutional. See Time Share, 735 F.2d at 66; Reach & Assocs. v. Dencer, 269 F.Supp.2d 497, 502 (D. Del. 2003). With respect to the statutory requirement, the court must determine whether there is a statutory basis for jurisdiction under the forum state's long-arm statute. See IMO Indus., Inc. v. Kiekert AG, 155 F.3d 254, 259 (3d Cir. 1998); Reach & Assocs., 269 F.Supp.2d at 502. With respect to the constitution, it requires the court to determine whether the exercise of jurisdiction comports with the defendant's right to due process. See id.; International Shoe Co. v. Washington, 326 U.S. 310, 316 (1945).

         Under of Delaware's long-arm statute, 10 Del. C. § 3104(c)(1)-(4), a court may exercise personal jurisdiction over a defendant when the defendant or its agent:

(1) Transacts any business or performs any character of work or service in the State;
(2) Contracts to supply services or things in this State;
(3) Causes tortious injury in the State by an act or omission in this State;
(4) Causes tortious injury in the State or outside of the State by an act or omission outside the State if the person regularly does or solicits business, engages in any other persistent course of conduct in the State or derives substantial ...

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