United States District Court, D. Delaware
M. DENISE TOLLIVER, Plaintiff,
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
Denise Tolliver, Camden, Delaware. Pro Se Plaintiff.
Yeager, McCarter & English, LLP, Wilmington, Delaware.
Counsel for Defendants.
ANDREWS, U.S DISTRICT JUDGE.
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.
AND PROCEDURAL BACKGROUND
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).
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).
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.
has filed a motion to expedite the proceedings and relief.
(D.I. 22). Plaintiff's motion will be dismissed as moot.
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).
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).
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