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Netcarrier Telecom Inc. v. Tidemark FCU Foundation Inc.

Court of Common Pleas of Delaware, New Castle

June 13, 2019

NETCARRIER TELECOM INC.
v.
TIDEMARK FCU FOUNDATION INC. Defendant.

          Adam F. Wasserman, Esq. Attorney for Plaintiff

          Stephen W. Spence, Esq. Attorney for Defendant

          OPINION ON DEFENDANT'S MOTION TO DISMISS AND PLAINTIFF'S MOTION TO AMEND

          Alex J. Smalls, Chief Judge.

         FACTUAL AND PROCEDURAL HISTORY

         This is a debt action brought by Netcarrier Telecom, Inc., ("Plaintiff) against Tidemark FCU Foundation, Inc. ("Defendant") on January 30, 2019. Plaintiff claims Defendant owes a sum pursuant to a debt and demands judgment against Defendant in the amount of $5, 502.25 plus interest at 18%, attorney's fees and costs.

         On February 28, 2019, Defendant filed a Motion to Dismiss pursuant to Court of Common Pleas Civil Rule 12(b)(6) and 8 Del. C §383. Defendant claims Plaintiff may not bring this action under 8 Del. C. §383 because Plaintiff is not qualified to do business in the State of Delaware. Further, Defendant argues that Plaintiff fails to state a claim upon which relief can be granted because the contractual relationship between the parties was cancelled. Lastly, Defendant claims venue is improper, and as such, this claim should be dismissed.

         On March 11, 2019, Plaintiff filed a Response to Defendant's Motion to Dismiss alleging Defendant's business operations comes within the exceptions to 8 Del. C §383 [1] because Plaintiff is in the business of providing voice, data, and internet services pursuant to contracts submitted through mail or electronic means outside of the state. Plaintiff avers it relied in good faith in naming the proper Defendant but may have mistaken the entity name. Further, because Defendant failed to plead insufficient service of process, Plaintiff contends that the incorrect entity name is not prejudicial and requests leave to amend the complaint. Lastly, Plaintiff claims venue is proper because this Court has jurisdiction throughout the state.

         On March 15, 2019, the Court held a hearing and ordered supplemental briefing within ten (10) days. On March 25, 2019, both parties submitted its briefs. On April 30, 2019, Plaintiff submitted a supplemental document which contained a valid Delaware business license. Thus, the Court gave Defendant ten (10) days to submit a supplemental response, if any and Plaintiff ten (10) days thereafter to submit its reply brief, if any. On May 9, 2019, Defendant submitted its Second Supplemental Submission in Support of its Motion to Dismiss relying on the arguments made in its March 25, 2019 brief.[2]

         PARTIES' CONTENTIONS

         Defendant argues Plaintiff made no allegations in its original complaint that it is or ever was exempt from registering to do business as a foreign corporation under 8 Del. C. §373 and should be estopped from asserting that now. In addition, Defendant argues this Court lacks jurisdiction to hear Plaintiffs claims because there is a proper action pending in the Court of Common Pleas in and for Sussex County, No. CPU6-19-000354; Tidemark Federal Credit Union v. Netcarrier Telecom, Inc. Defendant avers the proper parties are named in the Sussex County action and therefore, this action must be dismissed with costs and fees awarded to Defendant.

         In Plaintiffs supplemental brief opposing Defendant's Motion to Dismiss, Plaintiff moves to Amend the Complaint. Plaintiff continues to argue they can maintain an action in Delaware under the Business License exceptions pursuant to 8 Del. C. §373. Moreover, Plaintiff argues its business falls under the exception because it "provid[es] voice, data, and internet services, including fiber broadband, DSL, and VOIP. For example, contracts are submitted through mail or electronic means and accepted outside of the State. Further, Plaintiff avers its business operations satisfy the exception of being wholly interstate in character and it is exempt from the requirements of 8 Del. C. §371. Conversely, Plaintiff argues that if the Court were to find the statutory exceptions do not apply, Plaintiff requests a brief of stay of the case to provide an opportunity for it to register with the Delaware Secretary of State.[3] Lastly, Plaintiff argues Defendant filed a separate lawsuit in Sussex County which involves the same factual dispute alleged in this case and has still not properly served Plaintiff.[4]

         In addition, Plaintiff requests leave of Court to file an amended complaint pursuant to CCP Civil Rule 15(a). Plaintiff inadvertently named the incorrect entity in its Complaint. Plaintiff sued "Tidemark FCU Foundation, Inc." instead of "Tidemark Federal Credit Union." As they are directly connected by registered agent and physical address, Plaintiff requests leave to amend.

         LEGAL STANDARD

         In considering motions to dismiss filed pursuant to Court of Common Pleas Civil Rule 12(b)(6), the Court must assume that all well-pled facts in the complaint are true.[5]The complaint should not be dismissed unless "the plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible to proof."[6]The Court is required to accept only those "reasonable inferences that logically flow from the face of the complaint, [it] is not required to accept every strained interpretation of the allegations proposed by the plaintiff."[7]

         DISCUSSION

         A. Title 8 of ...


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