NETCARRIER TELECOM INC.
TIDEMARK FCU FOUNDATION INC. Defendant.
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
J. Smalls, Chief Judge.
AND PROCEDURAL HISTORY
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.
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.
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
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.
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
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
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. 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
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
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.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."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."
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