Submitted: September 19, 2019
Defendants' Motion to Dismiss Count III of the Complaint
Honorable Andrea L. Rocanelli
consideration of Defendants' Motion to Dismiss Count III
of the Complaint; the opposition thereto filed by Plaintiff
Michael Carney ("Plaintiff"); the facts, arguments,
and authorities set forth by the parties; the Superior Court
Civil Rules; statutory and decisional law; and the entire
record in this case, the Court hereby finds as follows:
Plaintiff owns a parcel of real estate located on Front
Street in Wilmington, Delaware ("Property").
June 21, 2019, Plaintiff initiated this lawsuit, setting
forth several claims of tortious conduct relating to
Defendants' alleged trespass onto the Property.
Defendant B & B Service Co. ("B&B") is a
Delaware corporation that owns the property adjacent to
Plaintiff's property ("Adjacent Property").
Defendant Steel Suppliers Erectors, Inc. ("Steel
Suppliers") is a Delaware corporation that operates a
business on the Adjacent Property. Defendants Michael Bloom
and David Bloom are parties to this action in their
individual capacities and as officers of B&B and Steel
Suppliers (B&B, Steel Suppliers, Michael Bloom, and David
Bloom, collectively "Defendants").
Complaint alleges that in 2008 Defendants erected a fence
that encroached upon approximately 75 feet of the Property.
The Complaint further alleges that Plaintiff has repeatedly
demanded that Defendants remove the fence.
Complaint alleges that Plaintiff negotiated with a third
party to sell the Property in 2018. According to the
Complaint, Michael Bloom told the third party that Defendants
refused to remove the fence and that the fence had been in
place for 30 years. The Complaint alleges that Michael
Bloom's statement to the third party was false and
designed to interfere with Plaintiff's ability to market
and sell the Property.
August 15, 2019, in lieu of an answer, Defendants filed a
motion to dismiss Count III of the Complaint for failure to
state a claim upon which relief can be granted. Count III of
the Complaint sets forth a claim for tortious interference
with business relationships. Plaintiff opposes
7. On a
motion to dismiss for failure to state a claim upon which
relief can be granted,  the Court must read the complaint
generously, accept all well-pleaded allegations contained
therein as true, and draw all reasonable inferences in a
light most favorable to the non-moving party. A well-pleaded
complaint puts the opposing party on notice of the claim
being brought against it. Dismissal is warranted only "when
the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of
proof." Allegations that are merely conclusory and
lacking factual basis will not survive a motion to
survive a motion to dismiss for failure to state a claim for
tortious interference with business relationships, the
plaintiff must establish: "(1) the reasonable
probability of a business opportunity; (2) the intentional
interference by the defendant with that business opportunity;
(3) proximate causation; and (4) damages, all of which must
be considered in light of the defendant's privilege to
compete or protect his business interests in a fair and
lawful manner." Defendants argue that the Complaint does
not adequately plead the "reasonable probability"
and "intentional interference" elements.
meet the reasonable probability element, "a plaintiff
'must identify a specific party who was prepared to enter
into a business relationship with the plaintiff but was
dissuaded from doing so by the defendant and cannot rely on
generalized allegations of harm.'" The complaint
need not identify the party by name but "must allege
enough detail for the Court to be able to infer the existence
of specific parties who presented an existing or potential
business opportunity.""To be reasonably probable, a
business opportunity must be 'something more than a mere
hope or the innate optimism of the salesman' or a
'mere perception of a prospective business
Assuming the well-pleaded facts are true, Plaintiff's
Complaint establishes the reasonable probability of a
business opportunity. Plaintiff alleges that he negotiated
the sale of the Property with a third party and that the
third party has been unwilling to contract with Plaintiff to
purchase the property as a result of Defendants' trespass
and representations regarding the duration of ...