United States District Court, D. Delaware
GERALD I. SMITH, JR., Plaintiff,
PEOPLE'S PLACE II, INC. and JOSEPH C. ZINGARO, Defendants.
F. CONNOLLY UNITED STATES DISTRICT JUDGE.
before me are Plaintiffs objections (D.I. 15) to the
Magistrate Judge's Report and Recommendation issued on
October 16, 2019 (D.I. 14). The Magistrate Judge recommended
in her Report and Recommendation that I grant Defendants'
Motion to Dismiss Pursuant to Fed.R.Civ.P. 12(b)(6) (D.I. 7)
and Defendants' Motion for Leave to File under Seal
Exhibits A, B and C of Defendants' Opening Brief in
Support of Defendants' Motion to Dismiss Pursuant to
Fed.R.Civ.P. 12(b)(6) (D.I. 6). I have reviewed the Report
and Recommendation, the objections, and Defendants'
response (D.I. 16).
allegations in Plaintiffs complaint arise out of a custody
dispute that followed a divorce proceeding in the Delaware
Family Court. After hearing testimony and considering the
record evidence, including an evaluation of Plaintiff
conducted by Defendant Dr. Zingaro, the Family Court granted
custody of the Plaintiffs children to their mother,
Plaintiffs ex-wife. Plaintiff appealed the custody ruling,
which was affirmed by the Delaware Supreme Court in August
2018. Plaintiff then filed the instant action, accusing Dr.
Zingaro and his employer, Defendant People's Place II,
Inc., of fraud, gross negligence, negligence, negligent
infliction of emotional distress, and vicarious liability.
referred the case to the Magistrate Judge, authorizing her to
conduct all proceedings through and including the pretrial
conference and to hear and determine all motions. D.I. 11.
Defendants moved to dismiss the Complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6) for failure to state claims
on which relief can be granted. D.I. 7.
4. In a
detailed and well-reasoned Report and Recommendation, the
Magistrate Judge explained the many reasons why Plaintiffs
Complaint failed to state any claim upon which relief can be
granted. See generally D.I. 14. The Magistrate Judge
recommended that I grant Defendants' motion to dismiss.
Id. at 23. The Magistrate further recommended that I
grant Defendants' pending motion to seal, as that motion
was unopposed by Plaintiff and was sought in order to prevent
the disclosure of confidential and sensitive information
about Plaintiffs minor children. Id.
Plaintiff does not object to the Magistrate Judge's
recommendation that I grant the motion to seal. He does,
however, object to the Magistrate Judge's findings and
recommendation with respect to Defendants' motion to
dismiss. Plaintiff accuses the Magistrate Judge of false
assertions, violating his constitutional rights, failing to
follow binding precedent, and committing numerous legal
errors. See generally D.I. 15.
Magistrate Judge had the authority to make the findings and
recommendation she did with respect to Defendants' motion
to dismiss under 28 U.S.C. § 636(b)(1)(B). I review her
finding and recommendation do novo. §
636(b)(1); see also Fed. R. Civ. P. 72(b)(3);
Brown v. Astrue, 649 F.3d 193, 195 (3dCir.2011).
Plaintiff argues first that the Magistrate Judge
"falsely asserted that the 'Plaintiff subsequently
expressed concerns that Ms. Smith and her lawyer improperly
tried to influence Dr. Zingaro's opinion.'" D.I.
15 ¶ 1. This factual statement, however, comes directly
from Plaintiffs complaint. D.I. 2 ¶¶ 8, 10.
Plaintiff next argues that the Magistrate Judge legally erred
in determining that Dr. Zingaro is immune from suit under the
doctrine of judicial and witness immunity. Id.
¶2. But all of Plaintiff s claims against Dr. Zingaro
arise out of Dr. Zingaro's appointment by the Family
Court to provide that court with a custody evaluation and
recommendation, and therefore the Magistrate Judge correctly
held that under Hughes v. Long, 242 F.3d 121, 126
(3d Cir. 2011), Dr. Zingaro is immune from liability. D.I. 14
at 7-11. The fact that Plaintiff and his ex-wife, at the
Family Court's direction, split the cost of the services
Dr. Zingaro provided to the Court has no bearing on Dr.
Zingaro's status as a court-appointed expert.
Plaintiff next argues that the Magistrate Judge's
recommendation that his gross negligence claim should be
dismissed violates his constitutional right to have that
claim submitted to a jury at a trial. D.I. 15 ¶ 4. But
as Plaintiff himself acknowledges, "a moving party [is]
entitled to a finding and judgment as a matter of law"
when "the facts permit reasonable persons to draw but
one inference." Id. (internal quotation marks
and citation omitted). Here, as the Magistrate Judge
explained in the Report and Recommendation, the Complaint
does not allege gross negligence because the facts it
alleges-i.e., that Dr. Zingaro failed to interview
individuals Plaintiff thought he should interview and failed
to consider Plaintiffs Army medical records-do not allow for
a plausible inference that Dr. Zingaro's conduct was
flagrant or grossly deviated from the standard of care.
Brandow Chrysler Jeep Co. v. Data Scan Techs., 346
Fed.Appx. 843, 846-47 (3d Cir. 2009). Moreover, contrary to
Plaintiffs arguments, the cost-splitting of Dr. Zingaro's
fees ordered by the Family Court did not impose on Dr.
Zingaro a duty of care owed to Plaintiff.
Plaintiffs next argument-that the Magistrate Judge erred in
applying Rule 9(b) to his fraud claims, D.I. 15 ¶ 5 is
manifestly wrong. See Fed. R. Civ. P. 9(b);
Seville Indus. Mach Corp. v. South most Mack Corp.,
742 F.2d 786, 791 (3dCir. 1984).
Plaintiff next argues that the Magistrate Judge "legally
erred by stating [that] 'the complaint fails to
sufficiently plead the requisite reliance by plaintiff on the
alleged misrepresentations by Dr. Zingaro.'" D.I. 15
¶ 6. But as the Magistrate Judge correctly noted,
nothing in the complaint suggests that Plaintiff relied on
any of the alleged misrepresentations attributed to Dr.
Zingaro. See D.I. 14 at 13-14. On the contrary, as
Plaintiff admits in his objections, it was the Family
Court-not Plaintiff-that relied on Dr. Zingaro's
statements that Plaintiff claims are false or misleading by
omission. See D.I. 14 ¶ 11.
Plaintiff next argues that the Magistrate Judge "erred
in stating that the 'Plaintiff s application for social
security disability benefits is a matter outside the
pleadings that was not incorporated by reference into the
complaint and, therefore, it cannot be properly considered by
the court."' Id. ¶ 13. ...