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EFiled; Feb 29 2016 09:55P Transaction ID 58646574 Case No. N15C-12-096 ESB
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
DAVID GRIMALDI,
Plaintiff,
THOMAS GORDON and NEW CASTLE COUNTY,
Defendants.
C.A. No. N15C-12-096-ESB
JURY TRIAL OF TWELVE DEMANDED
DEFENDANTS' OPENING BRIEF IN SUPPORT OF THEIR MOTION TO DISMISS THE COMPLAINT FOR FAILURE TO STATE A CLAIM
McCARTER & ENGLISH, LLP Michael P. Kelly (DE ID # 2295) Daniel J. Brown (DE ID # 4688) Renaissance Centre 405 N. King Street, 8th Floor Wilmington, DE 19899 (302) 984-6300
NEW CASTLE COUNTY OFFICE OF LAW
Darryl A. Parson (DE ID #4134) Wilson B. Davis (DE ID # 5154) 87 Reads Way New Castle, DE (302)395-5135
Dated: February 29, 2016 Attorneys for Defendants Thomas P. Gordon and New Castle County
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TABLE OF CONTENTS
I. INTRODUCTION 1
II. NATURE AND STAGE OF PROCEEDING 3
III. THE COMPLAINT'S ALLEGATIONS 3
IV. QUESTIONS PRESENTED 6
V. ARGUMENT 7
A. Legal Standard 7
B. Counts I (NCCEPA) and II (DEPA) should be dismissed against Gordon because the statutes allow claims against only the County, not individual County officers 8
C. Counts I (NCCEPA) and II (DEPA) should be dismissed because Plaintiffs claims conflict with the plain language of 9 Del. C. § 1120(a) that the Chief Administrative Officer serves "at the pleasure" of the County Executive 10
D. Count III (First Amendment) should be dismissed because Grimaldi fails to allege that the Chief Administrative Officer position does not require political affiliation or that Grimaldi actually exercised a right to political association 13
E. Count IV (Stigma-Plus Defamation) should be dismissed because Grimaldi does not allege a false and defamatory statement or harm that was caused by such a statement 15
1. The Complaint fails to state a stigma plus defamation claim because it does not plead the allegedly defamatory statement with particularity 17
2. The Complaint fails to state a stigma plus defamation claim because it impermissibly bases a stigma-plus claim on a true statement 18
i i MEl 22085005v.2
3. The Complaint fails to state a stigma plus defamation claim because it impermissibly bases a stigma-plus claim on a "pure opinion, " which cannot be defamatory as a matter of law 18
4. The Complaint fails to state a stigma plus defamation claim because it does not allege any harm to Grimaldi 's
reputation caused by a false factual statement versus harm caused by plaintiff's own conduct 20
F. Count V (deprivation of a property) should be dismissed because Grimaldi had no property interest in his public employment and, therefore, no property interest in any severance payment 23
G. Count VI (DeFOIA) should be dismissed because the documents requested are not "public records" and because the request is being made for purposes of litigation 25
VI. CONCLUSION 30
in MEl 22085005v.2
TABLE OF AUTHORITIES
Page(s) FEDERAL CASES
Codd v. Velger, 429 U.S. 624 (1977) 15, 16, 18
Eldredge v. Fiorentino, 2014 WL 866795 (M.D. Pa. March 5, 2014) 24, 25
Ersek v. Twp. of Springfield, 102 F.3d 79 (3d Cir. 1996) 15, 16, 17, 22
Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74 (3d Cir. 1989) 16
Freebery v. Coons, 355 F. App'x 645 (3d Cir. 2009) 13, 14, 24
Heffernan v. City of Pater son, 111 F.3d 147 (3d Cir.) 14
Hill v. Borough of Kutz.town, 455 F.3d 225 (3d Cir. 2006) 15
Karr v. Castle, 768 F. Supp. 1087 (D. Del. 1991) 10
Kotlikoffv. The Cmty. News, 444 A.2d 1086 (1982) 18, 19, 20
Palmer v. Merluzzi, 868 F.2d 90 (3d Cir. 1989) 17
Pence v. Mayor & Township Comm. of Bernard Township, 453 Fed. Appx. 164 (3d Cir. 2011) 25
Poltrock v. NJ Automotive Accounts Management Co., 2008 WL 5416396 (D.N.J. Dec. 22, 2008) 27
Seacrist v. Skrepenak, 2009 WL 959640 (M.D. Pa. April 6, 2009) 25
IV MEl 22085005v.2
Smiley v. Daimler-Chrysler, 538F.Supp.2d7lf(D. Del. 2008) 17
U.S. Dept. of Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994) 27
STATE CASES
Abraham v. Post, 2012 WL 5509619 (Del. Super. Sept. 26, 2012) 16
Capital City Press v. East Baton Rouge Parish Metro. Council, 696 So.2d 562 (La. 1997) 27, 28
Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d531 (Del. 2011) 8
Conley v. Conley, 2015 WL 7747431 (Del. Super. Nov. 19, 2015) 23
Eliason v. Englehart, 733 A.2d 944 (Del. 1999) 8
Hubbard v. Dunkleberger, 659 A.2d 227 (Del. 1995) 11
Ko\ste v. Delaware State Police, 2001 WL 1198950 (Del. Sup. Ct. 2001) 28, 29
Malpiede v. Townson, 780 A.2d 1075 (Del. 2001) 7, 8
Meltzer v. City of Wilmington, 2008 WL 4899230 (Del. Super. Aug. 6, 2008) 9
Naples v. New Castle Cty., 2015 WL 1478206 (Del. Super. Mar. 30, 2015) 15, 22, 23
Nemec v. Shrader, 991 A.2d 1120 (Del. 2010) 7
Newsom v. Biden, 2011 Del. Ch. LEXIS 41 (Del. Ch. 2011) 26
ME] 22085OO5v.2
Olson v. Halvorsen, 986 A.2d 1150 (Del. 2009) 10, 11
Postell v. Eggers, 2008 WL 134830 (Del. Super. Jan. 15, 2008) 9
Ramunno v. Cawley, 705 A.2d 1029 (Del. 1998) 7
Riley v. Moyed, 529 A.2d 248 (Del. 1987) 18, 19, 20, 21
Slawik v. News-Journal Co., 428 A.2d 15 (Del. 1981) 21
Spielberg v. State, 558 A.2d 291 (Del. 1989) 8
State v. Fletcher, 974 A.2d 188 (Del. 2009) 11
Streett v. State, 669 A.2d 9 (Del. 1995) 8
Tomei v. Sharp, 902 A.2d 757 (Del. Super. 2006) 9
Zambrana v. State, 118 A.3d 773 (Del. 2015) 8.9
FEDERAL STATUTES
11U.S.C. §1211 17,20
42U.S.C.§ 1983 PASSIM
STATE STATUTES
9 Del. C. §1120(a) 10, 11,24
10 Del. C. §§ 4010-4013 23
14 Del. C. § 102(a) 12
VI MEl 220850O5v.2
20 Del. C. §§121, 122(a) 12
29 Del. C. § 10001 et seq 25,26,28
29 Del. C. §5004(a) 12
29 Del. C. §5115(c) 10
29 Del. C. §6302A(a) 12
29 Del. C. §7902(a) 12
29 Del. C. §8002(a) 12
29 Del. C. §8102(a) 12
29 Del. C. §8202(a) 12
29 Del. C. §8302(a) 12
29 Del. C. §8403(a)(l) 12
29 Del. C. §8502(a) 12
29 Del. C. §8603(a) 12
29 Del. C. §8902(a) 12
29 Del. C. §9004(a) 12
29 Del. C. §9007C(a) 12
RULES
Super. Ct. Civ. R. 12(b)(6) 3, 7
OTHER AUTHORITIES
Re: Freedom of Information Act Complaint Against Town of Smyrna, Del. Op. Atty. Gen. 10-IB17, 2010 WL 5186152 (Dec. 15, 2010) 27
Vll MEI 22085005v.2
I. INTRODUCTION
On October 29, 2015, the Hon. Thomas P. Gordon ("Gordon"), New Castle
County Executive, terminated David Grimaldi ("Plaintiff or "Grimaldi"), after the
latest in a string of embarrassing encounters that negatively impacted the image of
New Castle County government. Grimaldi, the former Chief Administrative
Officer ("CAO") of New Castle County ("NCC" or the "County"), alleges that
Gordon's account of Grimaldi's termination damaged Grimaldi's reputation and,
thereby, infringed on his constitutional right to liberty. On the face of the
Complaint, however, Gordon's alleged comment consisted of true facts and a non-
defamatory statement of opinion, and any damage to Grimaldi's reputation was the
result of his own conduct.
Grimaldi admits that when he was pulled over while driving through the
town of Elsmere, he told the Elsmere police officer, "You know, your Mayor
works for me." Grimaldi, however, fails to allege any innocent explanation for
that statement. Nor could he, as the only reasonable interpretation of the statement
is that Grimaldi was attempting to use his high-level position with the County to
influence the outcome of the traffic stop.
The Delaware Code provides that NCC's CAO serves "at the pleasure" of
the County Executive and, therefore, can be terminated for any reason. Grimaldi
improperly seeks to rewrite this statute when he claims that he was terminated in
MEl 22O850O5v.2
violation of county and state whistleblower statutes because he allegedly made
complaints to Gordon about nepotism and other violations of the county code.
Furthermore, an employee who serves "at the pleasure" of the County Executive
has no property interest in his position as a matter of law, which dooms Grimaldi's
claim that he was deprived of a property interest in a claimed lesser right to
severance upon termination from such a position.
Grimaldi further alleges that he was threatened with termination because of a
"rumor" that he might support a potential challenger to the County Council
President in the next election. However, the County CAO is a high-level "'policy
making" position - the holder of which cannot assert a "political affiliation" claim.
In addition, a "political affiliation" claim must allege that the plaintiff actually
supported a political rival, and Grimaldi does not allege that he did so.
Finally, the Complaint alleges that the County violated the Delaware
Freedom of Information Act ("DeFOIA" or the "Act") by failing to disclose a copy
of a County employee's resume. DeFOIA provides, however, that a resume
constitutes a confidential personnel document that is not to be disclosed and that a
request made for purposes of litigation is improper.
For all of these reasons, the Complaint fails to state a claim upon which
relief may be granted. Because these defects cannot be cured by amendment, the
Complaint should be dismissed with prejudice.
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II. NATURE AND STAGE OF PROCEEDING
On December 10, 2015, Grimaldi filed his Complaint, alleging six different
counts against Gordon and NCC (collectively the "Defendants"). (Dkt. 1). On
December 22, 2015, Grimaldi served both Gordon and the County. (Dkt. 3, 4). On
January 8, 2016, the Defendants filed a motion for enlargement of time under
Superior Court Civil Rule 6 to respond to the Complaint. (Dkt. 5). On January 12,
2016, Plaintiff and Defendants stipulated to the enlargement of time for
Defendants to respond to the Complaint until January 26, 2016. (Dkt. 6).
Defendants withdrew their motion. (Dkt. 7). Defendants then retained the law
firm of McCarter & English LLP and, on January 25, 2016, filed a second motion
for enlargement of time to respond to the Complaint until February 9, 2016. (Dkt.
9). Defendants now move to dismiss the Complaint under Superior Court Civil
Rule 12(b)(6). This is Defendants' opening brief in support of that motion.
III. THE COMPLAINT'S ALLEGATIONS1
Grimaldi served as the CAO of New Castle County in Gordon's
administration, from the time Gordon was elected to the office of County
Executive in November 2012 until October 29, 2015. (Compl. ffl 1, 6). Grimaldi
claims that, during his tenure, he complained of alleged violations of the New
1 As required under Rule 12(b)(6), this brief assumes the truth of the facts alleged in Plaintiffs Complaint. Accordingly, Defendants will not, at this time, correct the numerous inaccurate and false statements made in the Complaint.
- 3 -MEl 220850O5v.2
Castle County Code pertaining to nepotism and favoritism in the County's business
practices, many relating to the current County Risk Manager. (Compl. f][ 11-35).
Grimaldi alleges that on October 22, 2015, an Elsmere police officer stopped
him and gave him a ticket for driving on a suspended license. (Compl. (J[ 26).
During the traffic stop, Grimaldi told the police officer, '"[Y]ou know your Mayor
works for me.'" (Compl. f 21): The Mayor of Elsmere, Steve Burg, works as an
Executive Assistant for New Castle County. (Compl. \ 28 ).
Grimaldi alleges that on October 29, 2015, he and Gordon had a phone
conversation in which they discussed Grimaldi's ticket, as well as Grimaldi's
alleged concerns about the Risk Manager, and Gordon terminated Grimaldi.
Grimaldi alleges that Gordon "publicly misrepresented the circumstances of
Grimaldi's firing, telling the press that [Grimaldi] was fired for attempting to use
his position to influence the outcome of a traffic stop." (Compl. \ 31).4
" The Complaint refers to the "dash cam" video of the traffic stop and states that Grimaldi "at one point" says, "[YJou know your Mayor works for me." (Compl. \ 27). The dash cam video was posted on the website of The News Journal on November 2, 2015. http://www.delawareonline.com/videos/news/politics/2015/11/02/75052356/. In the video, Grimaldi actually makes that statement to the police officer twice.
3 The Complaint contains an error because it alleges that the October 2911 phone conversation between Gordon and Grimaldi "discussed the ticket incident, which occurred less than 48 [sic] prior to the call" (Compl. \ 30), yet the Complaint alleges that Grimaldi received the ticket on October 22nd (Compl. \ 26). The ti 168 hours, not "less than 48" hours. October 22nd (Compl. \ 26). The time between October 22nd and October 29th is seven days or
4 The Complaint does not set forth any particulars about Gordon's alleged statement regarding the termination, such as when the statement was made, to whom, or the words used. According to an article in The News Journal on November 3, 2015, the day after the dash cam video was
MEl 22085005v.2
The Complaint contains six separate counts. Count 1 claims that, in
violation of the New Castle County Employee Protection Act ("NCCEPA"),
Defendants terminated Grimaldi for allegedly reporting violations of the New
Castle County Code. (Compl. f][ 36-40). Count II claims that Defendants violated
the Delaware Employee Protection Act ("DEPA"), based on the same factual
allegations as Count I. (Compl. f][ 41-45). Count III asserts a claim under 42
U.S.C. § 1983 that Grimaldi was threatened because of "a rumor" that he might
support a primary challenger to the incumbent New Castle County Council
President, allegedly in violation of Grimaldi's First Amendment rights. (Compl. f\\
9-10, 46-49). Count IV claims that Gordon's allegedly defamatory statements
about Grimaldi's termination infringed upon Grimaldi's constitutional interest in
liberty, in violation of 42 U.S.C. § 1983. (Compl. 11 50-56). Count V contends
that Defendants deprived Grimaldi of an alleged property interest in a two-month
severance package with health benefits upon his termination, also under 42 U.S.C.
§ 1983. (Compl. ff 57-60). Count VI claims that Defendants violated DeFOIA by
not providing a copy of the current County Risk Manager's resume and work
history. (Compl. ff 61-65).
posted. Gordon said Grimaldi "was clearly trying to influence the outcome of the stop. It was clearly improper to say that to the officer and try to call the mayor from the car. It is a series of things (that led to his firing), but that was the last straw." http://www.delawareonline.eom/stoiv/news/2015/l 1/02/gordon-traffic-stop-last-straw-grimaldi/75042058/.
ME I 22085005v.2
IV. QUESTIONS PRESENTED
1. Does a claim of wrongful discharge under the NCCEPA and DEPA
against the County Executive fail where both statutes provide for such claims only
against the County. State or other political subdivision of the State?
Defendants' Answer: Yes.
2. Must a claim for wrongful discharge under the NCCEPA or the DEPA
fail where the employee, pursuant to 9 Del. C. § 1120(a), serves "at the pleasure"
of the County Executive and, thus, may be discharged at any time without cause?
Defendants' Answer: Yes.
3. Must a claim for political affiliation retaliation be dismissed where the
plaintiffs former position was a "policy-making" position, the plaintiff has failed
to allege that his former position did not require political affiliation, and the
plaintiff has failed to allege that he actually supported a political rival?
Defendants' Answer: Yes.
4. Does a claim of stigma-plus defamation fail where the plaintiff has
not pled the alleged statement's content with particularity, the statement's material
falsity, or any resulting harm, and where the alleged statement can only be
characterized as "pure opinion" concerning well-publicized, undisputedly true
facts?
Defendants' Answer: Yes.
MEl 22085005v.2
5. Does a claim for deprivation of an alleged constitutional right to a
severance package fail where the employee had no property interest in his position
because, by statute, he served "at the pleasure" of the County Executive?
Defendants' Answer: Yes.
6. Is a governmental agency required to disclose the resume of one of its
employees under DeFOIA, where the Act explicitly exempts "personnel files"
from disclosure, and where the Act excludes records pertaining to "potential or
pending litigation"?
Defendants' Answer: No.
V. ARGUMENT
A. Legal Standard
When considering a motion to dismiss under Rule 12(b)(6), the Court
assumes that all well-pleaded facts in the complaint are true, but the Court should
"ignore conclusory allegations that lack specific supporting factual allegations."
Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998). The Court should neither
"blindly accept conclusory allegations unsupported by specific facts" nor "draw
unreasonable inferences in the plaintiffs' favor." Nemec v. Shrader, 991 A.2d
1120, 1125 (Del. 2010) (citation omitted). Nor must the Court "accept every
strained interpretation of the allegations proposed by the plaintiff." Malpiede v.
-7 MEl 22085005v.2
Townson, 780 A.2d 1075, 1083 (Del. 2001). The Court should dismiss Grimaldi's
claims if Grimaldi is not entitled to relief "under any reasonably conceivable set of
circumstances susceptible to proof." Central Mortg. Co. v. Morgan Stanley Mortg.
Capital Holdings LLC, 27 A.3d 531, 536 (Del. 2011).
B. Counts I (NCCEPA) and II (DEPA) should be dismissed against Gordon because the statutes allow claims against only the County, not individual County officers.
County Executive Gordon, under the facts alleged in the Complaint, is
entitled to an order dismissing Counts I and II because the NCCEPA and the
DEPA, by their plain language, only apply to the County. '"Where the intent of
the legislature is clearly reflected by unambiguous language in the statute, the
language itself controls.'" Zambrana v. State, 118 A.3d 773, 775 (Del. 2015)
{quoting Spielberg v. State, 558 A.2d 291, 293 (Del. 1989)). "If uncertainty exists,
however, rules of statutory construction are applied." Spielberg, 558 A.2d at 293.
"The goal of statutory construction is to determine and give effect to legislative
intent." Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999); see also Streett v.
State, 669 A.2d 9, 12 (Del. 1995) ("When construing a statute, the Court attempts
to ascertain and give effect to legislative intent."). "To that end, the statute must
be viewed as a whole, and literal or perceived interpretations which yield
mischievous or absurd results are to be avoided." Spielberg, 558 A.2d at 293. "It
is well established that courts have no authority to vary the terms of a statute of
- 8 -MEl 220850O5v.2
clear meaning or ignore mandatory provisions." Zambrana, 118 A.3d at 775
(internal quotations and modifications omitted).
The NCCEPA explicitly states that "[t]he County shall not discharge,
threaten, reassign or otherwise adversely impact an employee regarding the
employee's compensation, terms, conditions, location or privileges of employment
because" the employee either reports suspected violations of law or participates in
a court action or an investigation. New Castle County Code at § 2.03.304
(emphasis added). On its face, the NCCEPA applies only to "the County" and is
silent with respect to the County's employees. The plain, unambiguous language
of the NCCEPA indicates that there is no cause of action against an individual
County "employee," such as Gordon. Thus, there can be no individual claim
against Gordon for an alleged violation of the NCCEPA, and Count I should be
dismissed with prejudice against Gordon individually for failure to state a claim.
Similarly, Delaware courts have repeatedly held that the DEPA does not
provide for claims against individual defendants. Tomei v. Sharp, 902 A.2d 757,
767 (Del. Super. 2006); Meltzerv. City of Wilmington, 2008 WL 4899230, *2 (Del.
Super. Aug. 6, 2008); Postell v. Eggers, 2008 WL 134830, *5 (Del. Super. Jan. 15,
2008). Accordingly, Counts I and II should be dismissed with prejudice for failure
to state a claim.
- 9 -MEI 220850O5v.2
C. Counts I (NCCEPA) and II (DEPA) should be dismissed because Plaintiff's claims conflict with the plain language of 9 Del. C. § 1120(a) that the Chief Administrative Officer serves "at the pleasure" of the County Executive.
Pursuant to 9 Dei C. § 1120(a), "[t]he County Executive shall appoint a
Chief Administrative Officer who shall serve at the pleasure of the County
Executive." (Emphasis added). The phrase "serve at the pleasure" has been
interpreted to mean that such employees "may be terminated with or without
cause." See e.g. Karr v. Castle, 768 F. Supp. 1087, 1099 (D. Del. 1991), affd sub
nom. United States v. Carper, 22 F.3d 303 (3d Cir. 1994) (referring to military
officers who serve at the pleasure of the President of the United States).
The DEPA and the NCCEPA, if they applied to the County CAO. would
conflict with the plain meaning of 9 Del. C. §1120(a). Pursuant to the DEPA
"[a]n employee who alleges a violation of this section may bring a civil action for
appropriate injunctive relief, actual damages, or both ... ." 29 Del. C. §5115(c)
(emphasis added). If the CAO could recover "appropriate injunctive relief for
termination - i.e. reinstatement to the position - or damages under either the DEPA
or the NCCEPA, the County Executive would not have the power to terminate the
CAO with or without cause, at his pleasure.
Where two statutes conflict, Delaware Courts must adhere to the rules of
statutory construction and. when possible, "presume consistency between recent
legislation and pre-existing law." Olson v. Halvorsen, 986 A.2d 1150, 1160 (Del.
10 MEl 22085005v.2
2009). "Laws are assumed to be cumulative, not destructive of other laws."
Hubbard v. Dunkleberger, 659 A.2d 227, 1995 WL 131789, at *6 (Del. 1995).
It is assumed that when the General Assembly enacts a later statute in an area covered by a prior statute, it has in mind the prior statute and therefore statutes on the same subject must be construed together so that effect is given to every provision unless there is an irreconcilable conflict between the statutes, in which case the later supersedes the earlier
State v. Fletcher, 91A A.2d 188, 193 (Del. 2009) (internal quotation and citations
omitted). Yet, "if two statutes conflict somewhat, we must, if possible, read them
so as to give effect to both, unless the text or legislative history of the later statute
shows that the legislature intended to repeal the earlier one and simply failed to do
so expressly." Olson, 986 A.2d at 1160 (internal quotations and modifications
omitted).
Neither the text nor the legislative history of the DEPA or of the NCCEPA
evidences an intent to repeal 9 Del. C. § 1120(a) or an intent to modify the system
whereby high-level executive appointees who "serve at the pleasure" of the
executive may be removed with or without cause. Because the DEPA and
NCCEPA do not implicitly repeal 9 Del. C. § 1120(a), the only interpretation that
harmonizes the three statutes is that the DEPA and NCCEPA do not apply to high-
level executive appointees, such as the CAO, who serve "at the pleasure o f the
chief executive. Any other reading of the DEPA and NCCEPA would write "serve
at the pleasure" out of 9 Del. C. § 1120(a).
- 1 1 -MEI 220850O5v.2
Moreover, if the DEPA were interpreted in the manner advanced by Plaintiff
and taken to its logical conclusion, it would apply to all high-level executive
appointees who serve "at the pleasure" of the chief executive at both the State and
County levels. As just one example, pursuant to 29 Del. C. §7902(a) the Secretary
of the Department of Health and Social Services "shall serve at the pleasure of the
Governor." (Emphasis Added).5 Under Plaintiff's interpretation of the DEPA, the
Secretary of Health and Social Services, or any other cabinet-level executive
appointee, could bring a claim for reinstatement or damages against the Governor.
Thus, the DEPA would conflict not only with 9 Del. C. §1120(a) but also with 29
Del. C. §7902(a) and each of the other statutes referenced below. The DEPA,
3 In addition to the Secretary of the Department of Health and Social Services, each statutory agency head who serves in the Governor's cabinet serves at the pleasure of the Governor. See 29 Del. C. §5004(a) (the head of the Delaware Economic Development Office "shall serve at the Governor's pleasure"); 29 Del. C. §6302A(a) (the "Director of the Office of Management and Budget ... serve[s] at the pleasure of the Governor"); 29 Del. C. §8002(a) ("the Secretary of the Department of Natural Resources and Environmental Control ... shall serve at the pleasure of the Governor"); 29 Del. C. §8102(a) ("the Secretary of the Department of Agriculture ... shall serve at the pleasure of the Governor*'); 29 Del. C. §8202(a) ("the Secretary of the Department of Safety and Homeland Security... shall serve at the pleasure of the Governor"'): 29 Del. C. §8302(a) ("the Secretary of the Department of Finance ... shall serve at the pleasure of the Governor"); 29 Del. C. §8403(a)(l) ("the Secretary of the Department of Transportation ... shall serve at the pleasure of the Governor"); 29 Del. C. §8502(a) ("the Secretary of the Department of Labor ... shall serve at the pleasure of the Governor"); 29 Del. C. §8603(a) (the head of the Delaware State Housing Authority "shall be the Housing Director [and] shall serve at the Governor's pleasure"); 29 Del. C. §8902(a) ("the Commissioner of the Department of Correction ... shall serve at the pleasure of the Governor"); 29 Del. C. §9004(a) ("the Secretary of the Department of Services for Children, Youth and Their Families ... shall serve at the pleasure of the Governor"); 29 Del. C. §9007C(a) (the head of the Department of Technology and Information "shall be the State's Chief Information Officer. The CIO shall ... serve at the pleasure of the Governor"); 14 Del. C. §102(a) ("the Secretary of Education shall serve at the pleasure of the Governor"); 20 Del. C. §§121. 122(a) (the head of the Delaware National Guard is the Adjutant General "who shall hold office at the pleasure of the Governor").
- 1 2 -MEl 22085OO5v.2
therefore, cannot reasonably be interpreted to apply to high-level executive
appointees who "serve at the pleasure" of a chief executive. Accordingly, the
DEPA and NCCEPA cannot apply to Grimaldi as the former CAO of the County,
and Counts I and II should be dismissed with prejudice for failure to state a claim.
D. Count III (First Amendment) should be dismissed because Grimaldi fails to allege that the Chief Administrative Officer position does not require political affiliation or that Grimaldi actually exercised a right to political association.
The elements of a public employee's claim for infringement of the right to
political affiliation are that: "1) [he] was employed at a public agency in a position
that does not require political affiliation, 2) [he] was engaged in constitutionally
protected conduct, and 3) this conduct was a substantial or motivating fact in the
government's employment decision." Freebery v. Coons, 355 F. App'x 645, 649
(3d Cir. 2009). Grimaldi fails to allege these three required elements.
First, the Complaint does not, and cannot, allege that the CAO position does
not require political affiliation. In Freebery, the Third Circuit Court of Appeals
held that the General Manager of NCC's Department of Special Services, who
served at the pleasure of the County Executive, could not proceed with a § 1983
political affiliation claim because he could not show that the position did not
require political affiliation. Id. at 649-650 (applying the "policy-making
exception"). As indicated by Freebery's description of the County's
organizational structure, the CAO has broad authority regarding personnel matters
-13-MEl 22085005v.2
and ranks above the General Manager, and both positions serve "at the pleasure" of
the County Executive. Id. at 647. Thus, as a matter of law, the CAO position is a
high-level, policy-making position that cannot be the subject of a § 1983 political
affiliation claim.
Second, the Complaint does not allege that Grimaldi actually engaged in
protected political affiliation; it alleges only that he was threatened based on a
"rumor" that he might support a potential challenger to the County Council
President. (Compl. f\{ 9-10, 46-49). The Third Circuit has held that a public
employee cannot proceed with a § 1983 political affiliation claim unless he
actually exercised his right to political affiliation. Heffernan v. City of Paterson,
111 F.3d 147, 153-154 (3d Cir.), cert, granted sub nom. Heffernan v. City of
Paterson, 136 S. Ct. 29. 192 L. Ed. 2d 997 (2015).6 A contention that an adverse
employment action was based on a mistaken belief that the employee supported a
political rival does not provide a basis for such a claim. Id.
Third, the Complaint alleges only that Grimaldi was "threatened" with
termination if he supported the potential challenger; it does not allege that he was
terminated for that reason. (Compl. fj[ 9-10, 46-49).
6 As the citation indicates, the Supreme Court granted certiorari in Heffernan. The Court heard oral argument in January.
- 1 4 -MEI 220850O5v.2
The failure to allege any one of these three required elements would
necessitate dismissal; all three are absent from the Complaint. Accordingly, Count
III fails to state a claim for relief and should be dismissed with prejudice.
E. Count IV (Stigma-Plus Defamation) should be dismissed because Grimaldi does not allege a false and defamatory statement or harm that was caused by such a statement.
A "stigma-plus" defamation claim under 42 U.S.C. § 1983 requires a
plaintiff to show (1) that his employer made a false and defamatory statement
about the employee in connection with a termination, (2) that the employee was
not provided an opportunity for a hearing to clear his name, and (3) that his
reputation was harmed by the false statement in a manner that impairs his
prospects for future employment. Hill v. Borough of Kutztown, 455 F.3d 225, 236
(3d Cir. 2006); Ersek v. Twp. of Springfield, 102 F.3d 79, 83-84 (3d Cir. 1996). If
such a claim is proven, the remedy is "name-clearing hearing":
In the public employment context, the "stigma-plus" test has been applied to mean that when an employer "creates and disseminates a false and defamatory impression about the employee in connection with his termination," it deprives the employee of a protected liberty interest. The creation and dissemination of a false and defamatory impression is the "stigma," and the termination is the "plus." When such a deprivation occurs, the employee is entitled to a name-clearing hearing.
'£>•
Hill, 455 F.3d at 236 (quoting Codd v. Velger, 429 U.S. 624, 628 (1977)); see also
Naples v. New Castle Cty., 2015 WL 1478206, at *9-10 (Del. Super. Mar. 30,
2015) affd, 2015 WL 6850660 (Del. Nov. 6, 2015).
- 1 5 -MEI 22085005v.2
A stigma-plus claim requires a plaintiff to allege that the employer's
statement about the employee was substantially and materially false. Codd v.
Velger, 429 U.S. 624, 627 (1977) ("substantially false"); Ersek, 102 F.3d at 83-84
("substantially and materially false"). For example, in Codd, the plaintiff police
officer claimed that he was stigmatized when his former employer disclosed
information indicating that he had been terminated because of an incident in which
"he had put a revolver to his head in an apparent suicide attempt." Codd, 429 U.S..
at 626. The employee, however, never asserted that the incident did not happen.
The Supreme Court held that, even assuming that the statement was stigmatizing,
the employee's claim failed because he did not allege that the employer's
statement about him was "substantially false." Id. at 627-628. Similarly, in
Fraternal Order of Police Lodge No. 5 v. Tucker, 868 F.2d 74, 82-83 (3d Cir.
1989), the plaintiff police officers complained that the police department had
issued a press release stating that they had been suspended for refusing to obey an
order to submit to urinalysis based on suspected drug use, yet the officers' claim
failed because they did not allege that they had not used drugs.
A stigma-plus claim also requires a plaintiff to allege that harm to his
reputation was caused by the falsity of the statements and not by, for example, the
7 Additionally, because Grimaldi was a public figure, he would be required to show by clear and convincing evidence that any allegedly false statements were made with actual malice. Abraham v. Post, 2012 WL 5509619. at *2 (Del. Super. Sept. 26, 2012) (citing New York Times Co. v. Sullivan. 376 U.S. 254 (1964) and Rosenblatt v. Baer, 383 U.S. 75 (1966)).
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plaintiff's conduct. Ersek, 102 F.3d at 84 ("the harm must be caused by the falsity
of the statements"); see also Palmer by Palmer v. Merluzzi, 868 F.2d 90, 96 n. 5
(3d Cir. 1989) (stigma-plus claim would fail where plaintiff did not allege that he
had not engaged in the conduct at issue; "Under these circumstances any injury to
his reputation is attributable to his conduct," not to the failure to provide a name-
clearing hearing).
1. The Complaint fails to state a stigma plus defamation claim because it does not plead the allegedly defamatory statement with particularity.
Grimaldi fails to recite the actual statement Gordon is alleged to have made.
Instead, Grimaldi merely characterizes the alleged statement, as follows: "Gordon
publicly misrepresented the circumstances of Grimaldi's firing, telling the press
that he was fired for attempting to use his position to influence the outcome of a
traffic stop." (Compl. 131). Grimaldi then alleges, "Such accusation imputed to
Grimaldi official misconduct which constitutes a crime under 11 U.S.C. §1211."
Id. The viability of a stigma-plus claim depends, in significant part, on the
particulars of the allegedly defamatory statement, including the precise statement
that was made, when it was made, and to whom it was made. Because the
Complaint does not allege these particulars, it fails to plead a defamatory
statement, see Smiley v. Daimler-Chrysler, 538 F.Supp.2d 711, 715-716 (D. Del.
2008), which is a required element of a stigma-plus claim.
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2. The Complaint fails to state a stigma plus defamation claim because it impermissibly bases a stigma-plus claim on a true statement.
While Grimaldi does not recite precisely what Gordon is alleged to have
said, Grimaldi cannot, as a matter of law, plead a stigma-plus claim based on any
statement that Grimaldi told the police officer who stopped him, "your Mayor
works for me." (Compl. f 27). Grimaldi admits that he made that statement, so
any comment by Gordon that Grimaldi made that statement would necessarily be
true. As the Supreme Court has held, a stigma-plus claim cannot be based on a
true statement. Codd, 429 U.S. at 627.
3. The Complaint fails to state a stigma plus defamation claim because it impermissibly bases a stigma-plus claim on a "pure opinion," which cannot be defamatory as a matter of law.
Though it is unclear whether Grimaldi alleges that Gordon actually said that
Grimaldi "attempted] to use his position to influence the outcome of a traffic stop"
or whether that is a characterization, (Compl. % 31), such a statement would clearly
be a pure opinion, not a defamatory statement of fact. "A pure opinion is one that
is based on stated facts or facts that are known to the parties or assumed by them to
exist." Riley v. Moyed, 529 A.2d 248, 251 (Del. 1987). "'Pure' expression of
opinion occurs also when the maker of the comment does not spell out the alleged
facts on which the opinion is based but both parties to the communication know
the facts or assume their existence and the statement of opinion is obviously based
-18 ME I 22085005v.2
on those assumed facts as justification for the opinion." Kotlikoff v. The Cmty.
News, 444 A.2d 1086. 1089 (1982).8 Pure expressions of opinion are protected
under the First Amendment, and, as a matter of law, are not defamatory. Riley,
529 A.2d at 251. Here, if Gordon is alleged to have said that Grimaldi
"attempt[edj to use his position to influence the outcome of a traffic stop," that
would clearly be an expression of pure opinion based on the disclosed, already
well-publicized fact that Grimaldi told the police officer who stopped him, "You
know, your Mayor works for me."9
Any opinion based on the disclosed facts about the traffic stop, no matter
how strongly-worded, cannot constitute defamation or provide the basis for a
stigma-plus claim.
When an opinion is accompanied by its underlying nondefamatory factual basis, a defamation action premised upon that opinion will fail no matter how unjustified, unreasonable or derogatory the opinion might be. ... This is so because readers can interpret the factual statements and decide for themselves whether the ... opinion was justified.
Q
Kotlikoff is quoted with approval by the Delaware Supreme Court in Riley, 529 A.2d at 254.
9 Perhaps the Complaint is referring to the report in The News Journal that Gordon said Grimaldi "was clearly trying to influence the outcome of the stop. It was clearly improper to say that to the officer and try to call the mayor from the car . . . ." That, too, is plainly a statement of opinion based on disclosed facts. The quote refers to what Grimaldi said to the officer (in the dash cam video that had already been posted on The News Journal's website) and expresses the view that it was "improper." A comment that an action was "improper" is. on its face, a statement of opinion, not a statement of fact.
- 1 9 -MEI 22085005v.2
Riley, 529 A.2d at 254 (citing Kotlikoff, 444 A.2d at 1091). For example, readers
of The News Journal would be able to read Grimaldi's comment to the police
officer and hear it on the previously-posted dash cam video and decide for
themselves whether the comment constituted an attempt to influence the officer not
to issue a ticket or was otherwise '"improper."
4. The Complaint fails to state a stigma plus defamation claim because it does not allege any harm to Grimaldi's reputation caused by a false factual statement versus harm caused by plaintiffs own conduct.
The allegation that Gordon's statement "imputed to Grimaldi official
misconduct which constitutes a crime under 11 U.S.C. §1211," (Complaint, f 31),
fails to state a claim for several reasons. It does not allege that Gordon actually
used the words "official misconduct." Rather, it appears to allege that the true
facts about Grimaldi's statement to the officer, combined with an expression of
opinion that the statement was made to influence the traffic stop, suggested that
Grimaldi engaged in official misconduct. However, this cannot provide a basis for
a "stigma-plus" claim because the statement would still be "substantially true."
An allegedly defamatory characterization is "substantially true" when it
could be no more damaging to the plaintiff's reputation than the true facts
themselves.
If the alleged libel was no more damaging to the plaintiffs reputation in the mind of the average reader than a truthful statement would have been, then the statement is substantially true.
-20-MEl 22085005v.2
In making this evaluation, we must consider whether the "gist" or "sting" of the article was true. The gist or sting is true if it produces the same effect on the mind of the recipient which the precise truth would have produced.
Riley, 529 A.2d at 253 (internal quotations omitted). The "gist" or "sting" of the
alleged statement by Gordon is that Grimaldi said to the officer who pulled him
over, "You know, your Mayor works for me." (Compl. f 27). That true factual
statement, in and of itself, would be damaging to Grimaldi's reputation because the
average reader would interpret it as an attempt to use his high office to influence
the police officer not to give him a ticket. Indeed, Grimaldi's Complaint does not
allege that he made that statement for any other purpose. Accordingly, any alleged
statement by Gordon characterizing Grimaldi's conduct during the traffic stop
would be "substantially true" and cannot provide the basis for a "stigma-plus"
claim.10
For the same reason, the allegation that Gordon gave a false reason for
Grimaldi's termination cannot provide a basis for a stigma-plus claim. Grimaldi
alleges that the reason for his termination was not his conduct during the traffic
stop but his alleged complaints about unlawful conduct in County government.
However, he does not. and cannot, allege that any harm to his reputation was
10 In Slawik v. News-Journal Co., 428 A.2d 15, 17 (Del. 1981), the Delaware Supreme Court held that a statement that a county official had committed "an abuse of office" (a) was an opinion and. (b) even if construed as a statement of fact, would be true because the official had pleaded guilty to obstructing an investigation into corruption in the county government. Here, similarly, a statement that Grimaldi engaged in "official misconduct" would be an opinion and substantially true in light of his admitted comment to the police officer.
- 2 1 -MEl 220850O5V.2
caused by a false statement about the motivation for the termination rather than by
the highly-publicized true facts about his conduct during the traffic stop.
A stigma-plus claim was held to be deficient for this reason in Ersek, 102
F.3d at 85. In that case, the town board issued a public statement truthfully stating
that an investigation was being conducted of the golf pro at a municipal golf course
but falsely stating that the town board had been involved in the investigation from
the beginning and had directed it, in order to create the false impression "that the
Board had been pro-active in overseeing the golf course." Id. at 81. The court
held as a matter of law that the stigma-plus claim failed because "we cannot
imagine that such fabrications caused more harm than would a statement that
truthfully said that only the police and a few Township officials were investigating
him." Id. at 85-86. Thus, the stigma-plus claim failed because the plaintiff had not
alleged any harm that was "caused by the falsity of the statements." Id. at 84.
Here, similarly, the Complaint does not allege that any harm was caused by the
allegedly false statement about the motivation for Grimaldi's termination as
opposed to the highly-publicized true facts regarding Grimaldi's conduct during
the traffic stop.
Indeed, Grimaldi fails to plead any harm from the stigma-plus claim. The
Complaint contains no allegations that any allegedly false statements have
foreclosed Grimaldi from other employment. Naples, 2015 WL 1478206, at *9
-22 MEl 22O850O5v.2
("employment action implicates a Fourteenth Amendment liberty interest ... if the
charge imposed such a stigma as to foreclose his freedom to take advantage of
other employment opportunities.") Without such harm, Grimaldi could only assert
a state law defamation claim, which is barred under the County and Municipal Tort
Claims Act, 10 Del C. §§ 4010-4013. Conley v. Conley, 2015 WL 7747431, at *3
(Del. Super. Nov. 19, 2015) (dismissing plaintiffs defamation claims against NCC
pursuant to the County and Municipal Tort Claims Act).
In sum, Grimaldi's stigma-plus claim fails to state a claim because it does
not allege a statement that is substantially and materially false or any harm that
could have been caused by an allegedly false statement rather than by the
admittedly true facts about Grimaldi's conduct during the traffic stop. Count IV,
therefore, fails to state a claim and should be dismissed with prejudice.
F. Count V (deprivation of a property) should be dismissed because Grimaldi had no property interest in his public employment and, therefore, no property interest in any severance payment.
Count V, also pleaded under 42 U.S.C. § 1983, asserts that Grimaldi was
deprived of a "vested property interest" in a severance package that he claims
would have consisted of two months' salary and extended health care benefits.
(Compl. f 60). Even assuming for purposes of this motion that the County had a
custom of providing severance packages and declined to offer such a package to
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Grimaldi, Count V fails to state a claim because, as a matter of law, Grimaldi's
alleged severance entitlement does not rise to the level of a protected property
interest for purposes of a § 1983 due process claim.
As an initial matter, Grimaldi does not - and cannot - contend that he had
any property interest in his former position as the CAO. Pursuant to 9 Del. C.
§ 1120(a), "[t]he County Executive shall appoint a Chief Administrative Officer
who shall serve at the pleasure of the County Executive." (Emphasis added).
Consequently, as a matter of law, Grimaldi had no protectable property interest in
that position. See Freebery, 355 Fed. Appx. at 648-49 (holding that because the
County Manager of NCC serves at the pleasure of the County Executive pursuant
to 9 Del. C. §1120(a), he has no protected interest in that position and cannot
maintain a civil rights claim for deprivation of property upon termination).
Since Plaintiff had no property interest in the CAO position, it necessarily
follows that he had no fundamental property right in the lesser interest of receiving
severance benefits upon termination from that position. Under similar
circumstances, the court in Eldredge v. Fiorentino, 2014 WL 866795 (M.D. Pa.
March 5, 2014), granted a public university's Rule 12(b)(6) motion to dismiss a
former employee's § 1983 claim alleging a property interest in severance payments
upon the elimination of his position at a public university. In words equally
applicable to Count V, the Eldredge court held: "if tenured public employment is
-24 MEl 22085005v.2
not a fundamental property interest protected by substantive due process, it
necessarily follows that a state law entitlement to severance benefits is not a
fundamental property interest protected by substantive due process." Id. at *6: see
also Pence v. Mayor & Township Comm. of Bernard Township, 453 Fed. Appx.
164 (3d Cir. 2011) (affirming dismissal of § 1983 claim and rejecting contention
that public employee had property interest in payment for unused sick time
following separation from employment); Seacrist v. Skrepenak, 2009 WL 959640
(M.D. Pa. April 6, 2009) (even assuming plaintiff had a contractual right to
payment of severance upon termination, plaintiff had no constitutionally protected
property interest in severance package, as "[n]ot all property interests created by
contract are afforded constitutional protection.").
As in Eldredge, given that Grimaldi had no due process property interest in
the CAO position, he likewise has no fundamental property interest in an alleged
entitlement to a severance package upon termination from that position. Thus,
Count V fails to state a claim and should be dismissed with prejudice.
G. Count VI (DeFOIA) should be dismissed because the documents requested are not "public records" and because the request is being made for purposes of litigation.
In Count VI, Grimaldi attempts to plead a claim under DeFOIA, 29 Del. C. §
10001 et seq., based upon the County's refusal to produce personnel file materials
relating to the current County Risk Manager, Ms. McDonaugh. This claim fails
- 2 5 -MEI 22085005v.2
because the requested documentation is excluded from DeFOIA's definition of a
"public record."
On November 1, 2015, Grimaldi requested a copy of "a current resume for
Cheryl McDonaugh, including any/all degrees attained, college/university
attended, and graduation date(s)." (Compl. f 62). By letter dated November 17,
2015, the County responded that the requested information was not a public record
under DeFOIA because it involved a personnel file that is exempt from disclosure.
(Compl. f 63). Grimaldi soon thereafter filed this lawsuit in which he, inter alia,
questions McDonaugh's educational background, thus making clear that Grimaldi
is trying to use a DeFOIA request to seek records relating to pending litigation.
The County's denial of Grimaldi's DeFOIA request was proper, and Count
VI should be dismissed with prejudice. McDonaugh's resume is a confidential
personnel file document that is not discoverable under DeFOIA. Pursuant to 29
Del. C. § 10002(1)(1), DeFOIA's definition of a "public record" expressly excludes
"[ajny personnel, medical or pupil file, the disclosure of which would constitute an
invasion of personal privacy, under this legislation or under any State or federal
law as it relates to personal privacy." See also Newsom v. Biden, 2011 Del. Ch.
LEXIS 41, *44 (Del. Ch. 2011) ("under Delaware's FOIA, personnel files are
excluded from the definition of public records").
-26 MEI 22085005v.2
McDonaugh's resume, educational background, and related personnel file
materials are entitled to privacy protections under DeFOIA. As recognized by the
Attorney General, "the right of privacy [extends] to 'records relating to the job
qualifications of applicants for public employment.'" Re: Freedom of Information
Act Complaint Against Town of Smyrna, Del. Op. Atty. Gen. 10-1B17, 2010 WL
5186152 (Dec. 15, 2010). Indeed, in interpreting a comparable provision of the
federal Freedom of Information Act, the United States Supreme Court held that it
would be invasive of public employees' privacy for a governmental agency to
disclose the workers' home addresses in response to a FOIA request, even though
home addresses are often publicly available through various sources. U.S. Dept. of
Defense v. Federal Labor Relations Auth., 510 U.S. 487 (1994). Here, of course,
the requested personnel records would contain much more than just McDonaugh's
home address.
The two out-of-state decisions cited within the Complaint are readily
distinguishable and cannot salvage Count VI. The Poltrock case - an unpublished
opinion from New Jersey not even involving a Freedom of Information Act request
- dealt with whether job references included in an employment application were a
private matter for purposes of the tort of intrusion upon seclusion. See Poltrock v.
NJ Automotive Accounts Management Co., 2008 WL 5416396, at *5-6 (D.N.J.
Dec. 22, 2008). The other case, Capital City Press v. East Baton Rouge Parish
-27 MEI 22085005v.2
Metro. Council, 696 So.2d 562, 568 (La. 1997). centered on Louisiana's Public
Records Law, which "protects only certain information in the personnel records of
a public employee which it has deemed to be confidential, i.e. home telephone
numbers and addresses" and was found not to preclude disclosure of applications
for public employment. In concluding that Louisiana's statute contained only
limited protections for the personnel file materials, the Capital City court noted
that other states - including Delaware - have enacted public record laws that
exempt personnel file information where disclosure would constitute an invasion
of privacy. See Id. at 567 n.5.
Finally, Count VI should be dismissed for the additional reason that
Plaintiff's request seeks "records pertaining to pending or potential litigation."
which are also excluded from the definition of "public records" under DeFOI A. 29
Del. C. § 10002(1)(9). In Koyste v. Delaware State Police, 2001 WL 1198950,
at*3 (Del. Sup. Ct. 2001), the court granted a motion to dismiss a DeFOIA claim
arising from plaintiff's request for state police records on traffic stops where the
records were intended to be used in a pending criminal prosecution. In dismissing
the Complaint, the court observed:
It is difficult to fathom how the records sought by Plaintiff do not constitute "records pertaining to pending or potential litigation" under the exemption to "public records" of 29 Del. C. § 10002(d)(9)
-28 MEl 220850O5v.2
[now § 10002(l)(9)"j. Although Plaintiff Koyste does not directly state why he wants the State Police materials, his purpose is clear: for use by the Federal Public Defender's Office in the defense of its client, Segundo Garcia. ... Plaintiff Koyste is attempting a circuitous route around the normal discovery channels.
Id. at *3.
The reasoning of Koyste applies with equal force here. Plaintiff's DeFOIA
request for Ms. McDonaugh's resume and educational background obviously
pertains to his allegations elsewhere in the Complaint questioning whether and
when Ms. McDonaugh graduated from the University of Delaware. (Compl. \ 19).
Since the requested records pertain to this litigation, they are exempted from the
definition of "public records" under DeFOIA. Plaintiffs effort to manipulate
DeFOIA and make an end run around the discovery process should be rejected.
1' See 29 Del C. § 10002(1)(9) ("For purposes of this chapter, the following records shall not be deemed public: ... (9) Any records pertaining to pending or potential litigation which are not records of any court.").
-29 ME I 22085005v.2
VI. CONCLUSION
For the reasons stated above, the Defendants Thomas P. Gordon and New
Castle County respectfully request that the Complaint be dismissed in its entirety
with prejudice for failure to state a claim.
McCARTER & ENGLISH, LLP
A/MichaelP. Kelly Michael P. Kelly (DE ID # 2295) Daniel J. Brown (DE ID # 4688) Renaissance Centre 405 N. King Street, 8th Floor Wilmington, DE 19899 (302) 984-6300
NEW CASTLE COUNTY OFFICE OF LAW
Darryl A. Parson (DE ID #4134) Wilson B. Davis (DE ID #5154) 87 Reads Way New Castle, DE (302)395-5135
Dated: February 29, 2016 Attorneys for Defendants Thomas P. Gordon and New Castle County
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