Buchanan v. Gay, et al.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR SUSSEX COUNTY DAVID J. BUCHANAN, and in the interest of HEIDI N. BUCHANAN, Plaintiff, v. THOMAS E. GAY, ESQUIRE; THALIA JOAN GAY; and the firm of STUMPF, VICKERS & SANDY, P.A., Defendants. ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 06C-01-002 MMJ MEMORANDUM OPINION Submitted: June 26, 2006 Decided: September 21, 2006 David J. Buchanan, Pro Se Joseph Scott Shannon, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware, Attorneys for Thomas E. Gay, Esquire and Stumpf Vickers & Sandy, P.A. John A. Elzufon, Esquire, Elzufon, Austin, Reardon, Tarlov & Mondell, P.A., Wilmington, Delaware, Attorneys for Thalia Joan Gay JOHNSTON, J. PROCEDURAL CONTEXT On January 3, 2006, pro se plaintiff Davis J. Buchanan ( Buchanan ) filed a Complaint, seeking damages for Breach of Fiduciary Duty, Medical Malpractice, Defamation of Character, Derivative Tort, Infliction of Severe Emotional Distress and Harm, Litigation Conducted in Malum In Se, Failure to Observe Federal Bankruptcy Laws, Violation of Civil Rights, Disadvantaging an Oposing Party by Misleading a Presiding Judge, Abuse of Process, Errors and Omissions. The parties filed several motions. The Court held a hearing on the motions on June 26, 2006. Following is the Court s resolution of the motions. Motion to Dismiss by Defendant Thaila Joan Gay and Motion to Strike Motion to Dismiss by Defendant Thaila Joan Gay for non Compliance of Court Rules and Plaintiff s Motion for Default Judgment Against Thaila Joan Gay and Motion to Strike Answer and Opposition of Defendants Thomas E. Gay and Stumpf, Vickers & Sandy, P.A. to Plaintiffs Motion for Default Judgment as to Thaila Gay 1 Thaila Joan Gay is the former spouse of plaintiff David J. Buchanan. Thaila Gay presently is married to defendant Thomas E. Gay. As set forth in the Complaint, Buchanan alleges that while employed as a nurse for Beebe Hospital, Thaila Gay breached her fiduciary duty to Mr. Buchanan resulting in medical malpractice. Section 6853(a)(1) of title 18 of the Delaware Code provides that all medical negligence complaints must be accompanied by an affidavit of merit, signed by an expert witness, accompanied by a current curriculum vitae of the witness, stating that there are reasonable grounds to believe that healthcare medical negligence has been committed. Buchanan has conceded that he has not filed an affidavit of merit. The claim against Thaila Gay clearly is designated as medical malpractice. The Court finds that plaintiff has failed to comply with the affidavit of merit prerequisite set forth in sections 6853(a)(1) and (c) of title 18 of the Delaware Code. THEREFORE, the Motion to Dismiss by Defendant Thaila Joan Gay is hereby GRANTED, with prejudice. The Court having dismissed Defendant Thaila Joan Gay, the Motion to Strike Motion to Dismiss by Defendant Thaila Joan Gay for non Compliance of Court Rules; Plaintiff s Motion for Default Judgment Against Thaila Joan Gay; and the Motion to Strike Answer and 2 Opposition of Defendants Thomas E. Gay and Stumpf, Vickers & Sandy, P.A. to Plaintiffs Motion for Default Judgment as to Thaila Gay are hereby DENIED AS MOOT. * * * * * Plaintiff s Motion for Protective Order and Order to Strike Supplement of Defendants Thomas E. Gay and Stumpf, Vickers & Sandy P.A. to their Motion for Dismissal in Lieu of an Answer to the Complaint During the June 26, 2006 hearing, the Court dismissed, with prejudice, plaintiff Heidi N. Buchanan as a party to the case. David Buchanan, Heidi s father, had filed the Complaint purportedly in the interest of Heidi N. Buchanan. David Buchanan failed to follow the required procedure for appointment as the legal representative of a minor. Additionally, at the time of the June hearing, Heidi had reached majority. By Affidavit of Heidi N. Buchanan attached to the Supplement of Defendants Thomas E. Gay and Stumpf, Vickers & Sandy, P.A. to their Motion for Dismissal in Lieu of an Answer to the Complaint, Heidi Buchanan requested that she be dismissed as a party. The Court found that the Supplement was properly filed in accordance with the Superior Court Civil Rules, and that the substance of the Supplement was meritorious. THEREFORE, Plaintiff s Motion for Protective Order and Order to Strike Supplement of Defendants Thomas E. Gay and Stumpf, Vickers & 3 Sandy P.A. to their Motion for Dismissal in Lieu of an Answer to the Complaint is hereby DENIED. Plaintiff Heidi N. Buchanan is hereby dismissed as a party to this case, with prejudice. Further, in the Motion for Protective Order, Plaintiff alleged that a member of the Delaware Bar engaged in repeated violent conduct. Specifically, Plaintiff accused the Delaware attorney of endangering a child as follows: On or about the filing of the Affidavit of Heidi N. Buchanan, the child sustained injuries characteristic to physical coercion, and are repetitive in nature to a broken rib injury sustained by the child on or about the time [the attorney] obtained an Affidavit from the child pertaining to Family Court issues. There is absolutely no factual basis whatsoever supporting Plaintiff s wholly specious and libelous allegations. Plaintiff s motion is in violation of Superior Court Civil Rule 11(b). THEREFORE, the Court sua sponte deems as striken in its entirety Plaintiff s Motion for Protective Order and Order to Strike Supplement of Defendants Thomas E. Gay and Stumpf, Vickers & Sandy P.A. to their Motion for Dismissal in Lieu of an Answer to the Complaint , as lacking factual support, and clearly having been filed without any reasonable inquiry. 4 * * * * * Plaintiff s Motion for Default Judgment Against Thomas E. Gay, Esquire, and the Firm of Stumpf, Vickers & Sandy, P.A. Plaintiff has requested an order of payment for the amount of $37,000,000 (thirty seven million dollars) in response to, and as a result of Respondents inexcusable neglect of legal process, laxity in defending any and all allegation of Complaint, where respondents are joint Tortfeasors joint and severally liable for the damages claimed, where separation of respondent parties has delayed this litigation, allowed the individual Tortfeasors ample time to retain Counsel, research and discovery a defense, and Answer the allegations of the Complaint, where the Respondents have failed to Provide a timely Answer giving cause for Motion for Default Judgment, pursuant to Superior Court Rule 55. [sic] Superior Court Civil Rule 55(b) provides that judgment by default may be entered when a party against whom a judgment for affirmative relief is sought has failed to appear, plead or otherwise defend. Defendants Thomas Gay and Stumpf, Vickers & Sandy, P.A. were served on January 11, 2006. Counsel for both defendants entered an appearance on January 26, 2006. Also on January 26, 2006, both defendants filed a Motion for Enlargement of Time to File an Answer. The Court granted the motion and set March 3, 2006 as the time within which 5 these defendants must file a responsive pleading. On February 9, 2006, these defendants timely filed a Motion for Dismissal in Lieu of Answer to the Complaint. A motion to dismiss under Rule 12(b)(6) is a responsive pleading for purposes of Rule 55. THEREFORE, Plaintiff s Motion for Default Judgment Against Thomas E. Gay, Esquire, and the Firm of Stumpf, Vickers & Sandy, P.A. is hereby DENIED. * * * * * Motion of Thomas E. Gay, Esquire and Stumpf, Vickers & Sancy, P.A. for Dismissal in lieu of an Answer to the Complaint The claims asserted in the Complaint fall into three categories. The following is the Court s analysis of each category. Pleadings Filed and Statements Made by Thomas E. Gay, Esquire The Complaint asserts that Gay made numerous statements that defamed Plaintiff. Plaintiff also claims that various pleadings, motions and documents, filed in connection with Family Court proceedings, in bankruptcy proceedings, and with the Delaware Supreme Court, were malicious and caused Plaintiff severe emotional harm. Plaintiff also claims that Gay s actions in connection with court proceedings harmed Plaintiff and resulted in unreasonable delay, financial 6 damage, police harassment, and imposition by Family Court of conditions on the Plaintiff[] that are penal in nature and which are described as CRUEL AND UNUSUAL punishment in a civilized community, in violation of the 8th amendment. Plaintiff alleges that Gay acted in concert with his law firm, Stumpf, Vickers & Sandy, P.A. In certain instances, Plaintiff asserts that Gay breached his fiduciary duties to Heidi Buchanan and David J. Buchanan. There is no basis for a finding that Gay had any fiduciary duty to David Buchanan. Because Heidi Buchanan is no longer a party, the Court need not address whether there was any breach of duty to Heidi. Although currently married to Thaila Joan Gay, former wife of David J. Buchanan, Thomas Gay was acting as an attorney (representing Thaila Gay) in all of the Family Court, Bankruptcy Court, and Supreme Court proceedings. In Delaware, the absolute privilege attaches to all statements made in the course of judicial proceedings. The privilege affords absolute protection upon a showing that the statements were issued as part of a judicial proceeding. The privilege is not confined to events inside a courtroom. Rather, the privilege 7 extends to all communications relating to the litigation, including communications with witnesses and the drafting and filing of pleadings.1 The absolute privilege protects attorneys and participants in litigation from actions for defamation. The purpose served by the absolute privilege is to facilitate the flow of communication between persons involved in juridical proceedings and, thus, to aid in the complete and full disclosure of facts necessary to a fair adjudication. To accomplish this goal, the privilege protects judges, parties, attorneys, witnesses and other persons connected with litigation from the apprehension of defamation suits, thus permitting them to speak and write freely, without undue restraint. Moreover, the protection afforded by the privilege is absolute; so long as the statement is pertinent to, and made in the course of, a judicial proceeding, even a showing of malice will not divest the statement of its immune status (emphasis in original).... As the Nix court pointed out, the interest in encouraging a litigant s unqualified candor as it facilitates the search for truth is deemed so compelling that the privilege attaches even where the statements are offered maliciously or with knowledge of their falsity. 2 The absolute privilege bars all of Plaintiff s claims based on pleadings filed, statements made, and actions taken by Thomas E. Gay, Esquire, individually and as a member of the law firm of Stumpf, Vickers & Sandy P.A., in connection with litigation in which Gay represented Thaila Joan Gay. 1 Nix v. Sawyer, 466 A.2d 407, 410-11 (Del. Super. 1983). 2 Barker v. Huang, 610 A.2d 1341, 1345 (Del. 1992) (quoting Nix v. Sawyer, 466 A.2D 407 (Del. Super. 1983). 8 Plaintiff s Civil Rights Claims Plaintiff alleges that Gay violated Plaintiff s civil rights as guaranteed by the Fifth, Eighth and Fourteenth amendments to the United States Constitution. Thomas E. Gay, Esquire and the law firm of Stumpf, Vickers & Sandy, P.A. are private parties engaged in the private practice of law. In order to maintain a cause of action on the basis of violation of Constitutional rights, a plaintiff must demonstrate: (1) that the deprivation was caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible; and (2) that the private party acted together with or...obtained significant aid from State officials or engaged in conduct otherwise chargeable to the State. 3 Plaintiff has not alleged any facts upon which the Court could find that Gay or Stumpf, Vickers & Sandy P.A. acted under color of state law. 3 Wyatt v. Cole, 504 U.S. 158, 160-62 (1992). 9 Additionally, such claims must be made pursuant to the Civil Rights Act of 1971, as codified at 42 U.S.C. §1983.4 Plaintiff has failed to do so. Delaware Lawyers Rules of Professional Conduct The Complaint sets forth several instances in which Gay and his law firm allegedly breached ethical duties established by the Delaware Lawyers Rules of Professional Conduct ( DLRPC ). The DLRPC regulate the actions of individual attorneys and do not apply to law firms. Further, assuming the facts in the light most favorable to Plaintiff, even if there were violations of the DLRPC, Plaintiff does not have standing to recover damages. The Preamble: A lawyer s responsibilities, provides in pertinent part: (20) Violation of a Rule should not itself give rise to a cause of action against a lawyer nor should it create any presumption in such a case that a legal duty has been breached. In addition, violation of a Rule does not necessarily warrant any other nondisciplinary remedy, such as disqualification of a lawyer in pending litigation. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct 4 42 U.S.C. §1983 ( Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia. ). 10 through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rule. There is no basis for enforcement of a lawyer s ethical duties outside the framework of disciplinary proceedings. It is a fundamental constitutional principle that the Delaware Supreme Court has sole and exclusive jurisdiction over all matters affecting governance of members of the Delaware Bar.5 ___________________________________________ THEREFORE, the Motion of Thomas E. Gay, Esquire and Stumpf, Vickers & Sandy, P.A. for Dismissal in lieu of an Answer to the Complaint is hereby GRANTED. The Complaint is hereby DISMISSED WITH PREJUDICE. All subsequent filings and any further application to this Court relating to this case shall be subject to the requirements of 10 Del. C. §8803(e).6 5 In re Infotechnology, Inc., Shareholder Litigation, 582 A.2d 215, 219-220 (Del. 1990). 6 (e) When a Court finds that a litigant has abused the judicial process by filing frivolous or malicious litigation, the Court may enjoin that litigant from filing future claims without leave of court. When so enjoined, any future requests to file claims must be accompanied by an affidavit certifying that: (continued...) 11 * * * * * IT IS SO ORDERED. __________________________________ The Honorable Mary M. Johnston 6 (...continued) (1) The claims sought to be litigated have never been raised or disposed of before in any court; (2) The facts alleged are true and correct; (3) The affiant has made a diligent and good faith effort to determine what relevant case law controls the legal issues raised; (4) The affiant has no reason to believe the claims are foreclosed by controlled law; and (5) The affiant understands that the affidavit is made under penalty of perjury. 12

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