SUPERIOR COURT
OF THE
STATE OF DELAWARE
RICHARD F. STOKES
1 THE CIRCLE, SUITE 2
SUSSEX C OUN TY C OUR THO USE
GEOR GETO WN , DE 19947
JUDGE
January 26, 2010
Matthew F. Boyer, Esquire
Timothy M. Holly, Esquire
Connolly Bove Lodge & Hutz LLP
1007 North Orange Street
P.O. Box 2207
Wilmington, DE 19899
Mr. James C. Eaton
P.O. Box 267
Lewes, DE 19958
Craig A. Karsnitz, Esquire
Young, Conaway, Stargatt & Taylor LLP
110 West Pine Street
P.O. Box 594
Georgetown, DE 19947
Barry M. Willoughby, Esquire
Lauren Hudecki, Esquire
Young, Conaway, Stargatt & Taylor LLP
1000 West Street, 17th Floor
P.O. Box 391
Wilmington, DE 19899
Re:
James C. Eaton v. Raven Transport, Inc. and FleetMasters Express, Inc.
C.A. No. S08C-07-033-RFS
Dear Mr. Eaton and Counsel:
Pending before me are several motions in the above-referenced case. Upon careful
consideration of the pleadings, the motions and the record as a whole, I have reached the
following conclusions. Plaintiff James C. Eaton’s Motions for Summary Judgment
against Defendant Raven Transport Inc.1 (“Raven”) and Defendant FleetMaster Express
1
The Court understands that the proper name of this Defendant is Raven Transport
Holding, Inc. The Court refers to this entity as “Raven” throughout this Opinion.
(“FleetMaster”) based on discovery issues are Denied. Plaintiff’s letter dated September
26, 2009, is Denied to the extent that it is an untimely attempt to amend the Complaint.
Defendant FleetMaster’s Motion to Dismiss for Failure to State a Claim is Granted,
including costs and fees. Defendant FleetMaster’s motion for sanctions under Rule 11(c)
(1)(B) is Denied. Plaintiff’s Motion to Dismiss Connolly Bove from representing
FleetMaster is Denied. Plaintiff’s Motion for Summary Judgment on the defamation
claim against Raven is deferred pending the outcome of the Defendant Raven’s Motion
to Compel, which will be scheduled for oral argument if the parties are unable to reach an
agreement on their discovery issues.
In July 2008, Plaintiff filed suit against Raven, Miller Brewing Company
(“Miller”) and FleetMaster, alleging, as Plaintiff put it, character assassination,
defamation of character, time lost, libel and distortion of his work record. To be more
exact, the Complaint alleges that Plaintiff worked as a truck driver for Raven and that
Defendants were aware of problems with the trucks that they chose to ignore, thereby
putting Plaintiff and the public at risk of harm. The Complaint alleges that Defendants
defamed his good name and professional reputation, falsely reported poor performance to
potential employers, and made false statements to the Delaware Department of Labor
(“DOL”) and the Equal Employment Opportunity Commission (“EEOC”). The
Complaint seeks $60,000 in damages for every year Plaintiff is unemployed, plus $10
million punitive damages, plus costs, fees and interest.
2
Plaintiff was hired by Raven in late January 2007 as a long-haul truck driver
transporting beer from one destination to another. Plaintiff made three trips between
February 3, 2007 and March 9, 2007, departing from the Miller Brewery in Eden, North
Carolina, and arriving in Rockville, Maryland; Elizabeth, New Jersey; and Baltimore,
Maryland. It is uncontested that some of the cargo on each of these trips was spilled or
otherwise damaged when it arrived at its destination. Plaintiff made other runs that did
not result in spillage. Miller allegedly asked Plaintiff about repayment to restack the cases
of beer, but Plaintiff maintains that he had informed all three Defendants he could not
pick up such heavy loads because of his pacemaker.
On March 22, 2007, Plaintiff met with two of Raven’s managers and was
terminated from his employment for poor performance because of the spilled beer.
Plaintiff alleges that the spills occurred because of Defendants’ inadequate loading
practices and that Raven blamed Plaintiff for the spills in order to keep the Miller account
in Eden, North Carolina. Plaintiff filed a claim with the EEOC, which was denied. He
prevailed on his claim for unemployment benefits with the Delaware DOL. In both cases,
Defendant Raven was asked to provide written documentation regarding Plaintiff’s
performance, and it complied with those requests, stating that Plaintiff was discharged for
“poor performance.” Plaintiff subsequently filed this action.
In February 2009, this Court granted M iller Brewing Company’s M otion to
Dismiss. In April 2009, the Court denied Raven’s Motion to Dismiss based on lack of
3
personal jurisdiction. The Court granted FleetM aster’s motion for a protective order as to
discovery regarding loading practices, which the Court found to be irrelevant to an action
for defamation. Further discovery has been stayed pending resolution of FleetMaster’s
Motion to Dismiss, which is addressed below.
Plaintiff alleges that the spills occurred because of Defendants’ inadequate loading
practices and that Raven blamed Plaintiff for the spills in order to keep the Miller
Brewing account in Eden, North Carolina. Raven asserts that Plaintiff was properly
terminated in M arch 2007 within his 90-day probationary period and that no defamatory
statements were made. Following Plaintiff’s termination, Raven responded in writing to
requests for information about Plaintiff’s employment from D. Krutiak, Trucking
(“Krutiak”), from the Department of Labor (“DOL”) in Delaware, and from the EEOC in
Pennsylvania. In addition, Raven maintained information about Plaintiff’s employment in
a public database for motor carriers known as a “DAC Report.” 2 (See Raven’s M otion to
Dismiss, Ex. A – D.) In a letter to the EEOC, Raven Vice President of Fleet Services,
William A. Wiese, Sr., stated that Plaintiff refused to handle any freight, that is, to move
any of the beer cargo, even after reading the job description. (Pl. Rebut to Raven’s
Motion to Dismiss, Ex. N.) In another letter to the EEOC, Mr. Wiese stated that Plaintiff
was terminated because of poor performance and disregard of company policy. (Pl.
Rebuttal to Raven’s Motion to Dismiss, Ex. E.) When Plaintiff filed for unemployment
2
Drive-A-Check-Services.
4
benefits with the Delaware Department of Labor, Raven stated that the reason for his
discharge was “poor performance within 90 days,” that is, within his 90-day probationary
period. (Pl. Rebuttal to Raven’s Motion to Dismiss, Ex. D.)
In his Rebuttal to Raven’s Motion to Dismiss, Plaintiff represented that he had
withdrawn any defamation claims regarding submissions to either the EEOC or the
Delaware DOL. 3 The Court accepted that representation, and Plaintiff’s defamation
claims as to statements made or provided by Raven to the EEOC and the Delaware DOL
are therefore Dismissed.
Thus remaining for analysis on Plaintiff’s defamation against Raven are the
statements provided to Krutiak and contained in the DAC Report. Plaintiff has filed a
Motion for Summary Judgment on this issue, arguing that his performance was
satisfactory and that it was therefore defamatory for Raven to indicate to Krutiak and in
the DAC Report that Plaintiff was terminated because his performance was
unsatisfactory. The issues on summary judgment will be addressed in relation to
discovery issues, which is discussed below.
Plaintiff has also filed Motions for Summary Judgment against Raven and
FleetM aster on the issue of interrogatories. FleetMaster argues that it has performed its
duty under the rules of discovery, which permit a party to file a motion for a protective
order rather than respond to discovery. The Court granted the motion to stay in January
3
Eaton v. Miller Brewing Co., 2009 WL 1277991 (Del. Super. Ct).
5
2009, pending the outcome of Fleetmaster’s motion to dismiss, which is resolved herein.
When there are facts in dispute, that is, awaiting the completion of discovery, summary
judgment is not properly granted.4 Nor is summary judgment is the appropriate vehicle
for settling discovery requests, and Plaintiff’s motion is Denied as to FleetMaster.
Raven responds to the summary judgment motion on discovery by asserting that it
answered Plaintiff’s first set of interrogatories on June 25, 2009, and that because
discovery between these parties is in its early stages summary judgment should be denied.
The case is hardly in its early stages. As stated previously, summary judgment is not the
appropriate means of settling discovery disputes. Plaintiff’s summary judgment motion
on the basis of discovery issues is Denied as to Raven. By this time, the parties may have
come to agreement as to discovery, and, if not, the Court will address this matter as
explained below.
In August 2009, FleetMaster filed a Motion to Dismiss for Failure to State a
Claim, which is converted to a Motion for Summary Judgment by way of the materials
outside the pleadings appended to Plaintiff’s response.5 FleetMaster argues that because
Plaintiff was never in its employ a wrongful termination claim against it cannot stand.
When considering a motion for summary judgment, the Court must view the facts in the
4
Levy v. Stern, 1996 WL 742818 (Del.).
5
See, e.g., Mell v. New Castle County, 835 A.2d 141 (Del. Super. Ct.).
6
light most favorable to the non-moving party. 6 Summary judgment is to be granted when
the moving party is entitled to judgment as a matter of law.7 Summary judgment is not
appropriate when the record reasonably indicates that a material fact is in dispute or if it
seems desirable to inquire more thoroughly into the facts to clarify the application of law
to the circumstances.8 The Court notes first that the Complaint does not allege wrongful
termination, a fact which Plaintiff acknowledges in his January 2009 Rebuttal to
FleetM aster’s M otion to Dismiss: “[t]he Complaint does not include any reference to
‘wrongful termination’ and the Complaint never inferred that the Plaintiff was employed
by Fleet Masters Express [sic].” Nine months later, in September 2009, Plaintiff
responded to FleetMaster’s Motion to Dismiss by raising a new claim--a breach of
employment contract. Plaintiff alleges that FleetMaster and Raven entered into a socalled Spotting Agreement whereby FleetMaster agreed to perform pick-up and delivery
services for Raven. Plaintiff further avers that FleetMaster, as a co-employer, breached
this agreement by inadequately securing the three loads of beer that spilled while Plaintiff
was driving. He seeks $4.5 million in damages for this alleged breach. This claim fails
for three reasons. First, the breach of employment is a new allegation and therefore can
only be seen as an untimely effort to amend the Complaint. Super. Ct. Civ. Rule 15(a).
6
Pierce v. Int’l Ins. Co. of Ill., 671 A.2d 1361, 1363 (Del 1996).
7
Super. Ct. Civ. R. 56( c ).
8
Mumford & Miller Concrete, Inc. v. New Castle County, 2007 WL 404771, at *1 (Del.
Super.).
7
Second, Plaintiff is not a party to the Spotting Agreement and cannot sue for an alleged
breach of that agreement. Third, the Spotting Agreement did not convert FleetM aster into
Plaintiff’s co-employer. The record indicates that Plaintiff’s schedule and duties were
overseen by Raven, whereas a co-employer generally has authority and the right to
control, hire, terminate and supervise employees.9 FleetMaster played a role in the
operation of the trucks and preparations for shipment, but it did not manage or oversee,
hire or fire Plaintiff. For all these reasons, FleetMaster’s motion as to a wrongful
termination is Granted and Plaintiff’s breach of employment contract is Dismissed.
FleetMaster filed a motion for attorneys fees based its view that the motion for summary
judgment is in fact a veiled Rule 37 motion for sanctions for alleged discovery sanctions
and for the fact that it prevailed on Plaintiff’s earlier Motion to Restore Discovery. At the
conclusion of the case, the Court will entertain motions and affidavits for fees.
Defendant FleetMaster argues for dismissal of the defamation claim because the
Complaint does not allege any specific fact indicating that FleetMaster made or published
any defamatory statement about Plaintiff. This issue need not be addressed any further
than to say that Plaintiff has conceded that FleetMaster did not defame him: “Defendant
FleetMaster has been on the sidelines as a spectator; acknowledged and stipulated by
Plaintiff as not contributing to defamation.” 10 Thus FleetMaster’s Motion to Dismiss
9
See Professional Staff Leasing Corporation v. Director of Revenue, 2005 WL 2158711
(Del. Super.)(co-employer status a contractual matter entailing authority over employees).
10
Plaintiff’s Letter Response to FleetMaster’s Motion to Dismiss (Sept. 26, 2009) at 2.
8
Plaintiff’s defamation claim is Granted, and Plaintiff’s defamation claim as to
FleetMaster is Dismissed.
In his (January 2009) Response to FleetMaster’s Motion to Dismiss, Plaintiff
raises a new claim. He alleges reckless endangerment, by which he means that
FleetMaster assigned Plaintiff to haul illegal loads of cargo, thereby putting him and
others in harm’s way. He seeks $5.5 million in damages. Plaintiff acknowledges reckless
endangerment to be a criminal claim. FleetMaster argues that this is an improperly pled
attempt to amend the Complaint, and the Court agrees. Pursuant to Rule 15, a complaint
may be amended after a responsive pleading is filed only by leave of court or written
consent by opposing counsel. FleetMaster correctly asserts that its Motion to Dismiss is a
responsive pleading and opposes Plaintiff’s efforts to introduce new claims because
Plaintiff has not sought leave to amend.11 Nor does Plaintiff have a private right of action
on a criminal charge or a right to convert a criminal charge into a civil cause of action.12
The claim of reckless endangerment is Denied.
Plaintiff rests his defamation claim against Raven on the fact that Raven has twice
stipulated to the Court that the beer spillage was not Plaintiff’s fault, in contradiction fo
11
As the Court has previously found, the record is devoid of evidence that Plaintiff was
employed by FleetMaster. Even assuming, arguendo, that there was a contractual employment
duty and a breach of that duty, Plaintiff has not shown any injury approaching the $4.5 million in
damages he seeks. As to the reckless endangering claim, Plaintiff is not vested with any right to
bring criminal claims. In re Tenenbaum, 918 A.2d 1109, 1119 n. 26 (Del. 2007).
12
Brett v. Berkowitz, 706 A.2d 509 (Del. 1998).
9
Raven’s representations to the EEOC and the Delaware DOL that Plaintiff was
discharged for poor performance. In its June 26, 2009 M otion for Protective Order,
Raven stipulated that the spillage in three of Plaintiff’s runs was not his fault. Plaintiff
has dropped his defamation claims pertaining to the EEOC and the Delaware DOL. His
remaining claims of defamation against Raven pertain to information relayed to Krutiak, a
potential employer, and information contained in the DAC Report, an employment
information database.
Defamation is defined as “that which tends to injure ‘reputation’ in the popular
sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is
held.” Plaintiff correctly states that in order to establish a claim for defamation the
plaintiff must plead: (1) the defamatory character of the communication; (2) publication;
(3) that the communication refers to the plaintiff; (4) the third party’s understanding of
the communication’s defamatory character; and (5) injury. 13
The file in its current does not contain a response from Raven to Plaintiff’s motion
for summary judgment on the issue of defamation. At oral argument, the Court will give
Raven the opportunity to show good cause for the failure to file a Response. The final
matter is Defendant Raven’s Motion to Compel Discovery. Raven asserts that 12 of the
total 36 interrogatories are either incomplete or unresponsive and asks for an order
compelling Plaintiff to answer fully all Interrogatories and Requests for Production.
13
Harrison v. Hodgson Vocational Technical High School, 2007 WL 3112479, at *1 (Del.
Super.).
10
Raven served Plaintiff with Interrogatories as well as medical and employment
authorizations on July 9, 2009. Raven asserts that the authorizations are necessary to
determine whether Plaintiff’s pacemaker affected his ability to fulfill his job duties and
the nature of his past and present job performance. These matters will be resolved at oral
argument.
Plaintiff has moved to dismiss Connolly Bove Lodge & Hutz LLP as FleetM aster’s
counsel in this case. Plaintiff asserts a conflict of interest based on a bare assertion that
Connolly Bove has represented himself and his wife for five years in some unidentified
action or capacity. In response, FleetMaster states that Connolly Bove verified through
its electronic mail distribution system that its firm has never represented Plaintiff or his
wife. Counsel also telephoned Plaintiff, who indicated that he had no documentation to
support his claim. The Court finds no evidence of a conflict of interest, and Plaintiff’s
motion is Denied.
IT IS SO ORDERED.
Very truly yours,
Richard F. Stokes
RFS/cv
cc:
Prothonotary
11
12
