Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE MAURICE JOHNSON, and KELLY LYNETTE LUCAS, his wife, Plaintiffs, v. CITY OF NEWARK, and, NEWARK POLICE DEPARTMENT, Defendants. : : : : : : : : : : :

C.A. No. 07-103

JURY TRIAL DEMANDED

OPENING BRIEF OF DEFENDANTS, CITY OF NEWARK AND NEWARK POLICE DEPARTMENT IN SUPPORT OF MOTION TO DISMISS PLAINTIFFS' COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6)

DANIEL A. GRIFFITH, ESQUIRE Delaware Bar I.D. No. 4209

Marshall, Dennehey, Warner, Coleman & Goggin 1220 N. Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899-8888
DATED: February 28, 2007 (302) 552-4317 Attorney for Defendants

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TABLE OF CONTENTS I. II. A. III. IV. A. NATURE AND STAGE OF THE PROCEEDINGS........................................................1 SUMMARY OF ARGUMENT .......................................................................................2 The Delaware County and Municipal Tort Claims Act, 10 Del. C. § 4010 et. seq. Immunizes Defendants from Liability for the Claims Asserted by the Plaintiffs...............2 STATEMENT OF UNDISPUTED FACTS .....................................................................3 LEGAL ARGUMENT ....................................................................................................4 Since Defendants are Immune from Vicarious Liability Claims Under These Circumstances Pursuant to the Delaware County and Municipal Tort Claims Act,10 Del. C. 4010 et. seq., Plaintiffs' Complaint Must be Dismissed for Failure to State a Claim Upon Which Relief can be Granted Pursuant to Fed. R. Civ. P. 12 (b)(6).........................4 CONCLUSION...............................................................................................................6

V.

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TABLE OF AUTHORITIES Cases Carr v. Town of Dewey Beach, 730 F. Supp. 591 (Del. 1990)...................................................6 Sussex County v. Morris, 610 A.2d 1354, 1357 (Del. Super. 1992)...........................................5 Thomas v. Wilmington Police Department, C.A. No. 92 C-03-244 (Del. Super. 1994) ............6 Washington v. Wilmington Police Department, 1995, Del. Super. LEXIS 472 (September 18, 1995) ......................................................................................................................................2 Statutes 10 Del. C. § 4010........................................................................................................................2 10 Del. C. § 4011 (a)...................................................................................................................5 10 Del. C. § 4012........................................................................................................................5 Rules Fed. R. Civ. P. 12(b)(6)...............................................................................................................1

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I.

NATURE AND STAGE OF THE PROCEEDINGS On January 31, 2007, Plaintiffs, Maurice Johnson and Kelly Lynnette Lucas, filed their

Complaint against Defendants, City of Newark and Newark Police Department. (See Exhibit "A"). Plaintiffs' Complaint was served upon Defendants on or about February 16, 2007. On or about February 20, 2007, Defendants filed a Notice of Removal, removing this matter to the United States District Court for the District of Delaware. (See Exhibit "B"). This is the Opening Brief in Support of Motion to Dismiss Plaintiffs' Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) on behalf of Defendants, City of Newark and Newark Police Department.

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II.

SUMMARY OF ARGUMENT A. The Delaware County and Municipal Tort Claims Act, 10 Del. C. § 4010 et. seq. Immunizes Defendants from Liability for the Claims Asserted by the Plaintiffs. Plaintiff, Maurice Johnson, contends that he was stopped for an alleged traffic violation

by an officer of the Anne Arundel (Maryland) County Police Department. (See Exhibit "A", P. 1). According to Plaintiffs, the Maryland officer arrested Mr. Johnson on an outstanding warrant issued by the Defendants on charges of stealing a motor vehicle in Newark, Delaware, and authorized use of a credit card in Newark, Delaware (See Exhibit "A", P. 1). Plaintiffs then contend Mr. Johnson was unlawfully imprisoned from January 25, 2006 through February 2, 2006 on a case of mistaken identity "because of the gross negligence, reckless and/or wanton conduct of Defendants". (See Exhibit "A", P. 4). Plaintiffs conclude that "the Defendants" are liable for false arrest, false imprisonment, failure to withdraw an outstanding warrant, failure to take appropriate measures to correctly identify Plaintiff and failure to secure Mr. Johnson's release within a reasonable time. (See Exhibit "A", P. 6). Defendants are immune from suit pursuant to the Delaware County and Municipal Tort Claims Act, 10 Del. C. § 4010. Specifically, "the Defendants", i.e., the City of Newark and the Newark Police Department, can act only through their employees and, while it is not specifically alleged by Plaintiffs, the Complaint essentially contends that the City and the Department are vicariously liable for the actions of the municipal employees and police officers involved. Under the Tort Claims Act, Defendants are immune from claims alleging vicarious liability under these circumstances. Washington v. Wilmington Police Department, 1995, Del. Super. LEXIS 472 (September 18, 1995), attached as Exhibit "C".

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III.

STATEMENT OF UNDISPUTED FACTS 1. Plaintiffs' Complaint was filed in the Superior Court of Delaware on

January 31, 2007. (See Exhibit "A"). The following facts are based purely and exclusively upon the allegations set forth in Plaintiffs' pleadings. 2. Plaintiff Maurice Johnson, was stopped for a routine traffic violation by an

officer of the Anne Arundel (Maryland) County Police Department on January 24, 2006. At that time, the Maryland police officer arrested Mr. Johnson on an outstanding warrant issued by the City of Newark and Newark Police Department, for charges of stealing a motor vehicle in Newark, Delaware and the unauthorized use of a credit card. (See Exhibit "A", P. 1). 3. This was, apparently, a case of mistaken identity inasmuch as the "the

male Plaintiff was not the individual listed in the ...warrant." (See Exhibit "A", P. 2). Nevertheless, Plaintiff was detained from January 25, 2006 through February 2, 2006, at which time the mistaken identity was resolved and he was released. (See Exhibit "A", P. 4-5). 4. While Plaintiffs' Complaint contains allegations of false arrest, and false

imprisonment by "the Defendants", the liability of the City of Newark and the Newark Police Department is based, logically, upon the conduct of their employees, i.e., Plaintiffs contend that these entities are vicariously liable for the "gross negligence, reckless and/or wanton conduct" of Defendants' employees.

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IV.

LEGAL ARGUMENT A. Since Defendants are Immune from Vicarious Liability Claims Under These Circumstances Pursuant to the Delaware County and Municipal Tort Claims Act,10 Del. C. 4010 et. seq., Plaintiffs' Complaint Must be Dismissed for Failure to State a Claim Upon Which Relief can be Granted Pursuant to Fed. R. Civ. P. 12 (b)(6). Under the County and Municipal Tort Claims Act (hereinafter, "Tort Claims Act"), a

governmental entity is generally immune from liability for its tortious acts or omissions. 10 Del. C. § 4011 (a) of the Tort Claims Act reads, in pertinent part, "except as otherwise expressly provided by statute, all governmental entities and their employees shall be immune from suit on any and all tort claims seeking recovery of damages...". 10 Del. C. § 4011(b) enumerates six examples of the range of activities for which local governmental entities are immune. The statute provides that this list is inclusive (i.e., ... examples and, should not be interpreted to limit the general immunity provided by this section") rather than exclusions. In 10 Del. C. § 4012, the Tort Claims Act provides three exceptions to this broad grant of immunity. The activities enumerated in § 4012 are an inclusive list and are the only activities to which municipal liability is waived. Sussex County v. Morris, 610 A.2d 1354, 1357 (Del. Super. 1992). Inasmuch as these exceptions relate to matters such as motor vehicles (exception No. 1), construction of buildings (exception No. 2), and environmental matters (exception No. 3), there can be no reasonable dispute that they have no application here. Since none of the exceptions listed in 10 Del. C. § 4012 apply, Defendants are immune from suit pursuant to 10 Del. C. § 4011. In fact, Defendants' immunity under the Tort Claims Act is evidenced not only by the plain and unambiguous terms of the statute(s), but also case law which has addressed the issue under circumstances similar to the instant matter.

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In Carr v. Town of Dewey Beach, 730 F. Supp. 591 (Del. 1990), this Court found that the Tort Claims Act was applicable to plaintiffs' claims for malicious prosecution, abuse of process, false arrest and intentional infliction of emotional distress. In Thomas v. Wilmington Police Department, C.A. No. 92 C-03-244 (Del. Super. 1994) (Exhibit "D"), plaintiff sued the defendants for false arrest, false imprisonment and invasion of privacy following an arrest on erroneous warrant. The Superior Court of Delaware held that the Tort Claims Act precluded plaintiff's claims where she could not show that any exception listed in § 4012 was applicable to her case. In Washington v. Wilmington Police Department, supra, the Superior Court of Delaware more squarely addressed the potential liability of a governmental entity for the actions of its officers under the Tort Claims Act. In Washington, officers of the City of Wilmington Police Department received a report of a woman with a gun in the area where plaintiff was walking. Ms. Washington claimed that an officer of the department stopped her, yelled at her and forcibly pushed her against the wall, ultimately causing her to suffer a stroke. Like the Complaint in this case, Ms. Washington's Complaint alleged a variety of intentional torts including false arrest and false imprisonment. (See Exhibit "C"). In analyzing the applicability of the immunities available to the Department under the Tort Claims Act, the Superior Court of Delaware concluded: The Court is persuaded that the City of Wilmington enjoys municipal immunity from the tortious acts of (the officer). § 4011 is expansive in scope and covers "any and all tort claims". Conversely, the exceptions are narrowly drawn and are clearly inapplicable to the case at hand. There is no statutory exception for those tort claims involving "excessive force". Furthermore, there is no statutory exception for those claims based on the principles of respondeat superior. In fact, § 4011 (c)... expressly separates the tortious acts of employees of the municipality from the municipality itself. Furthermore, a municipality is an entity

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that can only act through the actions of its employees and agents. If it could be held liable for the acts of its employees under respondeat superior, the Tort Claims Act would be rendered meaningless. (Plaintiff) cannot point to a statutory exception enumerated in §4012, therefore summary judgment is granted for the City of Wilmington. (See Exhibit "C", P. 6). The Superior Court in Washington also dismissed the City of Wilmington Police Department from the case inasmuch as the Wilmington Police Department is not a separate entity from the City of Wilmington itself. In sum, both the language of the Tort Claims Act and the case law applying the Tort Claims Act to circumstances of this type of case make clear that both the City of Newark and the Newark Police Department enjoy absolute immunity from the claims set forth in Plaintiffs' Complaint. As a consequence, Plaintiffs' Complaint must be dismissed as a matter of law. V. CONCLUSION For all the foregoing reasons, it is respectfully requested that this Honorable Court dismiss Plaintiffs' Complaint pursuant to Fed. R. Civ. P. 12 (b)(6) for failure to state a claim upon which relief can be granted. MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

/s/ Daniel A. Griffith DANIEL A. GRIFFITH, ESQUIRE I.D. No. 4209 1220 North Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899-8888 (302) 552-4317 Attorney for Defendants

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CERTIFICATE OF SERVICE I, Daniel A. Griffith, Esquire hereby certify that on the date indicated below a true and correct copy of the Opening Brief of Defendants, City of Newark and Newark Police Department in Support of Motion to Dismiss Plaintiffs' Complaint Pursuant to Fed.R.Civ.P.12(b)(6) were forwarded to the below named addressee via electronic filing:

Morton Richard Kimmel, Esquire Kimmel, Carter, Roman & Peltz, PA 200 Biddle Avenue, Suite 101 Springside Plaza P.O. Box 1070 Bear, Delaware 19701 Attorney for Plaintiffs MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN

__/s/ Daniel A. Griffith DANIEL A. GRIFFITH, ESQUIRE DE ID No. 4209 1220 N. Market Street, 5th Floor P.O. Box 8888 Wilmington, DE 19899-8888 302-552-4317 Attorney for Defendants Dated: February 28, 2007

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