Spicer v. City of Dover et al
Filing
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MEMORANDUM ORDER ADOPTING 26 REPORT AND RECOMMENDATIONS granting in part and denying in part 9 Motion to Dismiss; Party Kimberly Hawkins (individually and in her official capacity as Director of Human Resources) terminated. Signed by Judge Colm F. Connolly on 9/10/2020. (nmf)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DAVID SPICER,
Plaintiff,
V.
CITY OF DOVER, et al.,
Defendants.
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Civil Action No. 19-1966-CFC/SRF
MEMORANDUM ORDER
Pending before me are Plaintiff's objections (D.I. 27) to the Magistrate
Judge's Report and Recommendation issued on July 31, 2020 (D.I. 26). The
Magistrate Judge recommended in her Report and Recommendation that I grant in
part and deny in part Defendants' partial motion to dismiss the First Amended
Complaint (D.I. 9). I have reviewed the Report and Recommendation, the
objections, and Defendants' response (D.1. 28).
The Magistrate Judge had the authority to make her findings and
recommendation under 28 U.S.C. § 636(b)(l)(B). I review her findings and
recommendations de novo.
§ 636(b )(I); see also Fed. R. Civ. P. 72(b )(3); Brown
v. Astrue, 649 F.3d 193, 195 (3d Cir. 2011).
Counts III and IV
Plaintiff objects first to the Magistrate Judge's recommendation that I
dismiss without prejudice Counts III and IV of the Amended Complaint, both of
which allege violations of 42 U.S.C. § 1981.
Count III reads in relevant part:
107. Plaintiff was denied his rights under his contractual
employment relationship with Defendant City of Dover
that were enjoyed by similarly situated African American
police officers. Plaintiff was denied equal terms and
conditions of employment.
108. Plaintiff's race was a motivating factor in
Defendant's [sic] decision to fail to promote Plaintiff to
the Chief of Police position.
109. Plaintiff's race was a motivating factor in
Defendant's [sic] decision to fail to promote Plaintiff to
the Deputy Chief position.
110. Plaintiff's race was a motivating factor in
Defendant's [sic] decision to fail to promote Plaintiff to
the Deputy Chief position.
111. The discriminatory actions of Defendants [sic]
were intentional, willful and or reckless.
D.I. 5 at 15. To be clear, the above-quoted text is accurately quoted. Paragraphs
109 and 110 are in fact identical. Paragraphs I 08, 109 and 110 each refer to a
singular "Defendant." And paragraph 111 refers to unidentified "discriminatory
action" of the plural "Defendants."
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In Count IV, Plaintiff alleges that "[a]s a result of his complaints and due to
his race, Defendants purposefully denied Plaintiff promotional opportunities."
D.I. 5 at 16.
Section 1981 "prohibits racial discrimination in the making and enforcement
of contracts and property transactions." Brown v. Philip Morris Inc., 250 F.3d
789, 796 (3d Cir. 2001 ). Under Third Circuit law, to meet the pleading
requirements of Rule 8 of the Federal Rules of Civil Procedure, a civil rights
complaint must "state[ ] the conduct, time, place, and persons responsible" for the
alleged civil rights violation. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir.
2005).
I agree with the Magistrate Judge's finding that Counts III and IV fail to
meet the pleading standard articulated in Evancho. Neither count contains or
incorporates by reference allegations that connect a particular defendant other than
the City of Dover with an act of racial discrimination tied to a contract.
Accordingly, I will adopt the Magistrate Judge's recommendation that Counts III
and IV be dismissed without prejudice. See Tani v. FPL/Next Era Energy, No.
CV 10-860-LPS, 2013 WL 3957710, at *2 (D. Del. July 29, 2013) (dismissing§
1981 claim where allegations underlying claim were "not directed to any
individual Defendant").
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Count VI
Plaintiff next objects to the Magistrate Judge's recommendation that I
dismiss with prejudice his claim for defamation set forth in Count VI of the
Amended Complaint. Plaintiff alleges in Count VI that Defendant Robin
Christiansen, while serving as Mayor of Dover, "maliciously made false statements
regarding Plaintiff's reputation to members of the public indicating Plaintiff was
not qualified for the Chief of Police position." D.I. 5 at 18. Defendants argued,
and the Magistrate Judge agreed, that dismissal of this claim is required because
the challenged statement is a pure opinion and therefore, under Riley v. Moyed, 529
A.2d 248 (Del. 1987), not actionable for defamation under Delaware law.
Plaintiff argues that the Magistrate Judge erred in relying on Riley. In his
words, "the Magistrate Judge failed to consider more recent case law which came
out after the Riley case which further discusses and sets forth case law explaining
the difference between an opinion and an implied fact." D.I. 27 at 5. According
to Plaintiff, "[t]he statements made by Mayor Christiansen that Plaintiff is 'not
qualified' for the Chief of Police position, although may be found to be an opinion,
implies the existence of undisclosed facts." Id. at 6.
As an initial matter, the "more recent case law" cited by Plaintiff-i.e.,
Kanaga v. Gannett Co., 687 A.2d 173 (Del. 1996) and Milkovich v. Lorain Journal
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Co., 497 U.S. I (1990)-did not overrule Riley. Indeed, in Kanaga, the Delaware
Supreme Court expressly held that it was not "necessary to revisit the current
vitality of Riley in view of Milkovich" because "[a]s the Riley Court noted, a
statement of opinion would be actionable if it implies the allegation of undisclosed
defamatory facts as the basis for the opinion." 687 A.2d at I 78-79.
In any event, Plaintiff has not identified any undisclosed fact implicit in
Mayor Christiansen's "not qualified" opinion statement, let alone argued that an
implied undisclosed fact would be defamatory. And I agree with the Magistrate
Judge's assessment that the Mayor's alleged statement is a pure opinion under the
four-part test set forth in Riley. See D.I. 26 at 15. Accordingly, I will adopt the
Magistrate Judge's recommendation that Count VI be dismissed.
The Remaining Counts
The Magistrate Judge also recommended that I deny Defendants' motion to
dismiss Counts V and VIII and grant their motion to dismiss Defendant Hawkins
from the case. Neither side objected to these recommendations; therefore, I will
adopt them.
NOW THEREFORE, on this 10th day of September in 2020, IT IS
HEREBY ORDERED that:
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1. Plaintiffs Objections to the Magistrate Judge's Report and
Recommendation (D.I. 27) are OVERRULED;
2. The Report and Recommendation (D.I. 26) is ADOPTED;
3. Defendant's motion to dismiss (D.1. 9) is GRANTED IN PART AND
DENIED IN PART; and
4. Counts III and IV of the First Amended Complaint (D.I. 5) are
DISMISSED WITHOUT PREJUDICE.
5. Count VI of the First Amended Complaint (D.1. 5) is DISMISSED WITH
PREJUDICE.
6. Defendant Hawkins is DISMISSED WITH PREJUDICE as a party.
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