SHERRY R. FALLON, Magistrate Judge.
Plaintiff Gerald I. Smith, Jr. ("plaintiff') proceeds pro se and has paid the filing fee. He filed this lawsuit on September 13, 2018, alleging diversity of citizenship as well as violations of federal laws, treaties, and the Constitution. (D.I. 1 at 1) Presently before the court are the following motions: (1) the motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(6), and 12(b)(7), filed by defendants Sean M. Lynn ("Mr. Lynn") and The Law Offices of Sean M. Lynn, P.A., (together, "defendants") (D.I. 6);
Beginning in 2015, Mr. Lynn represented plaintiff's ex-wife, Olena Smith, in proceedings before the Kent County, Delaware Family Court ("Family Court") relating to her petition for divorce and motion for joint custody of the couple's three children. (D.I. 1 at ¶ 4) On March 7, 2016, defendants tiled a petition for protection from abuse ("PFA") and emergency motion for ex pane custody on behalf of Ms. Smith. (Id. at ¶ 2; D.I. 1-1 at 118-27) Plaintiff filed a counter-petition for protection from abuse on March 22, 2016. (D.I. 1-1 at 133-44) Ms. Smith's PFA petition was granted, and plaintiffs PFA petition was denied. (Id. at 102-08, 129-31, 359) On appeal, the Delaware Supreme Court affirmed the decision of the Family Court on March 22, 2017. (Id. at 38-44) On October 12, 2017, the Family Court granted exclusive custody of the three children to Ms. Smith and ordered plaintiff to undergo a psychiatric evaluation. (D.I. 1-1 at 214-19) Plaintiff appealed the custody decision to the Delaware Supreme Court, which affirmed the ruling of the Family Court on August 1, 2018.
On May 9, 2018, plaintiff sent defendants a demand letter for "reimbursement for damages" for alleged "litigation misconduct" during the Family Court litigation, alleging intentional infliction of emotional distress (`LIED"), as well as violations of federal law, the Delaware Lawyer's Rules of Professional Conduct, plaintiff's constitutional rights, and the Federal Rules of Civil Procedure. (D.I. 1-1 at 2-5) Plaintiff also alleged that defendants obstructed justice by conspiring with the psychologist who conducted the court-ordered competency evaluation. (Id. at 4)
When defendants did not respond to the May 9, 2018 demand letter, plaintiff filed a complaint against Mr. Lynn with the Delaware Office of Disciplinary Counsel ("ODC") on September 4, 2018. (D.I. 1-1 at 7-12) In the complaint, plaintiff cited Mr. Lynn's alleged professional malpractice, "intentional negligence," and LIED. (Id. at 7) Plaintiff claims that defendants and Ms. Smith harmed him by submitting false and harassing motions to the Kent County Family Court beginning on March 7, 2016. (Id. at 7-8) As a result of the filing of the PEA petition and motion for ex parte custody, plaintiff contends that he was removed from his home, he lived in a homeless shelter for veterans, he was not permitted to see his children for five months, and he incurred substantial debt and harm to his reputation. (Id. at 9, 12)
On September 13, 2018, plaintiff initiated the instant lawsuit by filing a complaint appearing to allege causes of action for legal malpractice, "intentional negligence," IIED, violations of various federal statutes, and a civil conspiracy between defendants, Ms. Smith, the Family Court, and Dr. Zingaro to discredit plaintiff's federal whistleblower complaints. (D.I. 1) In the complaint, plaintiff asserts the following injuries: (1) loss of custody and loss of consortium with children, (2) financial hardship and homelessness, (3) interference with plaintiff's application to the Air Force Board for Correction of Military Records and/or future employment and income opportunities, (4) discrediting plaintiff's federal military whistleblower complaints, and (5) harm to plaintiff's reputation and opportunity to return to the military. (Id. at 10-11) Plaintiff seeks relief in the form of $10 million in compensatory, punitive, and nominal damages, as well as the costs and fees of litigation. (Id at 11-12)
Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal of a complaint for lack of jurisdiction over the subject matter, or if the plaintiff lacks standing to bring a claim. Once the court's subject matter jurisdiction is challenged, the plaintiff bears the burden of proving that jurisdiction exists. See Lincoln Ben. Life Co. v. AEI Life, LLC, 800 F.3d 99, 105 (3d Cir. 2015); Mortensen v. First Fed. Sav. & Loan Ass'n, 549 F.2d 884, 891 (3d Cir. 1977). Motions brought under Rule 12(b)(1) may present either a facial or factual challenge to the court's subject matter jurisdiction. See Lincoln, 800 F.3d at 105 (quoting Common Cause of Pa. v. Pennsylvania. 558 F.3d 249, 257 (3d Cir. 2009)).
Defendants present a facial challenge to subject matter jurisdiction in the present case. (D.I. 7 at 11) In reviewing a facial challenge under Rule 12(b)(1), the standards relevant to Rule 12(b)(6) apply. In this regard, the court must accept all factual allegations in the complaint as true, and the court may only consider the complaint and documents referenced in or attached to the complaint. See Church of Universal Bhd. v. Farmington Twp. Supervisors, 296 F. App'x 285, 288 (3d Cir. 2008). Gould Elec., Inc. v. United Stales, 220 F.3d 169, 176 (3d Cir. 2000). A case that is "wholly insubstantial, frivolous, and completely devoid of merit" may be dismissed for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). Mikkilineni v. Gibson-Thomas Eng'g Co., 379 F. App'x 253 (3d Cir. 2010) (citing Oneida Indian Nation of N.Y. v. Oneida Cty., N.Y., 414 U.S. 661, 666 (1974)). Prior to dismissing a complaint, "a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Great W. Mining & Mineral Co. v. Fox Rothschild, LLP, 615 F.3d 159, 174 (3d Cir. 2010) (quoting Phillips v. Cty. of Allegheny, 515 F.3d 224, 245 (3d Cir. 2008)).
I recommend that the court grant defendants' Rule 12(b)(1) motion to dismiss plaintiffs causes of action for violations of federal statutes. The complaint recites alleged violations of a number of federal criminal statutes under Title 18 of the United States Code which do not provide a private right of action.
Smith v. Knights of Columbus, C.A. No. 15-112-SLR. 2015 WL 4043756, at *5 (D. Del. July 1, 2015);
Plaintiff also lacks standing to assert his claims for violations of the Delaware Rules of Professional Conduct. As a preliminary matter, plaintiff contends that he "is not asking the Court to enforce the Delaware Rules of Professional Conduct," nor is he -alleging the Defendant `somehow' prejudiced his rights during Family Court litigation" by violating the Delaware Rules of Professional Conduct. (D.I. 10 at 5) However, plaintiff goes on to contend that these alleged violations "were the cause of Plaintiffs injuries," and he seeks relief in this court because "[t]he Office of Disciplinary Counsel does not provide legal or equitable relief." (Id. at 5, 7)
The law is well-established that "a non-client litigant lacks standing to enforce an alleged conflict between his opponent's counsel and a third party." In re Appeal of Info technology, Inc., 582 A.2d 215, 220 (Del. 1990). The purpose of the Delaware Rules of Professional Conduct is "to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability." Id. Nonetheless, the Delaware Supreme Court has held that "a non-client litigant does have standing to enforce the Delaware Rules of Professional Conduct in a trial court when they can demonstrate to the trial judge that the `opposing counsel's conflict somehow prejudiced his or her rights' and calls into question the `fair or efficient administration of justice.'" Matter of Estate of Waters, 647 A.2d 1091, 1095-96 (Del. 1994) (emphasis in original).
Construing the allegations in the complaint in the light most favorable to plaintiff, as the court must when considering a facial challenge to subject matter jurisdiction, the complaint appears to allege that defendants' conduct prejudiced plaintiff's rights. Plaintiff's complaint alleges that defendants violated the Delaware Rules of Professional Conduct and harmed plaintiff by unlawfully obstructing plaintiff's access to evidence in his home and denying plaintiff the opportunity to complete a household inventory. (D.I. 1 at 9) Plaintiff also incorporates by reference the complaint he filed with the ODC on September 4, 2018, which alleges that Mr. Lynn filed false and harassing motions, conspired with the Family Court, compelled Ms. Smith to commit perjury, and excluded critical evidence regarding plaintiffs whistleblower complaints and mental health history. (D.I. 1-1 at 7-12) The documents attached to the complaint show that similar arguments were raised by plaintiff before the Family Court and on appeal to the Delaware Supreme Court, which ruled against plaintiff. (D.I. 1-1 at 38-44, 46-63, 102-08, 111-14, 187-212, 262-70)
Nonetheless, plaintiff lacks standing to state a claim for violations of the Delaware Rules of Professional Conduct in this court. "There can he no dispute that the Delaware Supreme Court alone establishes and governs the Bar." U.S. v. Kossak, 275 F.Supp.2d 525, 531 (D. Del. 2003), aff'd, 178 F. App'x 183 (3d Cir. 2006). Plaintiff's complaint is currently pending before the ODC, which does not appear to have advanced the matter before the Board on Professional Responsibility or the Delaware Supreme Court.
Plaintiff also denies alleging a cause of action for legal malpractice in his complaint:
(D.I. 10 at 8) Even if the court were to set aside plaintiff's concession that he has no claim against defendants for legal malpractice, plaintiff lacks standing to assert such a claim pursuant to Rule 12(b)(1).
Under Delaware law, the elements of a cause of action for legal malpractice arc: "(1) employment of the attorney; (2) neglect of a professional duty by the attorney; and (3) loss resulting from the attorney's neglect." See Arunachalam v. Pazuniak, C.A. No. 15-259-RGA, 2016 WL 748005, at *4 (D. Del. Feb. 24, 2016) (citing Oakes v. Clark, 2012 WL 5392139, at *3 (Del. Super. Ct., aff'd, 69 A.3d 371 (Del. 2013)). To assert a claim for legal malpractice, there must be employment of the attorney. Id. However, the parties in the present action do not dispute that plaintiff did not employ Mr. Lynn.
The plaintiff also must show that, "hut for the attorney's neglect, the plaintiff would have been successful." Arunachalam, 2016 WL, 748005, at *4. For the reasons described in more detail at §III.A.3, Infra, the complaint and attachments thereto do not plausibly suggest that plaintiff would have prevailed in Family Court absent defendants' counsel's alleged professional negligence. Instead, the record shows that the Family Court's credibility determination was based largely on observations of plaintiffs own conduct throughout the proceedings. Specifically, on August 16, 2016, the Family Court issued an Order concluding that the Commissioner did not err in denying plaintiff's request for access to the marital residence to collect additional evidence, and plaintiffs accusation that Ms. Smith falsely testified at the PFA hearing was not substantiated. (D.I. 1-1 at 102-08) On March 22, 2017, the Family Court noted that "[t]he transcript of PFA hearing reflects that the Commissioner's concerns regarding the Husband's mental health were based on her observations of his behavior at the hearing." (D.I. 1-1 at 38-44) In its August 1, 2018 decision.
For the foregoing reasons, I recommend dismissal of plaintiff's causes of action for violations of federal and state criminal statutes, violations of the Delaware Rules of Professional Conduct, and legal malpractice pursuant to Rule 12(b)(1). Plaintiff's remaining causes of action for "intentional negligence," civil conspiracy, and LIED are addressed at § III.A.3, infra.
Pursuant to Federal Rule of Civil Procedure 12(b)(7), a party may seek dismissal for failure to join a party under Rule 19. In deciding whether to grant dismissal, the court must first determine whether the party is a necessary party under Rule 19(a). See Gen. Refractories Co. v. First State Ins. Co., 500 F.3d 306, 312 (3d Cir. 2007). A party is necessary if. in the absence of the party, (1) complete relief cannot be afforded to the present parties, (2) the disposition of the action would impair the party's ability to protect its own interest, or (3) any of the present parties would be subject to a substantial risk of multiple or inconsistent obligations. See Fed. R. Civ. P. 19(a). If the party is necessary under Rule 19(a), the party must be joined, if joinder is feasible.
In the present case, defendants argue that plaintiff failed to join Ms. Smith, the Family Court, and Dr. Zingaro as indispensable parties as required by Rule 19 because the complaint alleges that each of these parties conspired with defendants to harm him. (D.I. 7 at 13) In response, plaintiff argues against the joinder of additional parties because he "does not want to expose his ex-wife to any additional stress beyond what the military, Family Court and the Defendant have caused." (D.I. 10 at 5) Plaintiff expresses concern that Ms. Smith and Dr. Zingaro will not be "truthful neutral witnesses" if they are joined as defendants. (Id. at 6)
Plaintiff does not identify civil conspiracy as a cause of action in his pleading, and he expressly states that he does not assert a cause of action for civil conspiracy in his response to defendants' motion to dismiss: "The Plaintiff did not make a claim for civil conspiracy in his complaint." (D.I. 10 at 7) For the reasons set forth at § III.A.3, infra, plaintiff fails to state a claim for civil conspiracy under Rule 12(6)(6) to the extent that he asserts the cause of action. Consequently, the court need not reach defendants' motion to dismiss pursuant to Rule 12(b)(7).
Rule 12(6)(6) permits a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(6)(6). When considering a Rule 12(6)(6) motion to dismiss, the court must accept as true all factual allegations in the complaint and view them in the light most favorable to the plaintiff. Connelly v. Lane Constr. Corp., 809 F.3d 780, 790-91 (3d Cir. 2016).
To state a claim upon which relief can be granted pursuant to Rule 12(6)(6), a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although detailed factual allegations are not required, the complaint must set forth sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). A claim is facially plausible when the factual allegations allow the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 556 U.S. at 663; Twombly, 550 U.S. at 555-56.
The court's determination is not whether the non-moving party "will ultimately prevail," but whether that party is "entitled to offer evidence to support the claims." United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir. 2011). This "does not impose a probability requirement at the pleading stage," but instead "simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of [the necessary element].Phillips v. Cty. Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556). The court's analysis is a context-specific task requiring the court "to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-64.
Although neither party addresses plaintiff's cause of action for "intentional negligence" in the briefing on the motion to dismiss, I recommend that the court dismiss this claim sua sponte pursuant to Rule 12(h)(6). See Kabbaj v. Am. Sch. of. Tangier, C.A. No. 10-431-RGA, 2015 WI. 2405616, at *3 (D. Del. May 19, 2015) ("The court has the inherent authority to dismiss claims sua sponte for failure to state a claim upon which relief may he granted consistent with Rule 12(h)(6)."). Plaintiff's intentional negligence claim relates to defendants' failure or refusal to assist plaintiff with the reimbursement of various funds and defendants' failure to acknowledge plaintiffs federal whistleblower complaints and application for correction of military records. (D.I. 1 at 3, 10-12) These allegations do not state a plausible claim for relief under the Iqbal/Twombly standard because "negligence is, by definition, not an intentional wrong." Anderson v. Airco, Inc., 2004 WL 2827887, at *4 n.28 (Del. Super. Ct. Nov. 30, 2004) (quoting 16 Am. Jur. 2d Conspiracy § 51).
With respect to plaintiff's claim for civil conspiracy, defendants allege that the cause of action fails because there is no indication that a mutual agreement or understanding existed, and the complaint does not identify an underlying wrong which is actionable in this court.
To state a claim for civil conspiracy under Delaware law, a plaintiff must allege: "(1) a confederation or combination of two or more persons; (2) an unlawful act done in furtherance of the conspiracy; and (3) actual damage." AeroGlobal Capital Mgmt., LLC v. Cirrus Indus., Inc., 871 A.2d 428, 437 n.8 (Del. 2005) (citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 149 (Del. 1987)). "Civil conspiracy is not an independent cause of action in Delaware, but requires an underlying wrong which would be actionable absent the conspiracy." Nutt v. A.C. & S. Co., Inc., 517 A.2d 690, 694 (Del. Super. Ct. 1986). To the extent that plaintiff alleges a cause of action for civil conspiracy in his pleading, that claim fails as a matter of law due to the dismissal of all other underlying claims in this action.
Finally, defendants challenge the sufficiency of plaintiff's claim for IIED because the alleged conduct is not sufficiently extreme, and the allegations arise in the context of an attorney properly litigating matters in Delaware courts. (D.I. 7 at 17-18) To state a claim for IIED, the plaintiff must show that the defendant intentionally or recklessly caused severe emotional distress to another by engaging in extreme and outrageous conduct. Spence v. Cherian, 135 A.3d 1282, 1288 (Del. Super. Ct. 2016). "Extreme and outrageous conduct is that which `exceeds the bounds of decency and is regarded as intolerable in a civilized community.'" Id. at 1289 (citing Thomas v. Harford Mut. Ins. Co., 2004 WL 1102362, at *3 (Del. Super. Ct. Apr. 7, 2004)). There is no liability for "mere insults, indignities, or annoyances that are not extreme or outrageous." Hydrogen Master Rights, Ltd. v. Weston, 228 F.Supp.3d 320, 340 (D. Del. 2017) (quoting Hunt ex rel. DeSombre v. State, 69 A.3d 360, 367-68 (Del. 2013)).
I recommend that the court dismiss plaintiffs cause of action for IIED because defendants' conduct cannot reasonably be regarded as so extreme and outrageous as to permit recovery. "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery." Hunt, 69 A.3d at 367 (quoting Restatement (Second) of Torts § 46(h) (1965)). "If reasonable minds may differ, the question of whether the conduct is extreme and outrageous is for the jury." Id. The record presently before the court does not lead reasonable minds to differ.
The complaint appears to allege that the filing of the Emergency PFA Petition and various other motions by defendants amounted to TIED. However, defendants' filing of the Emergency PFA Petition and various other motions
The complaint also cites defendants' exclusion of evidence regarding plaintiff's whistleblower complaint and application for correction of his military records in support of the cause of action for IIED. However, defendants did not exhibit extreme and outrageous conduct by filing the various motions in Family Court despite the pendency of plaintiff's unrelated federal whistleblower complaint and application for correction of military records. As counsel to Ms. Smith in her Family Court proceedings, defendants had no obligation to consider or account for plaintiff's interest in unrelated litigation or administrative processes. See Haines v. Liggett Grp., Inc., 814 F.Supp. 414, 425 (D.N.J. 1993) (describing an attorney's "obligation to fully protect his or her client's interests"); Clark v. Al-Amin, 872 N.W.2d 730, 739-40 (Mich. Ct. App. 2015) (holding that counsel to defendant, as an adversary of plaintiff, should not be placed "in the untenable and conflicted position of advising" both plaintiff and defendant).
Plaintiff also relies on defendants' denial of plaintiff's access to his home in contravention of a court order to support his IIED claim. Yet the record attached to plaintiff's complaint confirms that the issue of access to the house was raised before the Family Court and the Delaware Supreme Court, both of which concluded that plaintiff was not harmed by his lack of access to the house. (D.I. 1-1 at 39-41, 104-06) Neither the Family Court nor the Delaware Supreme Court found defendants' conduct extreme or outrageous, and the record reflects that Ms. Smith had exclusive use of the parties' residence at the time plaintiff requested access. (Id.)
Finally, the complaint cites defendants' alleged subornation of perjury regarding Ms. Smith's testimony in support of the cause of action for LIED. However, the documents attached to plaintiff's complaint fail to support plaintiff's allegations that Ms. Smith's testimony and/or Mr. Lynn's preparation of Ms. Smith to testify amounted to extreme or outrageous conduct. (D.I. 1-1 at 106-07)
When dismissing a case brought by a pro se plaintiff, a court must decide whether the dismissal will be with prejudice or without prejudice. The district court may deny leave to amend only if (1) the moving party's delay in seeking amendment is undue, motivated by bad faith, or prejudicial to the non-moving party or (2) the amendment would be futile. Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984). In the present case, the extensive record incorporated by reference into plaintiff's complaint establishes that amendment would be futile. Therefore, I recommend that the court dismiss the complaint with prejudice.
Plaintiff seeks sanctions against defendants' counsel pursuant to Federal Rule of Civil Procedure 11(b)(1) and Rules 3.3 and 8.4 of the Delaware Lawyers' Rules of Professional Conduct. (D.I. 13 at 1) In support of the motion for sanctions, plaintiff points to a number of statements made in defendants' counsel's briefing on the motion to dismiss which plaintiff contends are "fraudulent, deceitful and misrepresented." (Id. at 2-3) In response, defendants' counsel summarily denies the allegations set forth in the motion. (D.I. 15)
Rule 11(b)(1) compels parties to certify that the filings are made to the "best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances," and they are "not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation." Fed. R. Civ. P. 11(b)(1). The Third Circuit has held that [t]he legal standard to be applied when evaluating conduct allegedly violative of Rule 11 is reasonableness under the circumstances." Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 289 (3d Cir. 1991) (citing Business Guides v. Chromatic Commc'ns Enter., Inc., 498 U.S. 533, 546-47 (1991)). Reasonableness in the context of Rule 11 is "an objective knowledge or belief at the time of the filing of the challenged paper that the claim was well-grounded in law and fact." Id. Sanctions are appropriate only if "the filing of the complaint constituted abusive litigation or misuse of the court's process." Simmerman v. Corino, 27 F.3d 58, 62 (3d Cir. 1994). The court's authority to impose sanctions for a Rule 11 violation is discretionary rather than mandatory. Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 146 n.28 (3d Cir. 2009) (citation omitted).
I recommend that the court deny plaintiff's motion for sanctions. The court may only impose Rule 11 sanctions in exceptional circumstances. See Doering v. Union County Bd. of Chosen Freeholders, 857 F.2d 191, 194 (3d Cir. 1988). The court has reviewed defendants' filings and finds them neither patently unmeritorious nor frivolous. Defense counsel has taken no action to warrant the imposition of Rule 11 sanctions.
Plaintiff moves the court for a preliminary injunction against Mr. Lynn to prevent Mr. Lynn from having further communications with his former client, Ms. Smith. (D.I. 18 at 2) According to plaintiff, on April 15, 2019, Ms. Smith informed plaintiff that Mr. Lynn's deductibles for legal malpractice had increased since the commencement of this litigation. (Id. at 1) Plaintiff contends that this communication between Ms. Smith and Mr. Lynn "is misleading conduct that corruptly influences the potential testimony of a key witness." (Id.)
A preliminary injunction is "an extraordinary remedy that should be granted only if: (1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the defendant; and (4) granting the injunction is in the public interest." NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999). "[F]ailure to establish any clement in [a plaintiffs] favor renders a preliminary injunction inappropriate." Id. Preliminary injunctions should only be granted when necessary "to preserve the relative positions of the parties until a trial on the merits can be held." See Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981); see also Anderson v. Davila, 125 F.3d 148, 156 (3d Cir. 1997) ("The purpose of a preliminary injunction is to preserve the status quo, not to decide the issues on their merits.").
Plaintiff has failed to satisfy the standard for a preliminary injunction because there is no evidence of a reasonable probability of success on the merits. See § III.A, supra (recommending dismissal of plaintiffs complaint pursuant to Rules 12(b)(1) and 12(b)(6)). Plaintiff has raised similar allegations based on the same facts in Family Court and before the Delaware Supreme Court.
For the foregoing reasons, I recommend that the court grant defendants' motion to dismiss and dismiss the action with prejudice. (D.I. 16) Furthermore, I recommend that the court deny plaintiffs motion for sanctions (D.I. 13), and deny plaintiffs motion for a preliminary injunction (D.I. 18). The Clerk of Court shall cause a copy of this Report and Recommendation to he mailed to plaintiff.
This Report and Recommendation is filed pursuant to 28 U.S.C. § 636(b)(1)(B), Fed. R. Civ. P. 72(b)(1), and D. Del. LR 72.1. The parties may serve and file specific written objections within fourteen (14) days after being served with a copy of this Report and Recommendation. Fed. R. Civ. P. 72(b)(2). The objections and responses to the objections are limited to five (5) pages each. The failure of a party to object to legal conclusions may result in the loss of the right to de novo review in the District Court. See Sincavage v. Barnhart, 171 F. App'x 924, 925 n.1 (3d Cir. 2006); Henderson v. Carlson, 812 F.2d 874, 878-79 (3d Cir. 1987).
The parties arc directed to the court's Standing Order In Pro Se Matters For Objections Filed Under Fed. R. Civ. P. 72, dated October 9, 2013, a copy of which is available on the court's website, http://www.ded.uscourts.gov.
