Opinion
C.A. No. 01C-07-038 HDR
Submitted: September 7, 2001
Decided: November 14, 2001
Upon Defendants' Motion to Dismiss Complaint GRANTED.
Gabriel G. Atamian, Dover, Delaware, pro se.
M. Duncan Grant, Esq., Andrea B. Unterberger, Esq. and Joseph S. Naylor, Esq. of Pepper Hamilton LLP, Wilmington, Delaware and Eric M. Hurwitz, Esq. of Pepper Hamilton LLP, Philadelphia, Pennsylvania, for Defendants Nemours Health Clinic, Thomas P. Ferry, and Patricia M. Duca.
ORDER
This 14th day of November, 2001, it appears that:
(1) Plaintiff Gabriel G. Atamian seeks injunctive relief to enjoin the officers of Defendant Nemours Health Clinic to provide Plaintiff with dental treatment. Plaintiff also seeks damages against several defendants in several counts of his complaint that allege a vast conspiracy of health care providers against him both professionally and with regard to his dental health care. He claims that this conspiracy dates back to the 1960's, when he alleges that several Jewish doctors began conspiring to ruin his career and his life. According to Atamian, this conspiracy has lived on, through the "murder" of his mother by a doctor treating her for pulmonary disease in a hospital, and eventually through his contact with Nemours, wherein they have declined to provide him with the dental care he desires.
(2) Defendants, Nemours Health Clinic and two of its officers, Thomas P. Ferry and Patricia M. Duca, move for the dismissal of the Complaint brought against them by Plaintiff. Defendants originally provided two bases for dismissal. The first is that the Complaint is "virtually identical to a prior pending action in the United States District Court for the District of Delaware, where it was removed from this Court." The second is that the complaint fails to state claims upon which relief may be granted. As the District Court has dismissed Atamian's claim against the Nemours defendants, this Court considers only the second basis.
(3) A motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6) requires the Court to determine whether a plaintiff may recover under any reasonably conceivable set of circumstances susceptible to proof under the complaint. A complaint cannot be dismissed unless the plaintiff has either failed to plead facts supporting an element of the claim, or that under no reasonable interpretation of the facts alleged in the complaint (including all reasonable inferences) could plaintiffs state a claim for which relief might be granted.
Evans v. Perillo, Del. Super., 2000 WL 973245, Cooch, J., (May 26, 2000) (Mem. Op.).
Id.
(4) To plead a civil conspiracy claim, 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 damages." A conspiratorial agreement must be alleged. Atamian's complaint does not assert any facts from which a conspiratorial agreement can be inferred. Nor does the complaint assert any facts from which an unlawful act in furtherance of the conspiracy can be inferred. As Atamian pleads the facts, it is apparent that the object of the alleged conspiracy had been completed by the time he first visited Nemours. Therefore, Atamian has not alleged facts sufficient to sustain a civil conspiracy claim.
Total Care Physicians, P.A. v. O'Hara, Del. Super., No. 99C-11-201, 2001 WL 541488, Slights, J. at *10 (Mar. 23, 2001).
Tuckman v. Aerosonic Corp., Del. Ch., No. 4094, 1981 WL 7622, Hartnett, V.C., at *2 (June 29, 1981).
(5) Common law deceit or fraudulent misrepresentation consists of a representation material to the transaction, made falsely, with knowledge of its falsity or recklessness as to whether it is true or false, with the intent to mislead another who justifiably relies on the misrepresentation and sustains damages. Based on the facts as asserted in the complaint, it cannot be reasonably inferred that the Nemours defendants had any intent to mislead or to induce Atamian to act, nor can it be reasonably inferred that Atamian relied on any statements by the Nemours defendants. Therefore, Atamian has not pled facts sufficient to establish a claim for misrepresentation and deceit.
See Stephenson v. Capano Development, Inc., Del. Super., Moore, J., 462 A.2d 1069, 1074 (1983).
(6) The complaint does not allege facts from which it could be reasonably inferred that the Nemours defendants exhibited extreme and outrageous conduct. Allegations of such conduct are required in order to plead a claim for intentional infliction of emotional distress. Therefore, Atamian has not pled facts sufficient to establish his claim for intentional infliction of emotional distress.
Goldsborough v. 397 Properties, L.L.C., Del. Super., No. 98C-09-001, 2000 WL 3310878, Vaughn, J., at *3 (2000).
(7) The only count which contains facts alleged specifically against the Nemours defendants is the claim for neglect to prevent under 42 U.S.C. § 1986. A claim under this section requires that the defendant have the power to prevent a conspiracy, yet fail to do so. Under the facts as alleged by Atamian, it cannot reasonably be inferred that the Nemours defendants had any reason to know of the alleged conspiracy, nor can it be inferred that they had the power to prevent its alleged goals from being achieved. Therefore, the facts as pled fail to establish a valid claim under 42 U.S.C. § 1986. NOW, THEREFORE, IT IS ORDERED that Defendants' motion to dismiss the complaint is GRANTED.
42 U.S.C. § 1986 (2001).
Henry duPont Ridgely President Judge
cmh oc: Prothonotary xc: Order distribution