IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
) MICHAEL CARNEY ) ) Plaintiff, ) ) v. ) C.A. No. N19C-06-194 ALR ) B & B SERVICE CO., MICHAEL ) BLOOM, DAVID BLOOM, and STEEL ) SUPPLIERS ERECTORS, INC. ) ) Defendants. )
Submitted: September 19, 2019 Decided: October 29, 2019
Upon Defendants’ Motion to Dismiss Count III of the Complaint DENIED
ORDER
Upon consideration of Defendants’ Motion to Dismiss Count III of the
Complaint; the opposition thereto filed by Plaintiff Michael Carney (“Plaintiff”); the
facts, arguments, and authorities set forth by the parties; the Superior Court Civil
Rules; statutory and decisional law; and the entire record in this case, the Court
hereby finds as follows:
1. Plaintiff owns a parcel of real estate located on Front Street in
Wilmington, Delaware (“Property”).
2. On June 21, 2019, Plaintiff initiated this lawsuit, setting forth several
claims of tortious conduct relating to Defendants’ alleged trespass onto the Property. 3. Defendant B & B Service Co. (“B&B”) is a Delaware corporation that
owns the property adjacent to Plaintiff’s property (“Adjacent Property”). Defendant
Steel Suppliers Erectors, Inc. (“Steel Suppliers”) is a Delaware corporation that
operates a business on the Adjacent Property. Defendants Michael Bloom and David
Bloom are parties to this action in their individual capacities and as officers of B&B
and Steel Suppliers (B&B, Steel Suppliers, Michael Bloom, and David Bloom,
collectively “Defendants”).
4. The Complaint alleges that in 2008 Defendants erected a fence that
encroached upon approximately 75 feet of the Property. The Complaint further
alleges that Plaintiff has repeatedly demanded that Defendants remove the fence.
5. The Complaint alleges that Plaintiff negotiated with a third party to sell
the Property in 2018. According to the Complaint, Michael Bloom told the third
party that Defendants refused to remove the fence and that the fence had been in
place for 30 years. The Complaint alleges that Michael Bloom’s statement to the
third party was false and designed to interfere with Plaintiff’s ability to market and
sell the Property.
6. On August 15, 2019, in lieu of an answer, Defendants filed a motion to
dismiss Count III of the Complaint for failure to state a claim upon which relief can
be granted. Count III of the Complaint sets forth a claim for tortious interference
with business relationships. Plaintiff opposes Defendants’ Motion.
2 7. On a motion to dismiss for failure to state a claim upon which relief can
be granted,1 the Court must read the complaint generously, accept all well-pleaded
allegations contained therein as true, and draw all reasonable inferences in a light
most favorable to the non-moving party.2 A well-pleaded complaint puts the
opposing party on notice of the claim being brought against it. 3 Dismissal is
warranted only “when the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.”4 Allegations that
are merely conclusory and lacking factual basis will not survive a motion to dismiss.5
8. To survive a motion to dismiss for failure to state a claim for tortious
interference with business relationships, the plaintiff must establish: “(1) the
reasonable probability of a business opportunity; (2) the intentional interference by
the defendant with that business opportunity; (3) proximate causation; and (4)
damages, all of which must be considered in light of the defendant’s privilege to
compete or protect his business interests in a fair and lawful manner.”6 Defendants
1 Super. Ct. Civil R. 12(b)(6). 2 In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006). 3 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970). 4 Ridley v. Bayhealth Med. Ctr., Inc., 2018 WL 1567609, at *3 (Del. Super. Ct. Mar. 20, 2018) (internal citations omitted). 5 Cornell Glasgow, LLC v. La Grange Props., LLC, 2012 WL 2106945, at *7 (Del. Super. Ct. June 6, 2012) (internal citations omitted). 6 Orthopaedic Assocs. of S. Del., P.A. v. Pfaff, 2018 WL 822020, at *2 (Del. Super. Ct. Feb. 9, 2018). 3 argue that the Complaint does not adequately plead the “reasonable probability” and
“intentional interference” elements.
9. To meet the reasonable probability element, “a plaintiff ‘must identify
a specific party who was prepared to enter into a business relationship with the
plaintiff but was dissuaded from doing so by the defendant and cannot rely on
generalized allegations of harm.’”7 The complaint need not identify the party by
name but “must allege enough detail for the Court to be able to infer the existence
of specific parties who presented an existing or potential business opportunity.”8
“To be reasonably probable, a business opportunity must be ‘something more than
a mere hope or the innate optimism of the salesman’ or a ‘mere perception of a
prospective business relationship.’”9
10. Assuming the well-pleaded facts are true, Plaintiff’s Complaint
establishes the reasonable probability of a business opportunity. Plaintiff alleges
that he negotiated the sale of the Property with a third party and that the third party
has been unwilling to contract with Plaintiff to purchase the property as a result of
Defendants’ trespass and representations regarding the duration of the trespass.
7 Id. (quoting U.S. Bank Nat’l Ass’n v. Gunn, 23 F. Supp. 3d 426, 436 (D. Del. 2014)) (brackets omitted). 8 Id. at *3. 9 Agilent Techs., Inc. v. Kirkland, 2009 WL 119865, at *7 (Del. Ch. Jan. 20, 2009) (quoting Wolk v. Teledyne Indus., Inc., 475 F. Supp. 2d 491, 512 (E.D. Pa. 2007); Lipson v. Anesthesia Servs. P.A., 790 A.2d 1261, 1285 (Del. Super. Ct. 2001)). 4 Accordingly, Plaintiff has adequately pleaded a reasonable probability of a business
opportunity.
11. To meet the intentional interference element, “a plaintiff must prove
that the defendant’s interference with the plaintiff’s business opportunity was
intentional and wrongful or improper.”10 “An alleged interference in a prospective
business relationship is only actionable if it is wrongful.”11
12. Defendants argue that Defendants’ interference with Plaintiff’s sale of
the Property was not wrongful or improper. Citing Soterion Corp. v. Soteria
Mazzanine Corp.,12 Defendants argue that Michael Bloom’s representations to the
third party merely conveyed a truth—the existence of a dispute over the ownership
of the Property—and were therefore neither wrongful nor improper. In Soterion
Corp., the Court of Chancery, in a post-trial memorandum, found that the
counterclaim defendants did not improperly interfere with the counterclaim
plaintiff’s sale of a medical imaging center by faxing a copy of a complaint to the
potential buyers.13 The faxed complaint alleged that the counterclaim plaintiffs had
engaged in various tortious and other wrongful conduct.14 The Court of Chancery
found that the counterclaim defendants had not engaged in improper interference by
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
) MICHAEL CARNEY ) ) Plaintiff, ) ) v. ) C.A. No. N19C-06-194 ALR ) B & B SERVICE CO., MICHAEL ) BLOOM, DAVID BLOOM, and STEEL ) SUPPLIERS ERECTORS, INC. ) ) Defendants. )
Submitted: September 19, 2019 Decided: October 29, 2019
Upon Defendants’ Motion to Dismiss Count III of the Complaint DENIED
ORDER
Upon consideration of Defendants’ Motion to Dismiss Count III of the
Complaint; the opposition thereto filed by Plaintiff Michael Carney (“Plaintiff”); the
facts, arguments, and authorities set forth by the parties; the Superior Court Civil
Rules; statutory and decisional law; and the entire record in this case, the Court
hereby finds as follows:
1. Plaintiff owns a parcel of real estate located on Front Street in
Wilmington, Delaware (“Property”).
2. On June 21, 2019, Plaintiff initiated this lawsuit, setting forth several
claims of tortious conduct relating to Defendants’ alleged trespass onto the Property. 3. Defendant B & B Service Co. (“B&B”) is a Delaware corporation that
owns the property adjacent to Plaintiff’s property (“Adjacent Property”). Defendant
Steel Suppliers Erectors, Inc. (“Steel Suppliers”) is a Delaware corporation that
operates a business on the Adjacent Property. Defendants Michael Bloom and David
Bloom are parties to this action in their individual capacities and as officers of B&B
and Steel Suppliers (B&B, Steel Suppliers, Michael Bloom, and David Bloom,
collectively “Defendants”).
4. The Complaint alleges that in 2008 Defendants erected a fence that
encroached upon approximately 75 feet of the Property. The Complaint further
alleges that Plaintiff has repeatedly demanded that Defendants remove the fence.
5. The Complaint alleges that Plaintiff negotiated with a third party to sell
the Property in 2018. According to the Complaint, Michael Bloom told the third
party that Defendants refused to remove the fence and that the fence had been in
place for 30 years. The Complaint alleges that Michael Bloom’s statement to the
third party was false and designed to interfere with Plaintiff’s ability to market and
sell the Property.
6. On August 15, 2019, in lieu of an answer, Defendants filed a motion to
dismiss Count III of the Complaint for failure to state a claim upon which relief can
be granted. Count III of the Complaint sets forth a claim for tortious interference
with business relationships. Plaintiff opposes Defendants’ Motion.
2 7. On a motion to dismiss for failure to state a claim upon which relief can
be granted,1 the Court must read the complaint generously, accept all well-pleaded
allegations contained therein as true, and draw all reasonable inferences in a light
most favorable to the non-moving party.2 A well-pleaded complaint puts the
opposing party on notice of the claim being brought against it. 3 Dismissal is
warranted only “when the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.”4 Allegations that
are merely conclusory and lacking factual basis will not survive a motion to dismiss.5
8. To survive a motion to dismiss for failure to state a claim for tortious
interference with business relationships, the plaintiff must establish: “(1) the
reasonable probability of a business opportunity; (2) the intentional interference by
the defendant with that business opportunity; (3) proximate causation; and (4)
damages, all of which must be considered in light of the defendant’s privilege to
compete or protect his business interests in a fair and lawful manner.”6 Defendants
1 Super. Ct. Civil R. 12(b)(6). 2 In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006). 3 Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970). 4 Ridley v. Bayhealth Med. Ctr., Inc., 2018 WL 1567609, at *3 (Del. Super. Ct. Mar. 20, 2018) (internal citations omitted). 5 Cornell Glasgow, LLC v. La Grange Props., LLC, 2012 WL 2106945, at *7 (Del. Super. Ct. June 6, 2012) (internal citations omitted). 6 Orthopaedic Assocs. of S. Del., P.A. v. Pfaff, 2018 WL 822020, at *2 (Del. Super. Ct. Feb. 9, 2018). 3 argue that the Complaint does not adequately plead the “reasonable probability” and
“intentional interference” elements.
9. To meet the reasonable probability element, “a plaintiff ‘must identify
a specific party who was prepared to enter into a business relationship with the
plaintiff but was dissuaded from doing so by the defendant and cannot rely on
generalized allegations of harm.’”7 The complaint need not identify the party by
name but “must allege enough detail for the Court to be able to infer the existence
of specific parties who presented an existing or potential business opportunity.”8
“To be reasonably probable, a business opportunity must be ‘something more than
a mere hope or the innate optimism of the salesman’ or a ‘mere perception of a
prospective business relationship.’”9
10. Assuming the well-pleaded facts are true, Plaintiff’s Complaint
establishes the reasonable probability of a business opportunity. Plaintiff alleges
that he negotiated the sale of the Property with a third party and that the third party
has been unwilling to contract with Plaintiff to purchase the property as a result of
Defendants’ trespass and representations regarding the duration of the trespass.
7 Id. (quoting U.S. Bank Nat’l Ass’n v. Gunn, 23 F. Supp. 3d 426, 436 (D. Del. 2014)) (brackets omitted). 8 Id. at *3. 9 Agilent Techs., Inc. v. Kirkland, 2009 WL 119865, at *7 (Del. Ch. Jan. 20, 2009) (quoting Wolk v. Teledyne Indus., Inc., 475 F. Supp. 2d 491, 512 (E.D. Pa. 2007); Lipson v. Anesthesia Servs. P.A., 790 A.2d 1261, 1285 (Del. Super. Ct. 2001)). 4 Accordingly, Plaintiff has adequately pleaded a reasonable probability of a business
opportunity.
11. To meet the intentional interference element, “a plaintiff must prove
that the defendant’s interference with the plaintiff’s business opportunity was
intentional and wrongful or improper.”10 “An alleged interference in a prospective
business relationship is only actionable if it is wrongful.”11
12. Defendants argue that Defendants’ interference with Plaintiff’s sale of
the Property was not wrongful or improper. Citing Soterion Corp. v. Soteria
Mazzanine Corp.,12 Defendants argue that Michael Bloom’s representations to the
third party merely conveyed a truth—the existence of a dispute over the ownership
of the Property—and were therefore neither wrongful nor improper. In Soterion
Corp., the Court of Chancery, in a post-trial memorandum, found that the
counterclaim defendants did not improperly interfere with the counterclaim
plaintiff’s sale of a medical imaging center by faxing a copy of a complaint to the
potential buyers.13 The faxed complaint alleged that the counterclaim plaintiffs had
engaged in various tortious and other wrongful conduct.14 The Court of Chancery
found that the counterclaim defendants had not engaged in improper interference by
10 Pfaff, 2018 WL 822020, at *2. 11 Kirkland, 2009 WL 119865, at *8. 12 2012 WL 5378251 (Del. Ch. Oct. 31, 2012). 13 Id. at *14. 14 Id. at *6–7. 5 faxing the complaint because the faxed complaint had been filed and the existence
of litigation was therefore truthful at the time the complaint was sent.15
13. Defendants’ reliance on Soterion Corp. is misplaced. In Soterion
Corp., the Court of Chancery made findings on the merits after trial. The procedural
posture of the case before this Court requires merely notice of a prima facie case.
14. At this stage in the proceedings, Plaintiff has pleaded sufficient facts to
support a claim for tortious interference with business relationships.
NOW, THEREFORE, this 29th day of October 2019, Defendants’ Motion
to Dismiss Count III of the Complaint is hereby DENIED.
IT IS SO ORDERED.
Andrea L. Rocanelli ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____
The Honorable Andrea L. Rocanelli
15 Id. at *14. 6