EFiled: Jun 29 2016 01:57PM EDT Transaction ID 59209787 Case No. 11632-VCS COURT OF CHANCERY OF THE STATE OF DELAWARE
417 SOUTH STATE STREET JOSEPH R. SLIGHTS, III DOVER, DELAWARE 19901 VICE CHANCELLOR TELEPHONE: (302) 739-4397 FACSIMILE: (302) 739-6179
June 29, 2016
Via File & ServeXpress and First Class Mail Mr. Weih Steve Chang Gary H. Kaplan, Esquire 122 Pumpkin Patch Lane Marshall Dennehey Warner Hockessin, DE 19707 Coleman & Goggin 1007 North Orange Street, Suite 600 Wilmington, DE 19801
Kevin S. Mann, Esquire Cross & Simon, LLC 1105 North Market Street, Suite 901 Wilmington, DE 19801
Re: Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS Date Submitted: June 8, 2016
Dear Counsel and Mr. Chang:
I have reviewed the many motions and other filings made in this case. I am
aware that the parties are in the process of briefing a motion to dismiss. That work
should continue according to the schedule that was previously entered by the
Court. This letter addresses three motions recently filed by Plaintiff, Weih Steve
Chang: (1) Motion to Re-Open Jane Doe 30 vs. Earl B. Bradley (CA No. 10C-05- Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 2
023) By Granting Joinder of Persons/Parties (“Motion to Reopen”); (2) Motion to
Recuse; and (3) Motion to Stay.
1. Motion to Reopen
The nature and bases for this motion are difficult to discern. It appears that
Plaintiff seeks to add additional defendants to this lawsuit and thereby reopen a
class action against Earl B. Bradley, M.D. that was litigated and then settled in the
Superior Court of Delaware (the “Bradley litigation”). The new parties Plaintiff
seeks to add as defendants were either parties or lawyers involved in the Bradley
litigation. According to Plaintiff, the Bradley litigation settlement was procured by
fraud. For the reasons that follow, the motion must be denied.
While the motion is extremely difficult to follow, it appears that Plaintiff is
seeking to amend his complaint to add new parties and perhaps new claims. While
motions to amend are liberally granted in this Court, the Court will deny a motion
to amend on futility grounds when it is clear that the proposed amendment would Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 3
not survive a motion to dismiss.1 Plaintiff’s proposed amendments are futile for
several reasons.
First, Plaintiff offers no basis upon which this Court could exercise its
jurisdiction to “reopen” a case that has been litigated and settled in the Superior
Court. I also am unaware of any ground upon which this Court could enter such
an order. Moreover, it is not at all clear to me that Plaintiff has standing to seek to
reopen the Bradley litigation in any event. He has made no allegation that he was a
party to the Bradley litigation or that he or anyone he purports to represent was a
member of the class that was certified in that litigation. Nor has he made an
attempt to justify an order allowing him to intervene, pursuant to Court of
Chancery Rule 24, in order to challenge the Bradley litigation settlement assuming,
arguendo, that this Court had the authority to grant such relief (which it does not).2
1 FS Parallel Fund, LP v. Ergen, 2004 WL 3048751, at *1 (Del. Ch. Nov. 3, 2004), aff’d, 879 A.2d 602 (Del. 2005) (TABLE). 2 See In re MCA, Inc. S’holders Litig., 774 A.2d 272, 276–78 (Del. Ch. 2000) (denying motion to intervene in order to challenge settlement approved by the court seven years prior to the attempted intervention). Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 4
Second, to the extent the proposed amendment is grounded in the Court’s
authority to provide relief from judgment under Court of Chancery Rule 60(b),
Plaintiff has failed to set forth any basis upon which this Court could provide relief
from a judgment entered by the Superior Court. Even if the Court could provide
such relief, Plaintiff has failed to identify any evidence that would meet the “high
Rule 60(b) standard,” which requires “the most egregious conduct involving a
corruption of the judicial process itself.’”3 Plaintiff’s “[s]inister suspicions and
‘dark imaginings’ [of “duplicitous” conduct] are not enough” to sustain this heavy
burden.4
3 MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 638 (Del. 2001) (quoting In re MCA, Inc., 774 A.2d at 280) (internal quotation marks omitted). See also id. at 639 (“A party seeking to vacate an order on the ground that his or her opponent effectuated a fraud on the court bears a heavy burden.”). 4 In re MCA, Inc., 774 A.2d at 280 (holding that to state a claim that a settlement should be set aside because of fraud on the court the plaintiff not only must plead the fraud with particularity under Court of Chancery Rule 9(b), but also must state a factual basis to support a reasonable inference that the approving court was somehow “duped” into blessing the settlement). Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 5
Based on the foregoing, Plaintiff’s Motion to Reopen is DENIED. To the
extent the Motion to Reopen seeks an order for leave to amend the complaint to
name additional defendants related to the Bradley litigation, that motion is likewise
DENIED.
2. Motion to Recuse
Plaintiff asserts that I must recuse myself from this case since I was the
judge who presided over the Bradley litigation when I served on the Superior
Court. He is correct that I presided over the Bradley litigation from its inception
through its conclusion with a class action settlement that I approved. My role as
presiding judge in that case, however, provides no basis for me to recuse myself
from this case.
Under Delaware law, a judicial officer must recuse himself if there is “any
reasonable basis to question [his] impartiality.”5
When faced with a claim of personal bias or prejudice … the judge is required to engage in a two-part analysis. First, he must, as a matter of subjective belief, be satisfied that he can proceed to hear the cause free of bias or prejudice concerning that party. Second, even if the judge believes he has no bias, situations may arise where, actual bias
5 Weber v. State, 547 A.2d 948, 952 (Del. 1988). Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 6
aside, there is the appearance of bias sufficient to cause doubt as to the judge’s impartiality.6
Here, Plaintiff argues that I will likely be a witness in his effort to set aside
the Bradley litigation settlement. As I have denied Plaintiff’s Motion to Reopen,
there is no reason for me to be involved in this case, or any other related case, as a
witness. With this in mind, I have considered on a subjective level whether I can
“proceed to hear [this case] free of bias or prejudice” and I am satisfied that I can.7
Likewise, Plaintiff has provided no reasonable basis upon which I can conclude
that there is or will be an “appearance of bias sufficient to cause doubt as to [my]
impartiality.”8 My involvement as the presiding judge in the Bradley litigation
Free access — add to your briefcase to read the full text and ask questions with AI
EFiled: Jun 29 2016 01:57PM EDT Transaction ID 59209787 Case No. 11632-VCS COURT OF CHANCERY OF THE STATE OF DELAWARE
417 SOUTH STATE STREET JOSEPH R. SLIGHTS, III DOVER, DELAWARE 19901 VICE CHANCELLOR TELEPHONE: (302) 739-4397 FACSIMILE: (302) 739-6179
June 29, 2016
Via File & ServeXpress and First Class Mail Mr. Weih Steve Chang Gary H. Kaplan, Esquire 122 Pumpkin Patch Lane Marshall Dennehey Warner Hockessin, DE 19707 Coleman & Goggin 1007 North Orange Street, Suite 600 Wilmington, DE 19801
Kevin S. Mann, Esquire Cross & Simon, LLC 1105 North Market Street, Suite 901 Wilmington, DE 19801
Re: Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS Date Submitted: June 8, 2016
Dear Counsel and Mr. Chang:
I have reviewed the many motions and other filings made in this case. I am
aware that the parties are in the process of briefing a motion to dismiss. That work
should continue according to the schedule that was previously entered by the
Court. This letter addresses three motions recently filed by Plaintiff, Weih Steve
Chang: (1) Motion to Re-Open Jane Doe 30 vs. Earl B. Bradley (CA No. 10C-05- Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 2
023) By Granting Joinder of Persons/Parties (“Motion to Reopen”); (2) Motion to
Recuse; and (3) Motion to Stay.
1. Motion to Reopen
The nature and bases for this motion are difficult to discern. It appears that
Plaintiff seeks to add additional defendants to this lawsuit and thereby reopen a
class action against Earl B. Bradley, M.D. that was litigated and then settled in the
Superior Court of Delaware (the “Bradley litigation”). The new parties Plaintiff
seeks to add as defendants were either parties or lawyers involved in the Bradley
litigation. According to Plaintiff, the Bradley litigation settlement was procured by
fraud. For the reasons that follow, the motion must be denied.
While the motion is extremely difficult to follow, it appears that Plaintiff is
seeking to amend his complaint to add new parties and perhaps new claims. While
motions to amend are liberally granted in this Court, the Court will deny a motion
to amend on futility grounds when it is clear that the proposed amendment would Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 3
not survive a motion to dismiss.1 Plaintiff’s proposed amendments are futile for
several reasons.
First, Plaintiff offers no basis upon which this Court could exercise its
jurisdiction to “reopen” a case that has been litigated and settled in the Superior
Court. I also am unaware of any ground upon which this Court could enter such
an order. Moreover, it is not at all clear to me that Plaintiff has standing to seek to
reopen the Bradley litigation in any event. He has made no allegation that he was a
party to the Bradley litigation or that he or anyone he purports to represent was a
member of the class that was certified in that litigation. Nor has he made an
attempt to justify an order allowing him to intervene, pursuant to Court of
Chancery Rule 24, in order to challenge the Bradley litigation settlement assuming,
arguendo, that this Court had the authority to grant such relief (which it does not).2
1 FS Parallel Fund, LP v. Ergen, 2004 WL 3048751, at *1 (Del. Ch. Nov. 3, 2004), aff’d, 879 A.2d 602 (Del. 2005) (TABLE). 2 See In re MCA, Inc. S’holders Litig., 774 A.2d 272, 276–78 (Del. Ch. 2000) (denying motion to intervene in order to challenge settlement approved by the court seven years prior to the attempted intervention). Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 4
Second, to the extent the proposed amendment is grounded in the Court’s
authority to provide relief from judgment under Court of Chancery Rule 60(b),
Plaintiff has failed to set forth any basis upon which this Court could provide relief
from a judgment entered by the Superior Court. Even if the Court could provide
such relief, Plaintiff has failed to identify any evidence that would meet the “high
Rule 60(b) standard,” which requires “the most egregious conduct involving a
corruption of the judicial process itself.’”3 Plaintiff’s “[s]inister suspicions and
‘dark imaginings’ [of “duplicitous” conduct] are not enough” to sustain this heavy
burden.4
3 MCA, Inc. v. Matsushita Elec. Indus. Co., Ltd., 785 A.2d 625, 638 (Del. 2001) (quoting In re MCA, Inc., 774 A.2d at 280) (internal quotation marks omitted). See also id. at 639 (“A party seeking to vacate an order on the ground that his or her opponent effectuated a fraud on the court bears a heavy burden.”). 4 In re MCA, Inc., 774 A.2d at 280 (holding that to state a claim that a settlement should be set aside because of fraud on the court the plaintiff not only must plead the fraud with particularity under Court of Chancery Rule 9(b), but also must state a factual basis to support a reasonable inference that the approving court was somehow “duped” into blessing the settlement). Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 5
Based on the foregoing, Plaintiff’s Motion to Reopen is DENIED. To the
extent the Motion to Reopen seeks an order for leave to amend the complaint to
name additional defendants related to the Bradley litigation, that motion is likewise
DENIED.
2. Motion to Recuse
Plaintiff asserts that I must recuse myself from this case since I was the
judge who presided over the Bradley litigation when I served on the Superior
Court. He is correct that I presided over the Bradley litigation from its inception
through its conclusion with a class action settlement that I approved. My role as
presiding judge in that case, however, provides no basis for me to recuse myself
from this case.
Under Delaware law, a judicial officer must recuse himself if there is “any
reasonable basis to question [his] impartiality.”5
When faced with a claim of personal bias or prejudice … the judge is required to engage in a two-part analysis. First, he must, as a matter of subjective belief, be satisfied that he can proceed to hear the cause free of bias or prejudice concerning that party. Second, even if the judge believes he has no bias, situations may arise where, actual bias
5 Weber v. State, 547 A.2d 948, 952 (Del. 1988). Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 6
aside, there is the appearance of bias sufficient to cause doubt as to the judge’s impartiality.6
Here, Plaintiff argues that I will likely be a witness in his effort to set aside
the Bradley litigation settlement. As I have denied Plaintiff’s Motion to Reopen,
there is no reason for me to be involved in this case, or any other related case, as a
witness. With this in mind, I have considered on a subjective level whether I can
“proceed to hear [this case] free of bias or prejudice” and I am satisfied that I can.7
Likewise, Plaintiff has provided no reasonable basis upon which I can conclude
that there is or will be an “appearance of bias sufficient to cause doubt as to [my]
impartiality.”8 My involvement as the presiding judge in the Bradley litigation
cannot reasonably be viewed as a disqualifying event that would justify my recusal
from this separate action.
6 Los v. Los, 595 A.2d 381, 384–85 (Del. 1991). 7 Id. 8 Id. at 385. Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 7
In denying this motion to recuse, I am mindful of my “duty to sit.”9 “A trial
judge has a duty to hear cases assigned to him unless some reasonable factual basis
to doubt his impartiality or fairness is shown by some kind of probative
evidence.”10 As this Court has correctly observed, “judges who too lightly recuse
shirk their official responsibilities, imposing unreasonable demands on their
colleagues to do their work and risking the untimely processing of cases.”11
Although my service on this Court has spanned all of three months, I have already
come to appreciate that the Court’s docket is crowded and its judges are, to put it
mildly, very busy. While I have no particular desire to hear this matter, which
involves disturbing allegations of child abuse, I would be “abrogating my
responsibility”12 if I forced one of my colleagues to take over this case based on
9 State v. Desmond, 2011 WL 91984, at *8–9 (Del. Super. Ct. Jan. 5, 2011) (discussing at length the so-called “benign” version of the “duty to sit” and denying a motion to recuse). 10 In re Will of Stotlar, 1985 WL 4782, at *2 (Del. Ch. Dec. 19, 1985) (denying motion to recuse). 11 Reeder v. Del. Dept. of Ins., 2006 WL 510067, at *17 (Del. Ch. Feb. 24, 2006). 12 Stotlar, 1985 WL 4782, at *1. Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 8
Plaintiff’s vague allegations and misguided attempt to reopen litigation that was
resolved in another court years ago.
The Motion to Recuse is DENIED.
3. Motion to Stay
The Motion to Stay is based, in part, on the fact that the Motion to Recuse
should be decided before this litigation proceeds. That motion has now been
decided. Plaintiff also seeks a stay of this litigation so that he may “re-prioritize
his focus on pending litigations in the district court” and “re-direct his time and
other resources to his employment and his business obligations.”13 This Court’s
rules of procedure impose an obligation on parties who file cases in this Court to
prosecute those cases.14 Defendants who are brought before this Court have a right
to expect that the plaintiff will prosecute the case against them “diligently” or face
the consequence of dismissal.15 While I appreciate that the costs and burdens of
13 Mot. to Stay, Tr. ID 59116993. 14 Ct. Ch. R. 41(a), (e). 15 Yancey v. Nat’l Trust Co., Ltd., 1993 WL 155492, at *16 (Del. Ch. May 7, 1993) (dismissing a case for plaintiff’s failure to prosecute), aff’d, 633 A.2d 372 (Del. 1993) (TABLE). Chang v. Children’s Advocacy Center of Delaware, Inc. C.A. No. 11632-VCS June 29, 2016 Page 9
litigation can, at times, be difficult to bear, particularly for pro se parties, Plaintiff
has chosen to initiate this litigation and has failed to demonstrate any justifiable
reason why the Court should allow him to park this case here indefinitely while he
attends to matters elsewhere.
The Motion to Stay is DENIED.
Very truly yours,
/s/ Joseph R. Slights, III