IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
Christopher Ellington, ) ) Plaintiff, ) ) v. ) C.A. No: S25C-07-014 MHC ) Oak View Group, LLC, Mike Boris, ) Peter Gardner and Kyle Langser, ) ) Defendant. ) )
OPINION AND ORDER
Submitted: February 20, 2026 Decided: April 29, 2026
Upon Consideration of Defendant’s Motion to Dismiss, GRANTED IN PART, DENIED IN PART.
Rochelle Gumapac, Esquire and Sean A. Elman, Esquire, White & Williams, LLP, Wilmington, Delaware.
Michael C. Heyden, Jr., Esquire, and Joseph E. Brenner, Esquire, Gordon, Rees, Scully, Mansukani, LLP, Attorneys for the Defendant
Christopher Ellington, Pro Se
CONNER, J. PROCEDURAL POSTURE
Christopher Ellington (“Plaintiff”) filed the Complaint on July 17, 2025. On
September 22, 2025, Defendants filed a Motion for Extension of Time to file a
response to the Complaint. Plaintiff filed a Motion for Default Judgment on
September 30, 2025. The Court held a civil motion hearing on October 17, 2025,
where the Court granted Defendants’ Motion to Extend Time and denied Plaintiff’s
Motion for Default Judgment. On November 3, 2025, Plaintiff filed a Motion for
Clarification regarding the denial of a default judgment against Defendants Kyle
Langser and Peter Gardners (“Defendants”). The motion was denied on November
12, 2025. Defendants filed the instant Motion to Dismiss on November 16, 2025.
On December 15, 2025, Plaintiff filed a Motion to Strike Defendant’s “Answer and
Motion to Dismiss and Motion for Order for Rule to Show Cause” again arguing a
default judgment should be ordered. The Court denied the motion on December 30,
2025, instructing the Plaintiff to respond directly to the Motion to Dismiss. Plaintiff
filed his Answering Brief in opposition of the Motion to Dismiss on February 3,
2026. Defendants filed their Reply Brief in support of the Motion to Dismiss on
February 20, 2026.
2 STATEMENT OF FACTS
Plaintiff brings suit against Oak View Group, LLC, Mike Boris, individually
and in his official capacity, Kyle Langsner, individually and in his official capacity,
and Peter Gardner, individually and in his official capacity. The civil action is for
defamation, extortion and coercion, tortious interference with prospective economic
advantage, breach of employment contract and promissory estoppel, fraud and
misrepresentation, and intentional infliction of emotional distress (“IIED”).
Defendant Kyle Langsner and Defendant Peter Gardner (“Defendants”) bring the
instant Motion to Dismiss.
Plaintiff brings a defamation claim against both Defendants. Plaintiff also
brings an extortion and coercion claim, a tortious interference with prospective
economic advantage claim, a fraud and misrepresentation claim, and an IIED claim
against Defendant Langsner. Defendants seek to dismiss all claims against them.
Plaintiff was recruited by Oak View Group in August of 2024 to work as the
Executive Chef of the Heritage Shores Resort in Bridgeville, Delaware.1 Defendant
Mike Boris was the Vice President of Oak View Group. Defendant Langsner was
the general manager at Heritage Shores. Defendant Gardner was the property
1 Compl., D.I. 1, at 2. 3 manager for Kemper Sports. In summer of 2025, the management of Heritage
Shores Resort changed from Oak View Group to Kemper Sports.2
Plaintiff seeks damages for alleged torts arising from his employment at
Heritage Shores Resort. Plaintiff alleges that the supervisor of Oak View Group,
Defendant Boris, promised Plaintiff a $10,000 signing bonus.3 This was a verbal
promise that was “reaffirmed verbally and through ongoing communications” with
leadership at Oak View Group. Plaintiff did not receive the bonus. In June of 2025,
Plaintiff alleges that Defendant Langsner warned him of a corporate transition and
suggested that Plaintiff look for another job. During this conversation, Defendant
Langsner allegedly told Plaintiff that he would be paid for his remaining two weeks
and offered to act as a reference for new jobs. Plaintiff alleges that Defendant
Langsner disrupted hiring procedures to keep Plaintiff understaffed and routinely
gave contradicting instructions to the staff under Plaintiff’s supervision. Plaintiff
further alleges that Defendant Langsner was operating an illicit drug operation
involving employees that were under Plaintiff’s supervision.
Plaintiff contends Defendant Langsner, Defendant Boris, and Defendant
Gardner held private meetings and intentionally excluded Plaintiff. During these
meetings, Plaintiff states that Defendant Langsner made defamatory statements
2 Def. Langsner and Def. Gardner Mot. to Dismiss (“Mot. to Dismiss”), D.I. 30, at 2. 3 Compl., D.I. 1, at 2. 4 about Plaintiff, portraying Plaintiff as unreliable, chronically absent, and unfit for
rehire. Plaintiff claims these statements prevented him from being rehired by
Defendant Gardner, the incoming property manager for Kemper Sports, who was to
take over operations from Oak View Group. Defendant Langsner allegedly
continued to tell staff and the community that Plaintiff was absent, and he had been
terminated for performance issues. Plaintiff states that he applied to, and was denied
employment from, six different culinary positions. He asserts that several employers
were initially interested, until speaking with his reference, Defendant Langsner.
PARTIES’ CONTENTIONS
A. Defendants’ Motion to Dismiss
Defendants filed the instant Motion to Dismiss pursuant to Superior Court
Civil Rule 12(b)(6). 4 Defendants argue that the Complaint fails as a matter of law
because Plaintiff does not allege the necessary facts to support the claims.
Defendants argue that Plaintiff has failed to establish Defamation. First,
Plaintiff does not allege that Defendant Gardner made a defamatory statement.
Defendant Gardner was told the alleged defamatory statement by Defendant
Langsner. Defendants argue that the defamation claim against Defendant Langsner
must fail as well because the Complaint lacks factual support. Additionally, Plaintiff
4 Id. at 1. 5 does not allege that he suffered “special damages,” which is a requirement for oral
defamation.
Next, Defendants argue that Plaintiff’s extortion and coercion claim fails as a
matter of law. No civil action for extortion or coercion exists in the state of
Delaware.
Additionally, Defendants argue that the alleged facts are insufficient to state a
claim for tortious interference with a prospective economic advantage. Plaintiff
cannot prove the necessary elements because Plaintiff has not established a
reasonable probability of a prospective business opportunity, and the Complaint does
not contain sufficient factual allegations.
Defendants also argue that Plaintiff is unable to state a claim for fraud and
misrepresentation against Defendant Langsner. Plaintiff has failed to meet the
heightened pleading requirement for a fraud claim.
Lastly, Defendants argue that the Complaint does not support a claim for IIED.
Plaintiff only vaguely alleges that Defendants intentionally inflicted severe
emotional distress upon him.
For these reasons, Defendants ask the Court to grant Defendants’ Motion to
Dismiss.
6 B. Plaintiff’s Response to Defendants’ Motion to Dismiss
First, Plaintiff asks the Court to review the “unresolved issues” that were
addressed in Plaintiff’s Motion to Strike, which was filed on December 15, 2025.5
On December 30, 2025, the Court denied Plaintiff’s Motion to Strike.
Next, Plaintiff asserts that he adequately pled a defamation claim against
Defendant Langsner. Plaintiff alleges that defamatory statements were made to third
parties and prospective employees, who understood the statements as defamatory,
thereby causing injury to Plaintiff. Furthermore, special damages have been
adequately pled because Plaintiff lost job opportunities, secure housing, and wages.
However, Plaintiff argues the statements are defamatory per se, therefore he is not
required to prove special damages. Plaintiff admits that the defamatory statements
did not originate from Defendant Gardner, but his conduct further supports
Plaintiff’s claims for tortious interference with contract and civil conspiracy.
Plaintiff admits that Count II, extortion and coercion, are not civil claims.
Plaintiff asks the Court to either construe Count II as a civil retaliation claim, an
IIED claim, and a tortious interference with prospective economic advantage claim,
or grant Plaintiff leave to amend his Complaint.
Next, Plaintiff alleges that he adequately pled a claim for tortious interference
with prospective economic advantage. Plaintiff argues that he pled he was in active
5 Pl.’s Resp. to Defs.’ Mot. to Dismiss, D.I. 37, at 7-8. 7 discussions for a position at Brandywine Senior Living. He also spoke with six
additional prospective employers who withdrew or ceased employment discussions
after checking his references. Plaintiff argues there was a reasonable probability of
achieving these business relations. Furthermore, Plaintiff adequately pled that
Defendant Langsner used wrongful means by making false and defamatory
statements to prospective employers.
Next, Plaintiff argues that fraud was pled with particularity by alleging who,
what, where, when, and why the alleged fraud occurred. Plaintiff relied upon the
alleged fraudulent statements and suffered damages by not receiving the $10,000
bonus, leave benefits, or event compensation. Plaintiff also suffered lost wages.
Lastly, Plaintiff argues that IIED was adequately pled. There are sufficient
allegations of extreme and outrageous conduct. Plaintiff has suffered severe
emotional distress as a result of Defendant Langsner’s conduct.
For these reasons, Plaintiff asks the Court to deny Defendants’ Motion to
C. Defendants’ Reply Brief
First, Defendants ask the Court to decline Plaintiff’s request to reconsider
previously decided arguments. 6 Plaintiff did not file a motion for reargument within
five days of the Court’s decision, as required by the Superior Court Rules of Civil
6 Defs.’ Reply Br., D.I. 38, at 1-2. 8 Procedure. Also, Defendants argue that the Court should not grant Plaintiff leave to
amend the Complaint because amendment would be futile. The claims are deficient.
Next, Defendants argue that Plaintiff’s IIED claim must be dismissed.
Plaintiff attempts to cure the Complaint’s defects by adding facts in his Responsive
Brief that were not contained in the Complaint.
Additionally, Plaintiff has failed to establish a claim for tortious interference
with a prospective business. Plaintiff does not establish a reasonable probability of
a prospective business opportunity or an intentional and wrongful interference.
Plaintiff attempts to insert new facts not alleged in the Complaint.
Furthermore, Defendants argue that the fraud and misrepresentation claim
against Defendant Langsner is unsupported. In his brief, Plaintiff admits that
Defendant Langsner did not make, or actively participate in making, a false
representation. Instead, it was Defendant Boris and Kevin Levett who committed
such acts. Therefore, the fraud claim is not adequately pled.
Lastly, Defendants argue the defamation claims against Defendant Gardner
and Defendant Langsner fail as a matter of law. The Complaint does not allege that
Defendant Gardner made any defamatory claims. Additionally, there is no evidence
that Defendant Langsner made a comment that could be considered defamatory or
that Plaintiff suffered special damages. Defendants argue that Plaintiff’s claims are
conclusory statements unsupported by facts.
9 For these reasons, Defendants ask the Court to grant the Motion to Dismiss.
STANDARD OF REVIEW
In evaluating a Motion to Dismiss under Superior Court Rule 12(b)(6), failure
to state claim in which relief can be granted, the Court must assume all well-pleaded
facts in the complaint to be true. 7 A complaint will not be dismissed unless the
plaintiff would not be entitled to recover under any reasonably conceivable set of
circumstances susceptible of proof.8 A complaint may not be dismissed unless it is
clearly without merit, which may be a matter of law or fact.9 Delaware Courts have
found that even vague allegations are considered “well-pled” so long as it gives the
defendants notice of the claim. 10 The trial court is not required to accept conclusory
allegations as true “without specific supporting factual allegations.” 11 The Court is
not required “to accept every strained interpretation of the allegations proposed by
the plaintiff.” 12
DISCUSSION
A. The Court will not Reconsider Plaintiff’s Motion to Strike.
7 Rodgers v. Erickson Air-Crane Co., L.L.C., 740 A.2d 508, 510 (Del. Super. Ct. 1999) (citing Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. Ct. 1983)). 8 Outdoor Techs. Inc. v. Allfirst Fin. Inc., 2000 WL 141275, at *3 (Del. Super. Ct. 2000) (citing Nix, 466 A.2d at 410)). 9 Id. (citing Diamond State Tel. Co. v. Univ. of Del., 269 A.2d 52, 58 (Del. 1970)). 10 Id. 11 Id. (quoting In re Santa Fe Pac. Corp. S'holder Litig., 669 A.2d 59, 65–66 (Del.1995)). 12 Id. (quoting Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 2001)). 10 The Court will not reconsider Plaintiff’s Motion to Strike as it is untimely.
Delaware Superior Court Civil Rule 59 states that a motion for reargument “shall be
served and filed within 5 days after the filing of the Court’s opinion or decision.”13
The Court issued its Order denying Plaintiff’s Motion to Strike on December 30,
2025. Plaintiff filed his Response to Defendants’ Motion to Dismiss on February 3,
2026. Plaintiff’s request for reargument is untimely.
B. Defendants’ Motion to Dismiss the Defamation Claim is Partially Granted.
Plaintiff brings a defamation claim against Defendant Langsner and
Defendant Gardner. The defamation claim against Defendant Gardner must be
dismissed, but the defamation claim against Defendant Langsner must survive the
Motion to Dismiss.
Delaware Courts have found that “[a] statement is defamatory when it ‘tends
so to harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him.’”14 In
defamation cases, “the threshold for the showing a plaintiff must make to survive a
motion to dismiss is low. Delaware is a notice pleading jurisdiction. Thus, for a
complaint to survive a motion to dismiss, it need only give general notice of the
13 Del. Super. Ct. Civ. R. 59(e). 14 Cousins v. Goodier, 283 A.3d 1140, 1148 (Del. 2022). 11 claim asserted.”15 Under Delaware law, the plaintiff must prove: “(1) Defendant
made a defamatory statement; (2) concerning Plaintiff; (3) the statement was
published; and (4) a third party would understand the character of the
communication as defamatory.” 16 Defamatory statements can either be written
(libel) or oral (slander). 17 Libel and slander are “twin torts.” 18 However, slander
claims, unlike libel, generally require the plaintiff to prove special damages.19
“Special harm is the loss of something having economic or pecuniary value.”20
There are four exceptions under slander per se that do not require proof of special
damages: (1) statements that impute a crime; (2) statements that malign one in trade,
business, or profession; (3) statements that imply that one has a loathsome disease;
or (4) statements that impute unchastity to a woman. 21
Additionally, statements made in the context of an employer-employee
relationship are subject to a qualified privilege. 22 “A qualified privilege extends to
communications made between people who have a common interest for the
protection of which the allegedly defamatory statements that are made or which are
15 Cousins v. Goodier, 2021 WL 3355471, at *2 (Del. Super. Ct. 2021), aff'd, 283 A.3d 1140 (Del. 2022)(quoting Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005)). 16 Cousins, 2021 WL 3355471, at *3. 17 Preston Hollow Cap. LLC v. Nuveen LLC, 216 A.3d 1, 9 (Del. Ch. 2019). 18 Id. 19 Id. 20 Preston Hollow Cap. LLC v. Nuveen LLC, 2022 WL 2276599, at *3 (Del. Super. Ct. 2022) 21 Preston Hollow Cap. LLC, 216 A.3d at 10, n. 58. 22 Masterson-Carr v. Anesthesia Servs., P.A., 2015 WL 5168557 (Del. Super. Ct. 2015). 12 disclosed to any person who has a legitimate expectation in the subject matter.” 23 If
a conditional privilege applies, the plaintiff must show actual malice. 24 However, if
there is no showing of actual malice, then the action is defeated. The standard for
actual malice is high. The plaintiff must show “that the statements were made
primarily to further interests other than those protected by the qualified privilege and
that the chief motive for making such statements was the defendant's ill will.”25
Generally, whether the conditional privilege has been abused is a factual question
for a jury, unless the facts in the light most favorable to the plaintiff are insufficient
to raise a factual question “upon which reasonable men might differ.”26
Plaintiff has not established a defamation claim against Defendant Gardner.
Plaintiff does not allege that Defendant Gardner made any defamatory comment
about Plaintiff, but rather that Defendant Langsner made a defamatory statement
about Plaintiff to Defendant Gardner. The first element of a defamation claim
requires the plaintiff to show that Defendant has made a defamatory statement.
Plaintiff has not established the first element of a defamation claim against
Defendant Gardner, therefore the Court will end its analysis here. The defamation
claim against Defendant Gardner must be dismissed.
23 Id. at 17. 24 Id. 25 Id. 26 Battista v. Chrysler Corp., 454 A.2d 286, 291 (Del. Super. Ct. 1982). 13 However, the defamation claim against Defendant Langsner must survive the
Motion to Dismiss. Plaintiff alleges that Defendant Langsner “knowingly made
false, malicious statements” about Plaintiff, thereby satisfying the first and second
elements of a defamation claim. 27 While Plaintiff does not specifically quote the
alleged defamatory statement, Plaintiff pled that Defendant Langsner portrayed him
as “unreliable, chronically absent, and unfit for rehire.” 28 The statements were made
to a third party, Defendant Gardner and prospective employers, thereby establishing
the second element of a defamation claim. 29 Plaintiff alleges that the statements
caused harm to him and his reputation, establishing the fourth element, that a third
party would understand the character of the communication as defamatory.30
Because the statement was slander, Plaintiff must allege special damages or that an
exception for slander per se applies. The Complaint alleges that Plaintiff was denied
employment at multiple institutions and the statements were made with the purpose
of causing harm to his professional reputation.31 This allegation is sufficient to
establish special damages at this stage of litigation.
Additionally, at this stage, the defamation claim will not be dismissed due to
a privileged immunity, as this is a question for a jury. In the Complaint, Plaintiff
27 Compl., D.I. 1, at 5. 28 Id. at 4. 29 Id. at 6. 30 Id. 31 Id. 14 alleges that the statements were made with actual malice, ill will, and to sabotage
Plaintiff’s reputation and future employment opportunities. The Complaint
specifically states that a qualified privilege does not apply because the statements
were made with retaliatory intent and outside of normal business. 32
Aforementioned, the pleading standard in Delaware is minimal. The
Compliant is sufficient to put Defendant Langsner on notice of the defamation claim
against him. Plaintiff has not sufficiently pled a defamation claim against Defendant
Gardner. For these reasons, the Motion to Dismiss the defamation claim against
Defendant Gardner is GRANTED and the Motion to Dismiss the defamation claim
against Defendant Langsner is DENIED.
C. Defendant Langsner’s Motion to Dismiss the Tortious Interference with Prospective Economic Advantage Claim is Granted.
Plaintiff’s tortious interference with prospective economic advantage against
Defendant Langsner should be dismissed. Under Delaware law, to bring a tortious
interference with prospective economic advantage claim, the plaintiff must
demonstrate: (1) the reasonable probability of a business opportunity; (2) intentional
interference with that opportunity; (3) proximate causation; and (4) damages. 33
32 Id. 33 World Energy Ventures, LLC v. Northwind Gulf Coast LLC, 2015 WL 6772638, at *6 (Del. Super. Ct. 2015) 15 When analyzing the reasonable probability of a business opportunity,
Delaware courts “permit[ ] a broad range of legitimate business expectancies,
including the ‘prospect of ... [any] relations leading to potentially profitable
contracts.’”34 However, “the mere perception of a prospective relationship” is not
sufficient. While the plaintiff does not need to specifically name the parties
involved in the prospective business opportunity, it must be reasonably probable.
“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.’”35
In Agilent Technologies, Inc. v. Kirkland, the Court found there was a
justifiable expectation of business with an unnamed party because the plaintiff
alleged the incidents in enough detail, including dates, which showed a “specific
prospective business relations” existed.36 The Court found that the plaintiff’s
allegations were “not the type of vague statements about unknown costumers that
courts usually reject.” 37 In the case, World Energy Ventures, LLC. V. Northwind Gulf
Coat, LLC, the Superior Court found that a list identifying seventeen different
investors that would have contributed to a fund, had the defendant not interfered,
34 Id. at *7. 35 Agilent Techs., Inc. v. Kirkland, 2009 WL 119865, at *7 (Del. Ch. 2009). 36 Id. at *7. 37 Id. 16 was sufficient to survive a motion to dismiss. 38 However, in Kimbleton v. White, the
District Court for the District of Delaware found that an allegation stating the
defendant’s conduct interfered with “all prospective home buyers” was insufficient
to establish a reasonable probability of business opportunity. 39 In the case, Lipton v.
Anesthesia Services, P.A., the Court found that the plaintiff had established this
element by identifying several candidates for employment with whom the plaintiff
sought to establish an employment relationship with.40 The defendant allegedly
approached the candidates with threats or misinformation about the plaintiff and the
viability of his new medical practice.41
Delaware Courts have found that interference with a prospective business
relation is intentional “if the actor desires to bring it about or if he [or she] knows
that the interference is certain or substantially certain to occur as a result of his [or
her] action.”42 “An alleged interference in a prospective business relationship is only
actionable if it is wrongful or improper.” 43 While Delaware Courts generally apply
the factors outlined in the Restatement (Second) of Torts to determine whether an
interference with prospective business relations is improper, it is “typically a
38 World Energy Ventures, LLC, 2015 WL 6772638, at *6. 39 Id. at 7 (see also Kimbleton, 2014 WL 4386760, at *8 (D. Del. 2014)). 40 790 A.2d 1261, 1286 (Del. Super. Ct. 2001). 41 Id. 42 World Energy Ventures, LLC, 2015 WL 6772638, at *8. 43 Id. (quoting Agilent Techs., Inc., 2009 WL 119865, at *7). 17 question of fact for the jury.”44 The plaintiff bears the burden of establishing all of
the factors, including that the interference was improper.45
Lastly, the plaintiff must prove causation and damages. Causation and
damages are “generally left to the jury to determine.”46 In World Energy Ventures,
the claimant alleged that it suffered damages, including lost profits, as a direct and
proximate result of the alleged tortious interference.47 The Court found the
allegation was sufficient in the pleading stage and that the movant will have the
opportunity to develop the case in discovery to establish these elements. 48
In the present case, Plaintiff has not established the aforementioned elements
necessary to state a claim for tortious interference with prospective economic
advantage. There are insufficient facts to establish the first element, a reasonable
probability of a business opportunity. It is important to note, however, that pages
seem to be missing from the Complaint, specifically in the middle of the claim.
However, based on the allegations set forth in the pages of the Complaint that were
filed with the Court, the claim against Defendant Langsner for tortious interference
with prospective economic advantage must be dismissed.
44 World Energy Ventures, LLC, 2015 WL 6772638, at *9; see also Lipson, 790 A.2d at 1287. 45 Id. 46 Id. at *10. 47 Id. 48 Id. 18 The allegations in the present case seem to align with the facts presented in
Kimbleton v. White, where the plaintiff alleged that the defendants’ conduct
interfered with business relations with “all prospective home buyers.” In the
Complaint, Plaintiff alleges that he applied to “at least six executive-level culinary
positions in Sussex and surrounding counties.” 49 While it is not a requirement for
the plaintiff to name the prospective employers, the plaintiff is required to plead
sufficient facts for the Court to determine whether a prospective business relation
existed. Plaintiff alleges that several employers expressed an initial interest prior to
calling Defendant Langsner, Plaintiff’s listed reference, but there is no evidence that
it was more than an inquiry or an application for employment. 50 Plaintiff alleges
that he was denied job interviews. 51 An initial interview is not sufficient to establish
a prospective business relation.
Plaintiff’s allegations do not show that a “specific prospective business
relation” existed. 52 Rather, it shows that Plaintiff had a “mere perception of a
prospective relationship,” not one which was reasonably probable. Plaintiff has not
established that he had a reasonable probability of an economic advantage.
49 Compl., D.I. 1, at 4. 50 Id. 51 Id. at 8. 52 Agilent Techs., Inc., 2009 WL 119865, at *7. 19 In his Response to Defendants’ Motion to Dismiss, Plaintiff states that he
identified “concrete prospective relationships,” and claims that he listed Brandywine
Senior Living as a prospective employer.53 However, this is not alleged in the
Complaint. As aforementioned, it appears that there are pages missing from the
Complaint. Even so, Plaintiff does not allege more than a “mere perception of a
prospective business relationship.”54
Plaintiff has not sufficiently pled a claim under tortious interference with a
prospective economic advantage because Plaintiff has not established a reasonable
probability of a business opportunity. Because of this, the Court does not need to
continue its analysis for the remaining factors. For these reasons, the Motion to
Dismiss Count III, tortious interference with prospective economic advantage, is
GRANTED.
D. Defendant Langsner’s Motion to Dismiss the Claim for Fraud and Misrepresentation is Granted.
Plaintiff’s claim for fraud and misrepresentation against Defendant Langsner
must be dismissed because Plaintiff has failed to sufficiently plead a claim for fraud
or misrepresentation.
Civil Rule 9(b) states that “[i]n all averments of fraud, negligence or
mistake, the circumstances constituting fraud, negligence or mistake shall be stated
53 Pl.’s Resp. to Defs.’ Mot. to Dismiss, D.I. 37, at 12. 54 Agilent Techs., Inc., 2009 WL 119865, at *7. 20 with particularity. Malice, intent, knowledge and other condition of mind of a person
may be averred generally.” 55 Delaware Courts have found that to comply with Civil
Rule 9(b), a well-pled fraud claim must include at least “the time, place, and contents
of the false representation.” 56 In addition to the pleadings requirements under Civil
Rule 9(b), to prevail on a claim for fraud or intentional misrepresentation, the
plaintiff must show:
(1) the defendant falsely represented or omitted facts that the defendant had a duty to disclose, (2) the defendant knew or believed that the representation was false or made the representation with a reckless indifference to the truth, (3) the defendant intended to induce the plaintiff to act or refrain from acting, (4) the plaintiff acted in justifiable reliance on the representation, and (5) the plaintiff was injured by its reliance. 57
Plaintiff alleges Defendant Langsner “knowingly misrepresented material
facts related to compensation, performance evaluations, and disciplinary actions.”58
Plaintiff includes a few examples, such as the promise of a signing bonus, false
disciplinary accusations, and the concealment of the resort obtaining new
management. 59 Plaintiff alleges that “Defendants’ actions were calculated, done
with malicious intent to deceive, and directly caused harm to Plaintiff’s finances and
55 Del. Super. Ct. Civ. Pro. R. 9(b). 56 Iacono v. Barici, 2006 WL 3844208, at *2 (Del. Super. Ct. 2006)(quoting Browne v. Robb, 583 A.2d 949, 955 (Del.1990)). 57 Id. (quoting DCV Holdings, Inc. v. ConAgra, Inc., 889 A.2d 954, 958 (Del.2005)). 58 Compl., D.I. 1, at 12. 59 Id. 21 career.” 60 Plaintiff’s claim asserts general allegations against Defendant Langsner,
Defendant Oak View Group, and Defendant Boris.
Plaintiff alleges that Kevin Levett promised a signing bonus. There is no
mention of Defendant Langsner falsely representing a signing bonus to Plaintiff.
Plaintiff alleges that this promise was reaffirmed by Oak View Group leadership, but
does not state that Defendant Langsner made any representations about a signing
bonus. This allegation is not well-pled because it is not stated with particularity.
Plaintiff alleges that there were false disciplinary accusations, referring to a
workplace violence course that was assigned to Plaintiff by the resort’s human
resources department. Plaintiff alleges that he was assigned this course after he
reached out to human resources to report misconduct of Defendant Langsner.
Plaintiff alleges he never received a response and was assigned the workplace
violence course instead. However, Plaintiff does not establish how or why this
amounts to fraud or misrepresentation, or that Defendant Langsner had any
involvement in assigning Plaintiff the workplace violence course. The human
resource department of Defendant Oak View Group assigned the course. Therefore,
this claim is not stated with particularity against Defendant Langsner.
Plaintiff claims fraud and misrepresentation due to the concealment of a new
management company taking over the resort. However, Plaintiff has failed to
60 Id. 22 sufficiently plead the necessary elements to establish fraud and misrepresentation.
In the fact section of the Complaint, Plaintiff alleges that Defendant Langsner
informed him of the new change in management. It is unclear how this amounts to
fraud and misrepresentation. It is possible that Plaintiff seeks to allege that the
statements made to Plaintiff after he was informed of the change in management are
fraudulent and intentional misrepresentations, but even so, this claim must fail. First,
claims for fraud must be pled with particularity. It is unclear who concealed the
resort’s transition to new management or if the alleged concealment amounts to fraud
and misrepresentation. Plaintiff alleges that Defendant Langsner told Plaintiff to
start looking for new jobs, that he would “cover” for Plaintiff, that Plaintiff would
be paid for the remaining two weeks of employment and offered to act as a reference
for Plaintiff.61 However, even when viewed in the light most favorable to Plaintiff,
these facts are insufficient to establish a claim for fraud and misrepresentation. As
mentioned above, Plaintiff makes general assertions regarding Defendant Langsner,
Defendant Oak View Group, and Defendant Boris. Plaintiff has not pled each
averment with particularity. Plaintiff has not pled that Defendant Langsner’s actions
constituted fraud and misrepresentation.
In his Response to Defendants’ Motion to Dismiss, Plaintiff alleges that
Defendant Boris and Kevin Levett committed fraud, with the knowledge of
61 Id. at 3. 23 Defendant Langsner, by promising additional compensation for events, paid
vacation/sick pay, severance, and additional event-based compensation.62 However,
the alleged fraud was committed by Defendant Boris and Kevin Levett, not
Defendant Langsner. Having knowledge of fraudulent behavior is insufficient alone
to survive a Motion to Dismiss.
Plaintiff has not established the necessary elements for a fraud and
misrepresentation claim, nor has he pled each averment with particularity. For these
reasons, the Motion to Dismiss the fraud and misrepresentation claims against
Defendant Langsner is GRANTED.
E. Defendant Langsner’s Motion to Dismiss the Claim for IIED is Granted.
Plaintiff’s IIED claim should be dismissed. Plaintiff has failed to plead
sufficient facts to establish a claim for IIED against Defendant Langsner.
Delaware Courts apply the Restatement (Second) of Torts when analyzing
IIED claims. An IIED claim arises when “one who by extreme and outrageous
conduct intentionally or recklessly causes severe emotional distress to another is
subject to liability for such emotional distress, and if bodily harm to the other results
from it, for such bodily harm.”63 Delaware Courts have interpreted “extreme and
62 Pl.’s Resp. to Defs.’ Mot. to Dismiss, D.I. 37, at 14. 63 Light Years Ahead, Inc. v. Valve Acquisition, LLC, 2021 WL 6068215, at *11 (Del. Super. Ct. 2021)(quoting Spence v. Cherian, 135 A.3d 1282, 1288-89 (Del. Super. Ct. 2016)). 24 outrageous conduct” to be “conduct that exceeds the bounds of decency and is
regarded as intolerable in a civilized community.”64 “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[.]”65 If reasonable minds may
differ on whether a defendant’s conduct is “extreme or outrageous,” then the
question is left for the jury. 66
The Restatement (Second) of Torts provides the Court with guidance for
determining extreme and outrageous conduct in the following:
It has not been enough that the defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim Outrageous!67
In the case, Tekstron, Inc. v. Savla, the Court found extreme and outrageous
conduct “when an employer threaten[ed] an employee with deportation, lawsuits,
64 Id. (quoting Hunt ex rel. DeSombre v. State of Delaware, 69 A.3d 360, 367 (Del. 2013)). 65 Hunt ex rel. DeSombre, 69 A.3d at 367. 66 Id. 67 Collins v. Afr. Methodist Episocopal Zion Church, 2006 WL 1579718, at *2 (Del. Super. Ct. 2006). 25 false criminal charges, and sabotage of his professional career.” 68 In Hunt ex rel.
DeSombre v. State et. al., the Court found extreme and outrageous conduct when a
uniformed police officer threatened and scared an eight-year-old boy so severely that
he was home schooled for the remainder of the school year. 69 Additionally, in the
case Adams v. Aidoo, the Superior Court denied a motion for a new trial and found
that the jury’s finding of IIED was supported by the facts of the case.70 Adams had
asserted numerous legal claims against the Aidoos and sought $21 million in
damages for those claims. 71 Adams also nearly hit the Aidoos’ children when they
were walking home from their bus stop, sprayed them with her watering hose,
threatened to get a pit bull to attack the Aidoos, and made racial comments.72 In all
of these cases, it is clear that the conduct was extreme and outrageous.
In comparison to the above-mentioned cases, it is clear to the Court that
Plaintiff has not pled extreme or outrageous conduct by Defendant Langsner.
Plaintiff states that Defendant Langsner “conspires to defraud and defame” and
pushes people aside if they “get in the way of his ultimate goal.” Plaintiff generally
asserts that the defendants “intentionally inflicted severe and emotional distress”
68 Tekstrom, Inc. v. Savla, 2006 WL 2338050, at *12 (Del. Super. Ct. 2006), aff'd, 918 A.2d 1171 (Del. 2007). 69 Hunt ex rel. DeSombre 69 A.3d at 360. 70 Adams v. Aidoo, 2012 WL 1408878, at *12 (Del. Super. Ct. 2012), aff'd, 58 A.3d 410 (Del. 2013). 71 Id. at * 11. 72 Id. 26 upon Plaintiff “and covered up their actions through and with Human Resources . .
. .” 73 Absent in the pleading is an allegation that Defendant Langsner acted extreme
and outrageously. Plaintiff states that Defendant Oak View Group, Defendant Boris,
and Defendant Langsner knew Plaintiff was a disabled veteran and that Plaintiff
would report employees who commit illicit activities.74 Plaintiff also states that
Defendant Langsner informed Plaintiff that Plaintiff “would lose his job if [Plaintiff]
disclosed [his] ongoing distribution of controlled substances at the workplace.” 75
Even though Plaintiff alleges that Defendant Langsner threatened him, this does not
rise to the level of extreme or outrageous conduct. A mere threat is not sufficient to
rise to the level of extreme and outrageous conduct. The issue does not need to go
to a jury because reasonable minds would not differ. It is not a case “in which the
recitation of the facts to an average member of the community would arouse his
resentment against the actor and lead him to exclaim Outrageous!”76
As mentioned above, the Court has the first instance to determine whether
conduct rises to the level of extreme or outrageous. If reasonable minds could differ
on whether conduct was extreme or outrageous, then the issue is for a jury. However,
based on the cases analyzed above and the facts pled in the Complaint, Defendant
73 Compl., D.I. 1, at 13. 74 Id. at 13. 75 Id. at 7. 76 Collins, 2006 WL 1579718, at *2. 27 Langsner’s conduct does not rise to the level of extreme or outrageous. For these
reasons, Defendant Langsner’s Motion to Dismiss the IIED claim is GRANTED.
F. Defendant Langsner’s Motion to Dismiss the Extortion and Coercion Claims is Granted.
Plaintiff’s extortion and coercion claim against Defendant Langsner should be
dismissed. Extortion and coercion are not civil claims. 11 Del. C. § 846 defines
extortion under the Delaware criminal code. Similarly, 11 Del. C. § 791 defines
coercion under the Delaware criminal code. Plaintiff concedes that a civil cause of
action for coercion and extortion does not exist.
However, Plaintiff asks the Court to either construe Count II, extortion and
coercion, as a part of Plaintiff’s IIED claim and retaliation claims, or grant Plaintiff
leave to amend the Complaint to include this allegation as a civil tort. However,
Plaintiff incorporated all preceding allegations by reference into his claims.
Therefore, the Court analyzed the Complaint as a whole when determining whether
the claims were sufficiently pled. However, the Court will not grant leave to amend
the Complaint. Amendments to the Complaint would be futile.
In conclusion, the Motion to Dismiss the extortion and coercion claims against
Defendant Langsner must be granted.
CONCLUSION
Plaintiff has not pled that Defendant Gardner made any defamatory statements
about Plaintiff. However, Plaintiff has sufficiently pled a defamation claim against 28 Defendant Langsner. For these reasons, Defendants’ Motion to Dismiss the
defamation claim should be partially granted. The Motion to Dismiss the defamation
claim against Defendant Gardner is GRANTED and the Motion to Dismiss the
defamation claim against Defendant Langsner is DENIED. Defendants’ Motion to
Dismiss the extortion and coercion claims is GRANTED. Defendants’ Motion to
Dismiss the intentional interference with prospective economic advantage is
GRANTED. Lastly, the Motion to Dismiss the IIED claim is GRANTED.
IT IS SO ORDERED.
/s/ Mark H. Conner Mark H. Conner, Judge
oc: Prothonotary