Root v. MaidPro Wilmington

• Court: Superior Court of Delaware
• Decided: November 17, 2022
• Docket: N20C-05-156 CLS
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KELLY ROOT and THOMAS JOYCE, ) ) Plaintiffs, ) ) v. ) ) C.A. No. N20C-05-156 CLS MAIDPRO WILMINGTON, ) THRESHOLD BRANDS LLC, ) MAIDPRO FRANCHISE, LLC, ) DAISY PEREZ, CASH IN JEWELRY ) AND PAWN INC., and JUAN ) CARIDE a/ka JUAN CARIDE- ) HERNANDEZ, ) ) Defendants. )

Date Submitted: August 29, 2022 Date Decided: November 17, 2022

Upon Defendant’s Motion to Dismiss the Second Amended Complaint. GRANTED. ORDER

Josiah R. Wolcott, Esquire, Connolly Gallagher LLP, Newark, Delaware, 19711, Attorney for Plaintiffs, Kelly Root and Thomas Joyce.

John G. Harris, Esquire, and Peter C. McGivney, Esquire, Berger Harris LLP, Wilmington, Delaware, 19801, Attorneys for Defendants Threshold Brands, LLC and MaidPro Franchise, LLC.

Shae Chasanov, Esquire, Tybout, Redfearn & Pell, Wilmington, Delaware, 19899, Attorney for Defendant MaidPro Wilmington.

Periann Doko, Esquire, Kent McBride, Wilmington, Delaware, 19809, Attorney for Defendants Cash In Jewelry and Pawn, Inc. and Juan Caride.

SCOTT, J.

1 INTRODUCTION Before the Court is Defendants Threshold Brands, LLC and Maidpro

Franchise, LLC’s Motion to Dismiss Kelly Root and Thomas Joyce’s (“Plaintiffs”)

Second Amended Complaint. On November 1, 2022, the parties filed a Stipulation

of Dismissal as to Defendant Threshold Brands, LLC. This Court now assesses the

Motion to Dismiss as applied to MaidPro Franchise, LLC (“MaidPro”). For the

following reasons, MaidPro’s Motion to Dismiss is GRANTED as for all claims.

BACKGROUND/ALLEGED FACTS MaidPro Franchise, LLC is the franchisor of the MaidPro brand. Plaintiffs’

Second Amended Complaint alleged Respondeat superior/vicarious liability,

negligent hiring, civil conspiracy, and intentional/negligent infliction of emotional

distress stemming from MaidPro Wilmington’s former employee, Daisy Perez (“Ms.

Perez”), entered their home through an unlocked door and stealing valuables.

Plaintiffs allege MaidPro can be held liable as franchisors because MaidPro controls

the daily operations of MaidPro Wilmington, the specific franchisee who hired Ms.

Perez, because the franchisors require franchisees to use the set models and systems

established.

On or about June 13, 2018, MaidPro Wilmington hired Ms. Perez. On June

22, 2018, due to the findings of her background report, MaidPro Wilmington

terminated Ms. Perez, ending their employer/employee relationship.

2 In October of 2018, Plaintiffs, while they were on vacation, claim Ms. Perez

unlawfully entered their home and stole personal property. Ms. Perez has been held

criminally liable for the crimes committed against Plaintiffs.

On May 18, 2020, Plaintiffs filed a Complaint, which was amended on

December 9, 2020, against Defendants. On April 14, 2021, MaidPro Wilmington

and High Five Services Inc.1 filed a Motion to Dismiss relying on facts outside of

the pleadings, Ms. Perez’s deposition testimony, affidavit from President of MaidPro

Wilmington, and employment document regarding an employee’s introductory

period, consideration of these exhibits/testimony goes beyond the scope of the

pleadings. The Court denied MaidPro Wilmington’s Motion to Dismiss because the

Motion would be more appropriately filed as a Motion for Summary Judgment. The

amended complaint was subsequently amended, Second Amended Complaint, again

on June 1, 2022. On July 28, 2022, this Motion was filed by Threshold and MaidPro,

entities separate and apart from MaidPro Wilmington. Counsel for Defendant

MaidPro Wilmington and Counsel for Defendants Cash In Jewelry and Pawn, Inc.

and Juan Caride have indicated they do not oppose this Motion. Plaintiffs responded

to this Motion in Opposition on August 29, 2022. Because this Motion does not rely

on fact outside of the pleadings, this Court finds this Motion was appropriately filed

1 High Five Services, Inc. was released from this litigation in the Second Amended Complaint. 3 as a Motion to Dismiss, and the Court can make its findings based on the allegations

contained within the Second Amended Complaint. On November 1, 2022, Plaintiffs

filed a Stipulation of Dismissal as to Defendant Threshold Brands, LLC, allowing

this Court to assess the Motion as to MaidPro only.

STANDARD OF REVIEW A motion to dismiss, brought pursuant to Superior Court Rule 12(b)(6), for

failure to state a claim upon which relief can be granted is appropriate only when

there appears to be no reasonably conceivable set of circumstances susceptible of

proof under the complaint.2 When determining whether to grant the motion, the

Court must accept all well-pled allegations in the complaint as true.3 In addition, the

Court is limited to the allegations in the complaint; “[i]f the moving party provides

documents with the motion to dismiss, and the Court considers those materials in

addition to the complaint, the motion to dismiss is converted to a motion for

summary judgment, and the parties may expand the record.”4 Where those

documents are integral to the plaintiff's claims and incorporated into the complaint,

the motion to dismiss will not be converted into a motion for summary judgment.5

2 Spence v. Funk, 396 A.2d 967, 968 (Del.1978). 3 Id. 4 Spector v. Melee Entertainment LLC, 2008 WL 362125, *2 (Del . Super); Eden v. Oblates of St. Francis de Sales, 2006 WL 3512482, *3 (Del.Super.). 5 Willis v. City of Rehoboth Beach, 2004 WL 2419143, *1, n. 1 (Del.Super.) 4 DISCUSSION Respondeat superior/vicarious liability For Plaintiffs’ claims to survive this Motion, they must have alleged facts in

their Second Amended Complaint that would constitute respondeant superior

liability. An employer is liable for the tortuous acts of an employee under

Respondent superior if the acts are performed “within the scope of employment.”6

“Conduct is within the scope of employment if it (i) is of the type the employee was

hired to perform; (ii) takes place ‘within the authorized time and space limits'; and

(iii) is at least partially motivated by a purpose to serve the employer.” 7 “The

question of whether conduct is within the scope of employment is generally a

question for the jury, unless the facts are so clear that they must be decided as a

matter of law.”8 Therefore, Plaintiffs’ must have alleged the robbery was within the

scope of employment.

In Draper, the court approved the Restatement of Agency (2d), § 228, which

sets forth factors which should be considered in determining whether unauthorized

conduct is within the scope of employment. They include such factors as whether or

6 Drainer v. O'Donnell, No. CIV.A. 94C-08-062, 1995 WL 338700, at *1 (Del. Super. Ct. May 30, 1995) 7 Id. (citing Wilson v. Joma, Inc., 537 A.2d 187, 189 (Del.1988)). 8 Id. (citing Draper v. Olivere Paving & Constr. Co., 181 A.2d 565, 570 (Del.1962)). 5 not the act is one commonly done by such servants; the time, place and purpose of

the act; whether or not the act is outside the enterprise of the master; whether or not

the master has reason to expect that such an act will be done; the similarity in quality

of the act done to the act authorized; the extent of departure from the normal method

of accomplishing an authorized result; and whether or not the act is seriously

criminal.9

Plaintiffs state that Ms. Perez was not an employee of MaidPro Wilmington

at the time of the burglary as they contend on June 22, 2018, Ms. Perez was

terminated. The burglary did not occur until October of 2018, therefore Ms. Perez

was no longer an employee at the time of the act. As a matter of law, Ms. Perez was

not acting in the scope of her employment with Defendants. To make a finding that

the unauthorized conduct is not within the scope of employment the Court looks to

the factors outlined in the Restatement 2nd. The act of breaking into a home and

stealing items is certainly not one commonly done by a housecleaner. The time, place

and purpose of the act was to further Ms. Perez’s own interests and happened months

after her employment with Defendants ended. The act is outside the enterprise of the

master as the enterprise of Defendants is housecleaning. Defendants had no reason

to expect that such an act will be done. There is no similarity in quality of the act

9 Simms v. Christina Sch. Dist., 2004 WL 344015, at *5 (Del.Super.) (citing Draper v. Olivere Paving & Const. Co.,440, 181 A.2d 565, 569 (1962) 6 done to the act authorized. There was an extreme departure from the normal method

of accomplishing an authorized result. And the act is seriously criminal. None of the

following factors support the Court finding Mr. Perez burglarizing Plaintiffs’ home

was in the scope of employment with her former employer. Therefore, because

Plaintiffs state Ms. Perez was not employed by MaidPro Wilmington at the time of

the criminal activity and there is no claim made regarding the criminal act being

within Ms. Perez’s scope of her employment from June of 2018, the Respondeat

superior/vicarious liability claim is dismissed.

Additionally, Plaintiffs claims fail because they are attempting to hold

MaidPro, a parent company, liable for the acts of their subsidiary, MaidPro

Wilmington. To hold a parent company liable for the activities of its subsidiaries,

plaintiff must allege that the parent company’s control over the subsidiary is actual,

participatory, and total.10 Here, Plaintiffs fail to allege MaidPro’s control over

MaidPro Wilmington was actual, participatory, and total, therefore, MaidPro is not

liable for MaidPro Wilmington’s actions.

Negligent hiring An employer is liable for negligent hiring or supervision where “the employer

is negligent in giving improper or ambiguous orders or in failing to make proper

10 J.E. Rhoads & Sons, Inc. v. Ammeraal, Inc., 1988 WL 32012, at *4 (Del. Super. Mar. 30, 1988). 7 regulations, or in the employment of improper persons involving risk of harm to

others, or in the supervision of the employee's activity.”11

According to this Court, to have stated a claim for negligent hiring, Plaintiffs

needed to allege MaidPro was on notice of Ms. Perez’s tortious behavior at the time

she was hired.12 Plaintiffs have failed to allege MaidPro had knowledge of Ms.

Perez’s tortious behavior at the time she was hired. In fact, Plaintiffs allege she was

fired by MaidPro Wilmington due to the findings of her background check. The acts

of MaidPro Wilmington are not extended to MaidPro as Plaintiffs failed to allege

liability of MaidPro as a parent company. For this reason, Plaintiffs’ negligent hiring

claim is DISMISSED.

Civil Conspiracy Delaware law imposing liability for civil conspiracy is well settled. Plaintiffs

must have alleged the following to survive this Motion:

(1) A confederation or combination of two or more persons; (2) An unlawful act done in furtherance of the conspiracy; and (3) Actual damage.13

11 Id. at *8 (Del.Super.) (citing Knerr v. Gilpin, Van Trump & Montgomery, Inc., 1998 WL 40009 (Del.Super.)). 12 Fanean v. Rite Aid Corp. of Delaware, 984 A.2d 812, 826 (Del. Super. Ct. 2009). 13 McLaughlin v. Copeland, 455 F.Supp. 749, 752 (D.Del.1978), aff'd, 595 F.2d 1213 (3d Cir.1979). 8 Plaintiffs fail to allege an unlaw act done in furtherance of the conspiracy on

the part of MaidPro. On this point, Plaintiffs claim only all the named defendants in

this case “combined to wrongfully interfere” with Plaintiffs possession of Personal

Property and deprive them of it. This allegation does not allege MaidPro participated

in an unlawful act done in furtherance of the conspiracy to burglarize Plaintiffs’

home. Therefore, on the Civil Conspiracy Claim is DISMISSED.

Intentional/Negligent Infliction of Emotional Distress IIED In Delaware, the elements of the tort of intentional infliction of emotional

distress (“IIED”) are defined by Section 46 of the Restatement (Second) of Torts.14

According to the Restatement, an IIED claim arises when “[o]ne 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.”15 Extreme and outrageous conduct is

that which “exceeds the bounds of decency and is regarded as intolerable in a

civilized community.”16 The Court considers the Restatement's comment as to what

conduct might be sufficiently extreme and outrageous to warrant IIED liability:

14 See Mattern v. Hudson, 532 A.2d 85, 85–86 (Del.Super.Ct.1987); Esposito v. Townsend, 2013 WL 493321, at *6 (Del.Super.Ct. Feb. 8, 2013). 15 Fanean v. Rite Aid Corp. of Delaware, 984 A.2d 812, 818 (Del.Super.Ct.2009). 16 Thomas v. Harford Mut. Ins. Co., 2004 WL 1102362, at *3 (Del.Super.Ct. Apr. 7, 2004). 9 The cases thus far decided have found liability only where the defendant's conduct has been extreme and outrageous. 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!’17 Plaintiffs have failed to allege extreme and outrageous behavior attributable

to MaidPro. The Court will not find the employment of an individual, who is then

discharged and then four months later commits a crime against Plaintiffs as extreme

and outrageous behavior on the part of MaidPro. Such a finding would ultimately

hold every parent company responsible for emotional damage caused by its

subsidiary’s former employees, which this Court is not prepared to find. Because

Plaintiffs have failed to allege extreme and outrageous behavior, the IIED claim is

DISMISSED.

NIED To survive this Motion, Plaintiffs must have alleged the elements of NIED,

which are “(1) negligence causing fright to someone; (2) in the zone of danger; (3)

producing physical consequences to that person as a result of the contemporaneous

17 Farmer v. Wilson, 1992 WL 331450, at *4 (Del.Super.Ct. Sept. 29, 1992) (citing Restatement (Second) of Torts § 46 cmt. d). 10 shock.”18 The zone of danger “is that area where the negligent conduct causes the

victim to fear for his or her own safety.”19 Here, Plaintiffs are attempting to recover

for NIED against MaidPro for its subsidiary’s former employee breaking into their

homes months after the employee was no longer associated with MaidPro. Looking

at the entirety of Plaintiffs Second Amended Complaint, Plaintiffs do not allege any

of the necessary elements of NIED. Specifically, Plaintiffs do not allege there was

negligence causing fright to Plaintiffs, that they were within an area where the

negligent conduct caused fear for Plaintiffs safety, nor do Plaintiffs allege any

physical consequences from the shock that could possibly be attributable to

MaidPro. Therefore, the NIED claim is DISMISSED.

CONCLUSION For the foregoing reasons, MaidPro’s Motion to Dismiss is GRANTED as for

all claims.

IT IS SO ORDERED.

/s/ Calvin L. Scott Judge Calvin L. Scott, Jr.

18 Snavely v. Wilmington Med. Ctr., 1985 WL 552277, at *3 (Del.Super.Mar.18, 1985). 19 Doe v. Green, 2008 WL 282319, at *1. 11