1 Super. Ct. Civ. R. 12(b )(1) sta tes: Ev ery defense , in law or

fact, to a claim f or relie f in any

pleading , wheth er a claim, counterclaim, cross-c laim , or third-party c laim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses SUPERIOR COURT

OF THE STATE OF DELA

WARE
WILLIAM L. WITHAM, JR. K ENT C OUNTY C OURT H OUSE

RESI DENT J UDGE 38 T HE G REEN D OVER , D ELAWARE 19901 April 26, 2016
Nicholas H. Rodriguez, Esquire Schmittinger a nd Rodrig uez, P.A. 414 South State Street Dover, Delaw are 19901 Patrick C. Gallagher, Esquire Curley Dodge & Fu nk, LLC 250 Beiser

Boulevar d, Suite 2 02 Dover, Delaw are 19904
Re: Nazim Am eer v. M ary Melv in & Christy R eynolds C.A. No. K16C-01-0 21 WLW
Dear C ounsel: Before the Courtare m otio ns to dism iss brought by

Defenda nt Mary Melvin and Defendant Chri sty J. Reyno lds (colle ctively , “D efendants ”). Th e Defe ndants seek to dismiss the com

plaint of N azim

Ame er pursua

nt to Super

ior Court Civi l Rule 12(b)(6) for

failure to state a

claim upon which r

elief ca n be grante d. The C ourt finds that Dr. A

meer is seeking a

n equitable

rem edy tha

t is not wit

hin t his C ourt ’s jurisdic tion. For the following reasons, the Court will dismis s this claim

for lack of subject matt er juri sdicti on purs uant to Superior Court Civil Rule 12(b)(1), 1 andNazim Ameer v. Mary Melvin & Chris ty Reynolds

C.A. No. K16 C-01- 021 WLW Page 2

may

at the option of the pleader be made by motion: (1) Lack of jurisdiction over the subject matter. schedule a

calendar confere nce to disc uss the rem aining issue s. Dr. Ameer

is the owner

of the De laware

Institute o f Pain Ma

nagem ent (“the Institute”). Ms. M elv in wa s empl oye d by th e Institute until she w as term

inated on September

25, 2015. Ms. Rey

nolds was an ind ependent c ontractor who worked for the Institute o n a contra ct basis but had not bee n engaged by the Inst itute s ince September

15, 2015. On Octo ber 29, 2015, Ms. Reyno lds allege dly use d the Inst itut e’s letterhead to write a letter to Del-One Fe deral Credit U nion. Claiming t o be the office m

anager, Ms. Rey

nolds allege dly wr

ote that Ms . Melvin w ould return to work at t

he Institut e o n November 2, 2015 and would resum e her normal work schedule. Dr. Am eer has claimed he wa s damaged because h e could be r

esponsible by impli cation for

the false statem ents mad e on his lett erhead, and his license to practice medicin e in Delaware cou ld therefo re be advers ely affected. The Defendants filed separate motions to dismiss or for a more definite statem ent. The De fendants c laim there ca n be no a ction because Dr. Am eer has suffered no damages. The

dama ges cla imed are sp ecu lat iv e in th at D r. A meer cla ims he could be subjec t to liabili ty for allegedly

false sta teme nt s, or he could

face discipline under the M edical Malpractic e Act fo r unprofe ssional cond uct. A hearing on the motions was held on Apr il 8, 2016 . A s the he aring progresse d, it becam

e appare ntthat Dr. A

meer filed this compl aint in order to preve nt the Defenda

nts from using his letterhead in the future. Counsel for Dr. Ameer stated that he did not know

of any way to stop the lette r from

being circulated in the futureNazim Ameer v. Mary Melvin & Chris ty Reynolds

C.A. No. K16 C-01- 021 WLW Page 3

2 The letter from counselfor Dr. Ameer to this Court reference s the letter at issue in this case; however, the Court al so assume s th at Dr. Ameer would be interested in resolving a ny issue co ncerning

the improper use of his name or the name of the I nstitute by either Defe

ndant in t h e future as well. without filing suit, and that was the reason suit was filed. The Court noted that such

a rem edy w ould

be equitab le in nature and that i t did not have jurisdic tion to issue an equitableorder. The Court sugge sted the ca se may be proper in Chancery Court. In a subsequent letterto the Cour t, counsel for Dr. A meer stated tha

t he is not loo king for damages. Rather, he is seeking a way to protect his client from having the letter circulated in the future and is seeking responsibility by the Defendants for future dama ges. 2 Based on th is rationale, counse l for Dr . Am eer agre ed that a t ransfer to Chancery Court may

be appropriate. The De fendants oppose transf er by arguingthat Dr. Ameer would st ill be unabl e to asser t a claim that the C hancery

Court m ight recognize. The Defenda

nts believe a

declara tory j udgmen

t by this Court would serve the same purpose as an injunc tion issued f rom C hancery

Court. T he Defenda

nts also argue that trans fer to Cha

ncery Court would incur additional and un necessar y defense costs. Dr. A

meer has not suffere d any c ognizable d amag es, y et he should be free to carry on his life without fear thatthe Def endants wo uld allege dly

once again use his letterhead to further

personal g oals. H owever, a declar atory judgm ent is not appropria te in this case . In Rollins In tern., Inc. v. Internation al Hydronic s Corp. , the Delaware Supreme Court not ed that “ [w]hi le it is tru e that cour ts will not entertain suits seek ing an ad vis ory o pin ion or an adju dic ati on o f hyp otheti cal questi ons, the courts do enterta

in declaratory

judgm ent action s where the alleged facts are such thatNazim Ameer v. Mary Melvin & Chris ty Reynolds

C.A. No. K16 C-01- 021 WLW Page 4

3 Rollins Intern., Inc. v. International Hydronics Corp. , 303 A.2d 660, 662 (Del. 1973).

4 10 Del. C. § 1902 stat

es in per tinent pa rt: No civil action, suit or other proceeding brought in any court of this State shall be dis missed sole ly on the gr ound that such court is without jurisdiction of the subject matter, e ither in th e origi nal p roceeding or on appeal. Such proc eeding may be transferred to a

n appro priate court for hearing and de termination, provided that the party other

wise adve rs el y affected, within 60 day s after the order denying

the jurisdiction of the first court has become final, files in that court a written election of

transfe r, discha rges a ll costs ac crued in

the first court, and makes the usual deposit for costs in the second court. All or part of the papers filed, or

copies thereof, and a transcript of the entries, in the court where the procee ding wa s originally instituted shall be delivered in accordance with the rules or special orders o f such co urt, by the prothonotary

, clerk, or register of that court to the prothonotary, c lerk or register of the court to which the proceeding a true disput e exists and eventua l litigation

appears to be unavoi dable.” 3 In the ca se atbar, it does not appe ar that li tigation is unavoid able. Dr. Am eer may suffer damages if

the Credit Union relied on the letter, or may suffer damages if

the lette r is circulated in the futur

e. How ever, th ere has be en no showin g that the C redit Uni on relied on the letter, and the letter may not be used in the future. Litigation is therefore not unavoidable. Moreover, the partie s are not se eking a declaration of rights or legal relations hips. Dr. A

meer is sim ply seeking to prevent

the Def endants fr om ac ting in the future

. Based on statements made by counsel for Dr. Am eer at the hear ing, a nd his subsequent

letter stating that Dr. Am eer is not seeking damages, the Court finds Dr. Ameer seeks an e quitable remed y that is wi thin the sole

jurisdic tion of the C ourt of Cha nce ry. The Cour

t will th erefore dismiss this case for lack of subjec t matter jurisdic tionpursuant

to Delaware Rule of Civil Procedure 12(b)(1) . Pursua nt to 10 Del. C. § 1902, 4 Dr. A

meer will have sixty da ys to f ile the app ropriate

docum ents toNazim Ameer v. Mary Melvin & Chris ty Reynolds

C.A. No. K16 C-01- 021 WLW Page 5

is transferred. . . . transfer this case to the Cour

t of Chanc ery. Given the decision of

this Court, the motion to dismiss pursuant

to Superio r Court Civil Rule 12(b) (6) is moot . The Court will schedule a

calendar confere nce to disc uss r emainin g iss ues s uch as Ms. Mel vin’s

cou nt erc lai m. The par

ties should be

prepare d to discuss the procedural way forward with regard t o Ms. Melvin’s cou nterclaim, a

nd whether

this case is su itable for media tion. IT IS SO ORDERED.
/s/ William L. Witham, Jr. Resident J

udge
WLW/ dmh