IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

JOHN W. CALDWELL, )

Petitioner, ) C.A. No. N15M-07-051 VLM

v. )

JUSTICE OF THE PEACE COURT )

NO. 13, )

Respondent, )

v. )

JNM PERFORMANCE, LLC, )

Real Party in Interest. )

Submitted: September 8, 2015

Decided: December 30, 2015

Upon Consideration of Respondent Justice of the Peace Court No. 13’s 

Motion to Dismiss,

GRANTED.

Upon Consideration of Real Party in Interest JNM Performance, LLC’s Motion to 

Dismiss the Petition and or Amended Petition,

GRANTED.

OPINION

William J.P. Mulgrew, III, Esquire, Law Office of A. Dale Bowers, P.A., 

Wilmington, DE, Attorney for Plaintiff.

Joseph C. Handlon, Esquire, Department of Justice, Wilmington, DE, Attorney for 

Respondent Justice of the Peace Court No. 13.

Michael P. Morton, Esquire, Michael P. Morton, P.A., Wilmington, DE, Attorney 

for Real Party in Interest JNM Performance, LLC. 

MEDINILLA, J.
2

Introduction

This case involves a Petition for Writs of Mandamus and Prohibition 

(“Petition”) filed by John W. Caldwell (“Petitioner”) against Justice of the Peace 

Court No. 13 and JNM Performance, LLC. Opposing parties have filed separate 

Motions to Dismiss under Superior Court Civil Court Rule 12(b)(6) and argue that 

Petitioner fails to state a claim upon which relief can be granted. For the reasons 

stated below, the motions are GRANTED.

Factual and Procedural History

On November 24, 2014, Petitioner filed a civil complaint in Justice of the 

Peace Court No. 13 (“Respondent”) against JNM Performance, LLC. (“Real Party 

in Interest”). Petitioner sought civil damages and equitable relief related to the 

return of his vehicle in this underlying replevin action.

1

 Respondent heard the 

matter on February 2, 2015, and Petitioner obtained a default judgment. Real Party 

in Interest filed a Motion to Vacate Default Judgment, which was granted on 

March 25, 2015, and the matter was set for trial with Respondent. 

On March 31, 2015, Petitioner filed an Amended Complaint.

2

 On April 28, 

2015, Real Party in Interest made a verbal motion to dismiss, inter alia, for lack of 

subject matter jurisdiction. Also, on May 22, 2015, Real Party in Interest filed a 

 1 Pet. for Writs of Mandamus and Prohibition at ¶ 16. 2 Id. at ¶20 added claims to include “Damages and Statutory Relief for Unlawful Practices under the Consumer 

Fraud Act,” “Replevin,” “Damages and Statutory Relief for Unlawful Practices under the Auto Repair Fraud 

Prevention Act,” and “Storage Fees Void Against Public Policy During Pendency of Court Proceedings in 

Replevin.”
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Motion for Sanctions against Petitioner. 

On May 27, 2015, Respondent granted Real Party in Interest’s Motion to 

Dismiss for lack of subject-matter jurisdiction. Specifically, Respondent held that

it lacked subject matter jurisdiction over the Consumer Fraud Act and the Auto 

Repair Fraud Prevention claims, it was unable to issue a declaratory judgment, and 

that the replevin action would go forward independent of the other claims.3

 Notice 

of appeal was issued by Respondent on the same day. All appropriate parties were 

notified. After the May 27 ruling, Petitioner filed various applications with 

Respondent and this Court. Although somewhat difficult to follow, this Court 

deems it important to highlight the choppiness of this procedural history, often 

occurring through simultaneous filings, in both courts.4

On June 24, 2015, Respondent issued its order that it would hear Party in 

Interest’s Motion for Sanctions followed immediately with the replevin action on 

July 31, 2015. On July 7, 2015, Petitioner re-filed, in substance, his dismissed 

claims seeking damages and declaratory relief and requested consolidation of his 

pending replevin action. The next day, on July 8, 2015, Petitioner filed his Petition 

 3 Pet. for Writs of Mandamus and Prohibition at ¶ 31 (Respondent’s docket reads: “Justice of the Peace Court lacks 

jurisdiction over cases brought under the Consumer Fraud Act and is unable to render declaratory judgments within 

its limited jurisdiction; those claims are dismissed. Plaintiff’s request to amend the complaint is denied. The court 

has dismissed all of Plaintiff’s case except the replevin of the vehicle in question, the counterclaim is dismissed 

without prejudice.”).

4 Respondent’s docket reflects many more entries than included in this Opinion. This Court highlights only the 

more significant entries during the timeframe that Petitioner was seeking relief from this Court.
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in this Court requesting issuance of Writs of Mandamus and Prohibition.

5

 On July 

9, 2015, Petitioner also filed with Respondent a “Motion for Stay of Trial Pending 

the Outcome of Other Motions and Proceedings.” 

In this Court, on July 29, 2015, Petitioner filed an Ex Parte Emergency

Motion for Order to Stay [Respondent’s] Trial. This Court denied the motion 

because Petitioner failed to cite a basis to warrant that the matter be heard ex parte

or to consider the motion as presented. Petitioner re-filed this Emergency Motion 

on August 5, 2015, even though a trial had not been scheduled. On August 7, 

2015, Petitioner filed with Respondent a Motion “for Reconsideration under the 

U.S. and Delaware Constitutions.”6

On August 14, 2015, in this Court, Petitioner filed a 70-count Amended 

Petition for Writs of Mandamus and Prohibition. On the same day, Petitioner filed

with Respondent, a “Motion for Recusal and For a New Hearing or, Alternatively, 

for Denial of Motion for Sanctions.” On August 19, 2015, and September 4, 2015, 

both Respondent and Party in Interest filed their respective Motions to Dismiss. 

On September 8, 2015, Petitioner filed his Response in Opposition as well as a 

new Motion to Strike Real Party in Interest’s Motion to Dismiss the Petition 

 5 Amend. Pet. for Writs of Mandamus and Prohibition at ¶1. Petitioner seeks the issuance of mandamus 

commanding the exercise of subject-matter jurisdiction over his claims under the Consumer Fraud Act and the Auto 

Repair Fraud Prevention Act, for declaratory relief under the Uniform Declaratory Judgments Act, or alternatively, 

prohibition, compelling the consolidation of Petitioner’s claim under the Auto Repair Fraud Prevention Act as 

unlawfully or improvidently dismissed. Petitioner seeks to consolidate all claims with his pending matter. 

6 Petitioner also alleges due process and equal protection infringements of federal and state constitutional rights to 

support his Petition. This Court finds no merit to his allegations and does not consider them for purposes of this

dispositive motion. 
5

And/Or Amended Petition.7 

A hearing was held on September 15, 2015.8

 The parties agreed to try to 

resolve the matter without this Court’s consideration of the pending Motions to 

Dismiss. As such, this Court stayed the matter. Unfortunately, their attempts

failed.9

 The parties now renew their applications to have this Court decide this 

matter. Having considered all written submissions and oral arguments, the matter 

is ripe for review.

Standard of Review

A motion to dismiss for failure to state a claim upon which relief can be 

granted made pursuant to Superior Court Civil Rule 12(b)(6) will not be granted if 

the plaintiff may recover under any conceivable set of circumstances susceptible of 

proof under the complaint.10 All reasonable inferences shall be in favor of the nonmoving party.11 In deciding a motion to dismiss with respect to a petition for a 

writ of mandamus, this Court must consider the standards a party must meet in

obtaining a writ.12

 7 Petitioner’s Motion to Strike was filed on the same day as his Response to Motions to Dismiss on the grounds of 

“redundant, immaterial, impertinent and scandalous matter and that it was untimely filed.” This Court does not 

consider the Motion to Strike in this ruling where the dismissal under Rule 12(b)(6) is dispositive. 8 Given the frenzy of filings and repetitive requests for expedited consideration from Petitioner’s counsel, this Court 

asked his supervisor to participate in the hearing who agreed to address this matter with his associate and work with 

opposing counsel toward resolution. On December 16, 2015, Petitioner’s counsel filed a “substitution of counsel” 

notifying this Court that while he was still counsel of record, the Law Offices of Albert M. Greto would need to be 

substituted with the Law Office of A. Dale Bowers, P.A. 9 Correspondence on November 13, 2015 from Real Party in Interest’s counsel confirmed the parties were unable to 

resolve the matter.

10 Spence v. Funk, 396 A.2d 967 (Del. 1978). 11 Rammuno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998). 12 Mell v. New Castle County, 838 A. 2d 141, 145 (Del. Super. Ct. 2003).
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Discussion

This Court may issue a writ of mandamus under 10 Del. C. §564.13 A writ 

of mandamus is an extraordinary remedy, which this Court will not issue unless 

Plaintiff establishes a clear right to the performance of a duty, that no other remedy 

is available, and that the trial court has arbitrarily failed or refused to perform its 

duty.14 In addition, the issuance of a mandamus falls within judicial discretion and 

is not a matter of right.15 This Court may issue a mandamus “to an inferior court, 

public official, or agency to compel the performance of a duty to which the petition 

has established a right.”16 Further, “when directed to an administrative agency or 

public official, mandamus will issue only to require performance of a clear legal or 

ministerial duty.”17 Thus, a mandamus will not be issued to compel a discretionary 

act.18 If a petitioner cannot show a clear right to the requested performance of a 

duty, or if there is any doubt as to a petitioner’s right, a mandamus shall not be 

issued by this Court.19 

Petitioner sought civil damages and equitable relief against Real Party in 

Interest for an action involving his vehicle. Respondent scheduled the matter and, 

upon motion by Real Party in Interest, it made legal rulings regarding jurisdiction 

 13 That section provides, in relevant part, that “if the Court orders that Plaintiff is entitled to the relief prayed for or 

any part thereof, a peremptory writ of mandamus shall issue forthwith....” 10 Del. C. § 564. 14 Schagrin Gas Co. v. Evans, 418 A.2d 997 (Del. 1980). 15 Guy v. Greenhouse, 637 A.2d 287 (Del. 1993). 16 Clough v. State, 686 A.2d 158, 159 (Del. 1996). 17 Guy, 637 A.2d at 287. 18 Id.

19 Walls v. Williams, 2006 WL 1133563, *1 (Del. Super. Ct. March 28, 2006).
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and its inability to provide Petitioner with equitable or injunctive relief. 

Respondent provided notice to Petitioner’s counsel of his right to appeal. 

Instead, Petitioner submitted various applications to Respondent for consolidation, 

stay of trial, reconsideration, recusal, and a new hearing. When Petitioner filed for 

relief in this Court, Respondent had not been given an opportunity to decide many 

of the pending issues before it.

20 Instead, dissatisfied with Respondent’s initial 

rulings, he filed for this Court to compel Respondent to reach a different result.

Based on the record before this Court, this Court first finds that Petitioner cannot 

show a clear right to the requested performance of a duty. Specifically, Petitioner 

has not established what duty was owed to him by Respondent. 

Second, Petitioner has an adequate remedy through his de novo appeal to the 

Court of Common Pleas.21 To the extent Petitioner seeks to challenge 

Respondent’s rulings, he cannot use writs of mandamus or prohibition to compel 

Respondent to rule differently. His procedural remedy is through the Court of 

Common Pleas. Of concern is that Petitioner places before this Court the same 

claims for relief currently pending with Respondent. As such, this Court finds that 

Petitioner has an adequate legal remedy that does not warrant the issuance of a writ 

of mandamus or prohibition.

 20 Petitioner filed a Motion for Recusal and For a New Hearing, or Alternatively, for a Denial of Motion for 

Sanctions on August 14, 2015, which had not yet been decided by Respondent when the Petition for Writ of 

Mandamus and Prohibition was filed in this Court. 21 See 10 Del. C. § 9571(c).
8

Finally, in the absence of a clear showing of an arbitrary refusal or failure to 

act, this Court will not issue a writ of mandamus to compel a trial court to perform 

a particular function, to decide a matter in a particular way, or to dictate the control 

of its docket.22 Petitioner has not demonstrated an arbitrary refusal or failure to act 

by Respondent. In fact, one of the requests made by Petitioner was to stay the trial 

pending disposition of his Petition and/or Amended Petition. This Court did not 

need to address Petitioner’s request because Respondent, through its own 

determination, stayed the trial pending this Court’s consideration of the pending 

Petition. There is no any evidence of an arbitrary refusal or failure to act on the 

part of Respondent that would warrant this Court to issue a writ of mandamus to 

compel it to do anything differently.

This Court finds that dismissal is appropriate. Petitioner fails to state a 

claim upon which relief can be granted under Superior Court Civil Rule 12(b)(6), 

and fails to show how he is entitled to the extraordinary remedy under 10 Del. C. 

§564. The frenetic filings made for an overly-complicated and troubling 

procedural history. It is unclear to this Court why Petitioner took such a shot-gun 

approach with his applications in two courts without first waiting for the lower 

court’s respective rulings and/or exercising his appellate rights accordingly.

For these reasons, Respondent and Real Party in Interest’s respective 

 22 Matter of Bordley’s Petition for Writ of Mandamus, 545 A.2d 619, 620 (Del. 1988).
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Motions to Dismiss are GRANTED.

IT IS SO ORDERED.

______________________

Judge Vivian L. Medinilla

cc: Prothonotary