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 Perfo r mance, LLC’s Motion to Dismiss the Petition and or Amended Petition , GRANTED.

OPINION William J.P. Mulgrew, III, Esquir e, 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 Pe tition for W rit s of M andamus and Prohibition (“Petition”) filed by John W. Caldwell (“Petitioner”) against Ju stice 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 m otion s 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 vehicl e 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 M otio n to Vacate D efault J udgment , 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.”3 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. S pecifically, R espondent 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 th e 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 simultaneou s filings, in both courts. 4
On June 2 4, 2015, Respondent issued its order that it would hear Party in
Interest’s M oti on for Sanctions followed immediately with the replevin action on July 31 , 2015

. On Jul y 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 P etition

3 Pet. for Writs of Mandamus and Prohibition at ¶ 31 (Respondent’s docket reads: “Justice of th e 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 ha s 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.4 in this Court requesting issuance of W rits of M andamus and P rohibition

. 5 On July 9, 2015, Petitioner also filed with Respondent a “Motion for Stay of Trial Pending
the Outcome of Other Motions and P roceedings

. ” In this Court, o n July 29, 2015 , Petitioner filed an Ex Parte Emergency Motion for Order to Stay [Respondent’s] Trial. This C our t 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. Petition er re
- filed t his Emergency Motion on August 5, 2015 , even though a trial had not been s cheduled. On August 7, 2015, Peti tioner filed with Respondent a M otion “for R econsideration u nder the
U.S. and Delaware Constitutions.” 6 On August 14, 2015, in this Cou rt, 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 R esponse 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 D eclaratory Judgments Act, or alternatively, prohib ition, compelling the consolidation of Petitioner’s claim under the Auto Repair Fr aud 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 s uppo rt 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 M otion s to
Di smiss

. As such, this Court stayed the matter. Unfortunately, t heir attempt s 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 s usceptible of proof under the complaint. 10 All reasonable inferences shall be in favor of the non

moving 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 M otion s 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 an d r e petiti ve re quests 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 wor k with opposing counsel toward resolution

. On December 16, 2015, Pe titioner’s counsel filed a “substitution of cou nsel” 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 O ffice of A. Dale Bowers, P.A. 9 Corre spondence 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).6 Discussion This Court may issue a writ of mandamus under 10 Del. C. §564. 13 A writ of mandamus is an extraordinary remedy, which th is Court will not issue unless
P laintiff 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 in ferior 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 clea r 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 Part y in Interest for an action involving his vehicle. R espondent 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).7 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 v arious 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 opp ortunity to decide many of the pending issues before it

. 20 Instead, dissatisfied with Respondent’s initial ruling s, he filed for this Court to compel Respondent to reach a different result.
Ba sed on the record before this Court, t his Court first finds that Petitioner cannot show a clear right to the r equested 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 us e writ s of mandam us 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 d oes 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 tr ial pending disposit ion of his Petition and/or Amended P etition. This Court did not need to address Petitioner’s request because Respondent, through its own
determination , stayed t he trial pending this Court’s consideration of the pending
Petition

. T here is no a ny 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 w hich 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 uncl ear 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 P arty in Interest’s respective

22 Matter of Bordley’s Petition for Writ of Mandamus , 545 A.2d 619, 620 (Del. 1988).9 Motions to Dismiss are GRANTED
. IT IS SO ORDERED.

______________________ Judge Vivian L. Medinilla

cc: Prothonotary