IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TERRI MICHELLE REYLEK, )

)

Petitioner, )

)

v. ) C.A. No. K22M-07-010 NEP

)

ANTHONY J. ALBENCE, )

)

Respondent. )

Submitted: October 17, 2022

Decided: January 10, 2023

MEMORANDUM OPINION AND ORDER

Upon Respondent’s Motion to Dismiss

GRANTED

Terri Michelle Reylek, Dover, Delaware, Pro Se Petitioner.

Nicholas D. Picollelli, Jr., Esquire, Department of Justice, Wilmington, Delaware, 

Attorney for Respondent.

Primos, J.
2

Before this Court is the motion to dismiss filed by Respondent Anthony J. 

Albence, State Election Commissioner ex officio (hereinafter “Respondent”), 

seeking dismissal of the Petition for Mandamus filed by Petitioner Terri Michelle 

Reylek (hereinafter “Petitioner”) for failure to state a claim upon which relief can be 

granted. For the reasons that follow, the Motion to Dismiss is GRANTED and the 

action is DISMISSED WITHOUT PREJUDICE. However, in its discretion, the 

Court will allow Petitioner an opportunity to file an amended petition in accordance 

with Superior Court Civil Rule 15(a).

FACTUAL AND PROCEDURAL BACKGROUND

On July 9, 2022, Petitioner submitted a Petition for Writ of Mandamus 

(hereinafter “the Petition”).1 The Petition alleges that Delaware’s electronic voting 

machines are not properly certified by the United States Election Assistance 

Commission (“EAC”), in violation of 15 Del. C. § 5001A.

2

 The crux of the 

Petition’s allegation appears to be that the laboratory that tested the voting machines, 

Pro V&V, Inc., was not properly accredited because 1) the EAC Certificate of 

Accreditation was signed by the EAC’s Executive Director, rather than by the EAC’s

Chairperson, in violation of a provision of a Testing & Certification Program Manual 

promulgated by the EAC, in 20153and 2) the proper procedures were not followed 

1 Verified Pet. for Writ of Mandamus (D.I. 1) [hereinafter “Pet.”]. The Superior Court has statutory 

authority to issue writs of mandamus pursuant to 10 Del. C. § 564, and to compel agency action 

specifically pursuant to 29 Del. C. § 10143.

2 Pet. at 20–22. Under federal law, the EAC “shall provide for the testing, certification, 

decertification, and recertification of voting system hardware and software by accredited 

laboratories.” 52 U.S.C. § 20971(a)(1). In addition, “[a]t the option of a State, the State may 

provide for the testing, certification, decertification, or recertification of its voting system hardware 

and software by the laboratories accredited by the [EAC] under this section.” Id. § 20971(a)(2).

Delaware has exercised that option: specifically, 15 Del. C. § 5001A(c) provides that “[a] voting 

device or system purchased by the State must be certified by the [EAC], or designated federal 

authority, as meeting or exceeding the voluntary voting systems standards or guidelines as 

promulgated by the [EAC], or designated federal authority, before delivery to and acceptance by 

the State.”

3

See id. at 9–11, 18.
3

to reaccredit the lab after a lapse in its accreditation.

4

 The Petition contains eight 

distinct requests for relief: 1) an injunction barring use of electronic voting machines 

in Delaware elections until the certification issue “can be publicly rectified”; 2) an 

injunction to preserve data on the voting machines; 3) a temporary restraining order 

to “preserve all November 3, 2020, general election 

records/ballots/documentation/correspondence”; 4) an order to “provide all deficient 

correspondence or documentation relating to the certification” of the voting 

machines; 5) an order “to act in pursuant [sic] to Title 15 § 302A”; 6) an order to 

uphold the constitutions of Delaware and the United States; 7) a “speedy hearing”

of this action; and 8) “[a]ny other relief as this Court deems necessary and proper.”

5

On September 29, 2022, having received no answer from Respondent, 

Petitioner filed a Motion to Expedite Proceedings (hereinafter “Motion to 

Expedite”), which was noticed for the Court’s routine civil motion calendar.

6

 

Shortly thereafter, Respondent filed a Motion to Dismiss on October 4, 2022, 

arguing for dismissal of the Petition under Superior Court Civil Rule 12(b)(6) on the 

basis that none of the requests for relief in the Petition were appropriate for a 

mandamus action.7 Petitioner filed an “Answer in Opposition to the Motion to 

Dismiss” (hereinafter “Answer”) on October 14, 2022, in which she sought to 

provide “[c]larification and amended relief requests.”8

On October 21, 2022, the Court heard argument from Petitioner on her Motion 

to Expedite, and reserved decision. The Court then denied the Motion to Expedite 

4

See id. at 11, 13–17, 19.

5 Pet. at 28–30.

6 Mot. to Expedite Proceedings (D.I. 11).

7 Resp’t’s Mot. to Dismiss Terri Michelle Reylek’s Pet. for a Writ of Mandamus (D.I. 12) 

[hereinafter “Mot. to Dismiss”] at 2 (“[A] writ of mandamus cannot provide Reylek with the 

requested relief.”). Respondent indicated that he intended to rely on the Motion to Dismiss “in 

lieu of a separate response” to the Motion to Expedite. Id. at 1 n.1.

8 Answer in Opp’n to the Mot. to Dismiss (D.I. 14) [hereinafter “Answer”] at 4–6.
4

in a written order on October 24, 2022.

9

 The Court explained first that “[t]he primary 

basis for the request to expedite proceedings . . . is to prevent the State of Delaware 

from using its electronic voting machines” in the then-upcoming election on 

November 8, 2022.10 It then concluded that “a writ of mandamus is not an 

appropriate vehicle for this relief” and therefore declined to exercise its discretion to 

expedite the proceedings.11

On November 1, 2022, in an apparent effort to address the issues raised by the 

Court’s order, Petitioner filed a document styled “Amendment to Answer in 

Opposition to the Motion to Dismiss of Respondent Anthony Albence” (hereinafter 

“Amended Answer”) with a modified version of the amended relief requests 

included in the Answer.12 Some of these amended relief requests were entirely 

distinct from those included in the original Petition, including, for example, a new 

statutory basis for relief and a request for a declaratory judgment.13 However, 

“[p]arties may not amend the pleadings through briefing on a motion to dismiss.”

14

 

Thus, in this decision, the Court will address only the relief requests in the original

Petition, but will grant Petitioner an opportunity to file an amended petition.

9 Reylek v. Albence, 2022 WL 13785951 (Del. Super. Oct. 24, 2022).

10 Id. at *2.

11 Id.

12 Amendment to Answer in Opp’n to the Mot. to Dismiss (D.I. 17) [hereinafter “Amendment to 

Answer”].

13 Id. at 5–6.

14 Anglo Am. Sec. Fund, L.P. v. S.R. Glob. Int’l Fund, L.P., 829 A.2d 143, 155 (Del. Ch. 2003); 

see also Schiavo v. Carney, 548 F. Supp. 3d 437, 441 n.3 (D. Del. 2021) (“[I]t is axiomatic that 

the complaint may not be amended by the briefs in opposition to a motion to dismiss.” (alteration 

in original) (quoting Tyler v. Cruz, 2017 WL 132842, at *5 (D.N.J. Jan. 13, 2017)), aff’d, 2021 

WL 6550638 (3d Cir. Nov. 18, 2021). In considering Petitioner’s Motion to Expedite, the Court

assumed only for argument’s sake that it could consider the amended relief requests contained in 

the Answer. Reylek, 2022 WL 13785951, at *2.
5

STANDARD OF REVIEW

On the Court’s review of a Rule 12(b)(6) motion for failure to state a claim: 

“(i) all well-pleaded factual allegations are accepted as true; (ii) even vague 

allegations are well-pleaded if they give the opposing party notice of the claim; (iii) 

the Court must draw all reasonable inferences in favor of the non-moving party; and 

[(iv)] dismissal is inappropriate unless the plaintiff would not be entitled to recover 

under any reasonably conceivable set of circumstances susceptible of proof.”

15

 In 

addition, “[a] pro se pleading is judged by a ‘less stringent standard’ than a pleading 

or document filed by an attorney.”16 However, “[t]here is no different set of rules 

for pro se plaintiffs, and the trial court should not sacrifice the orderly and efficient 

administration of justice to accommodate an unrepresented plaintiff.”17

Moreover, since Petitioner seeks a writ of mandamus, the “Court must 

consider the standards a party must meet in obtaining a writ” in deciding whether to 

dismiss the Petition.18 A writ of mandamus can be issued only “when a plaintiff is 

able to establish a clear legal right to the performance of a non-discretionary duty.”19 

“[W]hen directed to an administrative agency or public official, mandamus will issue 

only to require performance of a clear legal or ministerial duty[,]” i.e., “the duty 

must be prescribed with such precision and certainty that nothing is left to discretion 

or judgment.”

20

 Even then, “[m]andamus is issuable not as a matter of right, but 

only in the exercise of sound judicial discretion.”

21

 This “broad discretion” allows 

15 Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (internal citations and quotations 

omitted).

16 Mason v. Dover Fed. Credit Union, 2018 WL 4026554, at *2 (Del. Super. Aug. 22, 2018)

(quoting Johnson v. State, 442 A.2d 1362, 1364 (Del. 1982)).

17 Draper v. Med. Ctr. of Delaware, 767 A.2d 796, 799 (Del. 2001).

18 Caldwell v. Justice of the Peace Court No. 13, 2015 WL 9594709, at *3 (Del. Super. Dec. 30, 

2015).

19 Darby v. New Castle Gunning Bedford Ed. Ass’n, 336 A.2d 209, 210 (Del. 1975).

20 Guy v. Greenhouse, 637 A.2d 827, 1993 WL 557938, at *1 (Del. 1993) (TABLE).

21 Id.
6

the Superior Court to deny a petition where, for example, the petitioner has another 

remedy available, granting the writ would be inequitable, events after filing render 

it moot, or granting the writ would be useless.22

DISCUSSION

I. The Petition Fails to State a Claim for Which Mandamus Relief Can 

be Granted.

A. Injunctive Relief (Requests 1–3)

Petitioner’s first request for relief is for an injunction to prevent the allegedly 

uncertified electronic voting machines from being used in Delaware until “the issues 

regarding . . . certifications can be publicly rectified.”23 Such relief is outside of this 

Court’s mandamus jurisdiction. “Delaware, nearly uniquely among the states, 

preserves the distinction between law and equity.”

24

 Injunctive relief falls on the 

equity side of that divide.25 As a general matter, the Superior Court “is without 

jurisdiction to entertain equitable actions or provide equitable remedies.”

26 The 

Superior Court’s jurisdiction to grant a writ of mandamus, codified at 10 Del. C.

§ 564, can be characterized as a narrow exception to that distinction.27 However, 

mandamus is an exclusive remedy available only in a very limited set of 

circumstances.28 Moreover, unlike an injunction, “a writ of mandamus can only be 

used to compel performance of a ministerial duty—it cannot be the basis for 

22 Brittingham v. Town of Georgetown, 113 A.3d 519, 524–25 (Del. 2015).

23 Pet. at 28.

24 Wells Fargo Bank, NA v. Strong, 2014 WL 6478788, at *3 (Del. Ch. Nov. 19, 2014).

25 See Simon v. Pyrites Co., 128 A. 370, 371 (Del. Super. 1925) (“That the granting of an injunction

is a matter of equitable jurisdiction there can be no question.”); Dayton v. Collison, 2018 WL 

565304, at *2 (Del. Super. Jan. 24, 2018) (explaining that equitable remedies “such as specific 

performance or an injunction” are outside of the Superior Court’s jurisdiction).

26 Wells Fargo, 2014 WL 6478788, at *3.

27 See Ingersoll v. Rollins Broad. of Del., Inc., 272 A.2d 336, 338 (Del. 1970) (“In a sense[,]

mandamus is an equitable remedy and, to some extent at least, is to be governed by equitable 

principles of relief.”).

28 See Greenhouse, 1993 WL 557938, at *1 (“Under Delaware law, the basis for issuance and the 

scope of relief available through a writ of mandamus under Delaware law are both quite limited.”).
7

prohibitory relief.”

29

 A Delaware litigant seeking to enjoin a state official from 

acting outside his or her authority may seek appropriate injunctive relief in the Court 

of Chancery.30 Petitioner did not do so in this case.31

The second and third requests also seek injunctive relief and a temporary 

restraining order, essentially ordering Respondent to preserve election-related 

records without tampering. These requests are also injunctive in nature, and 

Petitioner has identified no statute or rule establishing a nondiscretionary, ministerial

duty to render them suitable for a writ of mandamus. Petitioner argues that because 

“litigation is now reasonably anticipated,” Respondent has “an affirmative duty to 

preserve evidence that might be relevant to the issues in [the] lawsuit.”32 This, 

however, is a duty on all public or private parties to litigation or potential litigation 

and is enforceable via litigation sanctions.33 It is not a ministerial duty entrusted to 

a public official of the type fit for a mandamus action.

29 Reylek, 2022 WL 13785951, at *1 (citing Delawareans for Educ. Opportunity v. Carney, 2018 

WL 4849935, at *7 and n.39 (Del. Ch. Oct. 5, 2018)); see also State ex rel. Lyons v. McDowell, 

57 A.2d 94, 98 (Del. Super. 1947) (“The petition seeks to restrain or prevent the respondents from 

doing something. Many authorities hold, and we agree with their position, that the remedy by 

mandamus should not be used to prevent the commission of an [a]ct.”).

30 See Lynch v. Tunnell, 236 A.2d 369, 373–74 (Del. 1967) (holding that the Court of Chancery 

had jurisdiction, and that mandamus relief would be inappropriate, where the object of the suit was

to prevent the State Board of Health from issuing a permit); Delawareans for Educ. Opportunity, 

2018 WL 4849935, at *7 (concluding that an action for injunctive relief in the Court of Chancery 

was the appropriate mechanism to seek relief barring the county from collecting taxes).

31 Even if the Court were to consider the variations on this request contained in the Answer and 

the Amended Answer, the problem is not how the request is phrased, but the nature of the relief 

sought. Whether the request is phrased as an order to “cease use of all illegal ES&S voting 

systems/machines,” see Answer at 5, or “to ONLY employ valid and legally certified voting 

system[s]/machines,” see Amendment to Answer at 5, the object of the suit was to prevent 

Respondent from using the electronic voting machines currently owned by the State of Delaware

in an election. That would be injunctive, prohibitory relief, regardless of whether it is phrased in 

the positive or the negative.

32 Answer at 5 (quoting Beard Research, Inc. v. Kates, 981 A.2d 1175, 1185 (Del. Ch. 2009)).

33 Kates, 981 A.2d at 1185.
8

B. Request to Compel Documents via FOIA (Request 4)

Petitioners’ fourth request for relief is for an “order compelling the 

[Respondent] to provide all deficient correspondence or documentation relating to 

the certification of the electronic voting systems/machines.”34 The Court construes 

this as a request to compel production of documents that Petitioner previously 

requested via the Delaware Freedom of Information Act (FOIA), 29 Del. C.

§ 10001–10005. Respondent, also adopting this construction, cites Mell v. New 

Castle County35 for the proposition that in order “[t]o compel documents sought in 

a FOIA action by a writ of mandamus,” Petitioner “must demonstrate [that] the 

discovery process in the FOIA litigation is not available.”

36

 However, the Court

disagrees with Respondent’s reading of Mell as applied to this case. That case dealt 

with the pending litigation exception to FOIA, explaining it as follows:

The pending litigation exception to FOIA addresses a practical reality: 

when parties to pending litigation against a public body seek 

information from that public body relating to the litigation, they are 

doing so not to advance the public’s right to know, but rather to advance 

their own personal stake in the litigation. Delaware courts will not 

allow litigants to use FOIA as a means to obtain discovery which is not 

available under the court’s rules of procedure. Moreover, when a party 

seeks to compel a response to a FOIA request by writ of mandamus, it 

is incumbent upon that party, as a predicate to relief, to demonstrate 

that other legal means, e.g., discovery processes in pending litigation, 

are not available before the Court may consider issuing the 

extraordinary writ.37

The reasoning in Mell applies to cases in which a party already involved in 

litigation with a public body makes a FOIA request for production of documents 

(which would not have been available through the usual channels of discovery) and 

34 Pet. at 28–29.

35 835 A.2d 141 (Del. Super. 2003).

36 Mot. to Dismiss at 4–5.

37 Mell, 835 A.2d at 147 (internal quotations and citations omitted).
9

then seeks to compel production of those documents through a mandamus action. 

Here, unlike in Mell, there was no pending litigation between Petitioner and 

Respondent prior to the filing of this action.38 Moreover, Delaware’s FOIA statute 

specifically provides that “[r]emedies permitted by this section include an 

injunction, a declaratory judgment, writ of mandamus and/or other appropriate 

relief.”

39

 Thus, unlike Petitioner’s injunctive relief requests, a mandamus action is 

not necessarily an improper vehicle for the relief Petitioner seeks, specifically, 

production of documents that were previously requested via the FOIA statute.

Nonetheless, Petitioner’s FOIA requests fail to state a claim. Petitioner argues 

in her Answer that “[t]hese documents are required to prove that the current actions 

of the Department of Elections are legal, and according to 29 Del. C. 10001, this 

information should be readily available to the public.”40 However, 29 Del. C.

§ 10001, titled “Declaration of policy,” sets forth the general principles the FOIA 

statute must be construed to advance. It does not on its own terms impose any 

affirmative duties on public officials. Rather, the operative provision of FOIA is 29 

Del. C. § 10003, which provides the mechanics for submitting a FOIA request and 

a time limit within which a public body must respond. It is this provision, not the 

policy provision, that is enforceable via mandamus.

Here, the text of the Petition states only that information was requested via 

FOIA and not received to date.41 This alone is insufficient to state a FOIA claim, 

38 Id. at 148 (“It would appear, then, that Mell is attempting to secure by FOIA that which he was 

unable to secure in the pending Chancery litigation.”).

39 29 Del. C. § 10005(d).

40 Answer at 2.

41 See Pet. at 18 and 22. More detail can be found only by looking at the exhibits, which make 

clear that the first-mentioned FOIA request was directed to the EAC, a federal agency (presumably 

under the federal Freedom of Information Act). See Ex. AQ and Ex. AR. That request is clearly 

outside of this Court’s state law FOIA jurisdiction. The second request was for bond information 

relating to the state’s contract with the voting systems manufacturer, but the supporting exhibit 

shows only an email exchange between Petitioner and the Department of Election’s FOIA 
10

without specifically addressing the requirements of 29 Del. C. § 10003 (at a 

minimum, what information was requested and when, and whether and how the 

public body responded within the 15-day time limit). In sum, Petitioner’s fourth 

request for the production of “deficient correspondence” fails to state a claim.

C. Orders to comply with statutes and constitutions (Requests 5–6)

Petitioner’s fifth request for relief is for an order compelling respondent to 

“act in pursuant [sic] to Title 15, §302A.”42 However, the referenced code section

(reproduced in the footnote below) confers investigatory authority on the Election 

Commissioner.

43 How to exercise that authority is left to his discretion. Thus, it 

does not create a nondiscretionary duty suitable for mandamus relief.44 Moreover, 

§ 302A refers to his authority to investigate violations of Chapter 80 of Title 15, 

Coordinator in which Petitioner was provided a link to the FOIA request form. See Ex. AT. It is 

unclear what information she requested via FOIA and when she did so.

42 Pet. at 29.

43 15 Del. C. § 302A (emphasis supplied below) provides in relevant part that:

(a) In connection with his or her authority pursuant to § 302(14) of this title 

hereunder to investigate possible violations of Chapter 80 of this title, the State 

Election Commissioner:

(1) May appoint 1 or more investigators, having such experience and qualifications 

as shall be established by the Board of Elections, to investigate information coming 

to the attention of the Commissioner that, if true, would constitute a violation of 

Chapter 80 of this title. The activities of any investigator appointed hereunder shall 

be directed solely by the Commissioner, and such investigator shall not be deemed 

to be an employee of, or otherwise answerable to, the Board of Elections;

(2) Shall have the authority to subpoena witnesses, compel their attendance and 

testimony, administer oaths and affirmations, take evidence and require by 

subpoena the production of books, papers, records or other evidence needed for the 

performance of the Commissioner’s duties or exercise of his or her powers pursuant 

to this section; and

(3) May refer any possible violation to the Attorney General or the United States 

Attorney for investigation and prosecution, either directly or following an 

investigation or preliminary investigation by the Commissioner hereunder.

44 See Brandywood Civic Ass’n v. Cohan, 2020 WL 1866871, at *9 (Del. Super. Apr. 14, 2020)

(denying mandamus relief where statute was “more a general grant of certain authority” requiring 

the Department of Transportation “to exercise discretion as to which roads should be maintained 

and in what priority”), aff’d, 246 A.3d 556 (Del. 2021) (TABLE).
11

which deals with campaign contributions and expenditures. The statutes regulating 

electronic voting machines are contained in Chapter 50A of Title 15, not in Chapter 

80. 

Petitioner’s sixth and final substantive request, seeking an order to compel 

Respondent to “uphold the Constitution of the State of Delaware and the 

Constitution of the United States,”

45 is vastly overbroad for mandamus relief.46

 First, 

as Respondent argues, the Petition does not identify any specific provision or 

amendment of either constitution invoked.47 Moreover, even if a specific provision 

were identified, an order to uphold the constitution amounts to little more than an 

order to obey the law generally. While “[p]ublic officials are, of course, expected 

to obey the law,” an order to do so “does not constitute the specific, clear cut

command required in a writ of mandamus.”

48

In sum, accepting Petitioner’s well-pleaded allegations as true, the Petition 

fails to state a claim for any relief that is within this Court’s mandamus power,

49 and 

the Motion to Dismiss is therefore GRANTED.

45 Pet. at 30.

46 Cf. Brandywood, 2020 WL 1866871, at *9 (“Plaintiffs are just too general with this petition of 

a writ of mandamus. The nondiscretionary or ministerial duty must be ‘prescribed with such 

precision and certainty that nothing is left to discretion or judgment.’” (quoting Greenhouse, 1993 

WL 557938, at *1)).

47 Mot. to Dismiss at 4.

48 See Pleasonton v. Hugg, 2010 WL 5313228, at *1 (Del. Super. Nov. 29, 2010); see also White 

v. Phillips, 2021 WL 753636, at *2 (Del. Super. Feb. 26, 2021) (“This Court and others have 

traditionally refused to issue ‘obey the law’ injunctions because the requirements of such an

injunction are too vague to put the enjoined party on notice as to precisely what is required.”); 

E.E.O.C. v. AutoZone, Inc., 707 F.3d 824, 841 (7th Cir. 2013) (“An obey-the-law injunction 

departs from the traditional equitable principle that injunctions should prohibit no more than the 

violation established in the litigation or similar conduct reasonably related to the violation.”).

49 The final two requests for relief ask for a “speedy hearing” and “any other relief as this Court 

deems necessary and proper.” Pet. at 30. The request for a speedy hearing was addressed in the 

Court’s disposition of the Motion to Expedite, and the Court does not deem any other relief 

necessary and proper at this time.
12

II. The court will give Petitioner an opportunity to file an amended 

petition.

Petitioner’s Answer and Amended Answer include relief requests not fairly 

raised in the original Petition and which, as a result, were not addressed in 

Respondent’s Motion to Dismiss or in this decision. A party may not use its briefing 

on a motion to dismiss to amend its original pleadings.

50 However, Superior Court 

Civil Rule 15(a) provides that “[a] party may amend the party’s pleading once as a 

matter of course at any time before a responsive pleading is served” but that 

“[o]therwise, a party may amend the party’s pleading only by leave of court or by 

written consent of the adverse party.” Thus, whether Petitioner had a right to amend 

her Petition without leave of court (at the time she filed her Answer) depends on 

whether Respondent’s motion to dismiss was a “responsive pleading” within the 

meaning of Rule 15(a). The growing consensus of Superior Court decisions to 

consider the question have concluded that a motion to dismiss is not a responsive 

pleading within the meaning of the rule.51

Accordingly, Petitioner had the right to amend her Petition once as a matter 

of course and arguably tried to do so. However, since her amended relief requests

were contained in briefing on a motion to dismiss (and not an amended petition), the 

50 See supra note 14.

51 See e.g. Stoppel v. Henry, 2011 WL 55911, at *3 (Del. Super. Jan. 4, 2011) (“[B]ased upon the 

language of [Superior Court Civil] Rule 7 and Rule 15, as well as consistent decisions from this 

Court and other jurisdictions applying similar language in former Federal Rule of Civil Procedure 

15, the Court is satisfied that a motion to dismiss does not constitute a responsive pleading.” 

(internal citation omitted)); R. Keating & Sons, Inc. v. Huber, 2020 WL 975435, at *3 (Del. Super. 

Feb. 27, 2020) (“It is true that some courts have used language suggesting that a motion to dismiss

is ‘responsive’ to an action to direct whatever ruling may have been appropriate under the 

circumstances. However, where analysis has been conducted by the Superior Court to consider 

whether a motion to dismiss is a responsive pleading, this Court finds that such analysis is clear 

that a motion to dismiss is not a responsive pleading for the purposes of Superior Court Civil Rule 

15(a).”); 3M Co. v. Neology, Inc., 2019 WL 2714832, at *7 (Del. Super. June 28, 2019) (“A motion 

to dismiss . . . is not a responsive pleading. This conclusion is consistent with the Court’s rules, 

Delaware case law, and the notion of judicial efficiency.”).
13

Court does not believe Respondent was given adequate notice or opportunity to 

respond to the amendments. Balancing the needs of the orderly administration of 

justice and the pleading leniency afforded pro se plaintiffs, the Court will, in its 

discretion, order dismissal without prejudice and allow Petitioner an opportunity to 

file an amended petition stating together the relief requested and the factual basis for 

that relief.

52 Per Civil Rule 15(a), Respondent shall have 10 days after service of the 

amended petition to respond.

CONCLUSION

For the foregoing reasons, the Court concludes that the Petition fails to state 

a claim upon which the extraordinary remedy of mandamus could be granted.

Accordingly, the Motion to Dismiss is hereby GRANTED and the Petition is 

DISMISSED WITHOUT PREJUDICE. Petitioner may file an amended 

petition within 20 days of the date of this decision, and Respondent will have an

additional 10 days after service of the amended petition to respond by answer 

or appropriate motion.

IT IS SO ORDERED. 

NEP:tls

Via File & ServeXpress and U.S. Mail

oc: Prothonotary

cc: Terri Michelle Reylek, Pro Se – Via U.S. Mail

Counsel of Record - Via File & ServeXpress

52 See Braddock v. Zimmerman, 906 A.2d 776, 784 (Del. 2006) (“If leave to amend a complaint is 

contemplated by a Delaware judge following a dismissal without prejudice, there must be an 

express statement to that effect in the order, in which case the order will be an interlocutory 

decree.”).