IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JANET BATCHELOR,

C.A. No. K17C-11-001 NEP
In and For Kent County

Plaintiff,
V.

ALEXIS PROPERTIES, LLC,

BB PROPERTIES OF DELAWARE,
LLC, JOHN WELCOME d/b/a
WELCOME HOME REALTY, and
LIVEINDE.COM, INC.,

Defendants.

Submitted: April 16, 2019
Decided: May 8, 2019

ORDER

Before the Court is a Motion to Recuse this Judge and the Commissioner, filed
by Ms. Janet Batchelor (hereinafter “Plaintiff’). Plaintiff, who is self-represented in
this litigation, contends that the Court’s interactions with Plaintiff in connection with
her requests for accommodation for her hearing impairment, as well as the conduct
of this Judge and of the Court’s Commissioner during the course of various pretrial
proceedings,’ demonstrate a bias against Plaintiff and require removal of this Judge
and the Commissioner from this case. Defendants John Welcome (hereinafter

“Welcome”), Alexis Properties (hereinafter “Alexis”), Liveinde.com, Inc. d/b/a

 

' These pre-trial proceedings resulted in this Judge’s Order issued on April 3, 2019, granting in
part and denying in part the Motion to Amend Scheduling Order of Defendants Welcome, Alexis,
and Liveinde.com, as well as various orders issued by the Commissioner on March 14, 2019, (1)
granting Defendants’ Motion to Extend Discovery, (2) granting Defendants’ Motion to Compel
Discovery, (3) denying Plaintiff's Motion to Deem Requests for Admissions Admitted, and (4)
granting Plaintiff's Motion for Leave to file a Second Amended Complaint.

l
Welcome Home Realty (hereinafter “Liveinde.com”), and BB Properties of
Delaware, LLC (hereinafter “BB Properties” and collectively with Welcome, Alexis,
and Liveinde.com, “Defendants”) have filed a response in opposition to Plaintiff's
motion. Additionally, Defendants request sanctions against Plaintiff under Superior
Court Civil Rule 11, alleging, inter alia, that Plaintiff has filed a meritless motion
and is in contempt of the Court.

This Order will address Plaintiff's claims involving this Judge, which include
the allegations stemming from the April 2 and April 3, 2019, email exchanges
between the Court and Plaintiff.? This Order will also address Plaintiff’s assertions
that do not involve any specific judicial officer, but instead deal with (1) Plaintiffs
interactions with the Court regarding provision of services relating to her hearing
impairment up to the time of the hearing before the Commissioner on March 14,
2019, and (2) Plaintiff's request that this matter be transferred to a judge of this Court
sitting in New Castle County, Delaware, due to her belief that she “cannot receive a
fair hearing or trial in Superior Court Kent County, Delaware.” Finally, the Order
will address Defendants’ request for sanctions. The Court refers the parties to the
Commissioner’s separate order filed on this date as to Plaintiff's claims involving
the Commissioner, including Plaintiff's allegations of prejudice and bias of the
Commissioner relating to the March 14, 2019, hearing before the Commissioner. For
the reasons set forth below, Plaintiff's Motion to Recuse is DENIED, and
Defendants’ request for sanctions is DENIED.

I. Factual Background and Procedural History

On May 4, 2016, Plaintiff signed a rental agreement leasing certain property

owned by Defendant BB Properties for the term of June 1, 2016, to May 31, 2017.

 

? Plaintiff alleges that this Judge allowed Defendants Welcome, Alexis, and Liveinde.com to file
their Motion to Amend Scheduling Order by email and engaged in ex parte communication with
defense counsel.
Allegedly, Defendants later committed breaches of the rental agreement that caused
Plaintiff damages and forced her to vacate the property. Thereafter, Defendants
threatened legal action and then filed a summary possession complaint and a debt
action. Plaintiff subsequently filed suit, alleging breach of contract, breach of the
covenant of good faith, and malicious prosecution.

On February 23, 2018, this Court denied a motion to dismiss filed by
Defendants Welcome and Alexis. On August 30, 2018, Plaintiff was granted leave
to file an amended complaint, which was subsequently filed on September 11, 2018.
Defendants filed a motion to dismiss on October 11, 2018, which was granted in part
and denied in part on November 13, 2018.

On March 14, 2019, a hearing was held before the Commissioner regarding
various discovery-related motions as well as a motion filed by Plaintiff requesting
leave to file a second amended complaint. In connection with her rulings issued at
the close of the hearing, the Commissioner granted a limited extension of the
discovery period.’

On April 1, 2019, Defendants Welcome, Alexis, and Liveinde.com e-filed a
Motion to Amend Scheduling Order (hereinafter the “Motion to Amend”). On April
2, the Court contacted Plaintiff via email to obtain her position on the Motion to
Amend. Due to the time-sensitive nature of the matter, i.e., dispositive motions were
to be filed by April 3, the Court was attempting to accommodate Plaintiff by
allowing her to submit her response to Defendants’ motion in email format, a

practice not normally allowed by the Court. The subsequent email exchange between

 

3 Pursuant to the scheduling order dated July 11, 2018, the discovery period ended on March 6,
2019. (Docket Item #92). Following the March 14, 2019, hearing, the Commissioner extended
discovery until May 15, 2019, but only “as to those matters currently before the Court.” (Docket
Item #165).
the Court and Plaintiff, which will be discussed in more detail below, is at the heart
of Plaintiff's contentions regarding this Judge.

On April 3, 2019, Plaintiff, via email, expressed her opposition to amending
the scheduling order. Later that day, this Court granted in part and denied in part the
Motion to Amend. The Court, in its Order, stated that it would “grant the request to
extend the dispositive motions deadline to May 31, 2019” but that “[a]ll other
deadlines in the current scheduling order, including the deadlines for motions in
limine and responses to motions in limine, will remain in place.” Plaintiff then filed
the present Motion to Recuse, alleging that this Judge had allowed Defendants to
file the Motion to Amend by email and had engaged in ex parte communications.

II. Discussion

Judicial impartiality “is a fundamental principle of the administration of
justice.”* It has been well-settled in Delaware that judicial officers must recuse
themselves if “there is a reasonable basis to question [their] impartiality.”° The
Delaware Judges' Code of Judicial Conduct sets forth a non-exhaustive list of
situations where a judge “should” disqualify himself or herself, particularly where
“[t]he judge has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding.”® However, the
Delaware Supreme Court has stated that alleged personal bias or prejudice against
the party seeking recusal is not an automatic basis for disqualification.’ Rather,

disqualification is only required where the alleged bias or prejudice of the judicial

 

* BAC Home Loans Servicing v. Brooks, 2012 WL 1413608, at *3 (Del. Super. Feb. 2, 2012)
(citing Los v. Los, 595 A.2d 381, 383 (Del. 1991)).

> BAC, 2012 WL 1413608, at *3 (citing Edelstein v. Goldstein, 2011 WL 2791270, at *3 (Del.
Super. Jul. 13, 2011)).

® BAC, 2012 WL 1413608, at *3 (citing Delaware Judges’ Code of Judicial Conduct Rule
2.11(A)(1)(2008)).

7 Los, 595 A.2d at 384.
officer derives from “an extrajudicial source and result[s] in an opinion on the merits
on some basis other than what the judge learned from his participation in the case.”®

In Los v. Los,’ the Delaware Supreme Court established a two-part test for
determining whether a judicial officer should recuse himself or herself where a party
has alleged personal bias or prejudice. First, the judge must subjectively determine
if he or she “can proceed to hear the case free of bias or prejudice concerning that
party.”'? Second, even if the judge is satisfied that there is no actual bias, the judge
must, nonetheless, objectively determine whether there is an “appearance of bias
sufficient to cause doubt as to the judge’s impartiality.” |! “If a judge’s decisions or
demeanor would cause an objective, reasonable, observer viewing the circumstances
to conclude that a fair or impartial hearing is unlikely, then recusal is appropriate.” !”
However, in the absence of any objective basis for bias, the judge need not recuse
himself or herself from the proceedings.!3

In deciding a motion to recuse, the Court should also consider Delaware
Judges’ Code of Judicial Conduct Rule 2.7(A), known as the “Responsibility to
Decide,” which provides that “[a] judge shall hear and decide matters assigned,
unless disqualified.”'* A judge has a “duty to sit” unless disqualified or convinced
of the need to recuse.'? Therefore, the judge should carefully consider the decision

to recuse himself or herself, as granting such a motion “in the absence of a bona fide

 

8 7d. (quoting United States v. Grinnel Corp., 384 U.S. 563, 583 (1966)).

? 595 A.2d 381 (Del. 1991).

10 Los, 595 A.2d at 384-85.

1 Td. at 385.

"2 Pazuniak Law Office, LLC v. Pi-Net International, Inc., 2017 WL 656766, at *2 (Del. Super.
Feb. 17, 2017) (citing Fritzinger v. State, 10 A.3d 603, 611 (Del. 2010)).

'3: Pazuniak, 2017 WL 656766, at *2 (citing State v. Desmond, 2011 WL 91984, at *6 (Del. Super.
Jan. 5, 2011)).

‘4 Desmond, 2011 WL 91984, at *10.

'S Td.
reason for recusal or disqualification, would be ‘irresponsible’ and a dereliction of
the judicial duty to hear and decide matters assigned. . . .”!°
A. Subjective Analysis

As to the first prong under the Los test, this Judge can unequivocally state, as
did the judicial officer in BAC,"” that I have no feelings of bias, prejudice, or ill-will
against Plaintiff, and that nothing Plaintiff has done during the course of this case
gives rise to any such feelings. Plaintiff alleges in her Motion that an ex parte
communication took place between this Judge and Defendants, indicating bias
against the Plaintiff and an inability to be an impartial decision-maker in this case.
As will be addressed in more detail below, no such ex parte communications took
place. Since I am persuaded that I can hear this matter without any bias or prejudice
against Plaintiff, the first prong of the Los test is satisfied.

B. Objective Analysis

Under the second prong of the Los analysis, there is no objective appearance
of bias. This Judge has not taken any actions with respect to the Plaintiff in this
litigation, nor made any other decisions in this matter, that could create an
appearance of bias or cast doubt on my impartiality. As no reasonable observer could
conclude that I am biased against Plaintiff, the second part of the Los analysis also
does not require disqualification.

To the contrary, the procedural history of this case discloses nothing more
than this Judge’s impartial decisions on the various motions presented. On February
23, 2018, I denied initial motions to dismiss, thus allowing Plaintiff's claims to

proceed. On November 13, 2018, I denied in part a second motion to dismiss, and I

 

'© Pazuniak, 2017 WL 656766, at *2 (quoting Reeder v. Del. Dept. of Ins., 2006 WL 510067, at
*23 (Del. Ch. 2006), and citing Desmond, 2011 WL 91984, at *6):
'7 BAC, 2012 WL 1413608, at *3.
also denied a request by Defendants for costs and attorneys’ fees based upon alleged
bad faith prosecution of certain claims in the litigation.

With regard to the particular matter concerning which Plaintiff accuses this
judicial officer of bias, ie., consideration of the Motion to Amend, the Court
reiterates that it did not permit Defendants Welcome, Alexis, and Liveinde.com to
file the Motion to Amend via email, nor did the Court engage in ex parte
communications with those Defendants. Rather, the Court reached out to Plaintiff
(in a communication that itself was not ex parte), after the Motion to Amend had
been properly e-filed, to obtain Plaintiff's position on the Motion to Amend. The
filing Defendants had represented to the Court that they had attempted to obtain
Plaintiff's position on the Motion to Amend, but that she had not responded. By
reaching out to Plaintiff via email, the Court was attempting to provide Plaintiff with
an opportunity to state her position before the Court ruled on the Motion to Amend,
particularly as there was only one day before the expiration of the dispositive motion
deadline, and the Court needed to make a quick decision.

The Court acknowledges that the email communication from this Judge’s
Civil Case Manager on April 2, 2019, may have created some initial confusion
regarding these matters. However, the Civil Judicial Operations Manager, Ms. Mei-
Ling Cosgrove, sent Plaintiff subsequent communications clearly explaining to
Plaintiff that the Court had not allowed Defendants to email their motion nor had the
Court engaged in ex parte communications with Defendants:

E-Mail from Adrienne Bailey:

Good Morning Ms. Batchelor-

On April 1, 2019, Mr. Huestis & Mr. Rushe[,] attorneys for Defendants
Alexis Properties, LLC, John Welcome, and Liveinde.com, Inc. d/b/a
Welcome Home Realty filed a Motion to Amend the Scheduling Order
issued by the Court.
The Court normally does not accept emails as official filings, however due
to the timeliness of this matter, the Court is making an exception per Judge
Primos. Please respond to this email no later than Noon on April 3, 2019
with your position.'®

E-Mail from Janet Batchelor:

I strongly oppose a motion to amend the scheduling order. It is highly
improper to file a motion via email, and I object to Judge Primos allowing
this travesty of justice. I am entitled to due process. I should not be
prejudiced because opposing counsel refuses to abide by the rules of civil
procedure and Judge Primos refuses to enforce them. It seems that yet again
Mr. Rushe has communicated ex-parts [sic] and a decision has been made
before I am even aware that an issue has come up. An impartial decision
maker is an essential right. In the hearing on March 14, my civil rights were
violated at minimum a dozen times. And now this. I believe a recusal is in
order.'?

E-Mail from Mei-Ling Cosgrove:

Ms. Bachelor [sic],

I do not believe that you have received the filing via us [sic] mail yet.
Defendants filed the motion via e-file yesterday and it was accepted today.
Adrienne, as an oversite [sic] forgot to attach the Motion for your review.
I have attached the motion and the two orders from hearing [sic] before
Commissioner that the defendants are addressing in their motion. The
proposal to Amend the Scheduling Order is because the Commissioner
changed the dates from the original scheduling order, also attached.

There has been no ex-parte communication between Counsel and the Court.
The motion was filed, it was given to Judge Primos for review. He instructed
that he wanted Plaintiff's response by noon on April 3, 2019. In light of that,
he authorized Adrienne to contact you by e-mail, copying all parties,
requesting the [sic] you respond to the motion via e-mail by noon tomorrow.
If you would prefer to file your response in person with the Court, you
would need to do so by noon tomorrow, April 3, 2019.”°

 

'8 E-mail from Adrienne Bailey, Civil Case Manager to Judge Primos, to Janet Batchelor, Plaintiff
(Apr. 2, 2019, 11:40 EST) (Docket Item #175).

'9 E-mail from Janet Batchelor, Plaintiff, to Adrienne Bailey, Civil Case Manager to Judge Primos
(Apr. 2, 2019, 14:06 EST) (Docket Item #175).

E-mail from Mei-Ling Cosgrove, Civil Judicial Operations Manager, to Janet Batchelor,
Plaintiff (Apr. 2, 2019, 14:48 EST) (Docket Item #175).

8
E-Mail from Janet Batchelor:

I am entitled to notice.

I have not received notice.

I have no access to file and serve as a Pro se plaintiff.

I have not received or seen the orders apparently issued on 3-14.

Adrienne’s e-mail clearly states the motion was filed via e-mail.

The scheduling order was not changed at the hearing, unless it was done

ex-parte.

7. It appears that Judge Primos is giving me less than 24 hours to respond to
a motion that has not been noticed.?!

DAARWN

E-Mail from Mei-Ling Cosgrove:

Ms. Batchelor,

When re-reading Adrienne’s e-mail, I can see where you thought the Motion
was e-mailed; It was not. (I attached the e-filed copy for you). When she was
composing the e-mail, she did so thinking that you would know what she

was talking about, but she forgot to attach the motion for your review. . . .

On April Ist[,] Defendants E-Filed in File and Serve a Motion to Extend the
Deadlines (Deadline to file Dispositive Motions is today, April 3, 2019). At
the March 14th Motions, Commissioner Freud extended some of the
deadlines in open court in which you appeared (I attached those orders for

you).

Judge Primos, in the interest of time was allowing you to respond to the E-
Filed Motion by e-mail. The reason the deadline was set for today at noon is
that your Dispositive Motion deadline is today by 5 p.m. You would only
have a few hours to file your Dispositive Motions.”

The email correspondence quoted above demonstrates Court personnel’s

patience with Plaintiff and their desire to ensure that Plaintiff understand the

procedural context of the Court’s request. Besides explaining to Plaintiff where the

 

E-mail from Janet Batchelor, Plaintiff, to Mei-Ling Cosgrove, Civil Judicial Operations
Manager (Apr. 2, 2019, 16:58 EST) (Docket Item #175) (emphasis in original).

E-mail from Mei-Ling Cosgrove, Civil Judicial Operations Manager, to Janet Batchelor,
Plaintiff (Apr. 3, 2019, 8:38 EST) (Docket Item #175).

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initial confusion occurred, the emails from Ms. Cosgrove also forwarded
Defendants’ motions to Plaintiff so that she could review them and, ultimately,
Plaintiff was able to state her position opposing the Motion to Amend via email
before the expiration of the dispositive motion deadline.

Furthermore, when the Court ultimately ruled on the Motion to Amend, it did
not grant Defendants the full relief that they were seeking, which included an
extension of both the dispositive motion deadline and the deadline for motions in
limine. Rather, the Court granted an extension only of the dispositive motion
deadline, which was reasonable given the limited discovery extensions that had
previously been granted by the Commissioner.

Viewed objectively, it is clear that the Court is interested in “enforcing its
procedural requirements and managing this litigation in a fair and efficient manner,”
and that the Court’s decision is not the result of any personal animosity against
Plaintiff.2? For this reason, and the other reasons stated herein, I find that there is no

legitimate basis for disqualification or recusal of this Judge.

C. General Allegations Against the Court

Plaintiff has alleged in her Motion that this Court has violated standards under
the Americans With Disabilities Act (hereinafter the “ADA”) with respect to her
requests for accommodations for her hearing impairment. First of all, these
contentions do not support a request for recusal, as neither this Judge nor the
Commissioner personally interacted with Plaintiff regarding her requests to Court
staff for accommodations leading up to the March 14, 2019, hearing before the
Commissioner. Secondly, the Court finds no basis in Plaintiffs allegations for her

contention that the Court has failed to respond appropriately to Plaintiff's requests

 

3 BAC, 2012 WL 1413608, at *4.
10
for accommodation, or that her rights were otherwise violated under the ADA with
respect to those requests.”*

Plaintiff has also asserted that she “cannot receive a fair hearing or trial in
Superior Court Kent County[,] Delaware” and has requested that her case be
transferred to a judge of this Court sitting in New Castle County. As explained in
this Order and in the Commissioner’s order of this date, there is no basis for
Plaintiff's assertions regarding unfair treatment. Moreover, her request for a transfer
to a judge sitting in another county appear to be an inappropriate attempt at “judge-
shopping.”>

D. Defendants’ Request for Sanctions

Lastly, the Court will briefly address Defendants’ request for sanctions against
Plaintiff under Superior Court Civil Rule 11. Rule 11(c) enables a judge to impose
an “appropriate sanction” on attorneys and unrepresented parties who violate the
provisions of Rule 11(b). Rule 11(b) requires that representations to the Court,
including all pleadings and written motions, be made in good faith and not for “any

improper purpose, such as to harass or to cause unnecessary delay or needless

increase in the cost of litigation.””° All claims, defenses, and other legal contentions

 

*4 The Court provided Plaintiff with audio equipment at all previous hearings and did not proceed
with the hearing unless the equipment was functioning properly, and advised Defendants to speak
into the microphone and confirmed that Plaintiff could hear counsel. Additionally, Plaintiff has
incorrectly interpreted the requirements for this Court under the ADA. The Court notes that the
docketing of Plaintiff's request for accommodation is not in and of itself a violation of the
confidentiality requirements under the ADA as alleged by Plaintiff in her motion, particularly as
no protected health information has been requested by Defendants or the Court, nor has Plaintiff
demonstrated any harm in its disclosure of this information to the parties to this suit. Moreover,
Title I] of the ADA does not require this Court to employ an “ADA coordinator” or institute
specific “grievance procedures” for an alleged violation under the ADA.

*° See BAC, 2012 WL 1413608, at *5 (“As the Supreme Court suggested in the Los case, there is
a compelling policy reason for a judge not to disqualify herself at the behest of a party who claims
an appearance of prejudice, without a factual or reasonable objective basis to do so. In the absence
of genuine bias, a litigant should not be permitted to ‘shop’ for a judge of his or her choosing.”).
6 Del. Super. Ct. Civ. R. 11(b).

11
made in pleadings or written motions must, to the best of that person's knowledge,
be “warranted by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law.”?’

In this case, Defendants request an award of their attorney’s fees in the amount
of approximately $1,000, with additional fees of approximately $500 for appearance
at the previous motion hearing. Defendants argue that Plaintiff's Motion to Recuse
demonstrates a clear contempt for the Court, as Plaintiff makes various accusations
against the Commissioner and this Judge of “bias,” “impartiality,” and “violating”
Plaintiffs civil rights “more than a dozen times,” without any evidence or support
for these allegations. Moreover, Defendants assert that they were required to spend
several hours researching Plaintiff's claims under the ADA and her requested relief
to change the trial location, all of which are meritless claims.

The Court has reviewed Plaintiff's Motion, as well as the arguments made by
both parties. While the Court disagrees with Plaintiff's contentions regarding this
Judge’s bias or prejudice, the Court is mindful of Plaintiff's self-represented status
and that the initial email from the Court’s staff to Plaintiff was not perfectly clear
regarding what the Court was allowing to be filed via email. Moreover, Delaware
courts rarely impose Rule 11 sanctions, and it is well-established in this Court that
“sanctions should be reserved for those instances where the Court is reasonably
confident that an attorney [or unrepresented party] does not have an objective good
faith belief in the legitimacy of a claim or defense.””® An objective good faith means

that the conduct of the party was objectively reasonable.”” Ultimately, this Court is

 

27 Td.

*8 McLeod v. McLeod, 2015 WL 1477968, at *1 (Del. Super. Mar. 31, 2015) (quoting Smith v.
Donald L. Mattia, Inc., 2012 WL 252271, at *5 (Del. Ch. Jan. 13, 2012)).

29 McLeod, 2015 WL 1477968, at *1.

12
not convinced that Plaintiff had no good faith belief in the legitimacy of her claims
for recusal.

WHEREFORE, for the foregoing reasons, Plaintiff's Motion to Recuse is
DENIED, and Defendants’ request for sanctions is DENIED.

IT IS SO ORDERED.

/s/ Noel Eason Primos
Judge

NEP/wjs
Via File & ServeXpress and U.S. Mail
oc: Prothonotary
cc: Janet Batchelor
Counsel of record

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