SUPERIOR COURT
OF THE
STATE OF DELAWARE

NOEL EASON PRIMOS KENT COUNTY COURT HOUSE
JUDGE 38 THE GREEN
DOVER, DELAWARE 19901

(302) 739-5331

February 18, 2019

Scott E. Chambers, Esq. Thomas J. Gerard, Esq.
Schmittinger & Rodriguez, P.A. Marshall Dennehey Warner
414 S. State Street Coleman & Goggin
Dover, DE 19901 P.O. Box 8888

Wilmington, DE 19899

RE: Munoz, et al. v. Vazquez-Cifuentez, et al.
C.A. No. KlSC-09-009 NEP

Submitted: February l , 201 9
Decided: February 18, 2019

Dear Mr. Chambers and Mr. Gerard:

Before the Court is the motion of Defendant Elizabeth Paz Villafuerte
(hereinafter “Villafuerte”), to dismiss the Complaint asserted by Plaintiffs
Raymond O. Munoz and Amneris N. Munoz (hereinafter “Plaintiffs”). In their
Complaint, Plaintiffs brought claims against Villafuerte for (l) Vicarious Liability
and (2) Negligent Entrustment. Oral argument Was held on February l, 2019. For
the reasons stated herein, Villafuerte’s Motion to Dismiss Will be deferred to allow
limited jurisdictional discovery as further explained below.

Factual and Procedural Background
The facts recited here are those as admitted or alleged by Plaintiffs in their

Complaint,l

 

1 On a motion to dismiss, all well-pleaded factual allegations are accepted as true. Savor, Inc. v.
FMR Corp., 812 A.2d 894, 896 (Del. 2002).

Plaintiffs Raymond Munoz and Amneris Munoz are husband and wife and
reside in Milford, Delaware. Defendant Isai Vazquez-Cifuentez is a resident of
Maryland, as is Defendant Elizabeth Villafuerte.

On July 22, 2018, Plaintiff Raymond Munoz was struck by a vehicle driven
by Defendant Vazquez-Cifuentez (hereinafter “VazqueZ-Cifuentez”) on County
Seat Highway, U.S. 9, near Georgetown, Delaware. The vehicle, a 2005 Chevrolet
van, was owned and registered to Villafuerte. Plaintiff alleges that his tow truck
had become disabled and that he was lawfully walking on the shoulder of U.S.
Route 9, in order to obtain assistance, before being struck by the vehicle. Vazquez-
Cifuentez then allegedly fled the scene of the accident.

Plaintiffs filed the instant action on September 8, 2018. Plaintiffs’ Complaint
alleges negligence against VazqueZ-Cifuentez, as well as vicarious liability and
negligent entrustment against Villafuerte. Plaintiffs allege that the accident was
proximately caused by VazqueZ-Cifuentez. As to the vicarious liability claim,
Plaintiffs allege that Vazquez-Cifuentez was “acting as the agent, servant or
employee of Villafuerte.” As to the negligent entrustment claim, Plaintiffs allege
that Vazquez-Cifuentez was operating Villafuerte’s vehicle “with her hill
knowledge and consent” and that “Villafuerte knew, or in the exercise of
reasonable care should have known, that [Vazquez-Cifuentez] was so reckless or
incompetent that his use of her vehicle would be dangerous.”

In support of her Motion, Villafuerte has submitted an undated, un-notarized
"Vehicle Theft Affidavit," claiming that her “significant other,” Marco Antonio
Padilla, took her vehicle to a friend's house, became involved in drinking, and left
the van and the keys there, from which Vazquez-Cifuentez took the van without
permission and became involved in the accident in question. Villafuerte has also
submitted a copy of a criminal complaint filed by her with the District Court of

Maryland against Vazquez-Cifuentez on September 6, 2018, several weeks after

the accident, containing similar allegations. Villafuerte asserts that Vazquez-
Cifuentez did not have permission to drive or operate her vehicle and that she does
not possess the requisite “minimum contacts” in order to anticipate being haled
into court in Delaware. Villafuerte argues that Plaintiffs have not alleged any facts
to establish that she conducted any activity within the State of Delaware or any
facts to establish that Vazquez-Cif`uentez was acting as her agent, servant or
employee. Thus, Villafuerte argues that the motion must be dismissed for lack of
personal jurisdiction pursuant to Superior Court Civil Rule 12(b)(2).

Villafuerte’s motion raises two questions: (l) have the Plaintiffs established
personal jurisdiction over Villafuerte and((2) if the Plaintiffs have not done so,
should this Court, nevertheless, allow the Plaintiffs limited jurisdictional discovery
in order to help them establish a basis for jurisdiction? This Court answers the first
question in the negative and the second question in the affirmative

Discussion

On a motion to dismiss, the moving party bears the burden of demonstrating
that “there are no material issues of fact and that he is entitled to judgment as a
matter of law.”2 Upon this Court’s review of a motion to dismiss, “(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.”3

As a general rule, when, prior to discovery, a non-resident defendant files a
motion to dismiss a complaint based upon lack of personal jurisdiction under

Superior Court Civil Rule l2(b)(2), it is the plaintiff’ s burden to demonstrate that

 

2 Daisy Constr. Co. v. W.B. Venables & Sons, Inc., 2000 WL 145818, at *l (Del. Super. Jan. l4,
2000).
3 Savor, 812 A.2d at 896-97.

there is a basis for the court to exercise jurisdiction over the non-resident
defendant.4 This burden, however, is met by a threshold prima facie showing that
jurisdiction is conferred by statute,5 In assessing whether this Court can exercise
personal jurisdiction in a motion to dismiss, the Court may consider extra-pleading
material, such as affidavits and briefs of the parties, to supplement the Complaint
and aid in establishing jurisdiction6 “All allegations of fact concerning personal
jurisdiction are presumed true unless contradicted by affidavit.”7 The record is to
be construed in the light most favorable to the plaintiff8

The existence of personal jurisdiction depends upon the application of two
independent considerations: (l) whether Delaware’s long-arm statute, 10 Del. C.
§ 3104(c), is applicable, and (2) whether the exercise of jurisdiction would violate
constitutional due process.9

A. 10 Del. C. § 3104(c), Delaware’s Long-Arm Statute

Looking to Delaware's long-arm statute first, a court may exercise personal

jurisdiction over a non-resident who:

(1) Transacts any business or performs any character of work or service in
the State;

(2) Contracts to supply services or things in this State;

(3) Causes tortious injury in the State by an act or omission in this State;

 

4 Brewer v. Peak Performance Nutrients Inc., 2012 WL 3861169, at *l (Del. Super. Aug. 16,
2012); Wright v. American Home Proa'ucts Corp., 768 A.2d 518, 526 (Del. Super. 2000);
Aeroglobal Capital Mgmt., LLC v. Cirrus Ina'us., Inc., 871 A.2d 428, 437 (Del. 2005).

5 Finkbiner v. Mullins, 532 A.2d 609, 612 (Del. Super. 1987); see also Greenly v. Davis, 486
A.2d 669, 670 (Del. 1984) (in considering motion to dismiss based on personal jurisdiction,
record must be viewed in light most favorable to plaintiff and all reasonable inferences to be
considered most strongly in favor of plaintiff).

5 Hart Hola'ing C0. Inc. v. Drexel Burnham Lambert Inc., 593 A.2d 535, 538-39 (Del. Ch. Feb.
13, 1991); In re Talc Proa'. Liab. Lz`tig., 2018 WL 4340012, at *5-6 (Del. Super. Sept. 10, 2018).
7 Yu v. GSMNation, LLC, 2018 WL 2272708, at *5 (Del. Super. Apr. 24, 2018) (citing Hart,
593 A.2d at 538-39).

8 Brewer, 2012 WL 3861169, at *l.

9 Hercules Inc. v. Leu T rust and Banking Lta'., 6ll A.2d 476, 483 (Del. 1992).

(4) Causes tortious injury in the State or outside of the State by an act or

omission outside the State if the person regularly does or solicits business,

engages in any other persistent course of conduct in the State or derives
substantial revenue from services, or things used or consumed in the State;

(5) Has an interest in, uses or possesses real property in the State; or

(6) Contracts to insure or act as surety for, or on, any person, property, risk,

contract, obligation or agreement located, executed or to be performed

within the State at the time the contract is made, unless the parties otherwise
provide in writing.l°_

The long-arm statute holds that any non-resident who commits certain acts
or causes certain injuries in Delaware is subject to Delaware’s jurisdiction
Delaware’s long-arm statute is to be “broadly construed to confer jurisdiction to
the maximum extent possible under the Due Process Clause.”11 Additionally,
Delaware’s long-arm statute is a “single act” statute, meaning that jurisdiction may
be enforced on a non-resident defendant who meets one of the criteria above and
engages in a single transaction in the forum state.12

In this case, it is undisputed that Villafuerte is a Maryland resident. She
holds a Maryland driver’s license, her vehicle is registered in Maryland, and she
drives her vehicle in Maryland. Moreover, there are no allegations that Villafuerte
transacts any business in Delaware. Thus, the only potential category above that
could apply to the facts at hand is Section 3104(c)(3), i.e., causing a tortious injury
in Delaware by an act or omission in Delaware. Plaintiffs proffer two potential

bases for a finding of personal jurisdiction under Section 3104(c)(3): (1) that

 

1° 10 Del. C. § 3104(c).

11 Hercules, 611 A.2d at 480. See also Boone v. Oy Partek Ab, 724 A.2d 1150, 1157 (Del. Super.
1997) (noting that only limit placed on § 3104 is that it “remain within the constraints of the Due
Process Clause”); T ell v. Roman Catholic Bishops of Diocese of Allentown, 2010 WL 1691199,
at *8 (Del. Super. Apr. 26, 2010).

12 Uribe v. Maryland Auto. Ins. Funa', 115 A.3d 1216, at *2 (Del. 2015) (TABLE); see also Tri-
State Motor Transit Co. v. Intermoa'al Transp., lnc., 1991 WL 1772907, at *6 (Del. Super. June
3, 1991) (“In the present case, the single, direct, specific contact which is enough to allow
jurisdiction in the Delaware courts is clear; the tort occurred in Delaware.”).

Vasquez-Cifuentez committed the tortious conduct causing injury in Delaware
while acting as the agent, servant or employee of Villafuerte, and (2) that
Villafuerte was independently negligent either by entrusting her vehicle to
Vazquez-Cifuentez or by failing to secure her vehicle against theft.13

Looking to the agency argument first, as a general rule, mere ownership of a
vehicle at the time of an accident caused by the negligent operation of another
individual will not necessarily subject the owner of the vehicle to liability.14
Rather, in order to “. . .render the owner liable, there must be some duty on the part
of the owner to the plaintiff, a failure to perform such duty and resulting injuries.”15
In essence, the Court must find that the owner possessed some sort of control over
the driver at the time of the accident.16

Under the principle of respondeat superior, “. . .an owner of a motor vehicle
is liable for the negligent operation of that vehicle by his agent or servant who at
the time of the accident was engaged in the master’s business or pleasure with the
master’s knowledge and direction.”17 In the absence of an agency relationship, an
owner cannot be found liable for injuries that are caused by another’s negligent

operation of the owner’s vehicle.18 “The rationale...is that an automobile is not

such a dangerous instrumentality that its mere use will impose liability upon the

 

13 The Court does not see any other possible scenario for establishing jurisdiction apart fi'om the
two arguments proffered by Plaintiffs. The Court cautions that neither argument appears well-
founded based upon the record; however, the Court notes the lower pleading standard and that
Plaintiffs must simply create a plausible argument that could support jurisdiction.

14 Finkbiner, 532 A.2d at 615 (citing 6 F. Lewis, Blashfiela' Automobile Law and Practice §
254.4 (3rd ed. 1966)).

15 Finkbiner, 532 A.2d at 615.

16 Ia'.

17 Ia'.

18 Ia'. citing Smith v. Callahan, 144 A.46 (Del. Super. 1928) (father found not liable for son’s
negligent operation of automobile owned by father and permitted by him to be used by his
family when son is alone and in pursuit of his own pleasure).

owner for injuries caused by another irrespective of the relationship of master and
servant or principal and agent.”19

Plaintiffs contend that because the car accident took place in Delaware, the
Delaware courts have jurisdiction pursuant to 10 Del. C. § 3104(0)(3). Plaintiffs
assert that Vazquez-Cifuentez was acting as the agent, servant or employee of
Villafuerte at the time of the accident and, thus, Vazquez-Cifuentez’s tortious
conduct caused injuries in Delaware for which Villafuerte is vicariously liable.

Here, upon a careful review of the arguments and submissions of the parties,
the Court does not find any affirmative evidence of an agency or master-servant
relationship between the non-resident owner of the vehicle (Villafuerte) and the
driver of the vehicle (Vazquez-Cifuentez). While Villafuerte did not explicitly
deny an agency relationship in the affidavit, as demanded in Plaintiffs’ Complaint,
Villafuerte did state in the affidavit submitted with her motion that Vazquez-
Cifuentez did not have her permission to drive her vehicle at the time of the
accident. Indeed, the Court finds the possibility tenuous, at best, that such a
relationship existed between Villafuerte and Vazquez-Cifuentez.

Nevertheless, it is Plaintiffs’ allegations of fact which must be accepted as
true, and Plaintiffs have called into question Villafuerte’s affidavit and statement,
noting that the affidavit is not dated or notarized and that she did not report the
theft until September 6, 2018, over six weeks after the accident. While these
abnormalities do not automatically confer jurisdiction upon Villafuerte under the
long-arm statute or equate to a finding that Vazquez-Cifuentez was acting as the
agent, servant or employee of Villafuerte, they do call into question the veracity of
the statements made. Thus, while the Plaintiffs undoubtedly could have more

clearly articulated their theory of jurisdiction and provided more detailed

 

19 Ia’. citing Smith v. Callahan, 144 A. at 50.

allegations in support of that theory, failing to do so will not automatically bar their
suit, as their Complaint at least advances a theory that could support jurisdiction

Tuming to Plaintiff’ s negligent entrustment claim, an individual may be
liable for negligent entrustment of an automobile if that person entrusts his or her
vehicle to another individual who is “so reckless or incompetent that in his hands
the motor vehicle becomes a dangerous instrumentality.”20 In the case of negligent
entrustment, as alleged here, the owner is liable if he or she knows or has reason to
believe at the time of the entrustment that the driver is incompetent21 In addition,
“[v]ehicle owners have a duty to third parties to secure their property against theft.
This duty is predicated on the foreseeability that stolen vehicles will be involved in
accidents.”22

Here, there is an issue of fact as to whether Villafuerte was negligent in
protecting her vehicle from theft. According to Villafuerte’s own submitted
documents, her “significant other,” Mr. Padilla, returned to their home without her
vehicle or its keys over 17 hours before the accident occurred in Delaware, but
Villafuerte took no action. Moreover, while the documents submitted by
Villafuerte assert that she did not entrust her vehicle to Vasquez-Cifuentez, the
circumstances surrounding her reporting the allege theft call into question this
assertion.

Faced with a challenge to personal jurisdiction, plaintiffs are entitled to
discovery if their assertion of jurisdiction is minimally plausible: “If the facts
alleged in the complaint are insufficient to establish personal jurisdiction over the
defendants, then the trial court may allow the plaintiff to complete discovery in

order to establish jurisdiction over [the] defendant as long as plaintiffs claim of

 

2° 6 F. Lewis, Blashfiela' Automobile Law and Practice § 254.22.

21 Id.; see Restatement (Second) of T orts § 390 (1965).

22 Robbins v. William H. Porter, Inc., 2006 WL 1313858, at *1 (Del. Super. Apr. 19, 2006)
(citing Vadala v. Henkels & McCoy, Inc., 397 A.2d 1381, 1383 (Del. Super. 1979)).

personal jurisdiction is not f`rivolous.”23 Here, the Court finds that Plaintiffs’
assertions of jurisdiction are at least minimally plausible, and that Plaintiffs are
therefore entitled to limited discovery to aid in mounting proof for those assertions.
However, Plaintiffs are reminded that any discovery on this issue must not be
overly broad, i.e., it must be reasonably calculated to lead to the discovery of
evidence pertinent to Villafuerte’s pending Rule 12(b)(2) motion.24

B. Constitutional Due Process

Having determined that jurisdiction is at least minimally plausible under
Delaware’s long-arm statute, the question remains whether exercising personal
jurisdiction over Villafuerte is consistent with the Due Process Clause of the
Fourteenth Amendment.

In order for a court to exercise personal jurisdiction, the defendant must have
sufficient “minimum contacts” with the state “such that the maintenance of the suit
does not offend traditional notions of fair play and substantial justice.”25 Among
the factors to be considered are the burden on the defendant, the forum State’s
interest in adjudicating the dispute, and the plaintiffs interest in obtaining
convenient and effective relief. 26 Under this analysis, the question is whether “the
defendant’s conduct and connection with the forum State are such that he should

reasonably anticipate being haled into court there.”27 Thus, an individual is subject

 

23 Benerofe v. Cha, 1996 WL 535405, at *3 (Del. Ch. Sept. 12, 1996) (citing Hart, 593 A.2d at
53 8). See also In re Asbestos Litig., 2016 WL 7404547, at *2 (Del. Super. Oct. 17, 2016) (while
plaintiffs “may not ordinarily be precluded from reasonable discovery in aid of” their attempt to
prove that defendant is subject to jurisdiction of court, plaintiffs are not entitled to jurisdictional
discovery where their assertion of personal jurisdiction “lacks[s] th[e] minimal level of
plausibility needed to permit discovery to go forward.”).

22 Hart, 593 A.2d at 543.

25 World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291 (1980) (quoting Int’l Shoe Co.
v. Washington, 326 U.S. 310, 316 (1945) (intemal quotation marks and citation omitted)).

26 Id. (quoting Int’l Shoe Co., 326 U.S. at 317).

27 Id.

to personal jurisdiction in a state where he/she “purposefully avails [themselves] of
the privilege of conducting activities within the forum State.”28

Given the open questions noted above, and particularly the circumstances
surrounding Villafuerte’s reporting of the alleged theft, the Court finds that
allowing the limited discovery noted above to go forward would not offend
principles of due process. Accordingly, the Court will reserve its analysis of
whether Villafuerte possesses sufficient “minimum contacts” with this State until
such time as the parties have concluded their permitted limited discovery,

Conclusion

WHEREFORE, for the foregoing reasons, decision on Villafuerte’s Motion
to Dismiss is DEFERRED. Plaintiffs are allowed ninety days from the date of this
decision to conduct limited discovery on the issue of personal jurisdiction,

Following that ninety-day period, Villafuerte may re-notice her Motion for one of

the Court’s regular motion days, if appropriate

 

IT IS SO ORDERED.
/s/ Noel Fason Primos
Judge
NEP/dsc
Via File & ServeXpress

oc: Prothonotary

 

22 Id. (quoting Hanson v. Denckla, 357 U.S. 235, 253 (1958)).

10

