           IN THE SUPREME COURT OF THE STATE OF DELAWARE

JEFFREY A. CLOUSER,                      §
                                         §   No. 175, 2019
          Plaintiff Below,               §
          Appellant,                     §
                                         §
          v.                             §   Court Below–Superior Court
                                         §   of the State of Delaware
KIM DOHERTY, et al.,                     §
                                         §   C.A. No. N15C-07-240
          Defendants Below,              §
          Appellees.                     §

                             Submitted: August 23, 2019
                             Decided:   November 14, 2019

Before SEITZ, Chief Justice; VALIHURA, and TRAYNOR, Justices.

                                      ORDER

      After careful consideration of the parties’ briefs and the record on appeal, it

appears to the Court that:

      (1)      The appellant, Jeffrey A. Clouser, appeals from a March 25, 2019

Superior Court order granting summary judgment in favor of the defendants, Wayne

Barton and the Delaware Department of Education (“the DDOE”). We conclude

that the Superior Court did not err in granting summary judgment. Accordingly, we

affirm.

      (2)      Clouser, a former teacher employed by the Brandywine School District,

filed suit against two groups of defendants—one comprised of certain school

employees; the Brandywine School District; and current and former members of the
Brandywine School District Board of Education (collectively, “the School

Defendants”) and the other comprised of the DDOE; Wayne Barton, then Director

of Professional Accountability for the DDOE; and Lillian Lowery, then Secretary of

Education (collectively, “the State Defendants”). The gist of Clouser’s complaint

alleged that the State Defendants and the School Defendants acted improperly in

investigating his reputed improper use of a school computer and then disseminated

inaccurate information about the investigation. The investigation led to Clouser’s

resignation from his position with the Brandywine School District. Clouser alleged

that the dissemination of inaccurate information concerning the investigation left

Clouser unable to secure employment in the teaching profession.

      (3)    The Superior Court dismissed all of Clouser’s claims against both the

School Defendants and the State Defendants. Clouser appealed. We affirmed the

Superior Court’s dismissal of the complaint against the School Defendants and

Lowery.1 But, we determined that the Superior Court erred in ruling on the State

Defendants’ claim of sovereign immunity on a motion to dismiss. Under 18 Del. C.

§ 6511, “[t]he defense of sovereign immunity is waived and cannot and will not be

asserted as to any risk or loss covered by the state insurance coverage program,

whether same be covered by commercially procured insurance or by self-insurance.”



1
  Clouser v. Doherty, 2017 WL 3947404 (Del. Sept. 7, 2017). The factual background of the
dispute between the parties is set forth in more detail in this earlier decision.


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When the State’s insurance coverage program does not cover the loss, however, the

State typically files, and relies upon, an affidavit of no insurance coverage. Although

the State had filed an affidavit of no insurance coverage in the Superior Court, the

court did not rely on it. Instead, the Superior Court required Clouser to proffer that

the State had expressly waived sovereign immunity under § 6511. We held that the

Superior Court erred by requiring Clouser to plead insurance coverage under § 6511.

         (4)    Because Clouser had stated claims for defamation and tortious

interference with prospective business relations against the DDOE and Barton under

the lenient standard for sufficiency of a claim applicable to a motion to dismiss, we

determined that the Superior Court’s error was not harmless. Accordingly, we

remanded the case and directed the Superior Court to permit the remaining parties—

Clouser, the DDOE, and Barton—to engage in limited discovery related to (i) the

State’s affidavit of no insurance coverage and (ii) Clouser’s defamation and tortious

interference with prospective business relations claims against the DDOE and

Barton.

         (5)    On remand, Clouser requested and received information from the State

Insurance Coverage Office regarding the State’s insurance policies.2 Clouser also

filed, and subsequently withdrew, several motions to compel discovery. After the

State Insurance Coverage Office responded to Clouser’s document request, Clouser


2
    App. to Answering Br. at B154-59; B808-1010.


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filed a motion to compel “full disclosure of discovery” from the office. Clouser next

asked the court to extend the discovery deadline. Lastly, Clouser moved to amend

his complaint to (i) add an additional defendant, (ii) assert new claims against

previously dismissed defendants Doherty and Lowery, and (iii) raise seven

additional claims arising out of the same events that led to Clouser’s initial

complaint. On July 6, 2018, the Superior Court held a hearing on the outstanding

motions. At the hearing’s outset, the Superior Court heard from the parties about

the pending discovery matters and concluded that the only matters that remained

pending were two depositions that had not yet been scheduled.3 The Superior Court

then denied Clouser’s motion for leave to amend his complaint, stating its reasons

on the record.4

       (6)     In October 2018, the DDOE and Barton moved for summary judgment.

DDOE and Barton argued: (i) Clouser’s claims were barred by sovereign immunity,

(ii) Clouser’s defamation claim failed as a matter of law, (iii) Barton was entitled to

conditional privilege for his communications regarding the investigation, and (iv)


3
  At the hearing, the Superior Court asked the parties, “Which gets me to the next question, because
there were motions to compel discovery, then there were motions to withdraw motions to compel.
Is there anything that has not been completed at this point, what is still open on discovery?” In
answer to this question, counsel for the State Defendants replied that there were two depositions
that had yet to be taken and additional discovery would be needed if the Superior Court granted
Clouser’s motion to amend his complaint. The trial judge then asked Clouser if the State
Defendants’ counsel’s representation was accurate. Clouser stated, “That’s correct, I do agree.
That’s fine.” App. to Answering Br. at B376.
4
  App. to Answering Br. at B386-87. The court issued a brief written order memorializing its
decision and setting scheduling deadlines on July 11, 2018. Id. at B388.


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Clouser’s claim of tortious interference with business relationships failed as a matter

of law. In November 2018, counsel for the State Defendants realized they had

inadvertently failed to file an answer to Clouser’s original complaint and docketed

an answer. Clouser then moved to strike the State Defendants’ answer and moved

for default judgment.

      (7)    On March 25, 2019, the Superior Court issued two orders. The first

order granted the DDOE and Barton’s motion for summary judgment, finding that

Clouser’s claims were barred by sovereign immunity. In so doing, the Superior

Court noted that it was not required to conduct a new inquiry into the State’s efforts

to meet its responsibilities under 18 Del. C. §§ 6501-6503 every time the State

asserted the defense of sovereign immunity. The second order denied Clouser’s

motion to strike the State Defendants’ answer as well as Clouser’s motion for default

judgment. This appeal followed.

      (8)    On appeal, Clouser argues that (i) the Superior Court committed

procedural error by failing to consider his motion to compel discovery from the State

Insurance Coverage Office and for failing to permit Clouser to amend his complaint,

(ii) Clouser was prejudiced by the State Defendants’ late-filed answer, (iii) there are

material facts in dispute, and (iv) the Superior Court committed error in its

application of the law to the facts of the case. We conclude Clouser’s arguments are

without merit and, accordingly, affirm the Superior Court’s judgment.



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       (9)     This Court reviews the grant of a motion for summary judgment de

novo to determine whether the undisputed facts entitled the movant to judgment as

a matter of law, viewing the facts in the light most favorable to the nonmoving party.5

A party seeking summary judgment bears the initial burden of showing that no

genuine issue of material fact exists.6 If the movant makes such a showing, the

burden then shifts to the nonmoving party to submit evidence sufficient to show that

a genuine factual issue, material to the outcome of the case, precludes summary

judgment.7

       (10) After careful consideration, we conclude the judgment below should be

affirmed on the basis of and for the reasons assigned by the Superior Court in its

March 25, 2019 order granting summary judgment to the DDOE and Barton. In

light of Clouser’s numerous filings below, Clouser’s representation to the court at

its July 6, 2018 hearing, and this Court’s decision in Doe v. Cates,8 the Superior

Court did not err in failing to rule specifically on Clouser’s motion to compel

directed at the State Insurance Coverage Office. Nor did the Superior Court err in

declining to grant Clouser leave to amend his complaint following remand. A



5
  United Vanguard Fund, Inc. v. TakeCare, Inc., 693 A.2d 1076, 1079 (Del. 1997).
6
  Moore v. Sizemore, 405 A.2d 679, 680-81 (Del. 1979).
7
  Id.
8
  499 A.2d 1175, 1179 n. 4 (Del. 1985) (“Apparently, [precedent] has been interpreted as requiring
the trial courts to conduct a new inquiry into the [Insurance Coverage Determination] Committee’s
efforts to meet its responsibilities under 18 Del. C. ch. 65 each time the State asserts the defense
of sovereign immunity. In view of our holding today, such inquiry is no longer necessary.”).


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motion for leave to amend is left to the sound discretion of the trial court.9 The

Superior Court did not abuse its discretion in denying Clouser’s motion to amend

where the proposed amendments were an obvious attempt to reframe his defamation

and tortious interference with prospective business relations claims.                 Finally, we

agree with the Superior Court’s conclusion that there is no evidence that Clouser

was prejudiced by the State Defendants’ inadvertent failure to file a timely answer

in this vigorously litigated case.

       NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

                                              BY THE COURT:

                                              /s/ Collins J. Seitz, Jr.
                                                  Chief Justice




9
  Eastern Commercial Realty Corp. v. Fusco, 654 A.2d 833, 837 (Del. 1995). To the extent that
Clouser argues that he was entitled to amendment as a matter of right because he filed his motion
to amend before the State Defendants filed a responsive pleading, he did not raise that argument
to the trial court in the first instance and we will not entertain it on appeal. Del. Supr. Ct. R. 8
(“Only questions fairly presented to the trial court may be presented for review; provided,
however, that when the interests of justice so require, the Court may consider and determine any
question not so presented.).


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