      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


MELVIN R. THOMPSON,                 :
                                    :     C.A. No: K14C-12-011 RBY
            Plaintiff,              :
                                    :
     v.                             :
                                    :
PATSY A. ROBBINS, and               :
DAN BRYAN,                          :
                                    :
            Defendants.             :


                          Submitted: December 1, 2015
                          Decided: December 17, 2015


                   Upon Consideration of Defendants’
                    Motion for Summary Judgment
                GRANTED IN PART and DENIED IN PART


                                   ORDER


Melvin R. Thompson, Pro se.

Sean M. Lynn, Esquire, Baird Mandalas Brockstedt, LLC, Dover, Delaware for
Defendants.




Young, J.
Thompson v. Robbins, et. al.
C.A. No.: K14C-12-011 RBY
December 17, 2015

                                         SUMMARY
       Melvin Thompson (“Plaintiff”) filed a libel and slander action against Patsy
Robbins (“Defendant Robbins”) and her son Dan Bryan (“Defendant Bryan,”
together with Robbins, “Defendants”). Defendants filed a Motion for Summary
Judgment. Because genuine issues of material fact as to same aspects of Plaintiff’s
claim remain in dispute as to Defendant Robbins, but not as to Defendant Bryan,
Defendants’ Motion is GRANTED in part and DENIED in part.
                               FACTS AND PROCEDURE
       Plaintiff and Defendant Robbins were previously in a relationship together.
In February 2013, Defendant Robbins filed a petition for Protection from Abuse
(“PFA”) in Kent County Family Court against Plaintiff. Therein, Defendant
Robbins made allegations that Plaintiff had threatened and stalked her. Family
Court issued a temporary PFA order, but ultimately Defendant Robbins failed to
obtain a PFA due to insufficient evidence. Contemporary to the filing of the PFA,
Defendant Robbins made various statements relating to the PFA and the
dissolution of her relationship with Plaintiff to third parties including friends and
acquaintances. Defendant Robbins told persons at the Modern Maturity Center and
mutual friends of Plaintiff’s about the PFA she had filed.1 She also told Plaintiff’s




       1
         Fredricks Dep. 12:7-22 (attached to Def. Motion as Exhibit E) (stating that Defendant
Robbins told the President and CEO of the Modern Maturity Center that she had filed a PFA
against Plaintiff and that the deponent might be questioned later in relation to the matter); D.
Donaway Dep. 16:2-8 (attached to Def. Motion as Exhibit H) (stating that deponent was aware
of the PFA).

                                                2
Thompson v. Robbins, et. al.
C.A. No.: K14C-12-011 RBY
December 17, 2015

landlady at the time that she felt threatened by Plaintiff’s actions.2 In December
2014, Plaintiff filed an action to recover $99,999.00 in damages for Defendants’s
alleged libel and slander (collectively, “defamation”) arising from the PFA.
Defendants filed the instant Motion for Summary Judgment in response, asserting
that the judicial privilege bars Plaintiff’s defamation action.3
                                 STANDARD OF REVIEW
       Summary judgment is appropriate where the record exhibits no genuine
issue of material fact so that the movant is entitled to judgment as a matter of law.4
“Summary judgment may not be granted if the record indicates that a material fact
is in dispute, or if it seems desirable to inquire more thoroughly into the facts in
order to clarify the application of the law to the circumstances.” 5 The court should
consider the record in the light most favorable to the non-moving party. 6
       To survive a motion for summary judgment, a plaintiff must establish his
prima facie case.7 In Delaware, the elements for a prima facie case of defamation
are as follows: 1) the defendant made a defamatory statement; 2) concerning the
plaintiff; 3) the statement was published; 4) a third party would understand the


       2
           Warren Dep. 37:19-38:1 (attached to Def. Motion as Exhibit D).
       3
           Nix v. Sawyer, 466 A.2d 407, 410 (Del. Super. 1983).
       4
           Tedesco v. Harris, 2006 WL 1817086 (Del. Super. June 15, 2006).
       5
           Id.
       6
           Id.
       7
           Doe v. Cahill, 884 A.2d 451, 463 (Del. 2005).

                                                 3
Thompson v. Robbins, et. al.
C.A. No.: K14C-12-011 RBY
December 17, 2015

character of the communication as defamatory; and 5) plaintiff was injured as a
result of the statement.8
       Delaware courts apply separate sets of rules for slander and libel.9 Simply
put, “libel is written defamation and slander is oral defamation.” 10 Slander
generally requires proof of special damages, unless the defamatory statements fall
into any of the four categories considered slander per se.11 Slander per se includes
statements which: “(1) malign one in a trade, business or profession, (2) impute a
crime, (3) imply that one has a loathsome disease, or [quaintly enough] (4) impute
unchastity to a woman.”12
           The judicial privilege provides absolute protection against a defamation
claim in certain situations.13 To assert the privilege successfully, a defendant must
show that: “1) statements [are] issued as part of a judicial proceeding; [and] 2) the
alleged defamation is relevant to a matter at issue in the case.”14 A judicial
proceeding includes “any hearing before a tribunal performing a judicial function”
as well as “all communications appurtenant [to intra-courtroom events] such as


       8
           Id.; Read v. Carpenter, 1995 WL 945544 (Del. Super. June 8, 1995).
       9
           Spence v. Funk, 396 A.2d 967, 970 (Del. 1978).
       10
            Id.
       11
            Id.
       12
            Id.
       13
            Nix, 466 A.2d at 410.
       14
            Id.

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Thompson v. Robbins, et. al.
C.A. No.: K14C-12-011 RBY
December 17, 2015

conversations between witnesses and counsel, the drafting of pleadings, and the
taking of depositions or affidavits ex parte.”15 The question of whether the
privilege attaches to an allegedly defamatory statement is a question of law for the
court.
                                              DISCUSSION
         Defendants’ summary judgment motion asserts that all allegedly defamatory
statements complained of by Plaintiff are covered by the judicial privilege. There
are two parts to Plaintiff’s claim. First, Plaintiff seeks recovery from Defendants
Robbins and Bryan for the harm that allegations in the PFA application and
judicial proceedings caused him. Second, Plaintiff seeks recovery for the harm
caused by additional PFA-related statements that Defendant Robbins allegedly
made to mutual friends and acquaintances. The first part of Plaintiff’s claim is not
actionable, because the judicial privilege bars recovery for statements made in
court and court filings.16 The second part of Plaintiff’s claim may have merit, but
requires further inquiry into the facts.
         First, Plaintiff claims that Defendants maliciously filed the PFA containing
false allegations of Plaintiff’s criminal conduct, thereby causing him harm.
Defendants do not respond to this claim, but instead assert that the judicial
privilege is a complete bar to any action for the alleged defamation. Because
Delaware law clearly indicates that statements made in and relating to judicial
proceedings are privileged, Plaintiff cannot recover for defamation on the basis of

         15
              Id. (internal citations omitted).
         16
              Id.

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Thompson v. Robbins, et. al.
C.A. No.: K14C-12-011 RBY
December 17, 2015

the PFA.17 Thus, Plaintiff has no actionable claim against either Defendant for his
alleged involvement in the PFA, and summary judgment is appropriate as to
Defendant Bryan entirely. Summary judgment as to any claim related to the
creation, context or filing of the PFA is appropriate as to Defendant Robbins.
       Second, Plaintiff asserts that additional statements made by Defendant
Robbins about Plaintiff to friends and acquaintances outside of the judicial
proceedings also defamed him and caused him harm. Again, Defendants avoid this
claim by asserting that the judicial privilege applies. Plaintiff’s Complaint
allegations are the antithesis of well-drawn or descriptive or informative. Rather,
Plaintiff alleges remarks which Plaintiff evidently took to be “threatening” or
“knowingly false,” without even alleging a single specific remark. The
imprecision of the language itself provides little for a defendant or a Court to
address. Yet, at least one deposed witness testified to hearing from Defendant
Robbins about Plaintiff’s allegedly threatening her.18 Although the judicial
privilege has a broad scope, it does not extend to defamatory statements to third
parties which are not relevant to the pending court action.19 Taken in the light most
favorable to Plaintiff as the non-moving party, because these statements
conceivably occurred outside of the judicial proceedings and may not have been

       17
          Id. (“The common law rule protecting statements of judges, parties, witnesses and
attorneys offered in the course of judicial proceedings from a cause of action in defamation is
well-recognized in this jurisdiction.”).
       18
            Warren Dep. 37:19-38:1 (attached to Def. Motion as Exhibit D).
       19
         See id. at 411 (defining relevance as “a showing that the utterance in question is
reasonably germane to the pending action”).

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Thompson v. Robbins, et. al.
C.A. No.: K14C-12-011 RBY
December 17, 2015

relevant to the pending PFA, they may not be privileged, but might give rise to an
actionable claim for defamation. Furthermore, such statements could conceivably
constitute slander per se because they suggest the imputation of criminal actions to
Plaintiff.
       At this point in the case, the facts in the pleadings have been significantly
distilled from depositions, precluding, at this point, a determination on the legal
question of whether the judicial privilege covers Defendant Robbins’ extrajudicial
statements, whatever they may be. Counsel is free to resubmit the motion with
additional factual detail showing that Defendant’s statements were clearly covered
by the privilege. However, at this stage of the proceedings, based upon the
information available at this time, the Court cannot grant the Motion for Summary
Judgment as to Defendant Robbins.
                                  CONCLUSION
       For the foregoing reasons, the Defendants’s Motion for Summary Judgment
is GRANTED in full relative to Defendant Bryan, and is GRANTED in part and
DENIED in part as to Defendant Robbins.
       IT IS SO ORDERED.
                                            /s/ Robert B. Young
                                                       J.

RBY/lmc
oc: Prothonotary
cc: Counsel
     Mr. Thompson
     Opinion Distribution
     File

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