SUPER|OR COURT

oF THE
STATE OF DELAWARE

VlleN L. MEDlNlLLA LENoNARD L. WlLLlAMS JusTlcr-; CENTER
JuDGE 500 NoRTH K\NG STREET, sums 10400

WlLNnNGToN, DE 19801-3733

TELEPHONE (302) 255~0626

March 28, 2017
R. Joseph Hrubiec, Esquire Jeffrey M. Weiner, Esquire
LaW Office of Albert l\/[. Greto LaW Offices of Jeffrey M. Weiner, P.A.
715 N. Tatnall Street 1332 King Street
Wilmington, DE 19801 Wilmington, DE 19801

Re: Michael Ciabattoni v. Teamsters Local 326, et al.
Case No.: N15C-04-059 VLM

Dear Counsel:

This is the Court’s ruling on Defendant Travis Eby (“Eby”)’s Motion to
Dismiss for lack of personal jurisdiction and for failure to state a claim upon Which
relief may be granted After considering the parties’ positions in the filings and at
oral argument on the Motion, Eby’s Motion to Dismiss is GRANTED for lack of
personal jurisdiction

F actual and Procedural Background
F actual Background]

Plaintiff l\/Iichael Ciabattoni (“Plaintiff”) alleges that Defendants, Teamsters
Local 326, its officers, and Eby, engaged in false light invasion of privacy (Count

 

1 The factual and procedural background in this case is considerable in size and only that Which
is necessary to this opinion is set out below. The Court’s August 22, 2016 Memorandum
Opinion and Order provides greater background surrounding this case. See Cl`abattoni v.
Teamslers Local 326, 2016 WL 4442277 (Del. Super. Aug. 22, 2016) (granting Defendant
Robert Taylor’s motion to dismiss for lack of personal jurisdiction).

I), defamation of character (Count II), tortious interference With business
relationship (Count llI), intentional infliction of emotional distress (Count IV),
breach of contract (Count V), and civil conspiracy to commit the foregoing counts
(Count VI).2 The suit arises out of a Facebook Page and associated posts Wherein
the Teamsters Local 326 officers (“lndividual Teamsters Defendants”), in an
alleged conspiracy With Eby, posted defamatory comments and disclosed
confidential documents concerning Plaintiff to others Who accessed the Facebook
Page.3 Plaintiff demands compensatory and punitive damages.

The allegations stem from Plaintiff`s “voluntary retirement” from Teamsters
Local 326.4 Plaintiff, a former Teamsters vice president, and the lndividual
Teamsters Defendants_officers/directors of Teamsters Local 326-entered into a
confidential settlement agreement Whereby Plaintiff Would pay back allegedly
embezzled funds in the amount of $7,000 and “voluntarily resign” in exchange for
Defendants dropping administrative charges against Plaintiff and recommending to
State authorities that the parties had resolved the charges against Plaintiff5

After the Settlement Agreement, entered into in late 2012, a Delaware
newspaper article profiled Plaintiff` s avoidance of criminal charges related to this
same conduct. Shortly before the newspaper article, Eby_a Harrisburg,
Pennsylvania resident and FedEX Freight employee-created a Facebook Page
entitled “Bring the Teamsters to FedEX Freight.”(’ The Page Was created With the
purpose of promoting unionization efforts at FedEX Freight under the Teamsters’
auspices.7 The Facebook Page Was publicly accessible by other Facebook users
and members of the public alike in January 2015.8

After the article surfaced and Was posted on the Facebook Page, numerous
comments Were made by Facebook users Who clearly had some connection to the

 

2 See generally Second Amended Complaint (filed Nov. 11, 2016) [hereinafter “Complaint”].
3 Complaint at 11 11.

y 4 See Ciabatloni, 2016 WL 4442277, at *1-2.

5 Complaint at Exhibit B.

6 Complaint at 11 10.

7 Complaint at 11 9.

8 See id.

unionization effort These users posted messages expressing their considerable
displeasure towards Plaintiff and the posts conveyed a desire to uncover more
information about his alleged improprieties9

To that end, Eby, in addition to creating and/or administering the Facebook
Page, allegedly posted two comments of particular note. The first, on January 7,
2015, stated: “Many more documents to come on this clown.”lo The second, on
January 8, 2015, declared: “The grand finally [sic] of all bomb shells [sic] on this
tool to be coming soon.”ll The posts are attributed to the Facebook Page and not
any single author in particular. Notwithstanding the latter, Plaintiff asserted at oral
argument that it was reasonable to infer that Eby posted them because he is the
only identified creator/administrator of the Facebook Page.12

Additionally, Plaintiff alleges that other lndividual Teamsters Defendants,
including signatories of the Settlement Agreement, allegedly posted confidential
information regarding the Agreernent on the Page. Of particular relevance to this
l\/Iotion, however, are two documents that were posted to the Facebook Page: (l)
Plaintist August 5, 2012 Delaware Family Court Protection from Abuse (“PFA”)
Order; and (2) an August 21, 2012 letter, sent from John J. Ryan, Sr. of the General
Teamsters Local Union to Plaintiff accusing him of “wiretapping” the Local Union
Hall.13 These documents were allegedly sent to the Teamsters Local and posted by
the lndividual Teamsters Defendants to the Facebook Page, or sent to Eby for
posting

Procedural Backgro and

Plaintist Second Amended Complaint was filed on November 28, 2016
after the Court granted Plaintiff` s motion for leave to amend the original
Complaint Defendants subsequently answered the Second Amended Complaint
and Defense counsel entered his appearance for Eby. Eby thereafter filed this
Motion to Dismiss on January 13, 2017 on the basis lack of personal jurisdiction

 

9 See Complaint at Exhibit A (transcript of comments on Facebook Page).
10 Complaint at 11 18.
ll Complaint at 11 19. See also Complaint at Exhibit A.

12 When prompted by this Court, Defense counsel conceded at oral argument that there is no
evidence that Eby was the only administrator of the Facebook page.

13 Complaint at Exhibit A, 12, 15.

and Rule 12(b)(6). The Court has previously granted a similar motion to dismiss
on personal jurisdiction grounds for Defendant Robert Taylor, decided on August
22, 2016.“‘

Eby’s opening brief was filed on January 23, 2017. Plaintiff filed his
response on February 8, 2017. Eby filed a reply brief on February 17, 2017. Oral
arguments on the Motion took place on March 8, 2017. The matter is now ripe for
decision.15

Contentions of the Parties

Eby argues that: (l) Delaware’s long-arm statute, 10 Del. C. § 3104, does
not provide for either specific or general jurisdiction over Eby; (2) even if it did,
the exercise of jurisdiction over Eby would violate due process; and (3) Eby cannot
be brought into Delaware under the conspiracy theory of personal jurisdiction
because Plaintiff cannot meet the established five-part test for this theory without
specific factual evidence of Eby’s alleged involvement in a conspiracy

Plaintiff concedes the issue of specific jurisdiction in his response and places
all his eggs in one basket: the conspiracy theory of personal jurisdiction Arguing
that the five-part test is met here, Plaintiff proceeds to halfheartedly assert that Eby
could also be brought in under specific or general personal jurisdiction pursuant to
10 Del. C. § 3104(c)(3)-(4) as an agent of the other Defendants, over whom the
Court has personal jurisdiction.16

Standard of Review

On a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(2) for

 

‘4 see Ciabmmnz v. Teamszers Loca1326, 2016 wL 4442277 (Del. super Aug. 22, 2016).

15 Prior to the oral argument on the l\/Iotion, Plaintiff filed an untimely motion to stay the oral
argument so counsel could take the deposition of Eby, hoping to then supplement his response in
opposition to the Motion to Dismiss. The Court denied the l\/Iotion at a hearing on March 7,
2017. Plaintiff’s request for an in camera review of Defendant Eby’s legal fees was also denied
as improperly raised.

16 Because the Court holds that there is no personal jurisdiction over Eby under the conspiracy
theory of personal jurisdiction, this Court does not address the specific personal jurisdiction
arguments made by Plaintiff. However, the Court notes that identical arguments on this issue
were addressed in its August 22, 2016 ruling as to Defendant Taylor.

lack of personal jurisdiction over a defendant, the plaintiff “bear[s] the burden to
articulate a non-frivolous basis for this court's assertion of jurisdiction.”17
Although the factual record is read in the light most favorable to the plaintiff in
ruling on the motion, “the plaintiff must plead specific facts and cannot rely on
mere conclusory assertions.”18 “A court cannot grant a motion under Rule 12(b)(2)
simply by accepting the well pleaded allegations of the complaint as true, because
the pleader has no obligation to plead facts that show the amenability of the
defendant to service of process.”19 The plaintiff can satisfy his or her burden on a
Rule 12(b)(2) motion “by making a prima facie showing that jurisdiction is
conferred by statute.”ZO

ln making the determination of whether personal jurisdiction exists, the
Court’s duty is two-fold: “First, it must determine whether jurisdiction is
appropriate under Delaware's long arm statute. And, second, it must evaluate
whether asserting such jurisdiction would offend the Due Process Clause of the
Constitution.”21 Importantly, legal questions presented by a motion to dismiss for
lack of personal jurisdiction_such as “whether that connection constitutes ‘doing
business,’ whether it satisfies some aspect of a long-arm statute, or whether the
assertion of personal jurisdiction conforms to conventional notions of fair play and
substantial justice”_cannot be answered until the Court determines the underlying
facts regarding “the connection the defendant has had, directly or indirectly, with
the forum.”22

 

11 1M2 Merch. & M/g., ma v. Tirex Corp., 2000 wL 1664168, at *4 (Del. ch. Nov. 2, 2000)
(citing Harl’ Halding Co. Inc. v. Drexel Burrzham Lambert Inc., 593 A.2d 535, 539 (Del. Ch.
1991)). See also In re Asbestos Lilig. (Ana’erson), 2015 WL 556434, at *3 (Del. Super. Jan. 30,
2015); Boone v. Oy Panek Ab, 724 A.2d 1150, 1154 (Del. super 1997), affd, 707 A.2d 765
(Del. 1998); Greenly v. Davl's, 486 A.2d 669, 670 (Del. 1984); Harman v. Eua’al`ly, 407 A.2d
232, 233 (Del. super 1979),¢1]§"@1,420 A.2d 1175 (Del. 1980).

11 Mgbile Dzagnoszzc Grp. Holdzngs, LLC v. suer, 972 A.2d 799, 802 (Del. Ch. 2009).

19 Harz H@ldmg CO., 593 A.2d at 53 8.

111 Mcl<amey v. ramer Houzen, 744 A.2d 529, 531 (Dei. super 1999).

21 B@One, 724 A.2d at 1154~55.

11 Han Holdmg Co., 593 A.2d ar 538.

Discussion

Eby is a Pennsylvania resident. He is employed as a FedEx Freight driver
and drives back and forth between l\/Iiddletown, Pennsylvania to a railroad yard
located seven miles away. Defendant has only been to Delaware a few times-for
the Firefly Music Festival and two shipments back and forth for FedEx at the Port
of Wilmington. “He has never been contracted to supply services or things in
Delaware, nor does he regularly do or solicit business, engage in any persistent
course of conduct or derive substantial revenue from services, or things used or
consumed in Delaware.”23 Defendant has no property interest in Delaware, nor
does he have an agent in Delaware.

Since Plaintiff appropriately concedes any argument grounded in traditional
specific personal jurisdiction analysis, the sole issue the Court must address is
whether Eby is subject to personal jurisdiction under the conspiracy theory of
personal jurisdiction

The Delaware Supreme Court first adopted the “conspiracy theory of
personal jurisdiction” in Istituta Barlcaria Italiarza SpA v. Hunter Erzgz'neerz`ng
CO.24 The theory “rests in part upon the legal premise that the acts of a conspirator
are imputed to all the other co-conspirators.”25 Under the conspiracy theory of
personal jurisdiction,

[A] conspirator who is absent from the forum state is
subject to the jurisdiction of the court, assuming he is
properly served under state law, if the plaintiff can make
a factual showing that: (1) a conspiracy [to cause tortious
injury] existed; (2) the defendant was a member of that
conspiracy; (3) a substantial act or substantial effect in
furtherance of the conspiracy occurred in the forum state;
(4) the defendant knew or had reason to know of the act
in the forum state or that acts outside the forum state
would have an effect in the forum state; and (5) the act

 

23 Defendant’s Opening Brief at 4.
2144971.2¢1210(1)@1.1982).

”Mmm5

in, or effect on, the forum state was a direct and
foreseeable result of the conduct in furtherance of the
conspiracy.26

This five part test is strictly and narrowly construed: the plaintiff must make
a factual showing as to each enumerated factor.27 “Plaintiffs must assert specific
factual evidence, not conclusory allegations, to show that the non-resident
defendants were conspirators in some wrongful act resulting in harm to Delaware
entities or their owners in order for the Court to exercise jurisdiction over them.”28

At oral argument, Plaintiff’ s counsel struggled to fit the square peg of the
facts surrounding Eby’s putative involvement into the round hole of the five-part
lstz`tato Bancaria test. As a threshold matter, Plaintiff limits this analysis to three
salient facts: (l) Eby admitted that he created the Facebook Page; (2) the August 5,
2012 PFA was sent to Teamsters Local; and (3) the August 21, 2012 letter that
accused Plaintiff of wiretapping was “likely maintained” at Teamsters Local before
its posting on the Facebook Page. The inferences Plaintiff’s counsel draws from
these facts move peripatetically from one factor to another.

First, lstz`tuto Barlcarz'o requires Plaintiff put forth specific facts suggesting a
conspiracy existed and Eby was a member of said conspiracy. The factual
showing on the first two parts of this test is severely deficient No communications
have been identified between the lndividual Teamsters Defendants and Eby to
suggest a conspiracy existed. No prior relationship between the Individual
Teamster Defendants and Eby is shown to imply a course of dealing that would
heighten any inference of conspiracy. lnstead, all that is alleged is that the
lndividual Teamsters Defendants and Eby “shared a common interest” in defaming
Plaintiff.

Given the apparent lack of contact Eby has with the State, it is incumbent on
Plaintiff to support his assertion of Eby’s involvement in a conspiracy with some
facts suggesting that a conspiracy existed. But this showing starts with a legal
conclusion: Eby “engaged in ongoing communications with the other Defendants,

 

26 Icl. (citation omitted).
21 1a 31225.

28 CrescenI/Mach 1 Partners, L.P. v. Turner, 846 A.2d 963, 976 (Del. Ch. 2000).

who were located in Delaware.”29 There is no direct evidence that these putative

communications ever occurred, nor is there any reasonable circumstantial evidence
that they occurred. The Supreme Court’s insistence that the conspiracy theory of
personal jurisdiction undergo strict factual proof undermines Plaintist ipso facto
argument lt strains logic to argue that, because two sets of heretofore unconnected
parties, Eby and the lndividual Teamster Defendants, held a “shared interest” to
defame Plaintiff, this shared interest suffices to meet the first two parts of the five-
part test above. Rather, this is an inference made from quixotic footing: one based
on speculation and not fact.

Second, as to the third factor, Plaintiff implements a res ipsa loquitur-like
“origination” theory: because the two documents singled out above were “likely
maintained” at Defendants’ office, the lndividual Teamster Defendants-those
who had sole control over their physical office-probably forwarded the
documents to Eby out of their shared interest in defaming Plaintiff. Needless to
say, this theory hardly qualifies as specific factual evidence sufficient to meet the
]stl`tuto Bancario test.

Finally, as to the fourth and fifth factors, Plaintiff argues that his Delaware
address was prominently displayed on the two documents posted on the Facebook
Page. As such, it was reasonably foreseeable that Plaintiff would suffer harm in
Delaware as a result of Eby’s alleged furtherance of the conspiracy to defame and
tortiously injure Plaintiff. Were Plaintiff able to overcome the first three factors,
he would likely be correct that the locus delicti was predictably Delaware;
however, as discussed above, Plaintiff falls far short of meeting his burden as to
the first three factors.

ln this case, there exists little more than serial inferences grasping at the
existence of a conspiracy between Eby and the lndividual Teamster Defendants.
While Eby did admit to creating the Facebook Page--a Page originally setup for
broader unionization goals--the resolution of this Motion is legally and factually
identical to the Court’s decision with regards to Defendant Robert Taylor.
Therefore, the l\/lotion to Dismiss is GRANTED.

Conclusion

After considering the parties submissions and oral arguments, Defendant
Travis Eby’s l\/lotion to Dismiss for lack of personal jurisdiction is GRANTED.

 

29 Complaint at 11 22.

Plaintiff has failed to demonstrate specific facts entitling him to an application of
the conspiracy theory of personal jurisdiction over Eby.

  
   
 

 

IT IS SO ()RDERED.
Sincer"`e"l‘yj
t r.__._.`\
Vivian L. Medinilla
Judge M -»“““"1
affix \\‘t
oc: Prothonotary may g
cc: All counsel via File&Serve /s'f' §

