      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


CHRISTOPHER DUFRESNE,                       :
                                            :      C.A. No. K19C-03-008 NEP
                   Plaintiff,               :      In and for Kent County
                                            :
             v.                             :
                                            :
CAMDEN-WYOMING FIRE                         :
COMPANY INC., and BOBBI SCOTT,              :
HAROLD SCOTT, JONNY NICHOLS,                :
MATT BROWN, JAMES QUEEN SR.,                :
HARRY GLENN NEESE, RON DEAR,                :
ALAN REMBOLD, BRIAN DAWICKI,                :
CARL WILLOUGHBY, SCOTT                      :
THORNE and BRIAN NEESE consisting           :
of the BOARD OF DIRECTORS for the           :
CAMDEN-WYOMING FIRE                         :
COMPANY and BOBBI SCOTT,                    :
HAROLD SCOTT, JONNY NICHOLS,                :
MATT BROWN, JAMES QUEEN SR.,                :
HARRY GLENN NEESE, RON DEAR,                :
ALAN REMBOLD, BRIAN DAWICKI,                :
CARL WILLOUGHBY, SCOTT                      :
THORNE and BRIAN NEESE in their             :
personal capacity,                          :
                                            :
                   Defendants.              :

                          Submitted: February 26, 2020
                             Decided: May 5, 2020
  Upon Defendants’ Motion to Dismiss the Second Amended Complaint in Part
                                GRANTED

                  MEMORANDUM OPINION AND ORDER

Gregory A. Morris, Esquire, Liguori & Morris, Attorney for Plaintiff.

Jonathan L. Parshall, Esquire, Murphy & Landon, Attorney for Defendants.

Primos, J.
       Before the Court is the Motion of Defendants to Dismiss the Second Amended
Complaint in Part.        For the reasons set forth below, Defendants’ Motion is
GRANTED.

       I.     FACTUAL BACKGROUND AND PROCEDURAL HISTORY
       The facts recited herein are as alleged in the Second Amended Complaint of
Plaintiff Christopher Dufresne (hereinafter “Dufresne”).1               Defendant Camden-
Wyoming Fire Company, Inc. (hereinafter the “Fire Company”) is a corporation
operating as a volunteer fire company in Camden-Wyoming, Delaware.                         The
individual Defendants were members of the Board of Directors of the Fire Company
(hereinafter the “Board”) at the time of the events alleged in the Second Amended
Complaint.
       From 2000 to 2018, Dufresne was a member of the Fire Company and held
various positions, including Board member and Deputy Chief. Near the end of
Dufresne’s tenure with the Fire Company, an unknown member of the Fire Company
alleged that Dufresne had placed a tape recorder in the Board’s meeting room. In
response, the Board ordered an investigation. Upon conclusion of the investigation,
the Board determined that the allegation was false and that they would not discipline
Dufresne for the alleged action.
       The Board then hired an outside investigator to conduct a second
investigation. 2 Like the first, the second investigation revealed no direct evidence
that Dufresne had placed a tape recorder in the Board’s meeting room. Nonetheless,
the Board terminated Dufresne’s membership. During the second investigation and
after Dufresne’s termination, all of the Defendants “and their representatives” made
defamatory statements about him to third parties. As a result, the Camden Police



1
  See Savor, Inc. v. FMR Corp., 812 A.2d 894, 896 (Del. 2002) (on a motion to dismiss “all well-
pleaded factual allegations are accepted as true”).
2
  Dufresne was suspended from membership during the second investigation.
                                               2
Department arrested Dufresne for invasion of privacy and felony wire-tapping,3 and
Dufresne suffered injury to his reputation, loss of employment and employment
opportunities, and mental anguish.
       Dufresne filed a Complaint on March 7, 2019, naming the Fire Company “and
[its] Board of Directors”4 as defendants and alleging that they had defamed him. On
May 8, 2019, Dufresne filed an Amended Complaint in which he named the
individual members of the Board as defendants rather than the Board as a single
entity. Defendants filed a motion to dismiss on May 22, 2019, asserting that both
the Fire Company and the individual Defendants were immune from suit under the
County and Municipal Tort Claims Act (hereinafter the “Act”). 5 In response to that
motion, Dufresne filed a Second Amended Complaint on July 15, 2019, adding
claims against all Defendants under 42 U.S.C. § 1983 (hereinafter “Section 1983”)
and also stating that the individual Defendants were being sued both in their official
capacities and in their “personal capacit[ies] unrelated to acting as [] agent[s]” of the
Fire Company. On August 12, 2019, Defendants filed their Motion to Dismiss the
Second Amended Complaint in Part, 6 which is now before the Court.

                              II.    STANDARD OF REVIEW
       On a motion to dismiss, the moving party bears the burden of demonstrating
that “under no set of facts which could be proven in support of [the complaint] would
the [plaintiff] be entitled to relief.”7 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)


3
  The charges were later dismissed.
4
  The Complaint named the Board as a defendant rather than its individual members.
5
  10 Del. C. §§ 4001-4013.
6
  Defendants seek dismissal of Dufresne’s Section 1983 claims against all Defendants, and of his
defamation claims against the Fire Company and against the individual Defendants in their official
capacities.
7
  Daisy Constr. Co. v. W.B. Venables & Sons, Inc., 2000 WL 145818, at *1 (Del. Super. Jan. 14,
2000).
                                                3
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.” 8
       Prior decisions of the Superior Court are split as to whether to apply state law
pleading standards, rather than federal pleading standards, to claims brought under
Section 1983.9 This Court finds persuasive the holding in Dollard v. Callery that
conflict-of-laws principles require application of Delaware’s “conceivability
pleading standard” to Dufresne’s federal claims, rather than the heightened federal
“plausibility standard”10 established in Bell Atlantic Corporation v. Twombly11 and
Ashcroft v. Iqbal.12
       Finally, the Court need not, and will not, convert the Motion to one for
summary judgment in response to Defendants’ submission of certain exhibits to the
Motion. Generally, when a court refers to matters outside the pleadings on a motion
to dismiss, the motion must be converted to one for summary judgment.13 However,
when a court takes judicial notice 14 of an exhibit to a motion to dismiss, it need not
convert the motion to one for summary judgment.15

8
  Savor, 812 A.2d at 896-97 (internal citations and quotations omitted).
9
  Compare Dollard v. Callery, 185 A.3d 694, 703-04 (Del. Super. 2018) (reviewing a Section 1983
claim and holding that “settled conflict of laws principles require that this Court apply its own
procedural rules, including pleading rules, to all claims, even those arising under federal law”)
with Eskridge v. Hutchins, 2017 WL 1076726, at *2 (Del. Super. March 22, 2017) (“a Section
1983 claimant in a Delaware State court must plead his or her claim with sufficient particularity
to satisfy the [federal] plausibility standard”).
10
   Dollard, 185 A.3d at 703-04; see also Brown v. Western Ry. of Alabama, 338 U.S. 294, 296
(1949) (when states exercise concurrent jurisdiction to enforce plaintiff’s federal rights, they may
establish procedural rules governing litigation in their courts so long as the federal rights being
asserted are not “defeated by the forms of local practice”) (internal citations omitted). In this case,
of course, applying a less stringent pleading standard to Dufresne’s claims cannot interfere with
any federal rights that he asserts.
11
   550 U.S. 544 (1991).
12
   556 U.S. 662 (2009).
13
   Malpiede v. Townson, 780 A.2d 1075, 1092 (Del. 2001).
14
   See D.R.E. 201(b)(2) (court may take judicial notice of facts that are “not subject to reasonable
dispute” because they “[c]an be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned”).
15
   In re General Motors (Hughes) S’holder Litig., 897 A.2d 162, 171 (Del. 2006).
                                                  4
       Here, Exhibit 2 to Defendants’ Motion is a list of registered Delaware
volunteer fire companies, and Exhibit 5 represents census data for the city of
Wilmington.       Exhibit 2, generated by the Delaware State Fire Prevention
Commission, 16 is subject to judicial notice because it is a public record. 17 Exhibit 5
is subject to judicial notice because it contains U.S. census data.18 The Court takes
notice of Exhibits 2 and 5 and will render its decision on the pleadings alone because
both exhibits contain facts that are not subject to reasonable dispute.

                                     III.   DISCUSSION
           A. Dufresne’s Section 1983 claims must be dismissed because
              Defendants are not state actors pursuant to Section 1983.

       Counts I and II of the Second Amended Complaint assert claims against
Defendants pursuant to Section 1983. That statute provides that “[e]very person
who, under color of any statute . . . of any State . . . subjects, or causes to be subjected,
any citizen of the United States . . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured
in an action at law . . . .”19 Thus, Section 1983 imposes civil liability on one who,
under color of state law, deprives another of rights secured by the U.S.
Constitution. 20 Therefore, a private entity acting under color of state law is held to




16
   The Delaware State Fire Prevention Commission is a public body. See 16 Del. C. § 6602
(Governor has final authority over appointment and removal of members of Fire Prevention
Commission).
17
   In re Wheelabrator Technologies Inc. S’holders Litig., 1992 WL 212595, at *12 (Del. Ch. Sept.
1, 1992); Stahl v. U.S. Dep’t of Agric., 327 F.3d 697, 700 (8th Cir. 2003).
18
   See Hollinger v. Home State Mut. Ins. Co., 654 F.3d 564, 571-72 (5th Cir. 2011) (U.S. census
data is proper and frequent subject of judicial notice).
19
   42 U.S.C.A. § 1983 (West 2020).
20
   “Under color” of state law has the same meaning as “state action.” See Rendell-Baker v. Kohn,
457 U.S. 830, 838 (1982) (“‘In cases under § 1983, “under color” of law has consistently been
treated as the same thing as the “state action” required under the Fourteenth Amendment.’”)
(quoting U.S. v. Price, 383 U.S. 787, 794 n. 7 (1966)).
                                               5
constitutional standards because the U.S. Constitution “constrains governmental
action ‘by whatever instruments or in whatever modes that action may be taken.’”21
        The U.S. Supreme Court has employed various approaches to determine
whether a private entity is a state actor for purposes of Section 1983, and thus there
is “no single test to identify state actions and state actors.”22 However, all of these
approaches require that the reviewing court determine whether the private entity’s
conduct is “‘fairly attributable to the State.’”23 In this case, an application of each
of these tests demonstrates that Defendants are not state actors for purposes of
Section 1983 because their actions were not fairly attributable to the State.

               1. Defendants are not state actors because the State did not create
                  the Fire Company, nor did it control the Fire Company’s
                  Board.
        Pursuant to one of the state actor tests provided by U.S. Supreme Court
jurisprudence, the reviewing court must consider whether the entity in question is
controlled by the government.             In Lebron v. National Railroad Passenger
Corporation, Amtrak had denied the petitioner’s request to place a political
advertisement on one of Amtrak’s billboards.24 The petitioner filed suit, arguing that
Amtrak was subject to the requirements of the U.S. Constitution as a federal entity.25
The issue before the Court was whether Amtrak was a state actor pursuant to Section
1983.




21
   Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 392 (1995) (quoting Ex parte Virginia, 100
U.S. 339, 346-47 (1880)).
22
   Brentwood Acad. v. Tennessee Secondary Sch. Athletic Ass’n, 531 U.S. 288, 294 (2001).
23
   Rendell-Baker, 457 U.S. at 838 (quoting Lugar v. Edmonson Oil Co., 457 U.S. 922, 937 (1982)).
24
   513 U.S. at 377.
25
   Id. at 378-79.
                                               6
       Upon review, the Court noted that Amtrak was created by Congress26 to
further the federal government’s objectives. 27             The federal government had
appointed a majority of Amtrak’s board of directors and owned all of Amtrak’s
preferred stock,28 thereby subjecting Amtrak to federal government control. 29 These
facts rendered Amtrak “no different from the so-called independent regulatory
agencies,” which are likewise controlled and created by the federal government. 30
For these reasons, the Court held that Amtrak was part of the government for
purposes of the petitioner’s lawsuit.31
       Here, the Fire Company was not created by a special act of the General
Assembly. Thus, there is no State statute subjecting the Fire Company to the
“direction and control” of State officials.32 Moreover, Dufresne concedes that the
State of Delaware has not reserved to itself appointment rights over the Fire
Company’s Board. 33 Therefore, pursuant to the Lebron test, Defendants are not state
actors.

               2. Defendants are not state actors because the Fire Company does
                  not perform a traditional and exclusive government function.
       Under a second test provided by the U.S. Supreme Court, the reviewing court
must determine whether the private entity performs a function that is traditionally


26
   Former 45 U.S.C.A. §§ 541-545 (West 2020) (repealed by Pub.L. 103-272, § 7(b), July 5, 1994,
108 Stat. 1379).
27
   See Lebron, 513 U.S. at 383 (“Congress established Amtrak in order to avert the threatened
extinction of passenger trains in the United States.”).
28
   Six of Amtrak’s eight externally named directors were appointed by the President of the United
States, and the two other externally named directors were appointed by the United States as
Amtrak’s sole preferred shareholder. The final director, named internally, was appointed by the
other eight members of the board. Id. at 385, 397-98.
29
   Id. at 397.
30
   Id. at 398.
31
   Id. at 399.
32
   See id. at 398 (Amtrak “is established and organized under federal law for the very purpose of
pursuing federal governmental objectives, under the direction and control of federal governmental
appointees.”).
33
   Answering Br. at 11.
                                               7
the exclusive duty of the state.34 In Manhattan Community Access Corporation v.
Halleck, the Supreme Court considered whether a non-profit private corporation
operating a public access cable channel was a state actor under Section 1983. 35
Employing the “public function” test, the Court determined that a private actor may
be considered a state actor if it “exercises ‘powers traditionally exclusively reserved
to the State.’”36 In other words, the government “must have traditionally and
exclusively performed the function.” 37 Because the Court found that the operation
of public channels on a cable system was not a traditional and exclusive
governmental function, it concluded that the private corporation was not a state
actor.
         Although Dufresne alleges that firefighting is “a public duty,” 38 he has cited
no authority for that proposition, and more importantly, he has failed to cite any
authority, statutory or otherwise, indicating that the State has traditionally and
exclusively performed that function in Delaware. Moreover, the U.S. District Court
for the District of Delaware has held that firefighting in Delaware is not a traditional
and exclusive governmental function.39 This Court similarly holds that firefighting
is not a traditional and exclusive public function in this State, and therefore that
Defendants cannot be deemed state actors on this basis.


34
   See Manhattan Cmty. Access Corp. v. Halleck, -- U.S. --, 139 S.Ct. 1921, 1928-29 (2019) (“It is
not enough that the federal, state, or local government exercised the function in the past, or still
does. And it is not enough that the function serves the public good or the public interest in some
way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-
action precedents, the government must have traditionally and exclusively performed the
function.”) (citing Rendell-Baker, 457 U.S. at 842).
35
   Id. at 1926.
36
   Id. at 1928 (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)).
37
   Id. at 1929 (emphasis in original) (citing Rendell-Baker, 457 U.S. at 842; Jackson, 419 U.S. at
352-53; Evans v. Newton, 382 U.S. 296, 300 (1966)).
38
   Second Am. Compl. at ¶ 34.
39
   See Ehart v. Odessa Fire Co., 2005 WL 348311, at *4 (D. Del. Feb. 2, 2005) (in finding that a
volunteer fire company was not a state actor pursuant to Section 1983, court noted that “with the
exception of the City of Wilmington, firefighting in Delaware has never been traditionally the
exclusive prerogative of the State.”).
                                                 8
       Several federal courts in neighboring jurisdictions have held that a volunteer
fire company is a state actor for purposes of Section 1983. Three of these courts
based their holdings upon a finding that firefighting is a traditional and exclusive
public function under the laws of the respective states involved and upon other
factors not present in this case. A fourth decision is distinguishable on its facts.
       In Mark v. Borough of Hatboro, a member of a Pennsylvania volunteer fire
company had set fire to the plaintiff’s property, 40 and the plaintiff subsequently
brought an action under Section 1983 against the fire company.41 The U.S. Court of
Appeals for the Third Circuit, in holding that the fire company was a state actor,
found that firefighting was a duty of the Commonwealth of Pennsylvania pursuant
to well-established Pennsylvania case authority.42             The court also relied upon
additional factors, i.e., that the fire company had a contract with the borough to
provide fire protection, rendering it the borough’s “duly appointed fire company”;
that the borough had control over the fire company’s budget; and that the borough
had imposed a fire tax, which provided funding for the company.43
       In Eggert v. Tuckerton Volunteer Fire Company No. 1, a New Jersey volunteer
fire company had limited the plaintiff’s involvement with the company following
the plaintiff’s publication of an article criticizing the company’s response to a
residential fire.44    The plaintiff filed suit, alleging violation of several of his
constitutional rights,45 and the U.S. District Court for the District of New Jersey
determined that the defendant volunteer fire company was a state actor for purposes



40
   51 F.3d 1137 (3d Cir. 1995), cert. denied, 516 U.S. 858 (1995).
41
   Id. at 1140.
42
   Id. at 1145.
43
   Id. at 1147, 1148. The court’s holding that the fire company was a state actor was also dicta
because the court subsequently found that the firefighter-arsonist was not acting under the fire
company’s direction, and therefore was not a state actor, when he committed the arson. See id. at
1151.
44
   938 F.Supp. 1230, 1232 (D.N.J. 1996).
45
   Id. at 1232-33.
                                               9
of Section 1983. 46 The Eggert court noted that New Jersey state courts consistently
recognize that firefighting is a governmental function, 47 and further that New Jersey
statutory authority endows municipalities with the authority to contract with
volunteer fire companies to perform firefighting services and to supervise and
control the membership of contracted fire companies,48 indicating that the New
Jersey legislature “inten[ded] to attribute the actions of a volunteer fire company to
the state.”49 Additionally, New Jersey law expressly states that in discharging their
duties, the fire company’s members are exercising a governmental function.50
       In Gibson v. Hurleyville Fire Company No. 1, the plaintiff was denied
membership with a New York volunteer fire company, and subsequently filed a
complaint against the company alleging violation of her rights under the U.S.
Constitution.51 The U.S. District Court for the Southern District of New York held
that the fire company was a state actor because it was performing a governmental
function. 52 In support of this decision, the court relied upon prior authority from the
Second Circuit providing that firefighting in Connecticut and New York is an
exclusive governmental function. 53
       The courts in Mark, Eggert, and Gibson all based their decisions, at least in
part, on a finding that in the states involved, firefighting is the duty or function of
the government, i.e., a traditional and exclusive governmental function. That is not
the case in Delaware. In addition, the Mark and Eggert decisions relied upon state-
mandated or government-initiated contractual relationships between governmental
bodies and fire companies, and governmental control over fire companies’ budgets


46
   Id. at 1240.
47
   Id. at 1238.
48
   Id. at 1237-39.
49
   Id. at 1238.
50
   Id. at 1237.
51
   1 F.Supp.2d 329, 331 (S.D. N.Y. 1998).
52
   Id.
53
   Id.
                                            10
and membership, that is not reflected in the allegations of the Second Amended
Complaint.
       In Goldstein v. Chestnut Ridge Volunteer Fire Company, the U.S. District
Court for the District of Maryland relied neither upon the public function test, nor
upon general findings of state control over and involvement with volunteer fire
companies, in reaching its conclusion that volunteer fire companies in Maryland are
state actors pursuant to Section 1983. 54 Nonetheless, Goldstein is distinguishable
because the court held that, after making the initial determination of state actor
status, a court must engage in a “second inquiry” regarding whether “the conduct at
issue in the litigation peculiarly relates to the defendant’s performance of a public
function.”55 In this case, Dufresne has advanced no claim that the alleged conduct
at issue, including the termination of his membership and the defamation, were
related to the alleged public function of firefighting. 56
       Finally, although no Delaware state court has considered the issue of whether
volunteer fire companies and their agents are state actors for purposes of Section
1983, a Delaware court, specifically the Court of Common Pleas, has determined
that a fire company’s representative cannot be considered a state actor in the criminal
context. In State v. Walker, the defendant filed a motion to suppress arguing that a
deputy fire chief of a Delaware volunteer fire company who had conducted a traffic
stop of the defendant was a state actor.57 The court rejected this argument, holding
that the deputy chief was not a state actor because there was no evidence that the
deputy chief had acted under the direction of law enforcement in conducting the



54
   984 F.Supp. 367, 372 (D. Md. 1997), aff’d, 218 F.3d 337 (4th Cir. 2000), cert. denied, 531 U.S.
1126, 1152 (2001).
55
   Id. at 373.
56
   See Ehart, 2005 WL 348311, at *5 n. 6 (Goldstein distinguishable because plaintiff had not
alleged that he had been terminated for communications related to defendants’ purported public
function).
57
   2018 WL 5255302, at *2 (Del. Com. Pl. Oct. 16, 2018).
                                               11
stop.58 Although the court’s decision does not explicitly mention Section 1983,
resolves a criminal matter, and is from a lower court, it nevertheless is significant
because it underscores the fact that no Delaware court has found that a volunteer fire
company or one of its members is a state actor.

                3. Defendants are not state actors because the State was not
                   involved with the conduct that Dufresne alleges in the Second
                   Amended Complaint.

       Under a third set of tests utilized by the U.S. Supreme Court, the reviewing
court must determine whether the State was involved in the challenged conduct,
namely, whether (1) the State compelled or coerced the challenged conduct; 59 (2)
there was a “close nexus” between the State and the challenged action; 60 or (3) there
was “joint participation” between the State and the private entity. 61
       First, in Blum v. Yaretsky, the Court applied, among others, the compulsion or
coercion test to determine whether a private nursing home participating in Medicaid
was a state actor. Once a patient in the nursing home was admitted and receiving
Medicaid, physicians employed by the nursing home would decide whether the
patient should be moved to a facility providing a different level of care.62 In response
to the transfers, some of the patients filed suit against the state in an attempt to hold
the government officials controlling Medicaid liable for the actions of the nursing
home physicians. 63 Even though the nursing home physicians used a state-created
form to evaluate patients and render decisions regarding transfers, the Court
nevertheless found that the physicians were not state actors because, among other

58
   Id. at *2-3.
59
    See Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (“[O]ur precedents indicate that a State
normally can be held responsible for a private decision only when it has exercised coercive power
or has provided such significant encouragement, either overt or covert, that the choice must in law
be deemed to be that of the State.”).
60
   Brentwood Acad., 531 U.S. at 295.
61
   Lugar, 457 U.S. at 941.
62
   Blum, 457 U.S. at 995.
63
   Id. at 995-96.
                                                12
factors, “the physicians, and not the forms, make the decision about whether the
patient’s care is medically necessary.” 64 Thus, the Court found that the state did not
compel or coerce the challenged conduct.65
       Here, Dufresne has failed to allege that the State coerced, compelled, or even
encouraged Defendants to terminate his membership, report his alleged misconduct
to the police, or make defamatory statements about him.66 Therefore, this test does
not support a finding that the Fire Company or its Board members were state actors.
       Second, in Brentwood Academy v. Tennessee Secondary School Athletic
Association, the Court applied the “close nexus” test to determine whether an athletic
association was a state actor.67 Although the athletic association was a private entity,
eighty-four percent of its members were employees of the state acting in their official
capacities.68 The Court held that “state action may be found if, though only if, there
is such a ‘close nexus between the State and the challenged action’ that seemingly
private behavior ‘may be fairly treated as that of the State itself.’”69 In other words,
if there is “pervasive entwinement” between the private entity and the public
institution, then the reviewing court may properly apply constitutional standards to
the private entity. 70 This requirement is designed to ensure that a private entity is
held to constitutional standards only when the state is “responsible” for the
challenged conduct.71 The Court concluded that the athletic association was a state
actor because the members who were state officials were so numerous that they
essentially managed and controlled the association through their decisions.72


64
   Id. at 1006.
65
   Id. at 1005.
66
   See Rendell-Baker, 457 U.S. at 841 (state action not found where decisions of state-regulated
private entities “were not compelled or even influenced” by state regulations).
67
   531 U.S. at 290-91.
68
   Id. at 291.
69
   Id. at 295 (quoting Jackson, 419 U.S. at 351).
70
   Id. at 298.
71
   Id. at 295 (citing Blum, 457 U.S. at 1004).
72
   Id. at 298-99.
                                              13
        In this case, Dufresne fails to allege a close nexus between the State and the
challenged action sufficient to demonstrate a pervasive entwinement between the
Fire Company and the State, nor does he allege that the State effectively controls the
Board, the Fire Company, or its membership. Furthermore, there is no contention
that the State, like the public membership of the athletic association in Brentwood,
“overwhelmingly perform[s] all but the purely ministerial acts by which the [Fire
Company] exists and functions.”73 Indeed, there is no claim that the State plays any
role in the management or day-to-day activity of the Fire Company.                              Finally,
Dufresne does not allege that the State was responsible for the misconduct alleged
in his Complaint. Therefore, it would be improper to hold Defendants liable for their
alleged actions under a constitutional rubric to which they were not bound.
        Third, in Lugar v. Edmonson Oil Company, the Court applied the “joint
participation” test to determine whether a private creditor utilizing a state statute to
obtain a debtor’s property was a state actor. 74 The statute required the creditor to
obtain a writ of prejudgment attachment and then have the sheriff enforce the writ. 75
The Court noted that the legislature had pre-ordained the deprivation procedure
followed by the creditor and that the sheriff had assisted with the deprivation,76 and
held that this constituted “joint participation” and therefore that the creditor was a
state actor.77
        However, Lugar is unpersuasive because the Court limited its holding to the
context of prejudgment attachment – a factual scenario not present here.78 Even


73
   Id. at 300.
74
   Lugar, 457 U.S. at 924; see also id. at 941 (“[W]e have consistently held that a private party's
joint participation with state officials in the seizure of disputed property is sufficient to characterize
that party as a ‘state actor’ for purposes of the Fourteenth Amendment.”).
75
   Id. at 924.
76
   Id. at 924, 937, 940-41.
77
   Id. at 942.
78
   Id. at 939 n. 21; see also Revis v. Meldrum, 489 F.3d 273, 289-90 (6th Cir. 2007) (noting that
the Sixth Circuit has only applied Lugar to cases involving prejudgment attachment or garnishment
proceedings).
                                                   14
assuming arguendo that the holding of Lugar applies to the facts of this case,
Dufresne has failed to allege that the State acted jointly with Defendants to perform
the alleged misconduct. Indeed, unlike in Lugar, Defendants did not follow a
statutory scheme in their alleged actions against Dufresne, and the State did not assist
Defendants in committing the alleged actions. Therefore, the “joint participation”
test does not warrant a finding that Defendants were state actors.

               4. Even if Defendants were heavily regulated or financed by the
                  State, or both, it would not compel the conclusion that the Fire
                  Company was a state actor.
       The U.S. Supreme Court has repeatedly found that extensive regulation or
financial support of a private entity by the state does not in and of itself render the
private entity a state actor. In Jackson v. Metropolitan Edison Co., the Court found
that a heavily-regulated private utility company was not a state actor.79 In Rendell-
Baker v. Kohn, the Court found that a heavily-regulated private school that had
received at least ninety percent of its funding in the years preceding the events in
question, and ninety-nine percent in one year, was not a state actor.80 In Blum, the
Court found that a heavily-regulated private nursing home that was primarily funded
by the state was not a state actor.81
       In this case, although Dufresne alleges State regulation of the Fire Company,
he fails to allege regulation at the level present in Jackson, Rendell-Baker, and Blum.
However, even if this were present, it would not render Defendants state actors, as
extensive government regulation alone is not dispositive in determining whether the




79
   Jackson, 419 U.S. at 358-59; see also id. at 350-51 (private business subject to extensive and
detailed state regulation is not necessarily a state actor).
80
   Rendell-Baker, 457 U.S. at 832, 843.
81
   Blum, 457 U.S. at 995, 1011.
                                               15
entity in question is a state actor.82 Additionally, even if the Fire Company were
almost entirely funded by the State, this would not render it a state actor. 83

                5. The Supreme Court’s decision in Burton v. Wilmington Parking
                   Authority84 does not support Dufresne’s argument that
                   Defendants are state actors.

       In Burton, the Wilmington Parking Authority – a public body85 – leased space
to a private coffee shop in a building that was demonstrably public.86                            The
Wilmington Parking Authority had agreed to make repairs to the premises and
furnish named utilities in exchange for annual rent.87 Subsequently, the coffee shop
refused to serve the appellant, Mr. Burton, on the basis of his race.88 The plurality
of the Court held that the State had “so far insinuated itself into a position of
interdependence” with the coffee shop that it must be considered “a joint participant”
in the alleged actions. 89
       Here, Burton is unpersuasive because its holding is confined to its own facts. 90
Because the distinctive facts of Burton are not reflected in the allegations of the
Second Amended Complaint – Dufresne does not allege that the Fire Company

82
   Jackson, 419 U.S. at 350-51; Rendell-Baker, 457 U.S. at 841-42; Blum, 457 U.S. at 1004.
83
   See Ehart, 2005 WL 348311, at *3 (citing Rendell-Baker, 457 U.S. at 841, where virtually all
of school’s income came from the government, yet the receipt of these funds did not automatically
render the school’s actions those of the state).
84
   365 U.S. 715 (1961).
85
   Id. at 717.
86
   See id. at 720 (“Upon completion of the building, the Authority located at appropriate places
thereon official signs indicating the public character of the building, [and] flew from mastheads
on the roof both the state and national flags.”).
87
   Id.
88
   Id. at 716.
89
   Id. at 725; see Jackson, 419 U.S. at 357 (referring to facts of Burton as “symbiotic relationship”).
90
   See Burton, 365 U.S. at 725-26 (“[T]he conclusions drawn from the facts and circumstances of
this record are by no means declared as universal truths on the basis of which every state leasing
agreement is to be tested. . . . [W]hat we hold today is that when a State leases public property in
the manner and for the purpose shown to have been the case here, the proscriptions of the
Fourteenth Amendment must be complied with by the lessee as certainly as though they were
binding covenants written into the agreement itself.”); accord Jackson, 419 U.S. at 358 (Burton’s
holding “limited to lessees of public property”); see also Crissman v. Dover Downs Entm’t Inc.,
289 F.3d 231, 244 (3d Cir. 2002) (Burton limited to its facts).
                                                  16
leased property from the government – Burton does not support a finding that
Defendants are state actors. Moreover, even if the facts of Burton were reflected in
Dufresne’s allegations, its holding would be inapplicable because Dufresne has
failed to allege facts sufficient to support a finding that the State has “insinuated
itself into a position of interdependence” with the Fire Company, where the financial
success of the Fire Company directly benefits the State in a way similar to the
situation in Burton. Likewise, the pleadings at bar do not demonstrate a “symbiotic
relationship” between the Fire Company and the State because Dufresne has failed
to indicate such a relationship.

                6. While the weight of Supreme Court precedent establishes that
                   Defendants are not state actors, Ehart is also persuasive.
       In Ehart, the plaintiff filed suit pursuant to Section 1983, claiming that the
Odessa Fire Company had violated his constitutional rights when its board of
directors terminated him from membership. 91 The U.S. District Court for the District
of Delaware, upon review of the complaint, granted the defendants’ motion for
summary judgment, finding that the Odessa Fire Company had not acted under color
of state law for purposes of Section 1983 when it terminated the plaintiff’s
membership.92
       In support of its decision, the Ehart Court utilized the three-element test set
forth in Rendell-Baker to determine whether an entity had acted under color of state
law and was therefore subject to liability under Section 1983: “(1) the extent to
which the State funded the [entity in question]; (2) the extent to which the challenged




91
  Ehart, 2005 WL 348311, at *1-2.
92
  Id. at *4, *7. The court in Ehart converted the motion to dismiss to one for summary judgment
because the defendants referred to matters outside the pleadings. Id. at *2. While Ehart was a
summary judgment decision, and the decision in this case, by contrast, is based only upon the
pleadings, the legal principles from Ehart are transferable, including its analysis of Rendell-Baker.
                                                 17
activity was regulated by the State; and (3) whether the [entity in question]
performed a public function.”93
       Applying this test to the present case, the first element regarding public
funding is not apparent. In Ehart, the court relied upon facts in the record that
revealed the Odessa Fire Company’s funding; the Second Amended Complaint, by
contrast, fails to address the sources and levels of the Fire Company’s funding.
However, looking to Rendell-Baker, the court in Ehart noted that even if virtually
all of a private entity’s income comes from the state, that does not render the private
entity a state actor.94 Likewise, as explained supra, if the pleadings in the present
case had alleged that nearly all of the Fire Company’s funding had come from the
State of Delaware, this fact would not compel the conclusion that the Fire Company
is a state actor for purposes of Section 1983.
       The second and third elements of the Rendell-Baker test as applied by the
court in Ehart, however, are applicable. Regarding the second element, Dufresne
has failed to allege that the challenged conduct, i.e., the violation of his due process
rights, was, in the words of the Ehart court, “compelled or even influenced by any
state regulation.”95 Regarding the third element, firefighting is not the exclusive
prerogative of the State of Delaware and is therefore not a public function.96



93
   Ehart at *3. The Court in Rendell-Baker also utilized a fourth factor, namely whether the entity
in question had a “symbiotic relationship” with the State. Rendell-Baker, 457 U.S. at 842-43.
Here, as in Ehart, there is no symbiotic relationship between the fire company at issue and the
State of Delaware. Ehart, 2005 WL 348311, at *3 n. 3; see supra discussion pp. 16-17.
94
   Id. at *3.
95
   Id. at *4. Dufresne has alluded to “[s]everal statutes [that] provide Delaware’s volunteer fire
companies such as Camden-Wyoming with particular benefits and powers,” Second Am. Compl.
at ¶ 38, and “enhance[] and direct[] the organization of volunteer fire companies,” id. at ¶ 37.
Nonetheless, just as the plaintiff in Ehart was unable to point to any Delaware statutes
“regulat[ing] the Fire Company’s decision to terminate [the] plaintiff’s membership,” Ehart, 2005
WL 348311, at *4, Dufresne has pointed to no statutes compelling or influencing the challenged
actions in this case.
96
   See Ehart, 2005 WL 348311, at *4 (with exception of City of Wilmington, firefighting in
Delaware not traditional, exclusive prerogative of State).
                                                18
       Ehart is also persuasive pursuant to choice of law principles. A federal court
exercising diversity jurisdiction must follow the substantive law of the state in which
it sits.97 Consequently, it follows that the inverse of this rule applies – a state court
reviewing a federal legal issue should employ federal substantive law in the district
where it sits.98

                7. The Fire Company’s designation as a “governmental entity”
                   under the Act does not render Defendants state actors.

       Dufresne argues that because the Act, which provides tort immunity to
“governmental entities,”99 defines a volunteer fire company as such an entity, 100 the
State of Delaware has acknowledged that the Fire Company is in fact a governmental
body subject to liability under Section 1983.101 This argument is not persuasive.
Notably, the statutory scheme of the Act demonstrates that its purpose was to grant
immunity in certain circumstances to a number of entities, including volunteer fire
companies and their employees, not to declare that a fire company and its employees
are state actors for purposes of Section 1983.




97
   Collins v. Mary Kay, Inc., 874 F.3d 176, 181 (3d Cir. 2017); accord Erie R. Co. v. Tompkins,
304 U.S. 64, 78 (1938) (federal court sitting in diversity must apply substantive law of state in
which it sits because “[t]here is no federal general common law”).
98
    Delaware courts look to pronouncements of federal courts as to federal substantive law. See
Atlas Mut. Ben. Ass’n v. Portscheller, 46 A.2d 643, 646 (Del. 1945) (Delaware courts should apply
federal law to questions of due process under the U.S. Constitution); accord Klein v. Sunbeam
Corp., 93 A.2d 732, 733 (Del. Super. 1951) (due process issues should be resolved under federal
law); see also Red Maple Properties v. Zoning Comm’n of Town of Brookfield, 610 A.2d 1238,
1242 n. 7 (Conn. 1992) (state court, upon review of Section 1983 claim, adopted approach of
Second Circuit because “[i]t would be a bizarre result if this court adopted the [state court] analysis
when in another courthouse, a few blocks away, the federal court, being bound by the Second
Circuit rule, required the [federal court] test. We do not believe that when Congress enacted the
concurrent jurisdiction provision of § 1983 that it intended to create such a disparate treatment of
plaintiffs depending on their choice of a federal or state forum.”) (internal quotations and citations
omitted).
99
   10 Del. C. § 4011(a).
100
    Id. § 4010(2).
101
    Answering Br. at 10.
                                                  19
          Furthermore, as demonstrated supra, the application of the legal principles
developed by U.S. Supreme Court jurisprudence demonstrates that Defendants
should not be designated as state actors, particularly since there is no allegation in
the Second Amended Complaint that the State was in any way involved with the
challenged actions. The General Assembly’s designation of the Fire Company as a
“governmental entity” cannot overcome this fact.
          According to the Lebron Court, the fact that Congress had designated Amtrak
a private corporation in the enabling legislation did not compel the conclusion that
Amtrak was a nongovernmental entity:
                 [I]t is not for Congress to make the final determination of
                 Amtrak's status as a Government entity for purposes of
                 determining the constitutional rights of citizens affected
                 by its actions. If Amtrak is, by its very nature, what the
                 Constitution regards as the Government, congressional
                 pronouncement that it is not such can no more relieve it of
                 its First Amendment restrictions than a similar
                 pronouncement could exempt the Federal Bureau of
                 Investigation from the Fourth Amendment. 102

In other words, it is up to the courts, not the legislature, to determine whether an
entity is a state actor, and thus subject to constitutional requirements, based upon the
tests promulgated by the Supreme Court.
          The same logic applies here in reverse:       the General Assembly cannot
transform private entities into arms of the government, or state actors of any type,
by labeling them “governmental entities” for purposes of the Act’s provision of
immunity. The U.S. Supreme Court has never held that if a state statute has labeled
a private entity a governmental entity, then the private entity, ipso facto, is a state
actor for purposes of Section 1983. In other words, Supreme Court jurisprudence
requires that the court review the relevant characteristics and actions of the private
entity in question and determine whether the state was involved in the control of the


102
      513 U.S. at 392.
                                             20
entity and in the challenged conduct itself, not that the court simply determine
whether the private entity was labeled “governmental” under a state statute.
       In Eggert, the court noted that the provision of governmental immunity to
volunteer fire companies by New Jersey state law supported the finding that the
volunteer fire company was a state actor.103 However, the Eggert Court’s holding,
as noted supra, was based on New Jersey law, including case authority recognizing
firefighting as a public function and statutory provisions allowing municipalities to
contract with fire companies for the provision of firefighting services and placing
members under the supervision of municipalities.104 Here, by contrast, firefighting
is not a public function, and Dufresne has cited no Delaware law that provides for
contractual relationships between a municipality and a volunteer fire company, or
for supervision of the company’s membership by a contracting municipality.
Therefore, Eggert does not point to a different conclusion on this issue.

           B. The Fire Company, and the individual Defendants in their official
              capacities, are immune from Dufresne’s defamation claims under
              the Act.105
       In Count III of the Second Amended Complaint, Dufresne has asserted state-
law claims for defamation against Defendants. The Act states that “all governmental
entities and their employees shall be immune from suit on any and all tort claims
seeking recovery of damages,”106 and it designates a “registered volunteer fire
compan[y]” as a “[g]overnmental entity” for purposes of the Act.107 The Act further
provides a non-exclusive list of claims for which a governmental entity is immune


103
    938 F.Supp. at 1239.
104
    Id. at 1237-39.
105
    Dufresne has failed to respond in his written submissions to Defendants’ arguments regarding
Defendants’ immunity under the Act from Dufresne’s defamation claims. Nevertheless, the Court
will provide a full legal analysis of this issue for the parties’ benefit and for purposes of potential
appellate review.
106
    10 Del. C. § 4011(a).
107
    Id. § 4010(2).
                                                  21
from liability. 108 Finally, the Act carves out three limited circumstances in which a
“governmental entity” may be liable for negligent acts or omissions causing property
damage, bodily injury, or death. 109
       As noted supra, the Fire Company is designated as a “governmental entity”
pursuant to the Act because it is a registered volunteer fire company. 110 Therefore,
for purposes of the Act, Dufresne’s defamation claim against the Fire Company is
barred because it is a tort claim against a “governmental entity” and falls outside the
exceptions to immunity enumerated in Section 4012. 111 Indeed, even if one of the

108
    See id. § 4011(b) (“Notwithstanding § 4012 of this title, a governmental entity shall not be
liable for any damage claim which results from: (1) The undertaking or failure to undertake any
legislative act, including, but not limited to, the adoption or failure to adopt any statute, charter,
ordinance, order, regulation, resolution or resolve. (2) The undertaking or failure to undertake any
judicial or quasi-judicial act, including, but not limited to, granting, granting with conditions,
refusal to grant or revocation of any license, permit, order or other administrative approval or
denial. (3) The performance or failure to exercise or perform a discretionary function or duty,
whether or not the discretion be abused and whether or not the statute, charter, ordinance, order,
resolution, regulation or resolve under which the discretionary function or duty is performed is
valid or invalid. (4) The decision not to provide communications, heat, light, water, electricity or
solid or liquid waste collection, disposal or treatment services. (5) The discharge, dispersal, release
or escape of smoke, vapors, soot, fumes, acids, alkalines, toxic chemicals, liquids or gases, waste
materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any
watercourse or body of water, except as provided in § 4012(3) of this title. (6) Any defect, lack of
repair or lack of sufficient railing in any highway, townway, sidewalk, parking area, causeway,
bridge, airport runway or taxiway, including appurtenances necessary for the control of such ways
including but not limited to street signs, traffic lights and controls, parking meters and
guardrails.”).
109
    See id. § 4012 (“A governmental entity shall be exposed to liability for its negligent acts or
omissions causing property damage, bodily injury or death in the following instances: (1) In its
ownership, maintenance or use of any motor vehicle, special mobile equipment, trailer, aircraft or
other machinery or equipment, whether mobile or stationary. (2) In the construction, operation or
maintenance of any public building or the appurtenances thereto, except as to historic sites or
buildings, structures, facilities or equipment designed for use primarily by the public in connection
with public outdoor recreation. (3) In the sudden and accidental discharge, dispersal, release or
escape of smoke, vapors, soot, fumes, acids, alkalines and toxic chemicals, liquids or gases, waste
materials or other irritants, contaminants or pollutants into or upon land, the atmosphere or any
watercourse or body of water.”).
110
    Id. § 4010(2). The Court takes judicial notice of the fact that the Fire Company is a registered
fire company for purposes of the Act because this matter is not subject to reasonable dispute. See
In re General Motors, 897 A.2d at 169 (“The trial court may also take judicial notice of matters
that are not subject to reasonable dispute.”).
111
    See Alexander v. Town of Cheswold, 2007 WL 1849089, at *4 (Del. Super. June 27, 2007)
(holding defendant governmental entity immune from plaintiff’s defamation claim under the Act).
                                                  22
enumerated exceptions were involved here, Dufresne has not alleged property
damage, bodily injury, or death.
       The Act also bars Dufresne’s claims against the individual Defendants to the
extent they were acting as “employees” of the Fire Company. The Act defines an
“employee” of a “governmental entity” as one who “act[s] on behalf of a
governmental entity in any official capacity . . . including . . . volunteer firefighters
and rescue squad members . . . .”112 The Act provides for a limited exception to
employee immunity for acts or omissions resulting in property damage, bodily
injury, or death,113 but as explained supra, Dufresne has not alleged such damages.
Therefore, the individual Defendants are immune from liability for Dufresne’s
defamation claims except to the extent they were not acting on behalf of the Fire
Company when they engaged in the challenged conduct. 114

           C. Dufresne is not entitled to additional discovery before the Court
              renders a decision on Defendants’ Motion.

       Dufresne argues that he should be “given an opportunity to conduct Discovery
to explore all possible connections that the State has to the Camden-Wyoming Fire
Company which only can be revealed during the Discovery process.” 115 The Court
fails to see, however, how further discovery would assist Dufresne in resisting
Defendants’ Motion.
       In reviewing this Motion, the Court has accepted the allegations of the Second
Amended Complaint as true 116 and drawn all reasonable inferences in Dufresne’s
favor.117 Dufresne makes no claim that the Fire Company is a governmental body

112
    10 Del. C. § 4010(1).
113
    Id. § 4011(c).
114
     The Second Amended Complaint alleges that the individual Defendants “also made . . .
defamatory statements on their own personal time unrelated to times they were acting on behalf of
the Fire Company.” Second Am. Compl. ¶ 9.
115
    Answering Br. at 15.
116
     This includes the statutory provisions referenced in paragraph thirty-eight of the Second
Amended Complaint.
117
    Savor, 812 A.2d at 896-97.
                                               23
created by the State, and he has conceded that no special act of the General Assembly
has granted the State appointment powers over the Board. 118 Furthermore, he has
not cited any case or statutory authority establishing that firefighting is a traditional
and exclusive public function in Delaware. Finally, he has not alleged that the State
compelled or even participated in the challenged conduct, or that there was a
pervasive entwinement between government officials and the Fire Company of the
type found in Brentwood Academy.
          In short, the allegations of the Second Amended Complaint, even construed
in Dufresne’s favor, fail to demonstrate either control by the State over the Fire
Company or involvement by the State in the alleged misconduct. Dufresne has
provided no explanation of how additional inquiry into “possible connections”
between the State and the Fire Company would assist him in filling that void.
Accordingly, the Court will deny this request.

                                     IV. CONCLUSION
          For the foregoing reasons, Dufresne cannot proceed with his Section 1983
claims against Defendants. Not only is the Fire Company not a governmental entity
created and controlled by the State, but Dufresne has failed to establish that
firefighting is a traditional and exclusive public function in Delaware, or that the
State either compelled or participated in the challenged conduct, or that there was a
pervasive entwinement between State officials and Defendants. In addition, the Act
provides immunity to the Fire Company, and to the individual Defendants in their
official capacities, from Dufresne’s state law claims.
          WHEREFORE, Defendants’ Motion to Dismiss the Second Amended
Complaint in Part is GRANTED.            Counts I and II of the Second Amended
Complaint are hereby dismissed. Count III of the Second Amended Complaint is
dismissed as to Dufresne’s claims against the Fire Company and as to his claims


118
      Answering Br. at 11.
                                           24
against the individual Defendants in their official capacities. Dufresne may proceed
against the individual Defendants under Count III to the extent that they were not
acting on behalf of the Fire Company when (and if) they engaged in the alleged
conduct.
      IT IS SO ORDERED.


                                                    /s/ Noel Eason Primos
                                                            Judge



NEP/wjs
Via File & ServeXpress
oc: Prothonotary
      Counsel of Record
      file




                                         25
