      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

AMIT SHARMA,                            )
         Plaintiff,                     )
                                        )
      v.                                )     C.A. No. N18C-01-091 ALR
                                        )
STEVEN WESLEY, et. al.,                 )
        Defendants.                     )

                             Submitted: March 14, 2018
                              Decided: April 17, 2018

                       Upon Defendants’ Motion to Dismiss
                                 GRANTED

                   Upon Plaintiffs’ Motion to Amend Complaint
                                    GRANTED

             ORDER AND NOTICE PURSUANT TO RULE 41(e)

      Before the Court is a motion to dismiss filed by Defendants Steven Wesley,

Geoffrey Klopp, Michael Merson, Janet Durkee, Marc Richman, Jennifer Biddle,

Perry Phelps, Carol Evans, Julie Petroff, Christopher Klein, and Robert Coupe

(collectively, “Defendants”). Defendants move to dismiss under Superior Court

Rule of Civil Procedure 12(b)(6) (“Rule 12(b)(6)”), arguing that Plaintiff Amit

Sharma (“Plaintiff”) fails to state a claim upon which relief can be granted. Plaintiff

opposes Defendants’ motion but also argues, in the alternative, that he should be

granted leave to amend the complaint.
        Upon consideration of the facts, arguments, and legal authorities set forth by

the parties, statutory and decisional law, and the entire record in this case, the Court

hereby finds as follows:

        1.     On January 10, 2018, Plaintiff filed this action against the individual

Defendants under Title VII of the Civil Rights Act of 1964 (“Title VII”). Plaintiff

appears to allege that Defendants discriminated against Plaintiff on the basis of his

race and national origin.

        2.     Defendants now move to dismiss. Defendants argue that federal courts

have exclusive jurisdiction over Title VII actions. Defendants also argue that

Plaintiff fails to make out a claim under Title VII because Plaintiff only brought this

action against individuals, and individuals are not subject to liability under Title VII.

        3.     Plaintiff opposes Defendants’ motion. However, to the extent that the

Court finds that Plaintiff’s complaint does fail to state a claim under Title VII,

Plaintiff seeks leave to amend.

        4.     Delaware is a notice pleading jurisdiction.1 Therefore, to survive a

motion to dismiss, a complaint only needs to give general notice of the claim

asserted.2 In deciding a motion to dismiss under Superior Court Rule of Civil

Procedure 12(b)(6) (“Rule 12(b)(6)”), the Court shall accept all well-pleaded



1
    Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005).
2
    Id.
                                           2
allegations as true and make all reasonable inferences in favor of the non-moving

party.3 Factual allegations, even if vague, are well-pleaded if they provide notice of

the claim to the other party.4 The Court should deny the motion if the claimant “may

recover under any reasonably conceivable set of circumstances susceptible of

proof.”5

      5.     Federal courts do not have exclusive jurisdiction over Title VII cases.6

In Yellow Freight System, the United States Supreme Court explicitly considered

“whether federal courts have exclusive jurisdiction” over Title VII actions, and

concluded that Congress did not divest state courts of their concurrent authority to

adjudicate claims under Title VII.7 Therefore, Defendants’ argument that this Court

has no jurisdiction over Title VII claims is without merit.8

      6.     However, while a Title VII complaint may be brought in state court, it

may not be brought against individual defendants. Title VII makes it unlawful for

an “employer” to discriminate on the basis of “race, color, religion, sex, or national



3
  Ramunno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998); Spence v. Funk, 396 A.2d
967, 968 (Del. 1978).
4
  Spence, 396 A.2d at 968.
5
  Id.
6
  Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820, 821 (1990).
7
  Id.
8
  The Court notes that Defendants did not cite to the United States Supreme Court
case that are is in direct contradiction with its jurisdictional argument. The Court
presumes that Defendants’ counsel was not aware of the prevailing decisional law.
Accord Del. Lawyers’ R. Prof’l Conduct 3.3(a)(2).
                                          3
origin.”9 Title VII defines “employer” as “a person engaged in an industry affecting

commerce who has fifteen or more employees.”10 As a result, most courts have

concluded that individual employees are not subject to liability under Title VII.11

       7.     Plaintiff only brought his Title VII action against the individual

Defendants. Therefore, Plaintiff’s has not set out a claim upon which relief can be

granted.12 Accordingly, Defendants’ motion to dismiss the individual defendants

shall be granted.

       8.     Plaintiff seeks leave to amend the complaint. Under Superior Court

Rule of Civil Procedure 15, the Court should freely grant leave “when justice so

requires.”13 Plaintiff is a self-represented litigant and, as such, may be held to a less

stringent standard provided that any accommodations the Court provides do not

affect the substantive rights of other parties.14 The Court finds that it is in the interest

of justice in this case to allow Plaintiff to amend his complaint.


9
  42 U.S.C. § 2000e-2(a).
10
   42 U.S.C. § 2000e(b).
11
   See Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d
Cir. 1996), cert. denied, 521 U.S. 1129 (1997) (citing Williams v. Banning, 72 F.3d
552 (7th Cir. 1995); Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995); Gary v.
Long, 59 F.3d 1391 (D.C. Cir.), cert. denied, 516 U.S. 1011 (1995); Grant v. Lone
Star Co., 21 F.3d 649 (5th Cir.), cert. denied, 513 U.S. 1015 (1994); Miller v.
Maxwell’s Int’l Inc., 991 F.2d 583 (9th Cir. 1993), cert. denied, 510 U.S. 1109
(1994).
12
   Super. Ct. Civ. R. 12(b)(6).
13
   Super. Ct. Civ. R. 15(a).
14
   See Alston v. State, 2002 WL 184247, at *1 (Del. Super. Jan. 28, 2002); Vick v.
Haller, 1987 WL 36716, at *1 (Del. 1987).
                                         4
         9.   This Court has jurisdiction to resolve claims arising under Title VII.

Plaintiff’s complaint fails to state a claim upon which relief can be granted against

the individual defendants because individuals are not subject to liability under Title

VII. Accordingly, the individual defendants shall be dismissed. Plaintiff is granted

leave to amend the complaint to assert a properly pleaded Title VII claim within 30

days. Plaintiff is hereby notified, pursuant to Rule 41(e), that failure to file an

amended complaint shall result in a dismissal of this action for failure of Plaintiff to

diligently prosecute the action.

         NOW, THEREFORE, this 17th day of April, 2018, Defendants’ Motion to

Dismiss is hereby GRANTED and Plaintiff’s Motion to Amend the Complaint

is hereby GRANTED. The Defendants are dismissed. Plaintiff is granted 30

days to file a properly pleaded amended complaint. If an amended complaint

is not filed by May 23, 2017, this action shall be dismissed pursuant to Rule

41(e).

         IT IS SO ORDERED.

                                        Andrea L. Rocanelli
                                        ______________________________
                                        The Honorable Andrea L. Rocanelli




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