       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                 IN AND FOR NEW CASTLE COUNTY

SUSAN HIGNUTT,                       )
                                     )
                  Plaintiff,         )
                                     )
             v.                      )
                                     )    C.A. No. N15C-01-229 CLS
KENCREST SERVICES,                   )
INC.                                 )
                                     )
                   Defendant.        )


                        Date Decided: December 1, 2015

            On Defendant Kencrest Services Inc.’s Motion to Dismiss.
                  DENIED in part and GRANTED in part.

                                   ORDER


Patrick C. Gallagher, Esquire, Curley, Dodge & Funk, LLC, 250 Beiser Boulevard,
Suite 202, Dover, Delaware, 19904. Attorney for Plaintiff.

Justin P. Callaway, Esquire, Salmon, Ricchezza, singer & Turchi, LLP, 222
Delaware Avenue, Suite 700, Wilmington, Delaware, 19801. Attorney for
Defendant.




Scott, J.
       On this 1st day of December, 2015, and upon Defendant Kencrest Services,

Inc.’s (“Kencrest”) Motion to Dismiss, the Court finds as follows:

1. This case arises from Plaintiff Susan Hignutt’s (“Ms. Hignutt”) termination of

    employment from Kencrest in February 2014.               On January 29, 2015, Ms.

    Hignutt filed a Complaint, alleging four causes of action: (1) breach of contract;

    (2) unjust enrichment; (3) Worker’s Compensation discrimination; and (4)

    breach of the covenant of good faith and fair dealing. Ms. Hignutt alleged that

    she worked for Kencrest from August 2008 until February 2014, and was paid a

    $10.71 hourly wage. Ms. Hignutt further alleged that she additionally accrued

    paid time off (“PTO”) and “limited medical leave time hours” (“LTM”) for

    each pay period, and that these two benefits do not expire. In this action, Ms.

    Hignutt seeks recovery of her accrued PTO and LTM, as well as interest,

    attorney’s fees, and punitive damages. Kencrest filed this motion to dismiss

    under Del. Super. Ct. R. 12(b)(6) on April 1, 2015.

2. When deciding a Rule 12(b)(6) motion to dismiss a complaint for failure to

    state a claim, the court must accept all well-pleaded facts as true and draw all

    reasonable inferences in favor of the nonmoving party. 1 The court will dismiss

    the complaint only if “‘it appears with reasonable certainty that the plaintiff




1
  Thomas v. Mayor & Council of City of Wilmington, 391 A.2d 203, 205 (Del. 1978); Fehl v.
J.W. Greer, Inc., 1981 WL 383065, at *1 (Del. Super. Aug. 6, 1981).
                                          2
    could not prove any set of facts that would entitle him to relief.’” 2 The court

    only considers “the well-pleaded allegations in the complaint.” 3 When “matters

    outside the pleading are presented to and not excluded by the court, the motion

    shall be treated as one for summary judgment and disposed of as provided in

    Rule 56, and all parties shall be given reasonable opportunity to present all

    material made pertinent to such a motion by Rule 56.” 4 However, the court

    may consider documents outside the pleadings without converting the motion if

    “the document is integral to a plaintiff’s claim and incorporated into the

    complaint” or if “the document is not being relied upon to prove the truth of its

    contents.”5    In those circumstances, the court may dismiss the claim “if

    allegations in the complaint or in the exhibits incorporated into the complaint

    effectively negate the claim as a matter of law.” 6

3. As to Count I Breach of Contract, Ms. Hignutt alleges that an implied-in-fact

    contract that existed due to the parties’ course of conduct. In other words, Ms.

    Hignutt provided services during her employment with Kencrest, in exchange

    for wages and benefits such as PTO and LTM.                     Contrary to Kencrest’s

2
  Doe v. Cahill, 884 A.3d 451 (Del. 2005) (quoting Ramunno v. Cawley, 705 A.2d 1029, 1034
(Del. 1998)).
3
  Id.
4
  Del. Super. Ct. Civ. R. 12(b).
5
  See Furman v. Delaware Dep't of Transp., 30 A.3d 771, 774 (Del. 2011); Vanderbilt Income &
Growth Associates, L.L.C. v. Arvida/JMB Managers, Inc., 691 A.2d 609, 613 (Del. 1996); see
also Hillman v. Hillman, 910 A.2d 262, 269 (Del. Ch. 2006) (“in certain circumstances, the court
may consider the plain terms of documents incorporated in the complaint without thereby
converting the motion into one for summary judgment”).
6
  VLIW Tech., LLC v. Hewlett-Packard Co., 840 A.2d 606, 614-15 (Del. 2003).
                                           3
      assertion, Ms. Hignutt’s breach of contract argument is not based on the

      employee handbook. Thus, Ms. Hignutt has stated a claim upon which relief

      could be granted and satisfied her burden on a motion to dismiss. 7

      Accordingly, Kencrest’s motion to dismiss Count I of the Complaint is

      DENIED.

4. Ms. Hignutt asserts Count II Unjust Enrichment, in the alternative to Count I,

      alleging that a quasi-contract existed and that Kencrest was unjustly enriched by

      its retention of those accrued PTO and LTM benefits when Ms. Hignutt was

      terminated. This claim is merely in the alternative if Ms. Hignutt’s breach of

      contract claim is not applicable, and is based on the same facts as the breach of

      contract claim. As such, and under Rule 8(a), Ms. Hignutt has satisfied her

      burden on a motion to dismiss for her unjust enrichment claim. Accordingly,

      Kencrest’s motion to dismiss Count II of the Complaint is DENIED.

5. Ms. Hignutt seeks punitive damages in Count III of the Complaint, under 19

      Del. C. § 2365. This section, however, does not provide for punitive damages.

      “Ordinarily this Court presumes that the legislature intended to exclude

      remedies not enumerated by statute.”8 Thus, Ms. Hignutt has failed to satisfy

      her burden for her punitive damages claim under Rule 12(b)(6). Accordingly,




7
    See generally, Lawrence v. Dibiase, 2001 WL 1456656 (Del. Super. Feb. 27, 2001).
8
    Meltzer v. City of Wilmington, 2008 WL 4899230, *5 (Del. Super. Aug. 6, 2008).
                                            4
   Kencrest’s motion to dismiss the punitive damages claim pursuant to 19 Del. C.

   § 2365 is GRANTED.

6. Kencrest’s motion to dismiss as to the punitive damages Ms. Hignutt seeks

   under Count IV of the Complaint is GRANTED because it was voluntarily

   withdrawn by Ms. Hignutt.

7. For the foregoing reasons, Defendant Kencrest’s Motion to Dismiss as to Count

   I is DENIED; as to Count II is DENIED; and as to punitive damages under

   Counts III and IV is GRANTED.


      IT IS SO ORDERED.

                                           /s/Calvin L. Scott
                                           Judge Calvin L. Scott, Jr.




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