      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARGARET      DAYTON,    and )
EVERETT JONES,               )
                             )
      Plaintiffs,            )
                             )
             v.              )                    C.A. No. N17C-08-100 CLS
                             )
WILLIAM COLLISON, and DOES 1 )
through 20,                  )
                             )
      Defendants.            )
                             )

                            Decided: January 24, 2018

                                     ORDER
      Plaintiffs filed a Complaint in this action on August 8, 2017. Plaintiffs allege

that over the past three years Defendants created a hazard to Plaintiffs’ property.

Plaintiffs allege that Defendants removed a “significant number of standing trees

contained within the City of Newark’s natural buffer zone” and “bush hogging of

approximately 5,000 square feet of property controlled by the City of Newark.”

Plaintiffs contend that this provided them privacy and a natural drainage area which

protected their property from flooding. They allege that the “relocation of felled

trees or cut trees result[ed] in the hindrance of natural drainage of Plaintiff’s

property.” Additionally, Plaintiffs contend that the “placement of a non-permitted

underground propane tank, in the minimum size of 400 gallons, on Defendants’


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property, adjacent to Plaintiff’s property, and the installation of certain heating

systems without permit” created a dangerous condition of property. Plaintiffs also

pled that starting in April of 2017, Defendants caused damage to Plaintiffs’ property

by removing a drain pipe and filling the reaming pipe with rocks and debris,

intentionally altering the natural grade of Defendants’ property which prevented the

natural flow of water, trimmed trees along the property line, and cleared the Buffer

Zone of naturally growing plants.

      Count I of Plaintiffs’ Complaint alleges that Defendants’ use and maintenance

of the property is a continuing nuisance, and Plaintiffs seek an injunction as well as

an award of money damages. Count II of Plaintiffs’ Complaint seeks general,

specific, and punitive damages from Defendants. Count III claims that Plaintiffs

possessed a prescriptive easement and Defendants’ have continued to obstruct the

easement and there are no adequate remedies at law for Plaintiffs injures. Finally,

Count IV of Plaintiffs’ Complaint alleges that Defendants defamed Plaintiffs, and

the slanderous comments caused injury to Plaintiffs’ reputation.

      In lieu of an answer, Defendant William Collison filed a Motion to Dismiss

this action on August 31, 2017. Defendant William Collision argues that Plaintiffs

primarily seek an injunction and a prescriptive easement and there is no remedy at

law for the alleged injuries. Thus, this Court does not have jurisdiction over those

claims. Plaintiffs filed a Response on October 19, 2017. Plaintiffs argue that

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although Plaintiffs have claimed “some equitable relief, the primary gravamen of

their Complaint is for damages.”

                               Standard of Review

      The test for sufficiency of a complaint challenged by a Rule 12(b)(6) motion

to dismiss is whether a plaintiff may recover under any reasonably conceivable set

of circumstances susceptible of proof under the complaint. 1         In making its

determination, the Court must accept all well-pleaded allegations in the complaint

as true and draw all reasonable factual inferences in favor of the non-moving party.2

The complaint must be without merit as a matter of fact or law to be dismissed. 3

Therefore, if the plaintiff can recover under any conceivable set of circumstances

susceptible of proof under the complaint, the motion to dismiss will not be granted.4

                                    Discussion

      First, Delaware law is clear that “fictitious name practice is not permitted.

This is because there is no statute or rule specifically authorizing fictitious name

practice. Filing a claim against ‘John Doe’ has no legal effect in this State.”5 Not


1
  Spence v. Funk, 396 A.2d 967, 968 (1978); see Cambium Ltd. v. Trilantic Capital
Partners III L.P., 2012 WL 172844, at *1 (Del. Jan. 20, 2012)(citing Cent. Mortg.
Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 537 (Del. 2011)).
2
  Ramunno v. Cawley, 705 A.2d 1029, 1034-36 (Del. 1998); Nix v. Sawyer, 466 A.2d
407, 410 (Del. Super. Ct.1983).
3
  Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52 (Del. 1970).
4
  Ramunno, 705 A.2d at 1034; see Cambium, 2012 WL 172844, at *1 (citing Cent.
Mortg., 27 A.3d at 537)).
5
  Haskins v. Kay, 2007 WL 4662114, at *5 (Del. Super. Sept. 27, 2007).
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only does fictitious name practice have no legal effect, its “impossible to obtain

services of process on a non-existent person.”6 Plaintiffs’ claims against “Does 1

through 20” are therefore dismissed. Next, Plaintiffs’ equitable claims are hereby

dismissed. In this State it’s “well-established that the Court of Chancery has subject

matter jurisdiction where (among other things) a party: 1) seeks an equitable remedy,

such as specific performance or an injunction, and 2) lacks an adequate remedy at

law. Indeed the ‘Court of Chancery has exclusive jurisdiction where injunctive relief

is sought’.”7 Thus this Court does not have jurisdiction over Plaintiffs’ equitable

claims and they are dismissed. For the aforementioned reasons, Defendant’s Motion

to Dismiss is GRANTED IN PART.



      IT IS SO ORDERED.

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




6
  Id.
7
  National Indus. Group (Holding) v. Carlyle Inv. Mgmt. L.L.C., 67 A.3d 373, 382
(Del. 2013)(citing Kerns v. Dukes, 707 A.2d 363, 368 (Del. 1998)). See also Johnson
v. Connections Cmty. Support Programs Inc., 2017 WL 4334151, at *2 (Del. Super.
Sept. 29, 2017)(stating that this Court “does not have the ability to grant Plaintiff
injunctive relief”).
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