      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                   IN AND FOR NEW CASTLE COUNTY

JOHN W. CALDWELL,                          )
            Petitioner,                    )     C.A. No. N15M-07-051 VLM
          v.                               )
JUSTICE OF THE PEACE COURT                 )
NO. 13,                                    )
            Respondent,                    )
          v.                               )
JNM PERFORMANCE, LLC,                      )
            Real Party in Interest.        )

                         Submitted: September 8, 2015
                         Decided: December 30, 2015

     Upon Consideration of Respondent Justice of the Peace Court No. 13’s
                             Motion to Dismiss,
                                GRANTED.

Upon Consideration of Real Party in Interest JNM Performance, LLC’s Motion to
                Dismiss the Petition and or Amended Petition,
                                 GRANTED.

                                   OPINION

William J.P. Mulgrew, III, Esquire, Law Office of A. Dale Bowers, P.A.,
Wilmington, DE, Attorney for Plaintiff.
Joseph C. Handlon, Esquire, Department of Justice, Wilmington, DE, Attorney for
Respondent Justice of the Peace Court No. 13.
Michael P. Morton, Esquire, Michael P. Morton, P.A., Wilmington, DE, Attorney
for Real Party in Interest JNM Performance, LLC.



MEDINILLA, J.
                                               Introduction

        This case involves a Petition for Writs of Mandamus and Prohibition

(“Petition”) filed by John W. Caldwell (“Petitioner”) against Justice of the Peace

Court No. 13 and JNM Performance, LLC. Opposing parties have filed separate

Motions to Dismiss under Superior Court Civil Court Rule 12(b)(6) and argue that

Petitioner fails to state a claim upon which relief can be granted. For the reasons

stated below, the motions are GRANTED.

                                 Factual and Procedural History

        On November 24, 2014, Petitioner filed a civil complaint in Justice of the

Peace Court No. 13 (“Respondent”) against JNM Performance, LLC. (“Real Party

in Interest”). Petitioner sought civil damages and equitable relief related to the

return of his vehicle in this underlying replevin action. 1 Respondent heard the

matter on February 2, 2015, and Petitioner obtained a default judgment. Real Party

in Interest filed a Motion to Vacate Default Judgment, which was granted on

March 25, 2015, and the matter was set for trial with Respondent.

        On March 31, 2015, Petitioner filed an Amended Complaint. 2 On April 28,

2015, Real Party in Interest made a verbal motion to dismiss, inter alia, for lack of

subject matter jurisdiction. Also, on May 22, 2015, Real Party in Interest filed a
1
 Pet. for Writs of Mandamus and Prohibition at ¶ 16.
2
 Id. at ¶20 added claims to include “Damages and Statutory Relief for Unlawful Practices under the Consumer
Fraud Act,” “Replevin,” “Damages and Statutory Relief for Unlawful Practices under the Auto Repair Fraud
Prevention Act,” and “Storage Fees Void Against Public Policy During Pendency of Court Proceedings in
Replevin.”


                                                       2
Motion for Sanctions against Petitioner.

         On May 27, 2015, Respondent granted Real Party in Interest’s Motion to

Dismiss for lack of subject-matter jurisdiction. Specifically, Respondent held that

it lacked subject matter jurisdiction over the Consumer Fraud Act and the Auto

Repair Fraud Prevention claims, it was unable to issue a declaratory judgment, and

that the replevin action would go forward independent of the other claims. 3 Notice

of appeal was issued by Respondent on the same day. All appropriate parties were

notified. After the May 27 ruling, Petitioner filed various applications with

Respondent and this Court. Although somewhat difficult to follow, this Court

deems it important to highlight the choppiness of this procedural history, often

occurring through simultaneous filings, in both courts.4

         On June 24, 2015, Respondent issued its order that it would hear Party in

Interest’s Motion for Sanctions followed immediately with the replevin action on

July 31, 2015. On July 7, 2015, Petitioner re-filed, in substance, his dismissed

claims seeking damages and declaratory relief and requested consolidation of his

pending replevin action. The next day, on July 8, 2015, Petitioner filed his Petition



3
  Pet. for Writs of Mandamus and Prohibition at ¶ 31 (Respondent’s docket reads: “Justice of the Peace Court lacks
jurisdiction over cases brought under the Consumer Fraud Act and is unable to render declaratory judgments within
its limited jurisdiction; those claims are dismissed. Plaintiff’s request to amend the complaint is denied. The court
has dismissed all of Plaintiff’s case except the replevin of the vehicle in question, the counterclaim is dismissed
without prejudice.”).
4
  Respondent’s docket reflects many more entries than included in this Opinion. This Court highlights only the
more significant entries during the timeframe that Petitioner was seeking relief from this Court.


                                                          3
in this Court requesting issuance of Writs of Mandamus and Prohibition. 5 On July

9, 2015, Petitioner also filed with Respondent a “Motion for Stay of Trial Pending

the Outcome of Other Motions and Proceedings.”

         In this Court, on July 29, 2015, Petitioner filed an Ex Parte Emergency

Motion for Order to Stay [Respondent’s] Trial. This Court denied the motion

because Petitioner failed to cite a basis to warrant that the matter be heard ex parte

or to consider the motion as presented. Petitioner re-filed this Emergency Motion

on August 5, 2015, even though a trial had not been scheduled. On August 7,

2015, Petitioner filed with Respondent a Motion “for Reconsideration under the

U.S. and Delaware Constitutions.”6

         On August 14, 2015, in this Court, Petitioner filed a 70-count Amended

Petition for Writs of Mandamus and Prohibition. On the same day, Petitioner filed

with Respondent, a “Motion for Recusal and For a New Hearing or, Alternatively,

for Denial of Motion for Sanctions.” On August 19, 2015, and September 4, 2015,

both Respondent and Party in Interest filed their respective Motions to Dismiss.

On September 8, 2015, Petitioner filed his Response in Opposition as well as a

new Motion to Strike Real Party in Interest’s Motion to Dismiss the Petition

5
  Amend. Pet. for Writs of Mandamus and Prohibition at ¶1. Petitioner seeks the issuance of mandamus
commanding the exercise of subject-matter jurisdiction over his claims under the Consumer Fraud Act and the Auto
Repair Fraud Prevention Act, for declaratory relief under the Uniform Declaratory Judgments Act, or alternatively,
prohibition, compelling the consolidation of Petitioner’s claim under the Auto Repair Fraud Prevention Act as
unlawfully or improvidently dismissed. Petitioner seeks to consolidate all claims with his pending matter.
6
  Petitioner also alleges due process and equal protection infringements of federal and state constitutional rights to
support his Petition. This Court finds no merit to his allegations and does not consider them for purposes of this
dispositive motion.

                                                          4
And/Or Amended Petition.7

         A hearing was held on September 15, 2015. 8 The parties agreed to try to

resolve the matter without this Court’s consideration of the pending Motions to

Dismiss. As such, this Court stayed the matter. Unfortunately, their attempts

failed.9 The parties now renew their applications to have this Court decide this

matter. Having considered all written submissions and oral arguments, the matter

is ripe for review.

                                            Standard of Review

         A motion to dismiss for failure to state a claim upon which relief can be

granted made pursuant to Superior Court Civil Rule 12(b)(6) will not be granted if

the plaintiff may recover under any conceivable set of circumstances susceptible of

proof under the complaint. 10 All reasonable inferences shall be in favor of the non-

moving party. 11 In deciding a motion to dismiss with respect to a petition for a

writ of mandamus, this Court must consider the standards a party must meet in

obtaining a writ.12

7
  Petitioner’s Motion to Strike was filed on the same day as his Response to Motions to Dismiss on the grounds of
“redundant, immaterial, impertinent and scandalous matter and that it was untimely filed.” This Court does not
consider the Motion to Strike in this ruling where the dismissal under Rule 12(b)(6) is dispositive.
8
  Given the frenzy of filings and repetitive requests for expedited consideration from Petitioner’s counsel, this Court
asked his supervisor to participate in the hearing who agreed to address this matter with his associate and work with
opposing counsel toward resolution. On December 16, 2015, Petitioner’s counsel filed a “substitution of counsel”
notifying this Court that while he was still counsel of record, the Law Offices of Albert M. Greto would need to be
substituted with the Law Office of A. Dale Bowers, P.A.
9
  Correspondence on November 13, 2015 from Real Party in Interest’s counsel confirmed the parties were unable to
resolve the matter.
10
   Spence v. Funk, 396 A.2d 967 (Del. 1978).
11
   Rammuno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).
12
   Mell v. New Castle County, 838 A. 2d 141, 145 (Del. Super. Ct. 2003).

                                                           5
                                                      Discussion

         This Court may issue a writ of mandamus under 10 Del. C. §564.13 A writ

of mandamus is an extraordinary remedy, which this Court will not issue unless

Plaintiff establishes a clear right to the performance of a duty, that no other remedy

is available, and that the trial court has arbitrarily failed or refused to perform its

duty. 14 In addition, the issuance of a mandamus falls within judicial discretion and

is not a matter of right.15 This Court may issue a mandamus “to an inferior court,

public official, or agency to compel the performance of a duty to which the petition

has established a right.”16 Further, “when directed to an administrative agency or

public official, mandamus will issue only to require performance of a clear legal or

ministerial duty.” 17 Thus, a mandamus will not be issued to compel a discretionary

act.18 If a petitioner cannot show a clear right to the requested performance of a

duty, or if there is any doubt as to a petitioner’s right, a mandamus shall not be

issued by this Court. 19

         Petitioner sought civil damages and equitable relief against Real Party in

Interest for an action involving his vehicle. Respondent scheduled the matter and,

upon motion by Real Party in Interest, it made legal rulings regarding jurisdiction

13
   That section provides, in relevant part, that “if the Court orders that Plaintiff is entitled to the relief prayed for or
any part thereof, a peremptory writ of mandamus shall issue forthwith….” 10 Del. C. § 564.
14
   Schagrin Gas Co. v. Evans, 418 A.2d 997 (Del. 1980).
15
   Guy v. Greenhouse, 637 A.2d 287 (Del. 1993).
16
   Clough v. State, 686 A.2d 158, 159 (Del. 1996).
17
   Guy, 637 A.2d at 287.
18
   Id.
19
   Walls v. Williams, 2006 WL 1133563, *1 (Del. Super. Ct. March 28, 2006).

                                                              6
and its inability to provide Petitioner with equitable or injunctive relief.

        Respondent provided notice to Petitioner’s counsel of his right to appeal.

Instead, Petitioner submitted various applications to Respondent for consolidation,

stay of trial, reconsideration, recusal, and a new hearing. When Petitioner filed for

relief in this Court, Respondent had not been given an opportunity to decide many

of the pending issues before it. 20 Instead, dissatisfied with Respondent’s initial

rulings, he filed for this Court to compel Respondent to reach a different result.

Based on the record before this Court, this Court first finds that Petitioner cannot

show a clear right to the requested performance of a duty. Specifically, Petitioner

has not established what duty was owed to him by Respondent.

        Second, Petitioner has an adequate remedy through his de novo appeal to the

Court of Common Pleas. 21                      To the extent Petitioner seeks to challenge

Respondent’s rulings, he cannot use writs of mandamus or prohibition to compel

Respondent to rule differently. His procedural remedy is through the Court of

Common Pleas. Of concern is that Petitioner places before this Court the same

claims for relief currently pending with Respondent. As such, this Court finds that

Petitioner has an adequate legal remedy that does not warrant the issuance of a writ

of mandamus or prohibition.


20
   Petitioner filed a Motion for Recusal and For a New Hearing, or Alternatively, for a Denial of Motion for
Sanctions on August 14, 2015, which had not yet been decided by Respondent when the Petition for Writ of
Mandamus and Prohibition was filed in this Court.
21
   See 10 Del. C. § 9571(c).

                                                         7
           Finally, in the absence of a clear showing of an arbitrary refusal or failure to

act, this Court will not issue a writ of mandamus to compel a trial court to perform

a particular function, to decide a matter in a particular way, or to dictate the control

of its docket.22 Petitioner has not demonstrated an arbitrary refusal or failure to act

by Respondent. In fact, one of the requests made by Petitioner was to stay the trial

pending disposition of his Petition and/or Amended Petition. This Court did not

need to address Petitioner’s request because Respondent, through its own

determination, stayed the trial pending this Court’s consideration of the pending

Petition. There is no any evidence of an arbitrary refusal or failure to act on the

part of Respondent that would warrant this Court to issue a writ of mandamus to

compel it to do anything differently.

           This Court finds that dismissal is appropriate. Petitioner fails to state a

claim upon which relief can be granted under Superior Court Civil Rule 12(b)(6),

and fails to show how he is entitled to the extraordinary remedy under 10 Del. C.

§564. The frenetic filings made for an overly-complicated and troubling

procedural history. It is unclear to this Court why Petitioner took such a shot-gun

approach with his applications in two courts without first waiting for the lower

court’s respective rulings and/or exercising his appellate rights accordingly.


           For these reasons, Respondent and Real Party in Interest’s respective

22
     Matter of Bordley’s Petition for Writ of Mandamus, 545 A.2d 619, 620 (Del. 1988).

                                                          8
Motions to Dismiss are GRANTED.

      IT IS SO ORDERED.



                                      ______________________
                                      Judge Vivian L. Medinilla




cc:   Prothonotary




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