King v. McKenna

CHRISTOPHER KING, J.D. d/b/aKINGCAST/MORTGAGE MOVIES, Plaintiff, v. BETTY LOU McKENNA, HOLLY MALONEand JOHN W. PARADEE, ESQ. Defendants.

C.A. No: K15C-03-028 RBY

SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR KENT COUNTY

Submitted: August 18, 2015

August 24, 2015

Upon Consideration of Plaintiff's Motion to Alter or Amend Judgment

DENIED

Upon Consideration of Plaintiff's Motion for Relief from Judgment

DENIED

Upon Consideration of Defendants' Motion for Judgment on the Pleadings

GRANTED

ORDER

Christopher King, Pro se.

Joseph S. Shannon, Esquire, Marshall Dennehey Warner Coleman & Goggin, Wilmington, Delaware for Defendants Betty Lou McKenna and Holly Malone.

John A. Elzufon, Esquire, and Peter C. McGivney, Esquire, Elzufon Austin Tarlov & Mondell, P.A., Wilmington, Delaware for Defendant John W. Paradee, Esq.

Young, J.

SUMMARY

Christopher King ("Plaintiff") was denied the ability to film inside the Kent County Recorder of Deeds ("Recorder of Deeds") office by the allegedly coordinated, joint action of Betty Lou McKenna, the incumbent Kent County Recorder of Deeds ("Defendant McKenna"), Holly Malone ("Defendant Malone"), and John W. Paradee, Esq. ("Defendant Paradee," and together with Defendant McKenna and Defendant Malone "Defendants"). By his original Complaint, Plaintiff claimed Defendants' conduct violated the First Amendment, as well as constituted tortious activity. Defendants moved for judgment on the pleadings as to the First Amendment and tort claims. On June 29, 2015, the Court granted their motion. Plaintiff moves to alter or amend this decision, pursuant to Rule 59(d), and for relief from judgment under Rule 60(b).

The Court granted Plaintiff's motion to amend his Complaint, in which Plaintiff added a second constitutional claim alleging a violation of equal protection. Plaintiff's Complaint also added four other claims, including claims sounding in conspiracy, violation of the Delaware Freedom of Information Act, and violation of the common law. Defendants, again, move for judgment on the pleadings.

For the reasons that follow, the Court DENIES Plaintiff's motion to amend the Court's prior decision, DENIES Plaintiff's motion for relief from judgment, and GRANTS Defendants' motion for judgment on the pleadings as to Plaintiff's Amended Complaint. Those decisions resolve with finality all matters raised by Plaintiff in this Court, save for Plaintiff's Motion for this Court to recuse itself. Because of the following, that Motion is moot, or at least premature.

FACTS AND PROCEDURES

Plaintiff came to the Recorder of Deeds Office seeking to conduct a video recorded interview with Defendant McKenna, or one of her employees, concerning allegedly defamatory statements made against La Mar Gunn, a former candidate for the Recorder of Deeds position. In addition, Plaintiff asserted that he wanted to videotape the interior of the office, and to obtain B-roll footage of Mr. Gunn using the county fiche machines. Plaintiff avers he was also investigating fraudulent documents, allegedly held by the office.

Defendant Malone is said to have prevented Plaintiff from videotaping inside the Recorder of Deeds office. Plaintiff alleges that Malone made two phone calls upon meeting Plaintiff, one to Defendant McKenna, and one to Defendant Paradee. Following these discussions, Malone is alleged to have informed Plaintiff that administrative policy did not permit the videotaping of the office. Plaintiff asserts he was told to leave under threat of arrest. Plaintiff insists no such policy was in existence.¹ At a later date in time, Plaintiff alleges, he was permitted to shoot video in the New Castle County Recorder of Deeds office.

As a result of his thwarted video reporting efforts, Plaintiff brought suit against Defendants. Plaintiff's original Complaint alleged First Amendment violations, as well as claims sounding in tort. Following minimal discovery, both parties filed dispositive motions, the Plaintiff filing a summary judgment motion, and Defendants filing a motion for judgment on the pleadings. Plaintiff, then, moved to stay disposition of these motions, pending the completion of discovery. Plaintiff also filed a Rule 11 sanctions motion against Defendants, for their purported failure to respond to a discovery request adequately. A motion to compel was also filed by Plaintiff, which was stayed by Commissioner Freud, pending the Court's resolution of the dispositve motions. Finally, Plaintiff also filed a motion to reconsider Commissioner Freud's decision to prevent Plaintiff from videotaping courtroom proceedings.

By opinion dated June 29, 2015, this Court granted Defendants' motion for judgment on the pleadings, and denied Plaintiff's summary judgment motion, effectively disposing of the claims in Plaintiff's original Complaint. Around the time the Court was reviewing the dispositve motions, Plaintiff moved for amendment of his Complaint, seeking to add a second constitutional claim alleging an equal protection violation. The Court granted Plaintiff's request in this June 29, 2015 opinion, however, the Court made clear that the claims in the original Complaint would be disposed of. This opinion also denied Plaintiff's motion to reconsider the Commissioner's prohibition of videotaping court hearings. By separate Order, the Court denied Plaintiff's motion to stay consideration of the dispositive motions, as well as denied Plaintiff's motion for Rule 11 sanctions.

Subsequently, Plaintiff applied for an interlocutory appeal certification of the Court's June 29, 2015 decision, concerning the First Amendment claims. The Court denied this application on July 30, 2015. On July 15, 2015, Plaintiff filed a motion to alter or amendment judgment, regarding the Court's June 29th opinion, followed by his Amended Complaint, on July 17, 2015. In addition, Plaintiff filed a Rule 60(b) motion for relief from judgment, on July 27, 2015.Defendants move for judgment on the pleadings as to the Amended Complaint.

DISCUSSION

___There are three motions requiring disposition: 1) Plaintiff's motion to alter or amend judgment; 2) Plaintiff's motion for Rule 60 relief from judgment; and 3) Defendants' motion for judgment on the pleadings concerning Plaintiff's Amended Complaint. The Court addresses each in turn.

I. Plaintiff's Motion to Alter or Amend Judgment

Before proceeding to the merits of Plaintiff's motion, the Court notes the controversy surrounding the timeliness of the motion's filing. Plaintiff titled his motion "Motion for Rule 59 Relief from Judgment." Plaintiff did not, however, specify under what subsection of Superior Court Civil Rule 59 he was moving. The significance of this is that each type of Rule 59 motion has a specific timeframe within which it must be filed. Additionally, these subsections carry different legal standards of analysis.

Assuming Plaintiff was moving under Rule 59(e), known as a motion for reargument, Defendants filed a motion to strike, arguing that Plaintiff was out of time. As per Rule 59(e), Plaintiff had 5 days from the issuance of the Court's opinion to file such a motion. Given certain other procedural rules, taking into account Plaintiff's filing by postal mail, as well as interceding holidays, this period was extended to 8 days. Plaintiff filed his motion 10 days after the issuance of the opinion. Indeed, even if this Court wished to extend the time, it could not. Courts may not enlarge the period of time to file a motion for reargument.²

In response, Plaintiff asserts that his motion was pursuant to Rule 59(d): a motion to alter or amend judgment. Plaintiff had 10 days within which to file such a motion. Given the above referenced dates, Plaintiff managed to do so. His motion is, under that theory, timely. Giving Plaintiff the broadest possible leeway, the Court reviews Plaintiff's filing under the motion to alter or amend judgment standard.³

In Delaware, a motion to alter or amend judgment pursuant to Superior Court Civil Rule 59(d) will be granted if the movant shows: "(1) an intervening change in controlling law; (2) the availability of new evidence; or (3) the need to correct clear error of law or to prevent manifest injustice."⁴ However, "the Court will deny the motion if it merely restates arguments already considered and rejected during the litigation."⁵

By his motion, Plaintiff seeks to amend this Court's disposition of his First Amendment claims. In his original Complaint, Plaintiff alleged a violation of 42 U.S.C. § 1983 by each of the Defendants, as a result of his being denied access to videotape the interior of the Recorder of Deed's office. This Court, following the reasoning of the Third Circuit Court of Appeals,⁶ found that the alleged right was one to gather government information. With limited exceptions⁷ which the Court found lacking, there is no such recognized First Amendment right to government information.⁸ Most importantly, the Third Circuit Court of Appeals and this Court do not find Plaintiff's attempted conduct to be expressive activity protected by the First Amendment.⁹ Although other Courts, notably the Eleventh Circuit Court of Appeals, have analyzed the factual occurrence of video reporting in a public building to be an issue of First Amendment expression in a public forum,¹⁰ the Third Circuit and this Court do not follow this approach.¹¹ It was on this basis, that the Court granted Defendants' motion on the pleadings.¹²

Ignoring the Court's articulated, chosen path on this issue, Plaintiff reasserts a litany of extra-jurisdictional cases included in his prior filings that this Court already found inapplicable - either because they were not decided on a First Amendment basis, or because these cases do not fit into the Third Circuit Court of Appeal's First Amendment access to government information scheme that this Court adopted. Among these rehashed, non-binding cases are Cirelli v. Town of Johnston Sch.Dist.,¹³ Peloquin v. Arsenault,¹⁴ Csorny v. Shoreham-Wading River Cent...