Plaintiffs “play Spanish music at home”; Neighbors “complained to the police”;

I have already written two opinions describing the facts of this case. Here’s the gist: Valentin and Matos played Spanish music at home. Their neighbors Michael and Patricia Wisock didn’t like hearing it, so they reported it to the police. After police went to Valentin and Matos’ home fourteen times, Officer Christopher Hewlett arrested Valentin for violating a county noise ordinance. Ultimately, the county dismissed the complaint. Upset, Valentin and Matos then sued Wissocks, Hewlett and the county. I dismissed the claims against the county. There are still a few claims pending against Wysocks and Hewlett….

First things first: The claim against Wysocks is based on state law. Although the Wysocks may have been police officers, the complaint “does not allege that they were acting under color of state law, because [42 U.S.C.] § 1983 requires.” Valentin and Matos do not dispute this point. see DI 54; DI 60, at 2. So Delaware law governs.

And Delaware does not recognize a statutory or common-law cause of action for harassment. In Delaware, statutory harassment is a crime. 11 del. C. § 1311. As the Delaware Supreme Court has explained, criminal statutes like § 1311 “impose general sanctions,” suggesting that they “do not create rights for a particular group of citizens, but … protect the public at large.” Provided § 1311. 1311’s “punitive focus,” it “cannot be expanded to include civil remedies for personal injury.” Valentin and Matos therefore cannot sue Wisocks for harassment under this statute.

Nor does Delaware common law create a cause of action for harassment. Valentine and Matos cannot cite any Delaware cases to sustain such a cause of action…

Realizing this, Valentin and Matos now ask me to change their claim from harassment to intentional infliction of emotional distress. I decline their invitation. Justice does not require ratification of this amendment. Valentine and Matos make no attempt to explain how the facts pleaded would support a claim of intentional-promotion. And to allow them to change the theory now, after discovery is closed, would be biasing Wysocks. Also, Valentin and Matos “had multiple opportunities to claim but ha[ve] failed to do so.” Neither their initial complaint nor their first amended complaint mentions intentional infliction of emotional distress.

Valentine alone brings a malicious-prosecution claim. Unlike harassment, Delaware recognizes a cause of action for malicious prosecution. To bring a malicious-prosecution case, Valentin must plead that a criminal proceeding (1) was brought against him (2) “by the perpetrator or at his request [Wysocks],” (3) ” was concluded at [her] favor,” (4) was brought with malice and (5) without probable cause, and (6) resulted in “injury or damage.” Wysocks correctly concedes the first and third elements: the police “constituted a charge of violation against Valentine. The [n]oise [o]rdinance, and that charge was ultimately dismissed.” And I have already decided that Valentine has sufficiently alleged that he was arrested without probable cause. That leads to provocation, malice and harm….

[Under Delaware law,] “There is cause for action against the arrested person [private-citizen] Aggravation is a case for malicious prosecution.” … Nor does reporting a crime to the police protect against prosecution…. [Valentin] Reasonably pleads that Wysocks “started” because “[i]The incident was their recital [that] created [her] will be arrested.” Hence his allegation that Wissocks induced the prosecution.

But Valentine does not complain of malice and harm. He must plead with “actual malice, improper motive or wanton disregard [prosecuted party’s] rights.” He claims that Wysocks’ “ulterior motives” were “racial and linguistic enmity.” But he provides little else to suggest that Wysocks acted with such animosity. He says only that Wysocks “satires.[ed] [her] Spanish-language music.” These are mostly “bare claims without further factual enhancements.”

Indeed, Valentin’s main support for asserting animus is that he and Matos “listen to Hispanic and Spanish-language music.” But these facts are still consistent with Wysocks’ claim that the music violated the noise ordinance. “Where a complaint pleads facts that are only consistent with a defendant’s liability, it blurs the line between probability and plausibility of entitlement to relief.” More than anything else, Valentin’s malicious accusation falls on the wrong side of the line…. “[A] The bare allegation is that the defendant[ ] Merely taking measures to intimidate and harass is insufficient for malice.” …

Similar problems plague his loss complaints. He said Wysocks’ malicious prosecution caused him to suffer “damages, including both economic and non-economic damages, including pain and suffering, embarrassment, loss of reputation, loss of enjoyment of value [her] house, and such other damages as will be borne out by the evidence.” He tried to explain his response succinctly. how He was damaged. But as these explanations are absent from his complaint, I cannot consider them….

Yet these deficiencies are correctable. I therefore dismiss Valentine’s malicious-prosecution claim without prejudice. He has one last chance to correct this claim…

Finally, both Valentin and Matos claim that the Wysocks defamed them…. But Valentine and Matos “do not identify specific comments or specific publications” for Wysocks. They allege only that Wysocks “made statements that falsely imputed a crime,” such as a noise-ordinance violation. Without more specific allegations, I “cannot assess” the defamation claim. I would therefore dismiss the claim without prejudice.

A final note: Wysocks suggests that “statements made to the police to provoke criminal charges are absolutely privileged.” But the Delaware Supreme Court has made clear that such statements are only conditionally privileged. Conditional privilege is an affirmative defense, which is generally inappropriate to address on a motion to dismiss. And misuse of facilities [which can rebut a claim of conditional privilege -EV] It is “generally a question of fact.” So now is not the right time to consider opportunities….