Root v. Wilmington, C. A. N20C-05-156 CLS

CourtSuperior Court of Delaware
Writing for the CourtCalvin L. Scott, Jr. Judge
PartiesKELLY ROOT and THOMAS JOYCE, Plaintiffs, v. MAIDPRO WILMINGTON, THRESHOLD BRANDS LLC, MAIDPRO FRANCHISE, LLC, DAISY PEREZ, CASH IN JEWELRY AND PAWN INC., and JUAN CARIDE a/ka JUAN CARIDE- HERNANDEZ, Defendants.
Docket NumberC. A. N20C-05-156 CLS
Decision Date17 November 2022

KELLY ROOT and THOMAS JOYCE, Plaintiffs,
v.

MAIDPRO WILMINGTON, THRESHOLD BRANDS LLC, MAIDPRO FRANCHISE, LLC, DAISY PEREZ, CASH IN JEWELRY AND PAWN INC., and JUAN CARIDE a/ka JUAN CARIDE- HERNANDEZ, Defendants.

C. A. No. N20C-05-156 CLS

Superior Court of Delaware

November 17, 2022


Submitted: August 29, 2022

Upon Defendant's Motion to Dismiss the Second Amended Complaint. GRANTED.

Josiah R. Wolcott, Esquire, Connolly Gallagher LLP, Newark, Delaware, 19711, Attorney for Plaintiffs, Kelly Root and Thomas Joyce.

John G. Harris, Esquire, and Peter C. McGivney, Esquire, Berger Harris LLP, Wilmington, Delaware, 19801, Attorneys for Defendants Threshold Brands, LLC and MaidPro Franchise, LLC.

Shae Chasanov, Esquire, Tybout, Redfearn &Pell, Wilmington, Delaware, 19899, Attorney for Defendant MaidPro Wilmington.

Periann Doko, Esquire, Kent McBride, Wilmington, Delaware, 19809, Attorney for Defendants Cash In Jewelry and Pawn, Inc. and Juan Caride.

ORDER

Calvin L. Scott, Jr. Judge

1

INTRODUCTION

Before the Court is Defendants Threshold Brands, LLC and Maidpro Franchise, LLC's Motion to Dismiss Kelly Root and Thomas Joyce's ("Plaintiffs") Second Amended Complaint. On November 1, 2022, the parties filed a Stipulation of Dismissal as to Defendant Threshold Brands, LLC. This Court now assesses the Motion to Dismiss as applied to MaidPro Franchise, LLC ("MaidPro"). For the following reasons, MaidPro's Motion to Dismiss is GRANTED as for all claims.

BACKGROUND/ALLEGED FACTS

MaidPro Franchise, LLC is the franchisor of the MaidPro brand. Plaintiffs' Second Amended Complaint alleged Respondeat superior/vicarious liability, negligent hiring, civil conspiracy, and intentional/negligent infliction of emotional distress stemming from MaidPro Wilmington's former employee, Daisy Perez ("Ms. Perez"), entered their home through an unlocked door and stealing valuables. Plaintiffs allege MaidPro can be held liable as franchisors because MaidPro controls the daily operations of MaidPro Wilmington, the specific franchisee who hired Ms. Perez, because the franchisors require franchisees to use the set models and systems established.

On or about June 13, 2018, MaidPro Wilmington hired Ms. Perez. On June 22, 2018, due to the findings of her background report, MaidPro Wilmington terminated Ms. Perez, ending their employer/employee relationship.

2

In October of 2018, Plaintiffs, while they were on vacation, claim Ms. Perez unlawfully entered their home and stole personal property. Ms. Perez has been held criminally liable for the crimes committed against Plaintiffs.

On May 18, 2020, Plaintiffs filed a Complaint, which was amended on December 9, 2020, against Defendants. On April 14, 2021, MaidPro Wilmington and High Five Services Inc.[1] filed a Motion to Dismiss relying on facts outside of the pleadings, Ms. Perez's deposition testimony, affidavit from President of MaidPro Wilmington, and employment document regarding an employee's introductory period, consideration of these exhibits/testimony goes beyond the scope of the pleadings. The Court denied MaidPro Wilmington's Motion to Dismiss because the Motion would be more appropriately filed as a Motion for Summary Judgment. The amended complaint was subsequently amended, Second Amended Complaint, again on June 1, 2022. On July 28, 2022, this Motion was filed by Threshold and MaidPro, entities separate and apart from MaidPro Wilmington. Counsel for Defendant MaidPro Wilmington and Counsel for Defendants Cash In Jewelry and Pawn, Inc. and Juan Caride have indicated they do not oppose this Motion. Plaintiffs responded to this Motion in Opposition on August 29, 2022. Because this Motion does not rely on fact outside of the pleadings, this Court finds this Motion was appropriately filed

3

as a Motion to Dismiss, and the Court can make its findings based on the allegations contained within the Second Amended Complaint. On November 1, 2022, Plaintiffs filed a Stipulation of Dismissal as to Defendant Threshold Brands, LLC, allowing this Court to assess the Motion as to MaidPro only.

STANDARD OF REVIEW

A motion to dismiss, brought pursuant to Superior Court Rule 12(b)(6), for failure to state a claim upon which relief can be granted is appropriate only when there appears to be no reasonably conceivable set of circumstances susceptible of proof under the complaint.[2] When determining whether to grant the motion, the Court must accept all well-pled allegations in the complaint as true.[3] In addition, the Court is limited to the allegations in the complaint; "[i]f the moving party provides documents with the motion to dismiss, and the Court considers those materials in addition to the complaint, the motion to dismiss is converted to a motion for summary judgment, and the parties may expand the record."[4] Where those documents are integral to the plaintiff's claims and incorporated into the complaint, the motion to dismiss will not be converted into a motion for summary judgment.[5]

4

DISCUSSION

Respondeat superior/vicarious liability

For Plaintiffs' claims to survive this Motion, they must have alleged facts in their Second Amended Complaint that would constitute respondeant superior liability. An employer is liable for the tortuous acts of an employee under Respondent superior if the acts are performed "within the scope of employment."[6]"Conduct is within the scope of employment if it (i) is of the type the employee was hired to perform; (ii) takes place 'within the authorized time and space limits'; and (iii) is at least partially motivated by a purpose to serve the employer."[7] "The question of whether conduct is within the scope of employment is generally a question for the jury, unless the facts are so clear that they must be decided as a matter of law."[8] Therefore, Plaintiffs' must have alleged the robbery was within the scope of employment.

In Draper, the court approved the Restatement of Agency (2d), § 228, which sets forth factors which should be considered in determining whether unauthorized conduct is within the scope of employment. They include such factors as whether or

5

not the act is one commonly done by such servants; the time, place and purpose of the act; whether or not the act is outside the enterprise of the master; whether or not the master has reason to expect that such an act will be done; the similarity in quality of the act done to the act authorized; the extent of departure from the normal method of accomplishing an authorized result; and whether or not the act is seriously criminal.[9]

Plaintiffs state that Ms. Perez was not an employee of MaidPro Wilmington at the time of the burglary as they contend on June 22, 2018, Ms. Perez was terminated. The...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT