ABLEMAN, JUDGE.

I. Nature and Stage of the Proceedings

After losing his bid for reelection to the New Castle County Council in the 2002 Republican Primary on September 7, 2002, Plaintiff Richard L. Abbott, Esquire ("Abbott") filed a complaint on September 7, 2004 against (1) Thomas P. Gordon ("Gordon"), the then-New Castle County Executive; (2) Sherry L. Freebery ("Freebery"), the Chief Administrative Officer of New Castle County; and (3) New Castle County (the "County") (collectively, "Defendants"). In his Complaint, Abbott alleges that he has a right to hold office under the United States and Delaware Constitutions, which right was denied by virtue of the actions of his political opponents who defeated his initiatives and opposed his candidacy. He asserts claims for deprivation of his civil rights under 42 U.S.C. § 1983, based on alleged violations of his First Amendment and Equal Protection rights, a civil conspiracy claim, and a claim of libel and slander. Abbott seeks damages consisting of the salary and benefits he would have received had he won the primary and the general election in 2002, on the theory that Defendants' conduct cost him victory in the primary, which allegedly would have been "tantamount to victory" in the general election.

Shortly after the filing of the Complaint, Defendants moved to stay this action pending the resolution of criminal proceedings against Gordon and Freebery in Federal District Court. The stay was granted by the Superior Court until the criminal actions were concluded. On September 10, 2007, the United States District Court for the Eastern District of Pennsylvania entered a final judgment sentencing Freebery to time served and a fine of $250.00, based on her guilty plea to the felony of making a false statement to a federally insured bank. The following day, the same court sentenced Gordon to probation and a fine of $250.00, based on his guilty plea to two tax record-keeping misdemeanors. The Court dismissed all other criminal counts against the individual defendants, including counts upon which Abbott relied in this Complaint.

Now before the Court are Defendants' Motions to Dismiss the Complaint. After reviewing Abbott's Complaint and the extensive briefing in this matter, the Court concludes that Abbott has not stated a single claim for which this Court may grant him relief. Not only are his counts poorly pleaded, but Abbott fails to support any of his claims with any case law, no has he distinguished contradictory case law or offered any legal basis in support of the relief he seeks. For reasons explained more fully hereafter, Defendants' Motion to Dismiss is granted.

II. Statement of Facts A. History

Abbott served as an elected member of the New Castle County Council for a single term that began on November 10, 1998 and expired on November 6, 2004. He alleges that, during his term, he took positions that "placed him at odds" with Gordon and Freebery (the "individual defendants"). According to Abbott, Gordon and Freebery had "no tolerance for dissent or disagreement" and planned to control both the Executive and Legislative Branches of the County government to benefit themselves rather than the County citizens. Under Abbott's view of the facts, the individual defendants retaliated against him by, inter alia, conspiring to vote against him. They did not similarly attack other County Council members who enacted laws that supposedly benefited them.

B. Allegations Regarding the September 7, 2002 Republican Primary

(1) using County resources to recruit candidates to run against him "beginning in or about the year 2001," and continuing into the year 2002;

(2) developing discriminatory legislation — later dropped — with another Councilwoman that would prohibit Abbott from serving as a Councilman based on his status as an attorney in private practice;

(3) using County resources to release false information relating to Abbott's representation of a developer;

(4) orchestrating a meeting at the County Executive room on July 11, 2002, at which Abbott was attacked by unidentified real estate developers, allegedly for associating with an unidentified client;

(5) pressuring other unidentified members of the Council to hold a special meeting in August of 2002 to "publicize further attacks" on Abbott, nearer to the primary election;

(6) using the August 2002 meeting to "manufacture" attacks on Abbott and bolster the support of their "hand-picked candidate"; and

(7) requiring employees, including law enforcement officers to campaign for their choice candidate by "falsely and maliciously alleg[ing]" that Abbott unethically represented developers.

On September 7, 2002, Abbott lost the Republican primary for reelection to County Council. He claims that the loss is a direct result of the individual defendants' actions and manipulations of County government.

C. The Counts of Abbott's Complaint

Count I alleges that the individual defendants are liable for damages under 42 U.S.C. § 1983 for the denial of Abbott's First Amendment speech and association rights and his Fourteenth Amendment rights under the Equal Protection Clause. Gordon and Freebery allegedly used the County government to retaliate against Abbott and to discriminate against him because he opposed, criticized, and challenged their positions, and refused to be a "rubber-stamp" to actions by the Council. The County is allegedly liable to Abbott under the doctrine of respondeat superior or under a "custom or policy" theory.

Count II asserts that Gordon and Freebery entered into a civil conspiracy. Abbott alleges that Gordon and Freebery: (1) violated Article I, Section 3 of the Delaware Constitution by using County resources to illegally steal the election from Abbott; (2) violated 9 Del. C. § 1183 by using County resources to discriminate against Abbott because of his differing political views; (3) violated the Delaware Campaign Financing and Disclosure Act (the "Campaign Act") by using County resources to support the campaign of Abbott's opponent; (4) violated New Castle County Code Sections 2.03.103 and 2.03.104 by using County resources to promote Abbott's opponent and by attacking Abbott "in retribution" for exercising his rights; and (5) violated Abbott's First Amendment Right to Free Speech under the U.S. and Delaware Constitutions, as well as his Fourteenth Amendment Right to Equal Protection under the U.S. Constitution. According to Abbott, had Gordon and Freebery not conspired against him, he would have won the primary. Because of his incumbency and the substantial Republican voter registration advantage in the Third County Council District, Abbott submits that primary success was "tantamount to election."

The remaining Count of the Complaint alleges that Gordon and Freebery libeled and slandered Abbott by maliciously making false statements about him, causing him to lose the Republican primary. Specifically, Abbott submits in Count III that Gordon and Freebery falsely and maliciously accused him of engaging in unethical conduct by representing a well-known developer on a land use project. Abbott seeks the salary and benefits that he would have received as a County Councilman had he been elected, as well as damages resulting from the harm to his reputation and for the loss of the opportunity to continue as a County Council member.

III. Defendants' Contentions in Support of the Motions to Dismiss A. New Castle County's Arguments

With respect to Count II, it is argued that Abbott's civil conspiracy claim is also subject to dismissal for several reasons. First, Abbott has not alleged an underlying tort supporting his civil conspiracy claim. Second, noting the contradiction in having a municipality and its officials conspire with itself, the County argues that it cannot form the requisite intent for a civil conspiracy. Third, the County contends that Abbott cannot prove actual damages because any damages claimed for a lost election are too speculative. Finally, the County argues that the allegedly unlawful acts it committed are not actionable under the four bases cited in Abbott's complaint. Specifically, the County contends that (1) it is not alleged that the Republican primary was not "free" or "equal" under Article I, Section 3 of the Delaware Constitution; (2) Section 1183 of Title 9 of the Delaware Code is a criminal statute and does not provide a civil remedy for the loss of a primary; (3) any claim under the Campaign Act is barred because Abbott failed to appeal the administrative ruling, and the Court of Chancery has exclusive jurisdiction over claims under that act; and (4) the County Ethics Code does not provide a civil remedy, barring a private action for enforcement.

With regard to Count III, the libel/slander claim, the County asserts that Abbott fails to set forth any specific statement which could support a defamation claim. The County further contends that any such claim would be barred by the applicable two-year statute of limitations. Further, it is argued that the Complaint fails to plead facts that would satisfy the elements of a defamation claim.

B. The Individual Defendants' Arguments

Although the individual defendants adopt and endorse all of the arguments made by the County, Gordon and Freebery maintain that, even if the County were found liable under 42 U.S.C. § 1983, they cannot be individually liable because they have qualified immunity. As to Abbott's other claims, Gordon and Freebery argue that they are immune from suit under the doctrine of legislative immunity. Like the County, Gordon and Freebery assert that they cannot be liable under any set of circumstances and ask this Court to dismiss Abbott's complaint.

IV. Standard of Review

V. Analysis Overview

In order to challenge the results of his 2002 bid for county governmental office in a primary election, Abbott complains of all sorts of corrupt schemes, plots and retaliatory actions on the part of his political opponents, Tom Gordon and Sherry Freebery, to oust him from an office which he claims he had an unfettered constitutional entitlement to hold, citing a myriad of legal theories, but no state or federal case law, as support. To assure that the damages he seeks can be paid from a far deeper pocket, Abbott has also sued New Castle County, relying on various theories of liability which he attempts to frame under the First Amendment and the Equal Protection Clause of the United States Constitution, as well as the common law of civil conspiracy. All of these claims, both against the individual defendants and against the County, fail as a matter of law for a whole host of reasons, not the least of which is the extensive body of case law precluding precisely what Abbott is endeavoring to accomplish in this litigation — that is, a judicial review of the actions of his political opponents in a campaign that took place over six years ago, in order to gain monetary compensation. Considering the long-standing nature of this dispute and the lengthy period of time that has elapsed since the challenged primary election, Abbott appears to be an individual who will stop at nothing to justify the loss of his county council seat.

What is perhaps most troubling about this case is the enormous amount of money, effort and time that the defendants have had to expend to defend against Abbott's meritless claims. At a time when New Castle County is contemplating tax hikes to finance the basic and essential services that it must provide to its citizens, it has had to retain a prominent Wilmington law firm to defend these unprecedented claims. It is no secret that multimillion dollar budget cuts in the past several years have not eliminated the County's spending deficit, which is threatening to exhaust the cash reserves and bankrupt the County by 2012. Yet, this lawsuit has further challenged the County's resources, as well as those of the Court, and is especially unseemly because it was filed by an experienced member of the Delaware Bar. Even more problematic is that Abbott's contentions, in large part, are not substantiated by case precedent from this or any jurisdiction. In fact, none of the only twelve cases he has cited in his brief provide any support for his right to relief. And, nowhere in Abbott's self-absorbed, rambling, and at times intemperate, brief does he even attempt to distinguish any of the myriad of decisions that plainly establish that damages are not available to defeated candidates as a means of post-election relief.

Abbott is hardly the first politician to lose his incumbency because of an opponent's negative tactics or mudslinging campaign. In the last decade or so vilification and disparaging attacks on one's political opponent have become the rule rather than the exception. Those who enter the political domain must be impervious to such criticism. Unable to accept defeat in a dispassionate and sportsmanly manner, Abbott has filed this lawsuit as a vehicle to rehash the reasons for his loss of the primary election. Quite apart from the inappropriateness of allowing a judge or jury to undertake the task of monitoring the vagaries and nuances of the political process, the instant litigation risks the more serious potential of intrusion of political partisanship into the courtroom, where it clearly has no place. Disputes such as these belong in the political arena, where they have rightly been placed. In essence, Abbott's lawsuit seeks to substitute the civil jury for the larger more representative electorate, which is an unsuitable means of supervising the political process. In a very real sense, this case illustrates just how irrationally and emotionally invested one can become in the quest to maintain political power.

It is against this backdrop that the Court is called upon to review the voluminous pleadings and briefs filed in this case. I now turn to the specific arguments advanced by the Defendants in support of their motions to dismiss.

Abbott's first claim is that Gordon and Freebery, using the County as their tool, violated his rights to Equal Protection under 42 U.S.C. § 1983 ("Section 1983") because they treated him differently from other County Council members. Section 1983 states, in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, . . . subjects . . . any citizen of the United States . . . to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action. . . . To state a Section 1983 claim, a plaintiff must allege "the violation of a right secured by the Constitution or laws of the United States and must show that the alleged deprivation was committed by a person acting under color of state law." "Acting under color of state law" requires that the defendant be "clothed with the authority of state law."

Accepting Abbott's well-pleaded allegations, the Court agrees that the defendants were acting under "color of state law." Defendants argue, however, that Abbott has failed to allege a violation of a Constitutional right. The rights that Abbott claims were abridged are a right to seek and serve in public office that was deprived through illegal government interference, a right to freedom of speech and association under the First Amendment, and a right to Equal Protection of the laws under the Fourteenth Amendment by the individual defendants' decision to treat Abbott differently from other Council members (the "class of one" claim). The Court will address each claimed right separately.

1. Defendants did not Violate Any Constitutional Right to Seek and Serve in Public Office

Despite Abbott's claim that he has a Constitutional right to "seek and serve in public office," he has not offered a single statute or case establishing this right. That may be so because so many other courts, including the United States Supreme Court, have specifically held that there is no fundamental right to serve in public office, and that there is no fundamental constitutional right to win an election.

The fact of the matter is that it was the decision of the electorate, not Defendants, that caused Abbott to lose the election. Thus, even if the right to hold and seek office were deemed fundamental, Defendants did not violate that right. In Flinn v. Gordon, the Eleventh Circuit Court of Appeals rejected a Section 1983 claim on the same grounds:

Flinn was not removed from office during the term to which he was elected, but was voted out of office during the 1980 Florida elections. Although he certainly had a constitutional right to run for office and to hold office once elected, he had no constitutional right to win an election. This was a political decision for the Florida electorate. See Gordon v. Leatherman, 450 F.2d 562, 567 (5th Cir. 1971). "[T]here is a fundamental difference between the expulsion or removal of a public official by the state and that same activity by the voters. . . . Any governmental body is required to act fairly, but that is not true as to a voter. Insofar as the United States Constitution is concerned, an elector may vote for a good reason, a bad reason, or for no reason whatsoever." . . . In summary, Flinn has failed to allege any act for which he would be entitled to relief under § 1983. Consequently, he cannot show the violation of any clearly established constitutional or statutory right.

Likewise, Abbott has no Constitutional right to win an election. Nothing in Abbott's Complaint suggests that the Defendants barred him from seeking or holding office. Abbott does not argue, nor can he, that he was denied a spot on the Republican primary ballot or that Defendants expelled him from his position. Even if the electorate voted against him as a result of statements or actions of Defendants, the electorate can refuse to reelect Abbott "for a good reason, a bad reason, or for no reason whatsoever." Thus, any right to seek and hold public office cannot form the basis of Abbott's Section 1983 claim.

2. The Complaint Fails to Establish a Violation of Abbott's Constitutional Rights to Freedom of Speech and Association

Abbott next alleges that Gordon and Freebery's retaliatory actions violated his First Amendment right to freedom of speech and association. Although Abbott cannot claim that he was prohibited from speaking, or that his speech was limited, he submits that Gordon and Freebery interfered with his right to free speech in retribution for his statements. Abbott seems to suggest that Gordon and Freebery, through the use of County resources, violated his First Amendment rights by damaging his reputation, acting in a retaliatory manner, and unlawfully interfering with his right to free speech.

i. Damage to Abbott's Reputation is Not Actionable

The United States Supreme Court has held that damage to one's reputation alone cannot rise to the level of a Constitutional deprivation of any fundamental right subject to Section 1983. To state a valid claim under Section 1983 for damage to one's reputation, a plaintiff must allege both damage to one's reputation and the distinct alteration or extinguishment of a recognized state or federal right, such as continued government employment.

Abbott's claim is remarkably similar to the Flinn case quoted above. There, two of Flinn's legislative aides complained that Flinn had sexually harassed them. After conducting a full investigation, the Florida House of Representatives voted to publicly reprimand him. Flinn then lost the 1980 election. Flinn filed a complaint against the former legislative aides and other representatives alleging that they violated Section 1983 because they "(1) damaged his personal and political reputation, (2) diminished his personal and family privacy, and (3) deprived him of his position as a state legislator." Finding no basis for an action under Section 1983, the Eleventh Circuit dismissed Flinn's complaint:

After an examination of the complaint and applicable law, we find that none of these injuries constitute the loss of a federal right and, consequently, that no relief is available under § 1983. . . . The claim for damage to his reputation is precluded by the decision of the Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S. Ct. 1155, 47 L. Ed. 2d 405 (1976), that injury to reputation alone is not actionable under § 1983. The Court indicated that injury to reputation coupled with the loss of another interest, such as continued government employment, might be actionable under § 1983. 424 U.S. at 705-07, 96 S. Ct. at 1162-63, 47 L. Ed. 2d at 416-17. The facts as alleged do not present such a situation here. [Appellee] may have injured Flinn's reputation, but she did not remove him from his legislative office. That decision was made by Flinn's constituents during the 1980 elections. . . .

Here, Abbott has similarly failed to identify the loss of any Constitutional right that might form a viable action under Section 1983. Although he has alleged that Gordon and Freebery defamed him, he cannot maintain that they prohibited him from speaking, or that they deprived him of his position as a County Council member. Rather, as in the Flinn case, Abbott's loss of the 2002 Republican primary was the direct result of the New Castle County voters' decision to endorse another candidate. Since the Defendants did not deprive him of any federally or state recognized right, such as continuing government employment, any harm to Abbott's reputation is not actionable.

ii. Retaliation is Not Actionable

Abbott's next argument in support of his Section 1983 claim is that he has a right to be free from retaliatory actions by Gordon and Freebery. To state a violation of the First Amendment through retaliatory action, a plaintiff must state: "(1) that [the plaintiff] engaged in protected activity; (2) that the government responded with retaliation; and (3) that the protected activity was the cause of the retaliation." Plaintiff must show that the defendants' retaliation impaired his Constitutional rights.

Although Abbott might arguably meet all three prongs of the foregoing test, his status as an elected official during this period precludes a retaliatory action claim under the First Amendment. As an example, in Footit v. Van De Hey, a member of the County Board of Supervisors brought a claim under Section 1983 for retaliatory action in violation of the First Amendment. Footit alleged that two other board members retaliated against him after he spoke against funding a wetland preserve. Footit claimed that they accused him of criminal activity as a result of "the position he took on a matter of public interest." In dismissing his Section 1983 claim, the District Court emphasized that Footit had no First Amendment right to be free from criticism by his political opponents:

Politics, in its less refined sense, is about winning and maintaining control over government. Merriam-Webster's Collegiate Dictionary 901 (10th Ed. 1999). In a democratic republic, such as ours, politicians get elected by convincing voters that they and the policies they support are better for their constituents than their opponents and the policies they support. They do this in large part by criticizing their opponents and their policies. As long as the criticism is not defamatory and made with malice, the law affords no protection to the person targeted. On the contrary, it is the right of the person criticizing a public official that is protected by the Constitution. See New York Times Co. v. Sullivan, 376 U.S. 254, 269-70, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964). Even a false charge of criminal conduct against an official or candidate is constitutionally protected unless it is made with knowledge of its falsehood or with reckless disregard of whether it was false or not. Monitor Patriot Co. v. Roy, 401 U.S. 265, 277 (1971).

Importantly, while the Court recognized that a politician does not forego his First Amendment rights when he becomes an elected official, the Court noted that the First Amendment can still be limited:

This is not to say that Footit has forfeited his First Amendment right to speak out on issues of public concern. As the Supreme Court observed almost forty years ago, "[t]he manifest function of the First Amendment in a representative government requires that legislators be given the widest latitude to express their views on issues of policy." Bond v. Floyd, 385 U.S. 116, 135-36, 87 S. Ct. 339, 17 L. Ed. 2d 235 (1966). But as a policy-making official, Footit's vindication against his opponents, absent proof of libel or slander, must be found in the ballot box, not the courts. For this reason, his claim must be dismissed.

The Eighth Circuit Court of Appeals dismissed an analogous Section 1983 claim filed by a former recorder/treasurer of the City of Horseshoe Bend after she lost her bid for reelection. In Parks v. City of Horseshoe Bend, Arkansas, Parks alleged a civil conspiracy under Section 1983 against the City of Horseshoe Bend, Arkansas, its mayor, and other city council members, claiming that the defendants violated her constitutional rights "by conspiring to prevent her re-election in retaliation for her vocal opposition to [the mayor]." In affirming the district court's decision to dismiss Parks's claim, the Eighth Circuit Court of Appeals echoed the Footit Court in confirming that the Constitution does not protect the right to hold office. The Court further recognized that the defendants could not be liable under Section 1983 for retaliatory action:

Further, while retaliation against an individual based upon the exercise of her First Amendment rights can form the basis of § 1983 liability, such a claim requires adverse action by a government official that causes an injury to the plaintiff. . . . Parks fails to put forth evidence establishing a link between the alleged actions taken by the defendants and her electoral defeat. Because the decision not to re-elect Parks as recorder/treasurer was made by the voters of Horseshoe Bend, the defendants cannot be said to have caused Parks's alleged injury. Thus, even if we assume Parks's speech opposing the mayor in policy disputes was protected by the First Amendment and the defendants acted in some way against Parks because of those statements, the defendants' actions did not cause Parks to suffer a deprivation of a constitutional right.

Just as in Footit and Parks, Abbott's retaliatory claim under the First Amendment is futile. As a politician, Abbott should have expected to endure criticism and incrimination for his positions. Abbott cannot claim that Gordon and Freebery's decision to vote and speak against him, because he voted for matters "on the merits" and took positions opposing them, constitutes a violation of the First Amendment sufficient to support a Section 1983 claim. Rather, as recognized in Parks, even if Gordon and Freebery spoke out against him, he has not established any direct nexus between his defeat and the statements attributed to Gordon and Freebery. Since a Section 1983 claim cannot be based on defamation in the political setting relating to an election loss, Abbott's Section 1983 claim is not actionable.

iii. Any Unlawful Interference by Defendants is Not Actionable

(1) the private entity exercises powers that are traditionally exclusively reserved to the State (the public function test);

(2) the State exercised such coercive power that the private actor was compelled to act as it did (the state compulsion test); or

(3) the State is intimately involved in the challenged private conduct so as to be a joint participant (the symbiotic relationship test).

Even assuming that the actions of Gordon and Freebery make them subject to suit under the symbiotic relationship test, the main (though not only) problem with Abbott's claim of a right to be free from unlawful government interference under the First Amendment is that at no time does he articulate how the individual defendants or the County violated his First Amendment right to free speech through their unlawful conduct. Stated differently, Abbott lacks standing to bring this claim. Establishing standing requires that the plaintiff: (1) demonstrate an "injury in fact," which is "concrete," "distinct and palpable," and "actual or imminent"; (2) establish a causal connection between the injury and the conduct complained of; and (3) show a "substantial likelihood" that the requested relief will remedy the alleged injury.

Abbott has failed to show any causal connection between the individual defendants' unlawful use of County resources and any First Amendment violation. To be sure, had the County prevented him from speaking or barred him from County meetings, he might have a viable claim under the First Amendment. Abbott, however, does not allege that he was denied the right to speak, or that he was ejected from County meetings, or anything that would suggest his right to speech was limited. He merely contends that Gordon and Freebery crafted a conspiratorial scheme to use County resources to harm his chances for reelection. While these actions may constitute criminal conduct or violations of other rights of Abbott, none of them establish a causal connection to a violation of Abbott's First Amendment rights under either Section 1983 or the Fourteenth Amendment.

3. The Complaint Fails to State an Equal Protection Clause Claim

To allege a violation of the Equal Protection Clause of the Fourteenth Amendment under a "class of one" theory, a plaintiff must allege that he has been "intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment." Other courts have noted that, to be similarly situated, the plaintiff must make a showing that the other individuals who were not subject to discrimination are " prima facie identical in all relevant respects."

Courts have dismissed Equal Protection claims under Section 1983 where they are merely a restatement of the plaintiff's First Amendment claims. Abbott's Equal Protection claim in this case merely restates his First Amendment claim that Gordon and Freebery retaliated against him for not being "on the team" and for speaking out against them. The Court has already determined that Abbott has failed to allege a First Amendment violation or retaliatory action supporting a Section 1983 claim. Moreover, although Abbott has alleged that Gordon and Freebery intentionally treated him differently from other Council members, he has failed to establish that he was prima facie identical to them in all relevant respects.

To illustrate, the Seventh Circuit Court of Appeals in Ciechon v. City of Chicago found a prima facie case of a violation of Equal Protection between two paramedics where only one paramedic was disciplined after the death of a patient, even though both paramedics had experienced the same circumstances and were equally responsible for the patient's care. In a different circumstance, the same Circuit found that three different developers were not similarly situated because they "requested different variances than the [Plaintiffs] requested; submitted their plats during different time periods; and had their plat requests granted by different and previous Boards."

In this instance, Abbott was not similarly situated with the other Council members. Abbott was a Republican making a bid for reelection to the County Council in a Republican primary. He does not allege that the other Council members, whom Gordon and Freebery allegedly treated differently, were of the same or different political parties, or were even seeking reelection. These relevant circumstances, which would illuminate Gordon and Freebery's treatment of Abbott, are not mentioned in either his Complaint or his Answering Brief. In fact, the only inference the Court can draw from the Complaint is that the other members were not running for reelection at that time. Abbott's failure to allege that the other members were similarly situated is fatal to his Equal Protection claim.

What should be obvious from this analysis is that the gist of this case is that the political process did not work in Abbott's favor. In making his reelection bid, Abbott, a politician, should have expected to be treated differently from other candidates. Indeed, a politician's goal in any campaign is to differentiate himself from other candidates so as to convince the electorate to vote for him. Every politician should expect attacks by opponents to lessen one's chances of victory. In essence, then, Abbott has failed to state a violation of his Equal Protection rights under a "class of one" theory to support a Section 1983 action.

B. Abbott's 42 U.S.C. § 1983 Claim Against the County

Although Abbott's Section 1983 claims against the individual defendants cannot survive a motion to dismiss, he also asserts a Section 1983 claim against the County because its "execution of a policy or custom . . . inflict[ed] the injury." A plaintiff must offer evidence that "the government unit itself supported a violation of constitutional rights." Specifically, "a plaintiff must show that an official who has the power to make policy is responsible for either the affirmative proclamation of a policy or acquiescence in a well-settled custom."

In this case, Abbott's claim against the County fails for a variety of reasons. First, and most importantly, as explained supra, Abbott has failed to allege a Constitutional violation of his rights under Section 1983. Second, Abbott has failed to allege any "policy or custom" in which the County engaged. He has not alleged any "affirmative proclamation" made by the County to limit or chill the exercise of his Constitutional rights. Nor has he demonstrated the County's "acquiescence in a well-settled custom." Although he complains that Gordon and Freebery manipulated the County and its resources to vote consistently against his positions, he fails to allege that the entire Council or other members were in agreement with Gordon and Freebery. He does not even allege that Gordon and Freebery, as County Executive and Chief Administrative Officer, were the sole decision-makers for the County. The allegation that Gordon and Freebery voted against him because he refused to "rubber-stamp" their decisions does not alone establish a custom or policy of the County. Accordingly, the claim against the County must also be dismissed.

C. The Individual Defendants' and County's Defenses

1. The Statute of Limitations Bars Abbott's Section 1983 Claim

As recognized by Delaware and Federal courts, Section 1983 is subject to a two-year statute of limitations. Defendants argue that all of the allegations in Abbott's complaint occurred before the Republican primary on September 7, 2004, meaning that the latest date that he could have filed this action was September 6, 2004. In response, Abbott argues that he has alleged conduct through September 7, 2002. In the alternative, Abbott argues that the statute of limitations period was tolled under either the "continuing wrong" exception or the "date of discovery" exception.

Generally speaking, a cause of action accrues on the date that the action could first be brought. For purposes of computing the statute of limitations period, the Court does not include the day of the act but begins the running on the next day. Interestingly, while Defendants' conduct allegedly caused him to lose the 2002 Republican primary election, nowhere does Abbott allege that the Defendants did anything on the actual date of the election. At the latest, then, the conduct giving rise to Abbott's claim occurred on September 6, 2002. Any conduct that occurred before September 7, 2002 would be barred.

In this case, all of the conduct Abbott describes, including retaliation against him for his speech, disparate treatment for his refusal to "rubber stamp" the individual defendants' decisions, a scheme to end his service in office, and use of County resources to campaign against him, would necessarily have occurred before the primary. Therefore, under Superior Court Civil Rule 6(a), the limitations period would begin on September 7, 2002 — the next day — and would expire on September 6, 2004, exactly two years after the alleged violations. Since none of the alleged conduct occurred on or after September 7, 2002, the claims are only viable if the statute of limitations is tolled.

Abbott's first argument, that the "continuing wrong" exception tolled the statute of limitations, is not availing. With respect to Section 1983 violations, federal law applies the time of injury rule. That is, the period begins to run when the plaintiff "knows or has reason to know" of the injury that is the basis of his action. However, a plaintiff may bring an action after the statute of limitations has expired if the acts complained of constitute a continuing wrong. The concept of a continuing wrong is only applicable when the alleged wrongful acts are "so inexorably intertwined that there is . . . one continuing wrong." If the plaintiff can support the allegation of a continuing wrong with facts in the record, the statute of limitations will run from the date of the last negligent act.

Delaware courts have applied this exception narrowly and only in unusual situations. The "continuing wrong" exception has not been applied to Section 1983 actions, nor does it apply where "numerous repeated wrongs of similar, if not the same, character over an extended period" are alleged. Where the harms can be segmented, the continuing wrong exception is inapplicable, and the statute of limitations will apply to each allegation of wrongdoing rather than to the course of wrongful acts as a whole. Significantly, where the plaintiff knows, or in the exercise of reasonable diligence could have discovered that a cause of action exists, but fails to notify the defendant to correct the wrong, courts have been hesitant to apply the exception.

In the context of alleged violations of one's First Amendment rights, the Third Circuit Court of Appeals has held:

First Amendment retaliation claims are always individually actionable, even when relatively minor. The statute of limitations, therefore, begins to run when an alleged retaliatory act occurs. . . . Discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.

All of the actions which Abbott identifies to support his Complaint can be segmented into separate occurrences such that the statute of limitations would run upon the occurrence of each act. Obviously, any retaliation against him for speech occurred prior to the primary election. Similarly, any attempts by Defendants to violate Abbott's Equal Protection rights occurred while he was still a Councilman. It is also undisputed that Abbott knew of these violations well before the primary. In fact, all of the allegations in the Complaint suggest a course of conduct that Abbott knew was occurring at the time he served as Councilman and throughout the campaign. The continuing wrong exception is plainly inapplicable in these circumstances.

Abbott's second basis to toll the statute of limitations, the "date of discovery" exception, is equally unavailing. Under that theory, the statute of limitations may be tolled where there are no observable factors that would provide notice to a layman of a problem, and the statute begins to run "when the defect is, or should have been, discovered." As is evident from the Court's discussion with regard to the continuing wrong exception, Abbott was aware of the defendant's alleged misconduct at the time that Gordon and Freebery spoke out against him, voted against him, and campaigned against him. Although he claims he did not know that Gordon and Freebery used County resources for this purpose until he read about it in a newspaper report after September 7, 2002, he was certainly cognizant that they were campaigning against him well before he lost his election. Abbott even acknowledges in his Complaint that Gordon and Freebery used County resources "[b]eginning in or about the year 2001." He also asserts that Gordon and Freebery developed legislation to attack his reputation while he was a Councilman and used County employees to distribute campaign materials against his candidacy. These allegations demonstrate that there were observable factors that should have placed a reasonable person on notice of a claim that arose prior to September 7, 2002. Therefore, the "date of discovery" exception does not apply here.

Since Abbott filed his claim on September 7, 2004, Defendants' conduct, to be actionable, must have occurred on or after September 7, 2002. Although he has raised in his Complaint a multitude of wrongful acts by Gordon, Freebery, and the County, Abbott has not alleged a single act that occurred on or after the specific date of September 7, 2002. In other words, he has not shown how Defendants' conduct — which, in any event, did not violate any of his Constitutional rights to support a Section 1983 action — caused his loss of the Republican primary election on September 7, 2002. Thus, his Section 1983 claim is barred by the statute of limitations.

2. The Noerr-Pennington Doctrine Bars Claims Relating to Petitioning the County Council or the Ethics Commission

Defendants argue that the Noerr-Pennington doctrine bars many of Abbott's claims relating to their efforts to defeat his policies, remove him from leadership positions, file an ethics complaint against him, illegally seek legislation that would remove him from office, and introduce legislation that might harm his interests. In response, Abbott argues that the unethical petitioning by the Defendants and their illegal actions to harm his interests are not protected by the Noerr-Pennington doctrine.

The Noerr-Pennington doctrine had its genesis in the cases of Eastern Railroad Presidents Conference v. Noerr Motor Freight Inc. and United Mine Workers v. Pennington. In general terms, it disallows a plaintiff from bringing a cause of action for business torts based on allegations "predicated upon mere attempts to influence the Legislative Branch for the passage of laws or the Executive Branch for their enforcement." This holding was premised on the following two principles:

In the first place . . . [i]n a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends upon the ability of the people to make their wishes known to their representatives. To hold that the government retains the power to act in this representative capacity and yet hold, at the same time, that the people cannot freely inform the government of their wishes would impute to the Sherman Act a purpose to regulate, not business activity, but political activity, a purpose which would have no basis whatever in the legislative history of that Act. . . . Secondly, and of at least equal significance, . . . [t]he right of petition is one of the freedoms protected by the Bill of Rights, and we cannot, of course, lightly impute to Congress an intent to invade these freedoms.

Although there may be times when an alleged conspiracy is "a mere sham to cover what is actually nothing more than an attempt to interfere directly with the business relationships of a competitor," the Supreme Court has exercised extreme caution in the realm of political conduct, even where those activities are deemed unethical. Moreover, the doctrine "shields . . . a concerted effort to influence public officials regardless of intent or purpose."

All of Abbott's allegations are against Defendants in their political capacity. The doctrine shields Defendants' efforts to influence other officials to agree with their policies, regardless of their intent or purpose. Defendants have a right as politicians to "intercede, lobby, and generate publicity to advance their constituents' goals, both expressed and perceived." Abbott's allegations do not establish that Defendants' conduct was a "sham" to harm him, nor does he claim the absence of a legitimate basis for opposing him. Notably, Defendants' alleged conduct, while perhaps unethical, did not prevent him from acting as a Council member, nor bar him from running for reelection, nor preclude him from speaking, nor punish him for his representation of certain land developers. Although the conduct may be deemed a concerted effort to convince other Council members to take positions different from Abbott's, the doctrine is intended to shield precisely this type of conduct in the political realm.

In short, the general attitude of courts asked to consider election disputes, whatever the relief sought, has been one of great caution. Intervention has come only in rare and extraordinary circumstances, for courts have recognized and respected the delegation of such disputes to other authorities. Such intervention, moreover, has never included the grant to defeated candidates of monetary compensation. Because such compensation is fundamentally inappropriate, we hold that it is unavailable as a form of post-election relief.

The Fourth Circuit's analysis applies equally to the case at bar. Awarding Abbott monetary damages for his injuries is clearly inappropriate. The Court is unable to identify any decision from any Court that has ever awarded monetary relief to a defeated candidate. Because Abbott has not sought any other relief in his Complaint, for that reason alone, the Complaint must be dismissed.

4. Gordon and Freebery are Not Entitled to Qualified Immunity, but They are Protected by Legislative Immunity

In this case, Abbott has alleged that Gordon and Freebery violated various County, State, and Federal laws by utilizing county resources, defaming him in public, and attempting his removal on government committees, with the malicious intent to harm both his reputation and his chances for reelection. Taking his allegations as true, an elected official would know or reasonably should have known that such actions violated Delaware law. Accordingly, Defendants are not entitled to qualified immunity.

Notwithstanding the fact that qualified immunity is not applicable to them, Gordon and Freebery are entitled to legislative immunity for certain actions in which they engaged during their terms. These actions include inducing a County employee to refrain from attending a public meeting to protest Abbott, gathering votes to defeat an Abbott-sponsored ordinance, pressuring County members to remove Abbott from a committee, threatening Abbott in connection with one of his votes, and developing legislation to interfere with Abbott's private law practice.

Under the doctrine of legislative immunity, "state and regional legislators are entitled to absolute immunity from liability under § 1983 for their legislative activities." Where duties are ministerial or mandatory, rather than discretionary, legislative immunity is inapplicable. Whether an act is legislative depends on the nature of the act at issue, rather than upon the motive or intent of the official performing it. Courts have also explicitly recognized that "officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions."

Although Gordon and Freebery were technically executives, all of the actions regarding the individual defendants' attempt to pass legislation, to remove Abbott from committees, to gather votes, to pressure people not to vote, or to threaten Abbott for a vote he cast, are legislative in nature, as well as discretionary. If Gordon and Freebery singled out Abbott in their legislative actions, they are immune from liability under legislative immunity. Thus, the allegations of individual defendants' improper legislative conduct — specifically, the allegations in paragraphs 13, 14, 15, 17, and 25 of Abbott's Complaint — cannot form the basis for Section 1983 liability.

For all of the foregoing reasons, not only has Abbott failed to state a claim under Section 1983, but his cause of action cannot survive because the statute of limitations has expired, and Defendants are not liable to Abbott under the Noerr-Pennington doctrine. Gordon and Freebery are also entitled to legislative immunity for the legislative actions that Abbott asserts in his Section 1983 claim. Accordingly, Count I of the Complaint is hereby dismissed.

II. The Complaint Fails to State a Civil Conspiracy Claim Against the County

In response to the civil conspiracy claim, the County raises three defenses. First, it argues that, as an entity, the County cannot conspire with its agents or form the requisite intent to participate in a conspiracy. Second, Abbott cannot, as a matter of law, claim actual damages for the loss of a general election for which he never qualified. Finally, Abbott's civil conspiracy claim cannot be grounded on the "Free and Equal" Elections Provision of the Delaware Constitution, the County Employment AntiDiscrimination Provision, the Campaign Financing and Disclosure Act, or the County Ethics Code. The Court will address each defense separately.

A. Abbott Cannot Establish that the County Conspired with its Agents or Formed the Intent Necessary for a Civil Conspiracy

Although discussing federal law, this holding is in accord with Delaware case law which requires a plaintiff to establish that an entity, such as a municipality, had the specific intent to engage in a conspiracy. A plaintiff may establish a municipality's specific intent through evidence of an established policy, practice, or custom, even though a municipality is generally unable to conspire with its agents. This analysis is similar to the analysis that Delaware courts use to determine whether a corporation may conspire with its agents. Adopting that framework, Abbott's Complaint cannot survive dismissal.

Although Abbott alleges illegal conduct by Gordon and Freebery motivated by personal desires, he has not alleged that the County engaged or knowingly participated in a civil conspiracy with specific intent to commit an unlawful act. Abbott has also failed to establish that the individual defendants' illegal conduct was the established practice, policy, or custom of the County. Because a municipality cannot conspire with its own employees, Abbott's claim fails on that basis alone. Once again, Abbott cites no case or statutory law — from Delaware or any other jurisdiction — to support his claim that a municipality can be liable for a conspiracy with its own officials and employees. Because he cannot demonstrate that the County's established practice, policy, or custom involved knowing participation in a conspiracy with Gordon and Freebery, his civil conspiracy claim against the County fails as a matter of law.

2. Abbott's Damages Theory Fails as a Matter of Law

The unique nature of this case convinces us that the requested intervention is inappropriate under any circumstances, for plaintiffs' suit for damages strikes us as an inapt means of overseeing the political process. It would provide not so much a correction of electoral ills as a potential windfall to plaintiffs and political advantage through publicity. . . . Those who enter the political fray know the potential risks of their enterprise. If they are defeated by trickery or fraud, they can and should expect the established mechanisms of review — both civil and criminal — to address their grievances, and to take action to insure legitimate electoral results. In this way, they advance the fundamental goal of the electoral process — to determine the will of the people — while also protecting their own interest in the electoral result. A suit for damages, by contrast, may result principally in financial gain for the candidate. We can imagine no scenario in which this gain is the appropriate result of the decision to pursue elected office, and we can find no other case in which a defeated candidate has won such compensation. Nor do we believe, in light of the multitude of alternative remedies, that such a remedy is necessary either to deter misconduct or to provide incentives for enforcement of election laws.

To be sure, it would be impossible to prove that Defendants' actions caused Abbott's defeat. To prove such a claim, Abbott would have to call every citizen who voted in the 2002 Republican Primary, determine their motivations, and prove to a jury's satisfaction that those votes were based on the unlawful conduct of the Defendants. That scenario would present an insurmountable obstacle for this, or any, court to address. As explained by the Ninth Circuit Court of Appeals:

There may be not less than a thousand factors which enter into the vagaries of an election. . . . The net result of such an exploration into the uncertainties of an election can only lead to confusion. It is submitted that this character of evidence has been historically rejected and wisely so.

Because there are "a thousand factors which enter into the vagaries of an election," it is impossible for Abbott to establish that Defendants' conspiracy caused his defeat, and he therefore can never prove actual damages.

3. The Underlying Conduct for Abbott's Civil Conspiracy Claim is Not Actionable

Defendants further argue that none of the foundations for Abbott's civil conspiracy claim — the "Free and Equal" Elections Provision of the Delaware Constitution, the County Employment Anti-Discrimination Provision, the Campaign Financing and Disclosure Act, and the County Ethics Code — are actionable under a civil conspiracy claim. The Court will address all four briefly.

A. The "Free and Equal" Elections Provision of the Delaware Constitution

Defendants first submit that the "Free and Equal" Elections Provision of the Delaware Constitution cannot be a basis for Abbott's civil conspiracy claim because he has not alleged any facts that suggest that the 2002 Republican Primary was not "free" or "equal." Article I, Section 3 of the Delaware Constitution states: "All elections shall be free and equal." While there is a dearth of case law addressing Section 3, the limited case law that does exist indicates that this section's purpose is to ensure that the right of citizens to vote in an election is unfettered. Specifically, the section safeguards the people's right to elect officials of their choosing, but does not serve to protect a candidate for public office who may have been undermined by his political opponents. Similarly, the purpose of election laws is to protect the right of citizens, not candidates, to have free and equal access to the polls:

The purpose of this title is to assure the people's right to free and equal elections, as guaranteed by our state Constitution. To that end, the full exercise of that right demands that the people be afforded the means to form political parties, nominate candidates and cast ballots for whomever they choose.

Abbott has not alleged that Delaware citizens were disenfranchised. Nor has he asserted that their access to the polls was disturbed, that the process by which ballots were accepted and counted was flawed, or that Defendants somehow tainted the election results. Significantly, there are no allegations in the complaint that the individual defendants' use of County resources interfered with the people's rights "to form political parties, nominate candidates and cast ballots for whomever they choose." While Gordon and Freebery may have violated various election laws and thus affected the decisions of the County electorate, there is no basis to conclude that the County electorate's ability to vote or access to the 2002 Republican primary was in any way affected so as not to be free and equal. Thus, the Court rejects the "Free and Equal" Elections Provision of Article I, Section 3 of the Delaware Constitution as a basis for a civil conspiracy claim.

B. The County Employment Anti-Discrimination Provision

If the Court were to adopt Abbott's interpretation of Section 1183, any incumbent Council member who lost her bid for reelection after the citizens freely voted could recover damages if her political opponents had maligned or criticized her political views. As discussed above, Abbott has no right to recover damages for a lost election. Because his removal from office was the will of people, he cannot rely on Section 1183 as a basis for a civil conspiracy claim.

Moreover, Section 1183 is a criminal statute which does not confer a private right of action. A private cause of action based on a statute is only available if the legislature intended a private remedy, even if a statute is violated and a person is harmed. "[W]here a statute was obviously enacted for the protection of a designated class of individuals," the Court may infer that a private right of action exists. In contrast, where a statute establishes general prohibitions to protect the public at large, the Court will not infer a private cause of action on behalf of an individual.

The language of Section 1183 suggests that the penalties are not applicable to a designated class of individuals, but rather to the public at large:

Any person who by himself or with others willfully or corruptly violates this section shall be fined not more than $500, or imprisoned for not more than 1 year, or both. Any person convicted under this section shall be ineligible, for a period of 5 years thereafter, to hold any county office or position and, if he is an officer or employee of the County, he shall immediately forfeit his office or position. The Superior Court shall have exclusive original jurisdiction over offenses under this section.

Since the statute proposes criminal fines and the possibility of imprisonment, it is penal in nature, and the absence of any designated class of citizens in the statute suggests that it is intended to protect the public at large. There is no language to indicate a legislative intent to include a private right of action, and Abbott has offered no authority to support his claim to a private right of action under Section 1183.

C. The Campaign Financing and Disclosure Act

Under 15 Del. C. § 8041(2), the State Election Commissioner or his designee shall, "[a]t the request of any person, make a ruling that applies this chapter to a set of facts specified by the person." On November 3, 2004, Abbott specifically requested that the Election Commissioner make a ruling as to whether New Castle County employees were permitted to work on a political campaign during business hours. The Commissioner issued a ruling with which Abbott disagreed. Rather than file an appropriate appeal, Abbott sought a writ of mandamus pursuant to 29 Del. C. § 10143. Ultimately, the Supreme Court affirmed the Superior Court's decision denying Abbott's request for a writ of mandamus. Since Abbott failed to perfect an appeal of the Election Commissioner's decision within the time permitted, the Commissioner's ruling became final, thereby divesting this Court of jurisdiction to decide the appeal. To the extent that Abbott bases his civil conspiracy claim on alleged violations of the Campaign Act, the Court will not now provide Abbott with what essentially amounts to a second opportunity to challenge the Commissioner's rulings.

Moreover, the proper forum for any claims related to the Campaign Act is the Court of Chancery, where jurisdiction is vested by 15 Del. C. § 8042. Abbott's attempt to bring a cause of action under the Campaign Act as a civil conspiracy claim in this Court is improper because he cannot recover monetary damages for any proven violation. The Superior Court's jurisdiction is limited to imposing criminal sanctions upon those who violate the act.

D. The County Ethics Code

Abbott argues, without support, that New Castle County Code Sections 2.03.103A.1 and 2.03.104A can form the basis of a civil conspiracy claim against the Defendants. The Ethics Commission, and the Ethics Commission alone, has authority to:

[i]ssue findings, reports and orders relating to investigations initiated pursuant to Section 2.04.103 which set forth the alleged violation, findings of fact and conclusions of law. An order may include recommendations to law enforcement officials.

If the conduct of Gordon and Freebery violated the County Ethics Code, Abbott should have filed his complaint with the Ethics Commission in the first instance. The Code establishes a procedure by which an individual may initiate an action under the Ethics Code:

An employee who alleges he or she has suffered an adverse personnel action for reporting a violation or suspected violation of law or regulation to an elected public official may bring a civil action for appropriate injunctive relief, actual damages, or both, within ninety (90) days after the occurrence of the alleged violation, as set forth in 29 Del. C. Section 5115 or its successor.

Abbott has not alleged that he has suffered an "adverse personnel action" which would form the basis of a civil action. He did not file this action until at least two years after any wrong occurred, long after the ninety-day period had elapsed. Abbott's failure to comply with the Ethics Code divests this Court of jurisdiction to hear any claim premised on sections of that code.

Similarly, Abbott cannot base a civil conspiracy claim on violations of the Ethics Code because jurisdiction is vested in the Ethics Commission, not in the Superior Court. Failing to avail himself of this administrative remedy in the first instance precludes this Court's consideration of any claims related to the County Code. On this basis alone, Abbott may not maintain a civil conspiracy claim under the Ethics Code.

III. The Complaint Fails to State a Libel/Slander Claim Against the Defendants

Abbott's third, and now final, count of his Complaint is a defamation claim in which he alleges that Gordon and Freebery made numerous false and malicious statements against him in an effort to gut his campaign for reelection. Abbott concedes that he cannot assert a defamation claim against the County. He contends, however, that he can assert a defamation action individually against Gordon and Freebery. The individual defendants ask the Court to dismiss Abbott's defamation claims because the claims are barred by the statute of limitations, and the Complaint fails to state a defamation claim as a matter of law. The Court will address each argument in turn.

A. The Two-Year Statute of Limitations Bars Abbott's Defamation Claims

The statute of limitations for a defamation action in Delaware is two years. The two-year statute begins to run from the date the alleged defamatory statement is communicated to the third party. Because Abbott filed his Complaint on September 7, 2004, the allegedly defamatory statements must have been made on or after September 7, 2002 to be within the limitations period.

All of Abbott's allegations of defamation concern statements made before the September 7, 2002 Republican primary. For example, he alleges that "partially false" information was printed in a newspaper in "late 2000." He further avers that false accusations were made "prior to and at" a meeting in the County Executive conference room on July 11, 2002. Nowhere in the Complaint is there an allegation that Gordon or Freebery made any slanderous or libelous statements on or after September 7, 2004.

Although Abbott argues the "continuing wrong" exception to the statute of limitations based on a "multi-year course of conduct," that exception is inapplicable to these claims. Accepting that Gordon and Freebery made slanderous and libelous statements, every single defamatory statement would be individually actionable at the time it was made. Abbott's Complaint, while unclear, suggests that the statements were made at different times about different issues, all related to Abbott. While the subject matter of the defamation — Abbott — would be the same, Abbott has not demonstrated that each statement was so "inexorably intertwined" that the statements could be considered to be one continuing wrong. As a result, the statute of limitations bars Abbott's defamation claims.

B. Abbott's Defamation Claims Fail as a Matter of Law

Defendants' last challenge to Abbott's defamation claims is more fundamental. In essence, they assert that Abbott has failed to plead an adequate defamation claim under Delaware law. The Court agrees.

To state a defamation claim under Delaware law, a public figure must plead and prove that: (1) the defendant made a defamatory statement; (2) concerning the plaintiff; (3) the statement was published; (4) a third party would appreciate that the communication was defamatory; (5) the statement was false; and (6) defendant made the statement with actual malice. Where a statement involves libel, proof of damages is not required for the plaintiff to recover any nominal or compensatory damages. Whether or not a statement is defamatory is a question of law.

The Delaware Supreme Court in Doe v. Cahill established that a public figure alleging defamation must plead those six elements and offer prima facie proof of each to create a genuine issue of material fact requiring trial. When evaluating the first two elements, "[t]he judge will have before him the allegedly defamatory statements and can determine whether they are defamatory based on the words and the context in which they were published." As explained by the Supreme Court:

In cases where it is not facially apparent, to satisfy this element the plaintiff can, by affidavit or verified complaint, offer particular facts that establish that the statement refers to him. For example, additional factual averments might be necessary when the allegedly defamatory statement refers to the plaintiff by a nickname. . . . The plaintiff should also have easy access to proof that the statement was published. He can produce a computer print-out of the statements made over the internet or simply direct the court to the specific website where the statements were made should they still be available.

Nonetheless, the Court noted that "even silly or trivial libel claims can easily survive a motion to dismiss where the plaintiff pleads facts that put the defendant on notice of his claim, however vague or lacking in detail these allegations may be." As long as the opposing party has notice of the claim brought against it, the allegation is well-pleaded.

The Court has thoroughly reviewed the entire Complaint. Nowhere in it does Abbott even mention the substance of any defamatory statements. Although he alleges in general terms that Defendants, "through spoken and written word, made and published numerous false statements of fact regarding Abbott" and "falsely accused Abbott of unethical conduct" in "telephone calls and mass mailings," Abbott provides no specifics enabling either the Court or Defendants to determine whether the statements were defamatory to Abbott, whether they were actually published, whether the public would understand them as defamatory, or whether they were false. Abbott's failure to include the statements in his Complaint — either in an affidavit or as factual averments — also precludes any determination of whether a trial may be necessary. This error is fatal because Abbott, as the public figure plaintiff, had to have had access to the statements and could have easily included them in his Complaint.

Although Abbott correctly states that the summary judgment standard discussed in Doe v. Cahill only applies where the plaintiff seeks to obtain the identity of an anonymous defendant through the compulsory discovery process, all of the elements necessary for a defamation claim must still be pleaded. Abbott cannot avoid a motion to dismiss by conclusively stating that he was defamed, without offering prima facie evidence of the six elements. While Defendants are on notice that Abbott is vaguely asserting a defamation claim, they have no knowledge as to what statements were made or when they were made, effectively precluding them from preparing a defense. In this case Abbott's failure to offer any facts is fatal to his defamation claim. His general conclusion that Gordon and Freebery defamed him cannot establish a prima facie case.

For all the above reasons, Abbott's defamation claim fails as a matter of law. Count III is therefore dismissed.

VI. Conclusion

Having addressed the substance of the claims and defenses concerning the Motion to Dismiss, the Court cannot avoid commenting upon the nature of this lawsuit and the unnecessary and heavy burdens it has placed upon the County, the individual defendants, and the Court. Under any reasonable view of the facts and the law, the filing of this action by Abbott was nothing short of a baseless effort to vindicate the loss of his County Council Seat and to seek redress against his former political opponents.

Black's Law Dictionary defines a "frivolous lawsuit" as one "having no legal basis, often filed to harass or extort money from the defendant." The term "frivolous" is generally used to characterize claims filed by non-lawyer pro se litigants who feel unjustifiably wronged but are unable to appreciate that Courts are not available to redress every perceived injustice. Rarely are they the work product of an experienced attorney who has been a member of the Delaware Bar for almost twenty years.

The unfounded claims raised by Abbott pervade this litigation. The expenditure of time and resources required to address them would be wasteful and unfortunate if they were asserted by an individual who was not legally trained or skilled in the law. Officers of this Court have a clear responsibility not to raise frivolous claims for the purpose of delaying litigation or making it more costly. Superior Court Rule 11(b) recognizes this duty, stating:

By representing to the Court (whether by signing, filing, submitting, or later advocating) a pleading, written motion, or other paper, an attorney or unrepresented party is certifying that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances,

(1) it is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief

In the Court's judgment, the foregoing provisions are equally applicable to Abbott whether he serves as an attorney representing a client or chooses to pursue his case pro se, no matter how emotionally or passionately invested in the outcome he is. As a litigant or as an advocate, Abbott's duty is one of reasonableness under the circumstances, and a subjective good faith belief in the legitimacy of the claim or even an overzealous desire to repair manifest injustice does not alone satisfy the requirements of Rule 11.

This case is replete with examples of undeveloped, unresearched and frivolous arguments. In many instances Abbott has completely ignored controlling Delaware Supreme Court case law that is directly contrary to the arguments he asserts, without any attempt made to acknowledge or distinguish them. For example, while Abbott may not have known or thoroughly researched that the statute of limitations for a Section 1983 claim in Delaware is two years, once Defendants filed their Opening Brief he was put on actual notice of that fact, and of the Delaware case directly on point. Instead of making an effort to distinguish the decision, Abbott persisted in misstating the applicable statute of limitations as found under 10 Del. C. § 8106, in direct contradiction to Delaware's decisional and statutory law.

As this lengthy Opinion shows, the bulk of the claims and legal contentions asserted by Abbott have no foundation in existing law nor are they supported by a nonfrivolous argument for reversal or modification of existing law, in direct violation of Rule 11. Even in those instances where Abbott withdrew portions of his Complaint, such as those founded upon the RICO statute, the harm that Rule 11 is intended to avoid has already occurred.

All of the unsupported and frivolous claims asserted by Abbott have in the end imposed unnecessary expense on the County, have wasted valuable Court resources, and have done little to advance this court's ability to render swift justice. Defendants have refrained from requesting sanctions or a fee-shifting award in this case and, as such, the Court will not impose any. But, Abbott is an Officer of the Court and it at least bears mention that he has failed in his responsibility under Rule 11 and under the Delaware Rules of Professional Responsibility.

For all of the foregoing reasons, the Motions to Dismiss are hereby GRANTED. IT IS SO ORDERED.

Original to Prothonotary