The opinion of the court was delivered by: Kenneth M. Karas, District Judge:
Plaintiffs John Doe, Jane Doe, and Jack Doe ("Plaintiffs"), residents of New York, bring this action against Defendants Delaware State Police ("DSP") and Seaford Police Department ("Seaford PD") (collectively "Defendants") asserting common law claims of "negligence per se," "gross and wanton negligence," and "loss of reputation, companionship and services."
(Verified Complaint ("Compl.") ¶¶ 60, 63, 67, 71.) The Complaint in this case and all other submissions were sealed pursuant to an order of Judge Cathy Seibel dated April 7, 2010, granting Doe leave to file the Complaint and all subsequent pleadings and documents under seal. Later, by Order dated March 13, 2013, the Court ordered the case be unsealed; however, Plaintiffs' names and a few other details that may lead to their identification have been redacted from the version of this Opinion originally filed under seal.
Defendants have moved to dismiss. The motions are granted in large part, though, as explained below, Plaintiffs have the option of accepting a transfer to the District of Delaware in lieu of the dismissal of the Seaford PD.
The Complaint alleges the following facts, accepted as true for the purpose of deciding these motions. In August 2000, John Doe, then age sixteen, pled guilty in Delaware to a charge of unlawful sexual contact in the third degree after being accused of inappropriately touching a seventeen-year-old girl. (Compl. ¶¶ 13-14.) Doe was thereafter required to register as a sex offender in his then--home state of Delaware. (Id. ¶¶ 15-16.) In his registration, Doe listed various addresses and a phone number at which he could be found, including two addresses in the City of Seaford, Delaware ("Seaford"). (Id. ¶ 17.) Doe's Delaware conviction was expunged by order of the Family Court of Delaware on December 10, 2009. (Id. ¶ 46; Ex. 3.)
In September 2008, before expungement of the conviction, an officer of the DSP made a random check for Doe's whereabouts. The officer, for an unknown reason, went to an apartment in Seaford that was not listed on Doe's sex offender registration and at which Doe alleges he had never lived. (Id. ¶¶ 19-20, 26.) Finding the apartment vacant, the officer informed the Seaford PD, which obtained an Adult Complaint and Warrant (the "Delaware warrant") against Doe from the Delaware Justice of the Peace Court on October 1, 2008. (Id. ¶¶ 21, 24-25; Ex. 1.) The Delaware warrant authorized Doe's arrest for failing to re-register as a sex offender after a change of address. (Id. Ex. 1, at 3.) Doe alleges that neither the DSP nor Seaford PD attempted to contact him at the phone number or any of the Delaware addresses he had listed on his sex offender registration, even though this information was available to Defendants. (Id. ¶¶ 27-32.)
Doe later moved from Delaware to New York and married Plaintiff Jane Doe. (Id. ¶¶ 35-36.) On September 15, 2009, John Doe was pulled over for a traffic violation in New Castle, New York; the Delaware warrant was discovered during the ensuing background check, and Doe was arrested and detained in Westchester County. (Id. ¶¶ 37-38.) Delaware did not seek Doe's extradition and he was released on September 21, 2009. (Id. ¶ 41.) News of Doe's arrest reached a local news outlet. (Id. ¶¶ 43-44; Ex. 2.) Doe alleges that viewers of the outlet's website posted "vicious" comments about the story, and that the publicity surrounding his arrest led him and his family to suffer harassment by their neighbors, forcing the family to move. (Id. ¶¶ 44-45.)
Plaintiffs filed the Complaint in this case, asserting two negligence claims against Defendants, both based on the allegations that Defendants searched for Doe at the wrong address, failed to confirm his whereabouts at the correct addresses, and caused the Delaware warrant to be issued based on false information. (Id. ¶¶ 56, 63.) Plaintiffs allege that these acts constituted "wanton and gross negligence, carelessness and recklessness," (id. ¶ 63), and were also negligent per se because they were allegedly done "in violation of" unspecified "local and State laws, police procedures, rules and ordinances," (id. ¶ 57.) The Complaint also contains two claims for "loss of reputation, companionship and services," asserted by Plaintiffs Jane and Jack Doe, the couple's minor son, respectively. (Id. ¶¶ 67-72.) Plaintiffs seek $35,000,000 in compensatory, "exemplary," and punitive damages on the negligence claims, and $150,000 each on the "loss of reputation" claims. (Id. ¶ 72.)
DSP seeks dismissal pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), and (3). In its motion, DSP contends that (1) the Court lacks subject matter jurisdiction over the claims against it because DSP is protected by Delaware's state sovereign immunity; (2) venue is improper in this District; and (3) DSP is not subject to this Court's personal jurisdiction. (Def. Del. State Police's Mem. of Law in Supp. of its Mot. to Dismiss ("DSP's Mem.") 2, 5-7, 9-11; Def. Del. State Police's Reply Mem. of Law in Supp. of its Mot. to Dismiss ("DSP's Reply") 4-6.) Seaford PD joins DSP's arguments regarding venue and personal jurisdiction, and in addition contends that the case should be transferred to Delaware pursuant to 28 U.S.C. § 1404(a), and that it has immunity from Plaintiffs' claims under Delaware law. (Def. Seaford Police Dep't's Mem. of L. in Supp. of its Mot. to Dismiss ("Seaford Mem.") unnumbered 8-11.) Plaintiffs oppose the motions and seek an order from the Court "[g]rant[ing] Summary Judgment 'Sua Sponte' in the Plaintiffs' favor." (Mem. of Law in Supp. of Pls.' Ans. to Defs.' Mot. to Dismiss & Request to Change Venue ("Pls.' Mem.") 23.)
A. Standard of Review "[A] federal court generally may not rule on the merits of a case without first determining that it has jurisdiction over the category of claim in suit (subject-matter jurisdiction) and the parties (personal jurisdiction)." Sinochem Int'l Co. v. Malaysia Int'l Shipping Corp., 549 U.S. 422, 430-31 (2007) (citing Steel Co. v. Citizens for Better Env't, 523 U.S. 83, 93-102 (1998)). Although a court is free to "choose among threshold grounds" for dismissing an action so long as none involve "a judgment on the merits," id. at 431 (internal quotation marks omitted), "the proper course" is to dismiss an action for lack of jurisdiction if the "court can readily determine that it lacks jurisdiction over the cause or the defendant," id. at 436; see also Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 588 (1999) (holding that "[w]here . . . a district court has before it a straightforward personal jurisdiction issue . . . and [an] alleged defect in subject-matter jurisdiction rais[ing] a difficult and novel question," the court has discretion to "turn directly to personal jurisdiction"). Under the circumstances of this case, the Court will address DSP's objections to subject matter jurisdiction and then address personal jurisdiction. Consideration of these two issues alone is sufficient to decide Defendants' motions.
If a court lacks subject matter jurisdiction over a claim, the claim must be dismissed as the court "lacks the statutory or constitutional power to adjudicate it." Ford v. D.C. 37 Union Local 1549, 579 F.3d 187, 188 (2d Cir. 2009) (per curiam) (internal quotation marks omitted); see also Cave v. E. Meadow Union Free Sch. Dist., 514 F.3d 240, 250 (2d Cir. 2008) ("If a court perceives at any stage of the proceedings that it lacks subject matter jurisdiction, then it must take proper notice of the defect by dismissing the action."). "The plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005). In deciding a motion to dismiss pursuant to Rule 12(b)(1), the Court "take[s] all facts alleged in the complaint as true and draw[s] all reasonable inferences in favor of [the] plaintiff." NRDC v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (internal quotation marks omitted). However, "jurisdiction must be shown affirmatively, and that showing is not made by drawing from the pleadings inferences favorable to the party asserting it." Morrison v. Nat'l Australia Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff'd, 130 S. Ct. 2869 (2010). "In resolving a motion . . . under Rule 12(b)(1) a district court may consider evidence outside the pleadings," id., but it "may not rely on conclusory or hearsay statements contained in" such evidence, J.S. ex rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 110 (2d Cir. 2004).
The plaintiff bears the burden of establishing the court's personal jurisdiction over a particular defendant. See Penguin Group (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010). On a Rule 12(b)(2) motion, the plaintiff carries this burden by making a prima facie showing that jurisdiction exists. Id. at 34-35; see also S. New England Tel. Co. v. Global Naps Inc., 624 F.3d 123, 138 (2d Cir. 2010) ("SNET"). "This showing may be made through the plaintiff's own affidavits and supporting materials, containing an averment of facts that, if credited, would suffice to establish jurisdiction over the defendant." SNET, 624 F.3d at 138 (internal quotation marks omitted). The court "construe[s] the pleadings and affidavits in the light most favorable to plaintiffs, resolving all doubts in their favor," Porina v. Marward Shipping Co., 521 F.3d 122, 126 (2d Cir. 2008), but the court is "not bound to accept as true a legal conclusion couched as a factual allegation," and a plaintiff may not rely on "conclusory non-fact-specific jurisdictional allegations" to overcome a motion to dismiss, Jazini v. Nissan Motor Co., 148 F.3d 181, 185 (2d Cir. 1998) (internal quotation marks omitted).
1. Claims Against Defendant Delaware State Police The Eleventh Amendment to the U.S. Constitution provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. Amend. XI. "Although the Amendment, by its terms, bars only federal suits against state governments by citizens of another state or foreign county, it has been interpreted also to bar federal suits against state governments by a state's own citizens." Woods v. Rondout Valley Cent. Sch. Dist., 466 F.3d 232, 236 (2d Cir. 2006) (citing Hans v. Louisiana, 134 U.S. 1, 15 (1890)). The Eleventh Amendment applies unless a state affirmatively waives its immunity, see Lapides v. Bd. of Regents of Univ. of Ga., 535 U.S. 613, 618 (2002); Coll. Sav. Bank v. Fla. Prepaid Secondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999), or if Congress, through a statute passed as a valid exercise of its power under Section Five of the Fourteenth Amendment, makes "unmistakably clear" in the statute's text its intent to abrogate the states' immunity, Nev. Dep't of Human Resources v. Hibbs, 538 U.S. 721, 726 (2003). A claim that is barred by a state's sovereign immunity must be dismissed pursuant to the Eleventh Amendment for lack of subject matter jurisdiction. See Va. Office for Prot. & Advocacy v. Stewart, 131 S. Ct. 1632, 1637 (2011) (noting that "the Eleventh Amendment . . . confirm[s] the structural understanding that States entered the Union with their sovereign immunity intact, unlimited by Article III's jurisdictional grant"); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996) ("For over a century [the Supreme Court has] reaffirmed that federal jurisdiction over suits against unconsenting State 'was not contemplated by the Constitution when establishing the judicial power of the United States.'" (quoting Hans, 134 U.S. at 15)).
Eleventh Amendment immunity extends not only to a State when sued as a defendant in its own name, but also to "state agents and state instrumentalities" when "the state is the real, substantial party in interest." Regents of the Univ. Of Cal. v. Doe, 519 U.S. 425, 429 (1997) (internal quotation marks omitted). The DSP is clearly an agency of the state of Delaware, and Plaintiffs do not argue otherwise. (Pls.' Mem. 8.) See Del. Code Ann. tit. 11, § 8301 (2009) (providing that the Delaware "Department of Safety and Homeland Security . . . may appoint police officers whose primary duty shall be to compel the enforcement of all laws relating to . . . vehicles on the public highways of the State [to be known as the] State Police"); Buchanan v. Gay, 491 F. Supp. 2d 483, 493 (D. Del. 2007) (describing DSP as among "Delaware's branches of government and its State agencies"); Neeley v. Samis, 183 F. Supp. 2d 672, 673 (D. Del. 2002) (describing DSP as "a governmental agency of the State of Delaware"); Pauley v. Reinoehl, 848 A.2d 569, 573 (Del. 2004) (en banc) (holding that the DSP may invoke the State's sovereign immunity); see also Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009) (listing factors to consider in determining whether entity is "arm of the state" for Eleventh Amendment purposes). For this reason, Delaware courts have uniformly held that the DSP is generally immune from suit under the Eleventh Amendment. See Buchanan, 491 F. Supp. 2d at 493 (dismissing § 1983 and other federal statutory claims against DSP on Eleventh Amendment grounds); see also Yarnall v. Mendez, 509 F. Supp. 2d 421, 429 (D. Del. 2007) (dismissing excessive force claim against DSP on Eleventh Amendment grounds); Neeley, 183 F. Supp. 2d at 678 (same); McDowell v. Del. State Police, No. 95-CV-129, 1999 WL 151873, at *5 (D. Del. Mar. 15, 1999) (dismissing negligence claim against DSP and officers in official capacity on Eleventh Amendment grounds).
There is no question of congressional abrogation here, as Plaintiff's claims are based on Delaware common law. Plaintiffs contend, however, that the Delaware State Tort Claims Act, Del. Code Ann. tit. 10, § 4001 et seq. ("State Tort Claims Act" or "§ 4001"), constitutes a waiver of the state's sovereign immunity for tort claims involving gross negligence. (Pls.' Mem. 9-12.) The relevant portion of this statute provides:
Except as otherwise provided by the Constitutions or laws of the United States or of the State, as the same may expressly require or be interpreted as requiring by a court of competent jurisdiction, no claim or cause of action shall arise, and no judgment, damages, penalties, costs or other money entitlement shall be awarded or assessed against the State or any public officer or employee, including the members of any board, commission, conservation district or agency of the State, whether elected or appointed, and whether now or previously serving ...