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    This document is a court opinion from the United States Court of Appeals for the Third Circuit regarding a case brought by Karen Kimbleton against Vincent White and Layton Ward. The court affirmed the district court's granting of summary judgment for the defendants. The court found that Kimbleton failed to establish that White filed a complaint against her in retaliation for letters she wrote criticizing him, as the complaint was filed over a year later and was prompted by information from an anonymous third party. The court also found that Kimbleton did not demonstrate her substantive due process rights were violated by Ward's investigations of complaints or by any actions of White.

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    Filed: 2015-04-30 Precedential Status: Non-Precedential Docket: 14-4001

    Original Title

    Karen Kimbleton v. Vincent White, 3rd Cir. (2015)

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    This document is a court opinion from the United States Court of Appeals for the Third Circuit regarding a case brought by Karen Kimbleton against Vincent White and Layton Ward. The court affirmed the district court's granting of summary judgment for the defendants. The court found that Kimbleton failed to establish that White filed a complaint against her in retaliation for letters she wrote criticizing him, as the complaint was filed over a year later and was prompted by information from an anonymous third party. The court also found that Kimbleton did not demonstrate her substantive due process rights were violated by Ward's investigations of complaints or by any actions of White.

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    Public Domain
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    33 views8 pages

    Not Precedential

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    This document is a court opinion from the United States Court of Appeals for the Third Circuit regarding a case brought by Karen Kimbleton against Vincent White and Layton Ward. The court affirmed the district court's granting of summary judgment for the defendants. The court found that Kimbleton failed to establish that White filed a complaint against her in retaliation for letters she wrote criticizing him, as the complaint was filed over a year later and was prompted by information from an anonymous third party. The court also found that Kimbleton did not demonstrate her substantive due process rights were violated by Ward's investigations of complaints or by any actions of White.

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    of 8

    NOT PRECEDENTIAL

    UNITED STATES COURT OF APPEALS


    FOR THE THIRD CIRCUIT
    _______________
    No. 14-4001
    _______________
    KAREN KIMBLETON,
    Appellant
    v.
    VINCENT WHITE, in his individual and official capacity;
    LAYTON WARD, in his individual and official capacity;
    BUD MOWDAY, in his individual and official capacity;
    DELAWARE REAL ESTATE COMMISSION
    ________________
    On Appeal from the United States District Court
    for the District of Delaware
    (D.C. Civil No. 1-12-cv-00974)
    District Judge: Honorable Gregory M. Sleet
    _______________
    Submitted Pursuant to Third Circuit LAR 34.1(a)
    April 21, 2015
    BEFORE: FISHER, CHAGARES and COWEN, Circuit Judges
    (Filed: April 30, 2015)
    _______________
    OPINION*
    _______________

    This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding
    precedent.

    COWEN, Circuit Judge.


    The plaintiff-appellant, Karen Kimbleton, appeals the District Courts order
    granting a motion for summary judgment filed by defendants Vincent White and Layton
    Ward (Appellees). We will affirm.
    I.
    Because we write solely for the parties, we will only set forth the facts necessary to
    inform our analysis. Kimbleton was a licensed real estate agent and broker in Delaware
    who owned a Re/Max franchise. Between 2008 and 2009, three separate individuals filed
    complaints against her with the Delaware Department of State, Division of Professional
    Regulation (DPR). Following an investigation by Ward, the Delaware Department of
    Justice (DOJ) consolidated the complaints and filed its single amended complaint with
    the Delaware Real Estate Commission (the Commission). The Commission
    subsequently held a hearing at which White, as Chairman, presided. Kimbleton was
    found guilty and her brokerage license was suspended for six months. Although the
    Commission permitted her to continue practicing as an agent, she needed a broker to
    complete real estate transactions. Kimbleton appealed this decision to the Delaware
    Superior Court and sent multiple emails and letters to various public officials criticizing
    the Commission and alleging that she was the victim of sex and age discrimination.
    During Kimbletons six-month suspension, while her appeal of the first complaint
    was pending, the DPR received additional complaints from the public regarding her
    practice. Kimbleton was accused of continuing to hold herself out as a broker during a
    2

    settlement, in violation of her suspension. These complaints were again investigated by


    Ward and forwarded to the DOJ for possible prosecution. Again, the DOJ filed a
    complaint seeking discipline with the Commission. Faced with the threat of a possible
    five-year suspension if found guilty, Kimbleton entered into a consent agreement with the
    DOJ. In so doing, she agreed to an additional suspension of nine months, at the end of
    which, she was entitled to reapply for her salespersons license. She also agreed to
    voluntarily withdraw with prejudice her pending appeal of the Commissions prior
    punishment.
    During Kimbletons extended suspension, White received from an anonymous
    source a printed map with advertisements indicating that Kimbleton continued to hold
    herself out as a broker. As a result, he filed a complaint with the DPR for further
    investigation. Ward again conducted the investigation, which included a visit by Ward to
    Kimbletons office. There, he found a stack of phone books with advertisements listing
    Kimbleton as a broker. As a result of the investigation, the DOJ brought new charges
    against Kimbleton, although that complaint was ultimately dismissed.
    Kimbleton filed suit in federal district court, alleging, inter alia, that the
    investigations by Ward and the penalties to which she was subjected by White and the
    Commission violated her First Amendment and Fourteenth Amendment rights. The
    District Court granted summary judgment to the defendants as to these claims, and the
    current appeal followed.1

    The District Court also granted summary judgment as to all claims against Bud Mowday
    3

    II.
    The First Amendment Claim Against White
    Kimbleton alleges that White filed a complaint against her with the DPR in
    retaliation for the letters she wrote to public officials criticizing him and accusing him of
    alleged misconduct regarding her first disciplinary hearing. To establish retaliation under
    the First Amendment, Kimbleton must demonstrate: (1) that she engaged in protected
    activity, (2) that she was subjected to adverse actions by a state actor, and (3) that her
    protected activity was a substantial motivating factor in the state actors decision to take
    adverse action. Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001). The District Court
    focused its analysis on the third prong and we will do the same.
    Because the record contained indications that a state senator had notified
    individuals at the DPR that he received Kimbletons letters, the District Court assumed,
    for purposes of summary judgment, that White had knowledge of Kimbletons
    complaints. We express some doubt as to whether such inference was required given that
    there was no evidence that White actually had knowledge of the letters. In fact, he denied
    having any such knowledge. Nonetheless, we will follow the District Courts lead in this
    regard.
    However, Kimbleton has failed to establish that Whites decision to file a
    complaint was in any way related to the letters she wrote criticizing him. In the first
    place, as the District Court noted, White filed the complaint in November of 2011, over a

    and the Commission, as well as claims against White and Ward in their official capacities.
    4

    year after Kimbleton wrote the letters in October of 2010. Moreover, White testified that
    he filed the complaint because he had received anonymous information that Kimbleton
    was continuing to hold herself out as a broker in violation of her consent agreement.
    Kimbleton does not dispute that White, did, in fact, receive information from an
    anonymous third party and there is no indication that his testimony is false. Rather,
    Kimbleton faults White for failing to determine the accuracy of the information before
    filing the complaint. This is, quite simply, insufficient to sustain her claim. Kimbletons
    bald speculation regarding Whites motives cannot overcome the evidence in the record
    that Whites decision to file the complaint was prompted by information he received from
    a third party, and not in retaliation for letters Kimbleton had written over a year before he
    filed the complaint. See Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (the
    party opposing summary judgment must present more than just mere allegations, general
    denials, or . . . vague statements to show the existence of a genuine issue of material
    fact).
    The Fourteenth Amendment Claim Against Ward and White
    Kimbleton also states that she sufficiently demonstrated a violation of her
    substantive due process rights under the Fourteenth Amendment. To establish such a
    claim, she must prove that she was deprived of a protected interest by government actions
    that were either arbitrary, irrational, or tainted by improper motive, or by means so

    The dismissal of these claims, which Kimbleton has declined to appeal, is not before us.
    5

    egregious that it shocks the conscience. Nicholas v. Pa. State Univ., 227 F.3d 133, 139
    (3d Cir. 2000). Kimbleton has not met this standard.
    The District Court concluded that Kimbletons claim against Ward fails because
    (1) Ward was simply investigating complaints made to the DPR by third parties, and (2) it
    was the DOJ that proceeded with the REC hearing once the complaint was made. It
    further concluded that her claim as to White fails because she made no showing of how
    filing a bogus complaint, if true, violated her substantive due process rights. We
    consider these in turn.
    As an initial matter, Kimbleton incorrectly asserts that the Commission was
    prohibited from disciplining her because none of the complaints filed were verified. The
    Delaware statute on which she relies states that The Commission may, upon its own
    motion, and shall upon the verified complaint in writing of any person . . . direct all
    complaints to the investigative staff of the [DPR]. 24 Del. Code tit. 24, 2912(a)
    (amended 2012). Thus, although in certain cases involving a verified complaint, the
    Commission was required to investigate, there is nothing in the statute that prevents the
    Commission from investigating or punishing conduct found to violate the statute,
    regardless of whether the complaint setting forth the allegations of misconduct was
    verified or not.2

    This regulation remained in effect until February 3, 2012, and therefore governs all of
    the complaints filed against Kimbleton. Nonetheless, we note that as of February 3, 2012,
    Del. Code tit. 24, 2912(a) was rewritten as A licensee shall be subject to disciplinary
    sanctions set forth in 2914 of this title if after a hearing, the Commission finds that the
    licensee violates any of a series of subsections. The revised statute eliminates any
    6

    Moreover, we find Kimbletons challenges to the District Courts conclusions


    unavailing. As to Ward, Kimbleton argues that the District Court ignored the fact that
    but-for Ward, no hearing would have taken place. (App. Br. at 32-33.) But as she
    concedes in her brief, it was the DOJ that ultimately retained final say over whether or
    not the case would proceed further if the complaint was substantiated. (Id. at 33.) And
    it is of course absurd to suggest that Ward somehow violated her substantive due process
    rights by referring a complaint he found to be substantiated to the DOJ for further
    proceedings. Perhaps anticipating this fatal flaw in her argument, Kimbleton claims that
    the complaint was only substantiated because Ward manufactured evidence. However, as
    the District Court correctly determined, such allegations are simply not supported by the
    record.
    As to White, Kimbleton argues that White instituted a bogus complaint against
    her, forcing her to retain an attorney and delaying reinstatement of her brokers license.
    However, Kimbleton does not dispute that White received a map with her advertisement
    on it indicating that she was a broker. Instead, she emphasizes that he had never filed a
    complaint before and did not know where the map originated. In any event, even
    assuming that White was somehow negligent in filing the complaint, his decision to do so
    can in no way be seen as violating Kimbletons substantive due process rights. See Miller
    v. City of Phila., 174 F.3d 368, 375-76 (3d Cir. 1999) ([T]he standard of culpability for
    substantive due process purposes must exceed both negligence and deliberate

    mention of filing a verified complaint.


    7

    indifference, and reach a level of gross negligence or arbitrariness that indeed shocks the
    conscience.).
    III.
    In light of the foregoing, the judgment of the District Court entered on September
    4, 2014, will be affirmed.

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