Still v. Wayfair, Inc.

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DAVID STILL, )
)
Appellant, )
) C.A. No. N25A-06-002 KMM
v. )
)
WAYFAIR, INC., )
)
Appellee. )
Submitted: June 30, 2025
Decided: July 17, 2025

ORDER DENYING MOTION FOR REARGUMENT

1. David Still (“Still”) filed an action in the Court of Common Pleas

arising out of his purchase of a sofa from Wayfair, Inc. (“Wayfair”). That court

dismissed the action based on a forum selection provision. Still appealed to this

Court, also seeking to proceed in forma pauperis.

2. On June 25, 2025, this Court entered an Order granting Still’s Second

Motion to Proceed in Forma Pauperis but dismissing the appeal as frivolous.1 Still

had not asserted a viable appeal because it was based on a legally and factually

frivolous complaint.

3. On June 30, 2025, Still filed a 14-page Motion for Reargument,

asserting 35 grounds (the “Motion”). Because the Motion rehashes arguments

1
D.I. 7 (“June 25 Order”).
already made, raises new arguments, and fails to present any valid ground to grant

reargument, the Motion is DENIED.

Background

4. A full recitation of the factual allegations in the underlying complaint

and procedural history is set forth in the June 25 Order. In summary, Still, a 75-year

old retiree who suffers from several “Spinal and Medical Conditions,” purchased a

90” Amari Standard Sofa with Reversible Cushions (the “Sofa”) from Wayfair. Still

was dissatisfied with the Sofa, complaining to Wayfair that the Sofa cushions were

“too firm.” Still made several calls and sent several emails before receiving a

response from Wayfair. Wayfair contacted the manufacturer to inquire whether it

could accommodate Still’s request for softer cushions, but the manufacturer could

not provide a solution. Wayfair issued a partial refund of $300. Wayfair suggested

that Still contact a local upholsterer to explore options for replacement cushions.

This was unacceptable to Still.

5. Still continued to complain to Wayfair. Despite being outside the return

period, Wayfair agreed to accept return of the Sofa. Wayfair refunded the balance

of the purchase price, but Still refused to return the Sofa. Still kept the refund “as a

security deposit pending final resolution of the [Sofa issue] through court order.” As

it stands, Still received a full refund and retains possession of the Sofa.

2
6. Still filed a complaint in the Court of Common Pleas asserting 10

counts: Count 1 – violation of Delaware’s Wiretapping, Electronic Surveillance and

Interception of Communications statute (11 Del. C. Ch. 24) by transcribing his

communications with Wayfair but not having those transcripts available for him to

print from the website; Count 2 – violation of Delaware Financial Exploitation

Protections (6 Del. C. 3-3072) by making the unauthorized refund deposits into his

bank account; Count 3 – violation of Delaware Adult Protective Services Act (31

Del. C. Ch 39) by communicating with Still using “subtle legal pitfalls”; Count 4 –

violation of Electronic Fund Transfer Act (15 U.S.C. § 1693) by initiating

unauthorized financial transactions (i.e., the refunds and then an attempt to reverse

the refunds when Still refused to return the Sofa) and “using language laced with

subtle legal pitfalls;” Count 5 – violation of the Fair Debt Collection Practices Act

(15 U.S.C. § 1692) by attempting to collect on a debt that Still does not owe; Count

6 – violation of the Consumer Fraud Act (6 Del. C. §§ 2511, 2513, 2581, 2583) for

omitting information as to the cushion firmness in its advertising and “using

language laced with subtle legal pitfalls;” Count 7 – violation of Deceptive Trade

Practices Act (6 Del. C. Ch. 25) by attempting to pressure Still into settlement by

refunds, communicating with the manufacturer, suggesting he consult with a local

2
This section is “Notice of Breach of Fiduciary Duty” within the Negotiable Instruments section
of Article 3 of Title 6.
3
vendor, and giving him “the runaround” in responding to his communications; Count

8 – violation of Trade Commission Act (15 U.S.C. §§ 41-58) by attempting to

pressure Still into settlement by refunds, communicating with the manufacturer,

suggesting he consult with a local vendor, and giving him “the runaround” in

responding to his communications; Count 9 – breach of an implied warranty and that

the limited exclusive remedy of a return failed its essential purpose (6 Del. C. §§ 2-

314 and 2-719) because “both parties have acknowledged that the Sofa failed to meet

its essential purpose” and the offer of a refund does not provide him with a practical

solution, and the Sofa failed to “meet his reasonable expectations;” and Count 10 –

violation of Delaware Elder and Disabled Victims Enhanced Penalty Act (6 Del. C.

Ch. 25), asserting that he is entitled to treble damages and civil penalties. Still sought

compensatory damages of $3,936.50 to “cover” the cost of a new sofa he selected

from a different (unidentified) vendor,3 $7,911.75 in punitive damages, and costs.

7. On April 11, 2025, the Court of Common Pleas ruled that, under

Wayfair’s Terms of Use, Still was required to file any claim in “small claims court,”

which in Delaware, is the Justice of the Peace Court. Therefore, the Court of

Common Pleas dismissed the action for failure to file in the proper venue.

3
Still attached the order form of the replacement sofa to his pleading but redacted the vendor
information and the specifics of the order.
4
8. After the complaint was dismissed, Still filed a First Amended

Complaint on April 14, 2025, to add allegations of Wayfair’s “dark patterns” of

deception on its website. Still also filed various other motions and multiple letters.4

9. The Court of Common Pleas subsequently denied Still’s Motion for

Reargument.

10. Still appealed to this Court and requested permission to proceed in

forma pauperis. Still asserted that the lower court committed reversible error by (i)

enforcing the forum selection clause without determining its enforceability; (ii)

citing an order in its ruling that Still could not access (Neal v. Verizon Wireless, Inc.);

(iii) failing to address his claims of Wayfair’s deceptive dark practices and illegal

financial transfers; (iii) denying his access to justice by dismissing his claims in

violation of Delaware’s consumer protection policy; and (iv) committing other

procedural irregularities. He demanded reversal with a remand, instructing the lower

court to consider and respond to his Amended Cross Motion, Speed Docket Motion,

Amended Complaint, Motion to Correct Docket, his eight letters, and the merits of

his claims.5

11. The Court granted the motion to proceed in forma pauperis. As

required by statute, the Court reviewed the appeal and complaint, ultimately

4
Motion, ¶¶ 12, 14.
5
June 25 Order, ¶ 19.
5
determining they were factually and legally frivolous. The Court addressed each of

the claims Still asserted in the Court of Common Pleas, explaining the basis for the

Court’s ruling on each count. Still followed the June 25 Order with the Motion.

The Motion

12. Several of the grounds Still relies on relate to failures of the Court of

Common Pleas: Failure to Rule on Pending Motions; Failure to Rule on Amended

Motion for Reargument; Failure to Address Docketed Letters; Failure to Hold a

Hearing; Duty to Adjudicate Agreement Enforceability; Duty to Adjudicate

Agreement Enforceability due to “Financial Coercion” Dark Patterns; Duty to

Adjudicate Dark Patterns; Failure to Consider the Delaware Personal Data Privacy

Act’s Dark Pattern Definition; Improper Use of Own Precedent; and Failure to

Consider Federal Statutory Violations; Inability to access Neal v. Verizon Wireless,

Unenforceable Agreement Details; Erroneous Jurisdictional Ruling; Failure to

Adjudicate Pending Motions; Failure to Address Emerging Statutory Fraud; Docket

Inaccuracies Prejudiced Appellate Rights; and Failure to Transmit Complete

Record.6

13. The remaining grounds attack this Court’s ruling: Failure to Liberally

Construe Pro Se Pleadings; Dismissal Without Record, Notice, or Hearing Violated

Due Process; Failure to Issue Citation for Record Transmission; No Procedural or

6
Motion, ¶¶ 8-11, 13-19, 22-34, 27-31, 33, 38-41.
6
Jurisdictional Defects; Structural Due Process Violation; Failure to Conduct

Threshold Review of Contract Enforceability Before Dismissing Appeal;

Appellant’s Understanding of Attorney General’s Jurisdiction; Mischaracterization

of Case Ignored Statutory Claims; Evidence of Deceptive Practices; Appellant’s

Vulnerabilities; Erroneous Jurisdictional Ruling; Creation of Novel Jurisdictional

Rule; Pattern of Jurisdictional Overreach; Dismissal of Statutory Claims Without

Evidence Review; Evidence of Elder Exploitation; Misapprehension of Warranty

Claims; Misapplication of Appellate Standard; and Failure to Address Emerging

Statutory Fraud.7

14. Still argues that the Court of Common Pleas mischaracterized his case

as being “merely ‘about a sofa’” and ignored Wayfair’s “dark patterns.”8 Still

requests that the lower court be reversed and the case remanded for adjudication of

all of his arguments. He also requests that the case be reassigned to a different judge

upon remand “to ensure the appearance and reality of impartiality.”9

Standard of Review

15. The standard for a motion for reargument under Rule 59(e) is well-

settled in Delaware. The moving party bears a “heavy burden” to demonstrate that

“the Court has overlooked a controlling precedent or legal principles, or the Court

7
Id. ¶¶ 4-7, 12, 20, 22, 25-26, 32, 34-37, 39.
8
Id. ¶ 44.
9
Id. ¶ 46.
7
has misapprehended the law or facts such as would have changed the outcome of the

underlying decision.”10 A motion for reargument is not for raising new arguments

(or “stringing out the length of time for making an argument”) or rehashing

arguments previously made.11 “Such tactics frustrate the efficient use of judicial

resources, place the opposing party in an unfair position, and stymie ‘the orderly

process of reaching closure on the issues.’”12

Analysis

16. Still spends much of the Motion arguing that the forum selection

provision in Wayfair’s Terms of Use is a part of its “dark pattern” of deceptive

behavior and that this Court and the Court of Common Pleas failed to address the

enforceability of the forum selection provision.13 This Court’s ruling, however, did

not enforce the forum selection provision. After careful review of the appeal and the

merits of the underlying complaint, this Court determined that both were factually

and legally frivolous. Accordingly, Still’s arguments relating to the forum selection

clause have no merit and are not a basis for reargument.

10
Bd. Of Managers of the Del. Crim. Just. Info. Sys. v. Gannett Co., 2003 WL 1579170, at *1 (Del.
Super. Jan. 17, 2003); Milton v. Alfred I. duPont Hosp. for Child., 2024 WL 4524850, at *1 (Del.
Super. Oct. 17, 2024).
11
Bd. Of Managers, 2003 WL 1579170, at *1; Feenix Payment Sys., LLC v. Blum, 2024 WL
3424038, at *1 (Del. Super. July 16, 2024); Kennedy v. Invacare Corp., 2006 WL 488590, at *1
(Del. Super. Jan. 31, 2006).
12
Feenix, 2024 WL 3424038, at *1 (quoting Plummer v. Sherman, 2004 WL 63414, at *2 (Del.
Super. Jan. 14, 2004)).
13
Motion ¶¶ 8, 13-17, 19-20, 37, 45.
8
17. Still also rehashes his arguments as to why the Court of Common Pleas

erred in its ruling, such as not determining whether the forum selection clause was

enforceable,14 not deciding the various motions that were filed after the dismissal

order,15 not acting on the multiple letters Still filed in the Court of Common Pleas,16

relying on Neal which was non-binding,17 citing a case that Still could not access,

and failing to consider the merits of his claim. Still previously made these arguments

in his appeal.18 A motion for reargument is not to rehash arguments already

presented.

18. None of the remaining grounds raised by Still fare any better. Still

contends that this Court overlooked his vulnerabilities as an elderly person and his

pro se representation, and failed to apply a more liberal reading of his pleadings.19

The Court, however, did consider Still’s filing status and construed the pleadings in

a light favorable to him. But, a self-represented litigant (elderly or not) is bound by

the Court’s rules and procedures. As the Court ruled, it need not “‘accept conclusory

allegations unsupported by specific facts [or] ... draw unreasonable inferences in the

plaintiff’s favor,’ nor accept ‘every strained interpretation of the allegations

14
Id.
15
Id. ¶¶ 8, 38, 46.
16
Id.
17
Id. ¶¶ 9, 27, 29-30, fn. 4-5.
18
June 25 Order.
19
Motion, ¶¶ 1, 4, 26.
9
proposed by the plaintiff.’”20 After careful review of Still’s allegations, the Court

determined that there was no factual or legal basis for the claims. Accordingly, Still’s

argument has no merit.

19. Still next argues that this Court committed error by not providing him

notice or holding a hearing, and not waiting for the lower court’s record to be

transmitted.21 He claims his due process rights were violated because this Court did

not wait for the transmission of the record and instead relied on an “unverified”

Court of Common Pleas Order.22 This argument also lacks merit. After granting an

in forma pauperis motion, the court is mandated by statute to review the operative

pleading.23 There is nothing in the statute requiring that the applicant be given notice

or that the Court hold a hearing before dismissing a complaint. Furthermore, there

is nothing in the statute requiring the Court to wait for transmission of the record.

Moreover, the Court of Common Pleas record is available electronically, and the

Court ruled after reviewing the various pleadings filed by Still and the lower court’s

rulings.24

20
Order, ¶ 28 (citing Jones v. Navient, 2023 WL 6215472, at *4 (Del. Super. Sept. 25, 2023),
(quoting Anderson v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011), Clinton v.
Enterprise Rent-A-Car, 977 A.2d 892, 895 (Del. 2009) and Malpiede v. Townson, 780 A.2d 1075,
1083 (Del. 2001) (citations omitted))).
21
Motion, ¶¶ 5-7, 12, 41.
22
Id., ¶ 12.
23
10 Del. C. § 8803(b) (“the court shall review the complaint.”).
24
See June 25 Order, ¶¶ 12, 14.
10
20. Still argues that his appeal was dismissed in error because there were

no jurisdictional defects. He relies on Swan Energy, Inc. v. Investor Protection Unit,

N24C-03-071 MAA (Del. Super. June 24, 2025) to “suggest [that] a broader pattern

of jurisdictional error” is occurring.25 The Court did not rely on a jurisdictional

defect in dismissing the appeal, thus Still’s argument is moot. Additionally, Swan

Energy did not reverse a Court of Common Pleas decision on constitutional grounds,

as Still asserts. Swan Energy addressed a constitutional challenge to an

administrative agency’s proceedings; not an appeal from Common Pleas. Swan

Energy has no relevance here.

21. Still further contends claims that the Court misapprehended the facts

and his warranty claim. He now asserts that his complaints about the Sofa have

nothing to do with his health issues but is a comfort issue.26 Still distorts the record.

His filings relied heavily on his health issues.27 Whether his complaints are based

on health issues or comfort, the fact remains that he failed to assert a viable claim.

As discussed in the June 25 Order, and despite all of Still’s protestations of the Sofa’s

defects, there were no allegations that the Sofa was not merchantable.28 Still’s

25
Motion, ¶ 32.
26
Id., ¶¶ 10, 42 (“Wayfair sofa[] and health is a non sequitur”).
27
Order, ¶ 30.
28
June 25 Order, ¶ 33.
11
attempt to spin his dissatisfaction with the Sofa into a viable claim by adding

conclusory allegations of “deceptive practices” is unavailing.

22. Finally, Still argues that this Court mischaracterized his case as

“purchaser’s remorse” and overlooked Wayfair’s “dark patterns.” He urges the

Court to reverse the lower court so that this important and “novel issue” can be

addressed.29 Still peppers his pleadings with allegations of “dark patterns.” This

phrase comes from the Delaware Personal Data Privacy Act, 6 Del. C. Ch. 12D (the

“Act”).30 The purpose of the Act, which delineates a consumer’s personal data

rights, “provides residents of [Delaware with] the right to know what information is

being collected about them, see the information, correct inaccuracies, or request

deletion of their personal data that is being maintained by entities or people.”31

23. The Department of Justice has exclusive authority to enforce the Act

and “[n]othing in this chapter shall be construed as providing a basis for, or be

subject to, a private right of action for violations of said sections or any other law.”32

Still admits that the Delaware Attorney General has exclusive authority to enforce

the Act. Thus, not only does the Act have nothing to do with Still’s purchase of the

29
Motion, ¶¶ 9-11, 13-15, 17-19, 21-22, 25, 33, 29, 44.
30
The Act defines “dark pattern” as:
a. A user interface designed or manipulated with the substantial effect of subverting or
impairing user autonomy, decision-making, or choice.
b. Any other practice the Federal Trade Commission refers to as a “dark pattern.” 6 Del.
C. § 12D-102(12).
31
House Bill No. 154 synopsis, https://legis.delaware.gov/BillDetail?LegislationId=140388.
32
6 Del. C. § 12D-111.
12
Sofa, he has no standing to assert a claim under the Act. While Still recognizes the

Attorney General’s exclusive authority under the Act, he tries to engraft the dark

pattern language of the Act into his allegations in an attempt to assert a claim under

Delaware’s Consumer Fraud Act and Deceptive Trade Practices Act. The Court

addressed these claims in the June 25 Order. Adding conclusory allegations of “dark

patterns” to his pleadings does nothing to save these claims from dismissal.

Conclusion

24. Still’s Motion for Reargument fails to advance any viable ground for

reargument. The Motion is DENIED.

IT IS SO ORDERED.

/s/Kathleen M. Miller
Kathleen M. Miller, Judge

Original to Prothonotary
cc: David Still
Bryan P. Smith, Esquire
Civil Prothonotary Appeals Unit

13