Delaware Human and Civil Rights Commission v. Welch

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DELAWARE HUMAN AND CIVIL )
RIGHTS COMMISSION, )
)
Plaintiff ex. rel., )
)
ELAINE CAHILL, ) C.A. No. N24C-12-088 KMM
)
Relator, )
)
v. )
)
CHRISTINE WELCH, ELMER YU and )
WILMA YU, )
)
Defendants. )

Date submitted: September 11, 2025
Date decided: October 9, 2025

ORDER ON FEES

Upon Defendants’ Motion for Attorneys’ Fees and Costs: DENIED.

A. Introduction

After successfully moving to dismiss,1 Defendants filed a Motion for Fees and

Costs (the “Motion”), pursuant to the fee shifting provision in the Delaware Fair

Housing Act (the “Act”).2 Under Section 4615, attorneys’ fees and costs may be

1
D.I. 13.
2
D.I. 19; 6 Del. C. § 4600 et seq.
awarded if an action was filed “for an improper purpose, such as to harass or to cause

unnecessary delays or needless increase in the cost of litigation.”

The purpose of the Act is to prevent and remedy discrimination in housing

opportunities and therefore, it should not be construed in a manner that would chill

assertion of viable claims out of fear of fee shifting.3 That goal is balanced against

a defendant’s right to be protected against actions filed for an improper purpose.

Striking the appropriate balance and applying an objective standard, the Court

finds that Defendants failed to satisfy their burden under Section 4615. The Motion

criticizes various actors and proposes various alternative paths they could have taken

to address the Fair Housing claim, but a lack of efficiency or success in the litigation

alone, is insufficient to grant an award of fees. Defendants failed to show that the

action was brought for an improper purpose. Therefore, the Motion is DENIED.

B. Background 4

The Delaware Human and Civil Rights Commission (the “Commission”) filed

this action on behalf of Elaine Cahill for an alleged violation of the Act. The

Commission asserted that Mrs. Cahill is disabled, she utilizes an emotional support

dog, and she erected a fence around her back yard to contain her dog (the “Fence”).

3
The application of Section 4615 appears to be a matter of first impression.
4
The facts are taken from the Court’s Memorandum Opinion, 2025 WL 2222967 (Del. Super. Aug.
5, 2025) (“Op.”). Capitalized terms not defined herein shall have the meaning ascribed to them in
the Memorandum Opinion.
2
Defendants reside next to Mrs. Cahill and claimed that the Fence violated the

community’s Deed Restriction. Defendants pursued an action in the Court of

Chancery (the “Chancery Action”) to enforce the Deed Restriction and compel Mrs.

Cahill to remove the Fence.

Asserting that the Fence was a “reasonable accommodation” for her ongoing

health issues, which she supported with numerous doctor’s notes, Mrs. Cahill

repeatedly requested that Defendants cease prosecution of the Chancery Action.

They refused to do so.

Mrs. Cahill twice sought to stay the Chancery Action while she pursued a Fair

Housing violation claim through administrative procedures. 5 The Court of Chancery

denied those requests. 6 Ultimately, the parties to the Chancery Action filed cross-

motions for summary judgment.

Mrs. Cahill filed a complaint with the Delaware Division of Human and Civil

Rights (the “Division”), which after an investigation, found probable cause that

Defendants violated the Act by continuing the Chancery Action in light of Mrs.

Cahill’s need for a reasonable accommodation.

The Commission, through the Delaware Attorney General’s office, then filed

this action asserting two counts: (I) violation of Fair Housing Act Section

5
Op., at *3.
6
Id.
3
4603A(a)(1) because Defendants/Chancery Petitioners refused to permit Ms. Cahill

the reasonable accommodation of the Fence; and (II) violation of Fair Housing Act

Section 4603A(a)(2) because Defendants/Chancery Petitioners refused to make a

reasonable accommodation and modify the Deed Restriction to allow for the Fence.7

Before this action was filed, the Senior Magistrate issued a Final Report on

the summary judgment motions, finding that the Fence violated the Deed Restriction

and recommended an injunction requiring Mrs. Cahill to remove the Fence.8 While

exceptions to the Final Report were pending, the Court of Chancery stayed that

action pending the outcome of this case.

This Court’s Memorandum Opinion found that “the defendants\Chancery

Petitioners’ efforts to enforce the Deed Restriction are immunized under the Noerr-

Pennington doctrine” and, accordingly, dismissed the complaint under Rule

12(b)(6).9

C. The parties’ contentions

The Motion seeks an award of attorneys’ fees and costs incurred in reviewing

the Fair Housing complaint, communications with the Division and the Commission,

legal research, defending the investigation, and prosecuting the motion to dismiss in

this action, pursuant to 6 Del. C. § 4615. Defendants argue that Mrs. Cahill’s “delay

7
Id., at *4.
8
Id., at *3.
9
Id., at *9.
4
in raising her alleged disabilities 10 and ‘reasonable accommodation’ arguments,

along with her refusal to put those issues before one judicial forum, was a strategy

meant to create confusion, cause delays, and needlessly increase the cost to litigate

a straightforward matter.”11

Defendants accuse Mrs. Cahill of enlisting the Division and the Commission

to help facilitate her delay strategy. They assert that both the Division and the

Commission should have refused to investigate or pursue this action simply upon a

review of the Chancery Action petition.12 They further assert that the Division

conducted an “unconstitutional investigation” by investigating for over 19 months

instead of the “statutory mandate” of 100 days.13 Similarly, they continue, the

Commission waited 102 days to file the complaint, after Defendants elected to have

the claims adjudicated in this court, rather than the statutorily mandated 30 days.14

Defendants argue that “the specious investigation and malicious prosecution”

of the Fair Housing claims “abus[ed the] process to gain an advantage in another

proceeding” that allowed Mrs. Cahill “to harass Defendants with baseless

accusations” and increase their financial burden.15

10
Mrs. Cahill first raised in the Chancery Action her need for a reasonable accommodation three
months after she answered the petition. Op., at * 1.
11
Motion, ¶ 14.
12
Id., ¶¶ 15, 17.
13
Id., ¶ 15.
14
Id., ¶ 17.
15
Id., ¶ 18.
5
The Commission contends there was no nefarious litigation strategy, and that

it merely “sought to protect [Mrs. Cahill’s] fair housing rights” “[i]n accordance with

its duties under [the Act].”16 The Commission also asserts that while the claims were

ultimately barred by the Noerr-Pennington doctrine, this case was the first to apply

the doctrine in the context of the Act. 17 Accordingly, the Commission requests that

the Motion be denied.

D. The Fair Housing Act attorneys’ fees provisions

“Delaware law follows the American Rule, under which litigants are generally

responsible for paying their own litigation costs.” 18 “The Court may, however, order

payment of attorney’s fees if authorized by some provision of statute or contract.”19

Section 4615 provides:

In any action, pleading or motion under [the Act], the…court hearing
or reviewing the matter, may in its discretion, award attorneys’ fees,
costs and expenses to the respondent or defendant if an action was
brought for an improper purpose, such as to harass or to cause
unnecessary delays or needless increase in the cost of litigation.20

The parties cite no Delaware cases interpreting Section 4615, and did the Court find

any case. Therefore, the Court must first determine how this statute is to be applied.

16
D.I. 22 (“Opp.”), ¶ 2.
17
Opp., ¶ 2.
18
DeMatteis v. RiseDelaware Inc., 315 A.3d 499, 508 (Del. 2024).
19
McGlothlin v. Petrunich Oral & Maxillofacial Surgery, 2023 WL 574520, at *4 (Del. Super.
Sept. 6, 2023) (internal citations omitted).
20
6 Del. C. § 4615.
6
The purpose of the Act is to eliminate discrimination in housing

opportunities.21 The Act is to be “liberally construed” so that “all persons may fully

enjoy equal rights and access to housing for themselves and their families.”22 The

Act contains two provisions that allow for an award of attorneys’ fees: Section 4615

and Section 4612(o). Section 4615 is available to “respondents and defendants”

when “an action was brought for an improper purpose, such as to harass or to cause

unnecessary delay or needless increase in the cost of litigation.” 23 Section 4612(o)

applies to “prevailing aggrieved persons” 24 and allows the court to award such

persons reasonable attorneys’ fees and expenses.25 Accordingly, the person injured

by discriminatory conduct merely needs to be successful in the action to be eligible

for an award of fees. A defendant, however, must show that the action was brought

for an improper purpose to be eligible for an award of fees. Of course, whether to

award fees, and the amount of an award, is left to the discretion of the court.

21
6 Del. C. § 4601(a).
22
6 Del. C. § 4601(b).
23
6 Del. C. § 4615 (emphasis added).
24
6 Del. C. § 4602 (“‘Aggrieved persons’ includes any person who…[c]laims to have been injured,
directly or indirectly, by a discriminatory housing practice…[b]elieves that such person will be
injured, directly or indirectly, by a discriminatory housing practice that is about to occur; or… [i]s
associated with a person having a protected status under [the Act] and claims to have been injured,
directly or indirectly, as a result of discriminatory housing practice against such person having
protected status.”)
25
6 Del. C. § 4612(o) (emphasis added).
7
1. Fees shifting provisions in federal civil rights statutes

In deciding how to apply Section 4615, the United States Supreme Court’s

decision in Christiansburg Garment Co. v. Equal Emp’t Opportunity Comm’n26 is

instructive.27 The Christiansburg court addressed the standard for fee shifting under

the prevailing party provision in Title VII of the Civil Rights Act of 1964.28

Although the statute made no distinction between a plaintiff-prevailing party and a

defendant-prevailing party, the court adopted different standards. The court noted

that, based on the notion that the civil rights plaintiff was “‘vindicating a policy that

Congress considered of the highest priority,’” a prevailing plaintiff should ordinarily

recover attorneys’ fees, “‘unless special circumstances would render such an award

unjust.’”29

Recognizing two purposes of the fee shifting provision—to make it easier for

a plaintiff to bring a meritorious suit and protect a defendant from a lawsuit that lacks

foundation—the Christiansburg court adopted a different standard for a prevailing

defendant: the court may award attorneys’ fees “upon a finding that the plaintiff’s

action was frivolous, unreasonable, or without foundation, even though not brought

26
434 U.S. 412 (1978).
27
Id. at 413–14; 42 U.S.C. § 2000e-5(k). At the time of the Christiansburg decision, the prevailing
party fee provision of Title VII was found at Section 706(k).
28
434 U.S. at 413–14 (“Section 706(k)…provides: ‘In any action or proceeding under this title the
court, in its discretion, may allow the prevailing party . . . a reasonable attorney’s fee . . . .’”).
29
Id. at 417 (quoting Newman v. Piggie Park Enterprises, 390 U.S. 400 (1968)).
8
in subjective bad faith.” 30 This Christiansburg standard has since been applied to

the prevailing party attorneys’ fees provision in the Federal Fair Housing Act 31 and

other civil rights statutes.32

The Supreme Court, however, cautioned lower courts to

resist the understandable temptation to engage in post hoc reasoning by
concluding that, because a plaintiff did not ultimately prevail, his action
must have been unreasonable or without foundation. This kind of
hindsight logic could discourage all but the most airtight claims, for
seldom can a prospective plaintiff be sure of ultimate success.... No
matter how meritorious one’s claim may appear at the outset, the course
of litigation is rarely predictable. Decisive facts may not emerge until
discovery or trial. The law may change or clarify in the midst of
litigation. Even when the law or the facts appear questionable or
unfavorable at the outset, a party may have an entirely reasonable
ground for bringing suit. 33

Adhering to the Supreme Court’s instruction, courts in federal civil rights

cases have recognized that an award of attorneys’ fees to a prevailing defendant “is

a conservative tool, to be used sparingly in cases in which the plaintiff initiated or

30
Id. at 421.
31
See, e.g., Abdelhalim v. Lewis, 90 F.4th 265, 271–72 (4th Cir. 2024); Hatfield v. Cottages on 78th
Cmty. Ass’n., 2023 WL 3163256, at *4 (10th Cir. May 1, 2023); Deitch v. Medstar Medical Group,
Southern Maryland LLC, 2025 WL 712984, at *6 (D. Md. Mar. 5, 2024). All applying a
Christiansburg analysis to 42 U.S.C § 3613(c)(2) (“In a civil action under [the Federal Fair
Housing Act], the court, in its discretion, may allow the prevailing party…a reasonable attorney’s
fees and costs.”).
32
See Barnes Found. v. Twp. of Lower Merion, 242 F.3d 151, 157–58 (3d Cir. 2001) (applying
Christiansburg analysis to fee shifting provision in Section 1983 and 1985 action); see also,
Mondero v. Lewes Surgical & Medical Assocs. P.A., 2017 WL 2221173, at *1 (D. Del. May 19,
2017).
33
Christiansburg, 434 U.S. at 421–22.
9
continued to litigate a claim that the plaintiff knew or should have known was

groundless, frivolous, or unreasonable.”34

2. Superior Court Civil Rule 11

The Court also looks to Superior Court Civil Rule 11 for guidance. Rule 11(b)

uses the same language as Section 4615 of the Act. 35 The Delaware Supreme Court

applies an objective standard applies to Rule 11. 36 An award of attorneys’ fees under

Rule 11(b) is “an extraordinary measure and should only be imposed after careful

consideration and for the purpose of providing redress for ‘clearly egregious and

abusive conduct.’” 37 Thus, “sanctions should be reserved for those instances where

the Court is reasonably confident that an attorney does not have an objective good

faith belief in the legitimacy of a claim or defense.” 38

34
Abdelhalim, 90 F.4th at 272 (internal citations omitted). Federal courts consider several factors
in determine whether to award fees to a prevailing defendant, “including whether the plaintiff
established a prima facie case, the defendant offered to settle, the trial court dismissed the case
prior to trial or held a full-blown trial on the merits[,]’” whether the issue was one of first
impression, and the controversy was “based sufficiently upon a real threat of injury to the plaintiff.”
Barnes Found., 242 F.3d at 158.
35
Rule 11(b) provides for attorney sanctions if “a pleading, written motion, or other
paper…is…presented for any improper purpose, such as to harass or to cause unnecessary delay
or needless increase in the cost of litigation.” Del. Super. Civ. R. 11(b) (emphasis added).
36
Crumplar v. Superior Ct., 56 A.3d 1000, 1008 (Del. 2012).
37
Toll Bros. Builders v. Williams, 2024 WL 4514193, at *3 (Del. Super. Oct. 16, 2024).
38
Id. (citation omitted).
10
E. Analysis

The purpose of the Act is to eliminate housing discrimination. 39 It is to be

liberally construed.40 A lower standard for the plaintiff-prevailing party fee shifting

provision is consistent with the intent of the Act. Being cautious not to dissuade

valid discrimination claims, attorneys’ fees under Section 4615 should be granted

sparingly, and only in the circumstances where the defendant has shown an action

was clearly brought for improper purposes. The court will apply an objective test in

making this determination. 41

Defendants first take aim at Mrs. Cahill, arguing that she delayed raising her

disability and conducted piecemeal litigation across two courts “over more than

three and a half years” that required them to “argue numerous briefs on the issue

between two forums.” 42 First, Defendants’ conclusory allegations do nothing to

bolster their claim for a fee award. Second, the record belies their position. While

two motions to stay were filed in the Chancery Action, there was no delay in that

proceeding due to the discrimination claim. That action was filed in January 2022,

and a stipulated scheduling order was entered in December 2022, setting trial for

October 18, 2023. The parties timely filed a pretrial stipulation and after the pretrial

39
6 Del. C. § 4601(a).
40
6 Del. C. § 4601(b).
41
See Crumplar, 56 A.3d at 1008.
42
Motion, ¶ 14.
11
conference on October 9, 2023, they agreed to submit the dispute on cross-motions

for summary judgment. The opening and answering briefs were filed in accordance

with the parties’ stipulated schedule.

In this court, Defendants filed a motion to dismiss and now a motion for fees.

Mrs. Cahill had the right to seek redress for her alleged discrimination claim

pursuant to the administrative procedures in the Act. 43 Other than the fact that she

sought to stay the Chancery Action and filed a claim with the Division, Defendants

offer no support for their fee request. This is insufficient to warrant fee shifting.

Defendants next take aim at the Division. With no supporting allegations or

evidence, Defendants challenge the Division’s good faith belief in the claim for

which it found probable cause of discrimination. 44 Defendants offer several options

that the Division “could have and should have taken,” but that does nothing to show

that the Division’s actions were for an improper purpose.

In support of the argument that the Division should have terminated its

investigation upon a review of the Chancery petition,45 Defendants cite White v.

Lee, 46 but provide no analysis of the case. White is procedurally and factually

distinguishable.

43
See 6 Del. C. § 4610.
44
Motion, ¶ 16.
45
Id., ¶ 15.
46
277 F.3d 1214, 1220 (9th Cir. 2000).
12
In White, plaintiffs led a campaign against the conversion of a motel into a

multi-family unit for the homeless in Berkley, California. 47 Plaintiffs distributed

flyers, “wrote to the Berkely City Council, spoke out before the Zoning Adjustment

Board and at other public meetings, and published a newsletter with articles critical

of the project.” 48 Plaintiffs also filed an action seeking to enjoin issuance of a

building permit due to a member of the Zoning Adjustment Board having a conflict

of interest.49 Plaintiffs successfully proved the conflict, but due to a particularity in

the California statute, they were unsuccessful in obtaining an injunction. 50

A housing-rights group took exception to plaintiffs’ opposition to the project

and filed a complaint with San Francisco’s HUD office. 51 The HUD office, in turn,

launched an investigation to determine whether plaintiffs’ actions violated the

Federal Fair Housing Act. 52 The HUD officials then subjected plaintiffs to

improperly broad demands for documents and information, threatened plaintiffs with

subpoenas and fines, and accused them of breaking the law.53

Plaintiffs filed an action against the HUD officials for violating their First

Amendment rights. After discovery, the parties cross-moved for summary judgment.

47
Id.
48
Id. at 1220–21.
49
Id. at 1230–31.
50
Id. at 1225.
51
Id. at 1221–22.
52
Id. at 1222–24.
53
Id. at 1222–24, 1239.
13
The court found that after the HUD complaint was filed, some investigation was

warranted, but how HUD conducted the investigation violated plaintiffs’ rights. The

“undisputed facts” showed that HUD conducted the investigation “primarily if not

exclusively” on plaintiffs’ speech and not their lawsuit.54 The White court concluded

that the HUD officials violated plaintiffs’ First Amendment speech rights by the

overbreadth of the investigation, which “bore no relation” to the narrow basis for an

investigation; namely, whether the speech was an incitement to imminent lawless

action. 55

Here, the record is devoid of facts relating to how the Division conducted its

investigation. Simply because the investigation took longer than 100 days is

insufficient to show the investigation was brought for an improper purpose. First,

the statute sets a 100-day deadline “unless it is impracticable to do so….”56 A

provision Defendants ignore. And, Defendants provide no facts relating to

practicability of concluding the investigation within the time period. Second,

Defendants have not shown that the investigation was conducted for the purpose of

54
Id. at 1234.
55
Id. at 1230 (“The HUD officials’ conduct cannot be squared with the First Amendment, no matter
what rule is applied in evaluating the filing of the state-court lawsuit…[t]he scope and manner of
the investigation violated plaintiffs’ First Amendment Rights.”).
56
6 Del. C. § 4610(f)(1).
14
delay, harassment, or to run up costs. There is nothing in the record to suggest that

the Division did anything but proceed pursuant to its administrative authority. 57

Finally, Defendants attack the Commission, making the same argument they

made against the Division—the Commission should have refused to file the

complaint upon a review of the Chancery petition. They further argue that the

Commission “exacerbated the delays” by waiting more than 100 days to file the

complaint, instead of the statutorily mandated 30 days.58 Again, these conclusory

allegations do nothing to show that this action was instituted for an improper

purpose.

In their reply brief, Defendants attack Mrs. Cahills’ medical records and claim

they had “numerous” additional rights violated, such as their social contract with

Mrs. Cahill. Defendants’ attack on Mrs. Cahill’s medical records would require this

Court to assume that the grounds for the doctor’s notes and Mrs. Cahill’s underlying

conditions were fabricated for litigation purposes. The Court will not engage in such

speculation. Additionally, a breach of a “social contract,” in this Court’s view, is not

grounds for fee shifting.59

57
Defendants additionally argue that the Division should have intervened in the Chancery Action
or sought an anti-suit injunction. Motion, ¶ 16. Where “prompt judicial action” may be needed
Section 4610(e) grants the Division authority to seek temporary or preliminary relief in the Court
of Chancery. 6. Del. C. § 4610(e). The Division’s decision to not exercise this discretion does not
support a finding of fee-shifting.
58
Motion, ¶ 17.
59
Defendants rely on a case where a violation of a deed restriction warranted the issuance of an
injunction. Slaughter v. Rotan, 1994 WL 514873, at *3 (Del. Ch. Sept. 14, 1994). If the Fence is
15
Finally, Defendants ignore the fact that this was the first case in which the

Noerr-Pennington doctrine was applied to a civil rights statute in Delaware. 60

F. Conclusion

The Delaware Fair Housing Act is a remedial statute, designed to correct past

discriminatory housing practices, provide remedies for violations, and promote

equal housing opportunities. It is drafted to encourage victims of discrimination to

seek redress, which is why it contains a plaintiff-prevailing party provision. Even

with its liberal construction, the statute also protects defendants against actions filed

for improper purposes. To strike the balance, defendants are required to satisfy a

much higher standard before being eligible for a fee shifting award. Awarding fees

and costs is a conservative tool, to be used only sparingly. Awarding such fees based

on conclusory statements would ignore the General Assembly’s carefully crafted

balance of the competing concerns. This case simply does not warrant a fee shifting

award. Accordingly, the Motion is DENIED.

IT IS SO ORDERED.

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

ultimately found in violation, Defendants are free to pursue whatever remedies they have available
in the Chancery Action.
60
See Barnes Found., 242 F.3d 158 (whether the issue was one of first impression is a factor courts
consider in determining whether a prevailing defendant is entitled to a fee shifting award).

16