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Fraser v. G-Wilmington Associates L.P.

Superior Court of Delaware

January 24, 2017

HYACINTH L. FRASER, Plaintiff,
v.
G-WILMINGTON ASSOCIATES L.P., ROSEN ASSOCIATES MANAGEMENT CORP., HOME DEPOT, U.S.A., INC., a Delaware Corporation, and DMC CONSTRUCTION, LLC, a foreign limited liability company, Defendants, and G-WILMINGTON ASSOCIATES L.P. and ROSEN ASSOCIATES MANAGEMENT CORP., Third-Party Plaintiffs,
v.
DMC CONSTRUCTION, LLC, a Foreign limited liability company, Third-Party Defendant.

          Submitted: November 7, 2016

         On Defendant/Third-Party Defendant DMC Construction, LLC's Motion to Dismiss. DENIED.

          Samuel D. Pratcher, III, Esquire, Weik, Nitsche & Dougherty, Wilmington, Delaware, Attorney for Plaintiff.

          Scott L. Silar, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware, Attorney for Defendant and Third-Party Defendant DMC Construction.

          Kenneth M. Doss, Esquire, Casarino, Christman, Shalk, Ransom & Doss, P.A., Wilmington, Delaware, Attorney for Defendants and Third-Party Plaintiffs G-Wilmington Associates, L.P. and Rosen Associates Management Corporation.

          Melissa L. Rhoads, Esquire, Tighe & Cottrell, P.A., Wilmington, Delaware, Attorney for Defendant Home Depot, U.S.A., Inc.

          MEMORANDUM OPINION

          Richard R. Cooch, R.J.

         Before the Court is Defendant/Third-Party Defendant DMC Construction, LLC's ("DMC Construction") Motion to Dismiss. In its motion, DMC Construction claims that Plaintiff's Amended Complaint against it should be dismissed under Superior Court Civil Rule 12(b)(6) on grounds that Plaintiff's claims are barred by the statute of limitations. Chiefly at issue in this case is whether a letter, with Plaintiff's original complaint attached, sent by G-Wilmington Associates L.P. ("G-Wilmington") and Rosen Associates Management Corp. ("Rosen") to DMC Construction before the two-year statute of limitations had expired and tendering the defense of those defendants to DMC Construction satisfies the notice requirement of Rule 15(c).

         I. FACTS AND PROCEDURAL HISTORY

         Plaintiff alleges that on June 1, 2013, she slipped and fell on a "clear plastic seal"[1] in the parking lot of the Home Depot Shopping Center located on Miller Road in Wilmington, and that she was injured as a result of the fall. On January 1, 2015, Plaintiff filed suit against Defendants G-Wilmington, Rosen, and Home Depot, U.S.A., Inc. ("Home Depot") (collectively the "Original Defendants"). She asserts that she has incurred very large medical expenses as a result of her slip and fall.[2]

         On or about March 20, 2015, DMC Construction received a letter, sent via certified mail, from G-Wilmington and Rosen's insurance provider. The letter advised DMC Construction that Plaintiff had filed a complaint against the G-Wilmington and Rosen, and that DMC Construction "was responsible for sweeping and removing all debris in the parking lots and entrances to store fronts."[3]Plaintiffs complaint against the Original Defendants was enclosed with the letter.

         On December 14, 2015, G-Wilmington and Rosen moved to file a third-party complaint against DMC Construction. In their motion, counsel for G-Wilmington and Rosen advised the Court that they were not aware of the March 20, 2015 letter's existence until December 9, 2015, because G-Wilmington and Rosen did not provide the letter to their counsel until then. At the scheduling conference held on June 24, 2015, Plaintiffs counsel had requested 120 days to add a party or to amend a pleading. The Court granted Plaintiffs request and set that deadline for September 25, 2015.

         In their motion to file a third party complaint, filed after the expiration of the deadline to add a party, counsel for G-Wilmington and Rosen advised the Court that they first became aware of the sweeping and maintenance contract with DMC Construction on December 9, 2015. Counsel for G-Wilmington and Rosen have represented to the Court that had they been aware of the existence of the March 20, 2015 letter as of the June 24, 2015 scheduling conference, they would have disclosed the existence of that letter to Plaintiff and to the Court. Plaintiffs counsel opposed G-Wilmington and Rosen's motion essentially on grounds that the motion came after the September 25, 2015 deadline and that G-Wilmington and Rosen had not shown good cause. On January 26, 2016, the Court granted G-Wilmington and Rosen's motion over Plaintiffs opposition.[4] G-Wilmington and Rosen filed their third-party complaint against DMC Construction on February 1, 2016.

         Plaintiff and the Original Defendants then stipulated to Plaintiff filing an Amended Complaint which would bring direct claims against DMC Construction. The Amended Complaint was filed on March 4, 2016 alleging that DMC Construction was responsible for sweeping and maintaining the premises. On September 27, DMC Construction filed its Motion to Dismiss Plaintiff's Amended Complaint.

         II. PARTIES' CONTENTIONS[5]

         A. DMC Construction's Contentions[6]

         DMC Construction claims that Plaintiff's complaint against it should be dismissed under Rule 12(b)(6). In support of its motion, DMC Construction argues that Plaintiff's claims against it are barred by the two-year statute of limitations, as the Amended Complaint was not filed until March 4, 2016. Additionally, DMC Construction claims that plaintiffs have failed to meet the relation-back requirements of Superior Court Civil Rule 15(c).[7] DMC

         Construction contends that Rule 15(c)(2) is not satisfied because Plaintiff made "no allegations concerning DMC in the original complaint."[8] With respect to Rule 15(c)(3), DMC Construction states that the party to be added must have "received such notice of the institution of the action" and "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party."[9] Defendant contends that this requirement must be met "within the Statute of Limitations or an additional 120 days after the statute expires."[10] In support of its argument that the requirements of Rule 15(c)(3) have not been met, DMC Construction contends that "[n]o attempt was made to name DMC in the original complaint, nor was there any attempt to name any other party that may have had a contract with either original Defendant."[11]

         B. Plaintiff's Contentions

         In response to DMC Construction's motion, Plaintiff contends that its Amended Complaint against DMC Construction relates back to the date the complaint was filed under Rule 15(c) and is therefore not barred by the statute of limitations. Specifically, Plaintiff contends its "claim asserted against DMC is from the same occurrence" as required under Rule 15(c)(2), and that "DMC knew or should have known that, but for a mistake concerning DMC's identity, it would have been brought into this action."[12] "[G-Wilmington and Rosen] knew about their contract with DMC as early as March 20, 2015." [13] Accordingly, Plaintiff argues that it has satisfied the relation back requirements of Rule 15(c).

         III. DISCUSSION

         A party moving to dismiss on grounds that the statute of limitations has expired may do so when the complaint shows that the action was not filed within the statutory period.[14] However, when a complaint was filed within the statutory period and is then amended once the statutory period has expired, Rule 15(c) permits the amended complaint, under appropriate circumstances, to relate back to the date the complaint was originally filed. The Delaware Supreme Court has held that amendments to complaints should be granted liberally in favor of the policy for deciding cases on their merits.[15]

         Rule 15(c) provides:

(c) Relation Back of Amendments. An amendment of a pleading relates back to the date of the original pleading when . . . (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.[16]

         Thus, as stated in Taylor v. Champion, [17] Rule 15(c) sets forth three requirements. First, the claim asserted in the amended complaint "must arise out of the same conduct, transaction or occurrence asserted in the original pleading."[18]"Second, within the time provided by the rules, the party to be added must have received notice of the institution of the action, so that the party will not be prejudiced."[19] "Third, within the time provided by the rules, the party to be added must have known or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party to be added by the amendment."[20] The Court holds that Plaintiff's claim meets the test set forth in Taylor, and therefore relates back to the date the complaint was originally filed under Rule 15(c). Accordingly, Defendant's Motion to Dismiss is denied.

         A. Plaintiff's Claim Arises out of the Same Transaction or Occurrence

         DMC Construction contends that Plaintiff's claim against it in her Amended Complaint does not satisfy Rule 15(c)(2) because Plaintiff made "no allegations concerning DMC in the original complaint."[21] With respect to the "same transaction or occurrence" requirement of Rule 15(c), the Delaware Supreme Court held in Mullen v. Alarmguard of Delmarva, Inc. that "the cause of action concept embodied in Rule 15(c) has been broadly defined to require simply that there be fair notice of the general fact situation out of which the claim or defense arose."[22]"[I]f the amendment merely expands or amplifies what was alleged in support of the cause of action already asserted, it relates back to the commencement of the action, and is not affected by the intervening lapse of time."[23]

         In the case at bar, Plaintiff's claim set forth in her Amended Complaint against DMC Construction arises out of the "general fact situation" that was alleged in the initial complaint. Plaintiff alleged in her original complaint that she slipped and fell in the parking lot of the Original Defendants' property. The claim pleaded in her Amended Complaint expands the original complaint to include a claim that DMC Construction was responsible for "sweeping, maintenance, cleaning, and trash removal services."[24] Plaintiff has not asserted a new cause of action that arises out of a separate factual scenario. Rather, Plaintiff's claim in the Amended Complaint is based on the same slip and fall incident alleged in the ...


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