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Cordrey v. Doughty

Superior Court of Delaware

October 11, 2017

BRYAN CORDREY and DONNA CORDREY, Plaintiffs,
v.
CORPORAL MARK J. DOUGHTY, In his individual capacity, DEPARTMENT OF SAFETY AND HOMELAND SECURITY-DIVISION OF STATE POLICE, CORPORAL CHRISTOPHER POPP, in his individual capacity, CORPORAL DEVON HORSEY, in his individual Capacity, TFC JOSH SCARAMUZZA, in his individual capacity, TFC BROCK ADKINS, in his individual capacity, and SERGEANT ERIC D. DANIELS, in his individual capacity. Defendants.

          Date Submitted: August 22, 2017

         Upon Plaintiffs' Motion to Amend: GRANTED.

          Patrick C. Gallagher, Esquire, Attorney for Plaintiffs.

          Michael F. McTaggart, Deputy Attorney General, Delaware Department of Justice, Attorney for Defendants.

          OPINION

          JURDEN, P.J.

         I. INTRODUCTION

         This is the Court's decision on Plaintiffs' Motion to Amend the Complaint.[1]For the reasons set forth below, the Court finds that Plaintiffs have satisfied the requirements of Delaware Superior Court Civil Rule 15 ("Rule 15") regarding amendments and relation back consequences, and justice requires leave to amend so that Plaintiffs' claims may be litigated on the merits.

         II. PROCEDURAL HISOTRY AND FACTUAL BACKGROUND

         On June 3, 2015, Delaware State Police officers deployed by the State's Special Operations Response Team ("SORT") served an arrest warrant on Bryan Cordrey at his residence in Felton, Delaware (the "Event"). Bryan Cordrey and Donna Cordrey (collectively, the "Plaintiffs") allege they suffered injuries during the course of the Event, as a proximate result of the wrongful conduct of the SORT team officers serving the warrant.[2]

         On April 1, 2017, within the statutory two-year limitation period, [3] Plaintiffs filed a complaint (the "Original Complaint") against Corporal Mark J. Doughty ("Doughty") and Department of Safety Homeland Security - Division of State Police ("DSP") (collectively, the "Original Defendants"), alleging excessive use of force by DSP officers against Plaintiffs during the Event.[4]

         Prior to filing the Original Complaint, Plaintiffs' counsel researched Plaintiffs' criminal charges stemming from the Event to identify all law enforcement officers involved, but counsel's investigative efforts proved unsuccessful. Because Plaintiffs were unable to discover the identities of all law enforcement officers involved, Plaintiffs averred in their Original Complaint:

[I]dentities of some of the agents and/or employees of DSP, including members of SORT, who participated in the [Event were] unknown to Plaintiffs, but include [Doughty]. [The] other agents and/or employees of DSP, including members of SORT [] would [have been] included as Defendants in this action but for the Plaintiffs' [...] mistake about their identities.[5]

         The Plaintiffs also served interrogatories with the Original Complaint, which consisted of thirteen questions regarding the identities of all DSP agents present at the Event.[6] Through Defendants' answers to these interrogatories, Plaintiffs learned Corporal Christopher Popp, Corporal Devon Horsey, TFC Josh Scaramuzza, TFC Brock Adkins, and Sergeant Eric D. Daniels (collectively, the "Intended Defendants") were the previously unidentified DSP agents. Plaintiffs' counsel then mailed an informal notice of the pending litigation to the residences of each of the Intended Defendants on July 21, 2017, 111 days from the date the Original Complaint was filed.[7] The informal notice read, in pertinent part:

A lawsuit has been filed against [Doughty] and [DSP] due to the injuries received by my clients. Although the Cordrey[]s intended to name every person involved in causing their injuries on June 3, 2015, when the lawsuit was initially filed, your identity was not known at the time. Now that Plaintiffs have subsequently discovered your identity, I am placing you on notice of [. . .] the existence of this lawsuit.[8]

         Of the five Intended Defendants, two received and signed for the notices, one refused service, and two notices were returned unclaimed.[9]

         On July 24, 2017, three days after mailing these notices, Original Defendants' counsel, on behalf of the Intended Defendants, contacted Plaintiffs' counsel via email about the notices.[10] When voicing his concern about the notices being sent to the Intended Defendants' residences rather than their places of employment, counsel for Original Defendants said, "I am very concerned about this, as my clients are[, ] too."[11] Counsel for Original Defendants instructed Plaintiffs' counsel that all communications to members of DSP should go through him.[12]

         III. PARTIES' CONTENTIONS

         Through their Motion, Plaintiffs ask this Court for leave to amend the Original Complaint to include the Intended Defendants and for relation back to the Original Complaint's filing date, April 1, 2017. All Defendants oppose the Motion, [13] arguing that Rule 15(c) bars the amendment because (1) the Intended Defendants were prejudiced when Plaintiffs sent the notices to their homes, (2) and the Plaintiffs' lack of knowledge as to the identities of the Intended Defendants does not constitute "mistake" under Rule 15.

         IV. DISCUSSION

         A. Superior Court Civil Rule 15

         Rule 15(a) provides:

A party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, the party may so amend it at any time within 20 days after it is served. Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 10 days after service of the amended pleading, whichever period may be the longer, unless the Court otherwise orders.[14]

         Rule 15(c) provides:

An amendment of a pleading relates back to the date of the original pleading when (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (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.[15]

         The purpose of Rule 15 is to encourage the disposition of litigation on its merits.[16] It is well established that leave to amend under Rule 15(a) should be freely given unless there is evidence of undue delay, bad faith, or dilatory motive on part of the movant, repeated failure to cure deficiencies, prejudice, futility, or the like.[17] "Rule 15(a) affords the parties the right, inter alia, to state additional claims, to increase the amount of damages sought, to establish additional defenses, and to change the capacity in which the action was commenced."[18] A decision to permit or deny an amendment under Rule 15(a) is left to the discretion of the trial judge.[19] It is the general policy in this jurisdiction to freely permit amendments to pleadings unless the opposing party would be seriously prejudiced by the amendment.[20] Rule 15(a) clearly directs liberal granting of amendments "when justice so requires."[21]

         B. Relation Back Test Under Rule 15(c) For Adding New Parties

         The Court employs a four-prong test to determine whether a proposed amendment to a complaint seeking to add a party "relates back" under the provisions of Rule 15(c): (1) the basic claim arose out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that the party will not be prejudiced in maintaining its defense; (3) the party to be brought in must know, or should have known but for a mistake concerning identity of the proper party, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period.[22]

         1. There Is No Dispute Over the Commonality of Operative Facts Because All Claims Arise from the Event

         There is no dispute that Plaintiffs' claims against the Intended Defendants arise from the same conduct, transaction, or occurrence set forth in the original pleading.[23]

         2. The Intended Defendants Received Such Notice That They Will Not Be Prejudiced in Maintaining Their Defenses

         This prong contains two parts: (a) the party must have received notice of the institution of the action; and (b) the notice must have been sufficient to prevent prejudice.[24]

         a. Plaintiffs Provided Sufficient Notice of the Proceeding and a Copy of the Original Complaint to the Intended Defendants

         "Delaware courts have held that 'such notice' under Rule 15(c) is notice of the pending litigation rather than the incident giving rise to the cause of action."[25] Here, within 111 days of filing the Original Complaint, Plaintiffs sent a cover letter with a copy of the Original Complaint to each Intended Defendant by certified mail.[26] The cover letter explained the Plaintiffs' intent to add each Intended Defendant to the lawsuit.[27] Three days thereafter, on July 24, 2017, Original Defendants' counsel, on behalf of the Intended Defendants, contacted Plaintiffs' counsel via email regarding the notices, and on July 28, in another email, referred to the Intended Defendants as "my clients."[28] As explained below, the record establishes the Intended Defendants were on notice that Plaintiffs intended to include them in the suit by no later than July 28, 2017. The fact that one Intended Defendant refused service, and two notices were returned unclaimed, does not change the Court's finding on this prong because attorney knowledge of notice can be imputed from attorney to client.[29] The shared attorney theory has been used to impute notice to other government officials when "there was 'some communication or relationship between the shared attorney and the John Doe defendant[s] prior to the expiration of the 120-day period[.]'"[30] There must be evidence of an agency relationship to support constructive notice in the absence of a prior understanding communicated to the petitioner.[31]

         The Superior Court imputed Rule 15 notice from an attorney to a party in Brown v. City of Wilmington Zoning Bd. of Adjustment.[32] In that case, residents petitioned for judicial review of a City of Wilmington Zoning Board of Adjustment decision that affected a nearby neighborhood. The Court held that notice to the attorney who represented the developer, CCS Investors, LLC ("CCS"), at a prior administrative hearing could be imputed to CCS because "notice to a party's attorney concerning a legal matter will, in certain instances, provide constructive notice to the party, " particularly if the attorney-client relationship has been disclosed.[33] The Court in Brown found that there was a basis in the record to conclude CCS received notice of the appeal through its attorney.[34] A letter the attorney sent to the economic development director provided evidence that the attorney continued to represent CCS after the administrative decision was released. The attorney identified CCS as a client in the letter and proposed continuing discussions with the city on behalf of CCS.[35] According to ...


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