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Franco v. Acme Markets, Inc.

Superior Court of Delaware

November 7, 2018

CINDY L. FRANCO and RANDY FRANCO, wife and husband, Plaintiffs,
v.
ACME MARKETS, INC., a Delaware corporation, and KELLERMEYER BERGENSONS PROPERTY SERVICES, LLC, Defendants.

          Submitted: April 6, 2018

         Upon Consideration of Defendant's Motion to Dismiss DENIED.

          Gary S. Nitsche, Esquire, and William Stewart, III, Esquire, Gary S. Nitsche, P.A., Wilmington, Delaware. Attorneys for Plaintiffs.

          Michael J. Logullo, Esquire, Rawle & Henderson, LLP, Wilmington, Delaware. Attorney for Defendant, Kellermeyer Bergensons Property Services, LLC.

          MEMORANDUM OPINION

          Charles E. Butler, Judge.

         INTRODUCTION

         This dispute concerns the timing of the amendment to a Complaint, the statute of limitations and the proper construction of De. R. Civ. P. Rule 15(c)(3). As the Court understands it, here is the problem.

         FACTS AND PROCEDURAL HISTORY

         The Plaintiff complains that she slipped and fell while inside of an Acme store on September 30, 2015.[1] Her lawyers filed a lawsuit against Acme on May 10, 2017.[2] So far, all is well as the statute of limitations for a personal injury claim is concededly 2 years and would not expire until September 30, 2017.[3]

         Acme duly answered the Complaint and, somewhere between the Answer and/or the initial responses to interrogatories, Acme gave plaintiff notice that Acme contracts with a floor cleaning company, identified now as "KBS," a company out of California, to maintain the floors.[4] Plaintiff notified KBS of her Complaint on December 29, 2017.[5] Thus, the notice to KBS came after the statute of limitations had expired but less than 120 days thereafter. Plaintiff also amended her Complaint, adding KBS as an additional defendant.[6]

         KBS has moved to dismiss the complaint. Its argument relies heavily on a construction of the relation back doctrine, articulated in our Civil Rule 15. So to that we will now turn.

         STANDARD OF REVIEW

         We review a Motion to Dismiss pursuant to Superior Court Rule 12(b)(6) by accepting all well-pled facts as true.[7] "Well-pled means that the Complaint puts a party on notice of the claim being brought. If the Complaint and facts alleged are sufficient to support a claim on which relief may be granted, the motion is not proper and should be denied."[8]

         DISCUSSION

         Rule 15 provides that an Amended Complaint adding a new party "relates back to the date of the original pleading" provided it (1) relates to the same "conduct transaction or occurrence" set forth in the original pleading and (2) "within the period provided by statute or these Rules for service of the summons and complaint," the party sought to be added received notice of the action and (3) ...


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