CINDY L. FRANCO and RANDY FRANCO, wife and husband, Plaintiffs,
ACME MARKETS, INC., a Delaware corporation, and KELLERMEYER BERGENSONS PROPERTY SERVICES, LLC, Defendants.
Submitted: April 6, 2018
Consideration of Defendant's Motion to Dismiss
S. Nitsche, Esquire, and William Stewart, III, Esquire, Gary
S. Nitsche, P.A., Wilmington, Delaware. Attorneys for
Michael J. Logullo, Esquire, Rawle & Henderson, LLP,
Wilmington, Delaware. Attorney for Defendant, Kellermeyer
Bergensons Property Services, LLC.
Charles E. Butler, Judge.
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.
AND PROCEDURAL HISTORY
Plaintiff complains that she slipped and fell while inside of
an Acme store on September 30, 2015. Her lawyers filed a lawsuit
against Acme on May 10, 2017. 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,
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. Plaintiff notified KBS of
her Complaint on December 29, 2017. 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.
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.
review a Motion to Dismiss pursuant to Superior Court Rule
12(b)(6) by accepting all well-pled facts as
true. "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."
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