MICHAEL J. MCGUIRE, Plaintiff,
WILLIAM SHELL, SALLY A. REARDON, JOHN T. REARDON, and MYERS REALTY LLC f/n/a BOB MOORE REALTY CO., Defendants.
Submitted: June 18, 2019
Myers Realty LLC's Motion to Dismiss. Denied.
William D. Fletcher, Jr., Esquire and Dianna E. Louder,
Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware;
attorneys for Plaintiff.
Kristin C. Collison, Esquire of Hudson Jones Jaywork &
Fisher, Dover, Delaware; attorney for Defendant Myers Realty
Miranda D. Clifton, Esquire of Young & McNelis, Dover,
Delaware; attorney for Defendant William Shell.
Matthew E. O'Byrne, Esquire of Casarino Christman Shalk
Ransom & Doss, P.A., Wilmington, Delaware; attorney for
Defendants Sally A. Reardon and John T. Reardon.
William L. Witham. Jr. Resident Judge.
before the Court is Defendant Myers Realty LLC's Motion
to Dismiss Michael J. McGuire's complaint pursuant to
Rule 12(b)(6) of the Delaware Superior Court Rules of Civil
Procedure. After considering Defendant's motion,
Plaintiffs response in opposition, and the record, it appears
to the Court that:
or about July 12, 2017, Michael McGuire arrived at 116 Morris
Drive in Dover, Delaware to visit with the four dogs that
lived there. One of the dogs was an adult male pit
bull. William Shell was the owner of the dogs, including the
pit bull. Mr. McGuire alerted Mr. Shell of his
arrival, and, with Mr. Shell's permission, went to visit
Mr. Shell's dogs.
Mr. McGuire offered a treat to the pit bull, the dog attacked
As the result of the attack, Mr. McGuire suffered
injuries. Mr. McGuire filed an action against
Defendant Myers Realty LLC (hereinafter "Myers
Realty"), claiming that Defendant was the property
management company of the property where he was attacked, and
that the Defendant knowingly and negligently allowed a
dangerous dog to be kept on the premises. In his complaint,
Mr. McGuire also stated that Defendant Myers Realty was known
at one point as "Bob Moore Realty Co."
Defendant filed a Motion to Dismiss stating that Myers Realty
was never known as Bob Moore Realty Co. (hereinafter
"Bob Moore"). Defendant further asserts that Myers
Realty never purchased Bob Moore's client list or any of
its business assets. Defendant also states that no legal basis
exists for naming Myers Realty as a Defendant in this
Plaintiff argues that the Motion to Dismiss should be denied
because it presents allegations outside the scope of the
Court's review pursuant to Rule 12(b)(6) of the Delaware
Superior Court Rules of Civil Procedure. The Plaintiff
further argues that Defendant should be compelled to file an
Answer to the Complaint and proceed with discovery to
determine whether evidence supports the Complaint's
allegations against Myers Realty.
5. On a
motion to dismiss pursuant to Rule 12(b)(6), the moving party
bears the burden of demonstrating that "under no set of
facts which could be proven in support of its [complaint]
would the [plaintiff] be entitled to
relief." Upon this Court's review of a motion
to dismiss, "(I) all well-pleaded factual allegations
are accepted as true; (ii) even vague allegations are
well-pleaded if they give the opposing party notice of the
claim; (iii) the Court must draw all reasonable inferences in
favor of the non-moving party; and (iv) dismissal is
inappropriate unless the plaintiff would not be entitled to
recover under any reasonably conceivable set of circumstances
susceptible of proof."
Defendant does not present facts in its Motion to Dismiss
that demonstrate that the Plaintiff would not be entitled to
relief. Defendant does not allege that Myers Realty does not
and/or did not manage the property where the Plaintiff
sustained injuries. Defendant states that Myers Realty was
not formerly ...