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McGuire v. Shell

Superior Court of Delaware

September 6, 2019

MICHAEL J. MCGUIRE, Plaintiff,
v.
WILLIAM SHELL, SALLY A. REARDON, JOHN T. REARDON, and MYERS REALTY LLC f/n/a BOB MOORE REALTY CO., Defendants.

          Submitted: June 18, 2019

         Defendant 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 LLC.

          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.

          ORDER

          William L. Witham. Jr. Resident Judge.

         Presently 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:

         1. On or about July 12, 2017, Michael McGuire arrived at 116 Morris Drive in Dover, Delaware to visit with the four dogs that lived there.[1] One of the dogs was an adult male pit bull. William Shell was the owner of the dogs, including the pit bull.[2] Mr. McGuire alerted Mr. Shell of his arrival, and, with Mr. Shell's permission, went to visit Mr. Shell's dogs.[3]

         2. When Mr. McGuire offered a treat to the pit bull, the dog attacked him.[4] As the result of the attack, Mr. McGuire suffered injuries.[5] 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.[6] In his complaint, Mr. McGuire also stated that Defendant Myers Realty was known at one point as "Bob Moore Realty Co."

         3. Defendant filed a Motion to Dismiss stating that Myers Realty was never known as Bob Moore Realty Co.[7] (hereinafter "Bob Moore"). Defendant further asserts that Myers Realty never purchased Bob Moore's client list or any of its business assets.[8] Defendant also states that no legal basis exists for naming Myers Realty as a Defendant in this action.[9]

         4. 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.[10] 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."[11] 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."[12]

         6. 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 ...


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