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Dunfee v. KGL Holdings Riverfront, LLC
Superior Court of Delaware
October 30, 2018
SAMANTHA A. DUNFEE, and CHRISTINA M. DUNFEE, Administrators of the Estate of CARL T. DUNFEE Plaintiffs,
KGL HOLDINGS RIVERFRONT, LLC d/b/a EVERGREEN APARTMENTS AT RIVERFRONT HEIGHTS, a Delaware limited liability company, EVERGREEN PROPERTIES MANAGEMENT, INC., a Delaware corporation, EVERGREEN APARTMENT GROUP, INC., a Delaware corporation, ANTHONY FRAGLE, CONTINENTAL CASUALTY COMPANY, a foreign corporation, VILLAGE OF WINDHOEVER, LLC, a Delaware limited liability company, and GLOBAL REALTY SERVICES GROUP, LLC, a/k/a GRS GROUP / CORTEQ, a Foreign corporation Defendants.
Submitted: September 28, 2018
Defendant/Third-Party Plaintiffs KGL Holdings Riverfront,
LLC, et al.'s Motion to Strike Defendant Global Realty
Services Group, LLC's Motion to Dismiss. GRANTED.
S. Nitsche, Esquire, Weik Nitsche & Dougherty,
Wilmington, Delaware, Attorney for Plaintiffs.
E. Sherlock, Esquire, and Stephen F. Dryden, Esquire, Weber
Gallagher Simpson Stapleton Fires & Newby, LLP, Dover,
Delaware, Attorneys for Defendants/Third-Party Plaintiffs
Evergreen Apartment Group, Inc., Evergreen Properties
Management, Inc., and KGL Holdings.
Michael J. Logullo, Esquire, Rawle & Henderson LLP,
Wilmington, Delaware, Attorney for Defendant Global Realty
Services Group, LLC.
RICHARD R. COOCH, J.
30th day of October, 2018, upon consideration of KGL Holdings
Riverfront, LLC's ("KGL") Motion to Strike
Defendant Global Realty Services Group, LLC's
("Global") Second Motion to Dismiss, it appears to
the Court that:
1. Global filed a Motion to Dismiss pursuant to Superior
Court Rule of Civil Procedure 12(b)(2) on September 8, 2017.
This Court denied Global's Motion on November 29, 2017.
Global subsequently filed a Motion for Reargument which was
also denied on January 12, 2018. Pursuant to Rule 12(a),
Global had ten days to file an answer. Instead, Global filed
a Second Motion to Dismiss pursuant to Rule 12(b)(6) on
February 2, 2018. In response to Global's Second Motion
to Dismiss, KGL filed a Motion to Strike Global's Second
Motion to Dismiss on February 25, 2018.
2. In its original Motion to Dismiss pursuant to Rule
12(b)(2), Global contended that Plaintiffs failed to assert a
proper basis of personal jurisdiction to subject Global to
jurisdiction in Delaware. Global maintained it merely engaged
independent contractors in Delaware. Global's essential
argument was that, because it is neither incorporated in
Delaware, nor has its principal place of business in
Delaware, the Superior Court lacked personal jurisdiction
over Global. This Court denied the motion to dismiss, and
held that while the Court lacked general personal
jurisdiction over Global, Global was still subject to
specific personal jurisdiction.
3. In its second motion to dismiss pursuant to Rule 12(b)(6)
(the subject of KGL's Motion to Strike) Global contends
Plaintiff failed to set forth specific facts that could
establish a negligence cause of action. Global asserts
there was no contractual relationship between itself and the
Plaintiffs and/or KGL. Absent any evidence of a special
relationship, Global contends it owed no duty to Plaintiffs
or KGL. Global asserts that while a contract existed between
itself and Keybank, the contract did not confer any benefits
or rights to Plaintiffs, KGL, or any other third-party.
4. KGL now seeks to strike Global's second motion to
dismiss. KGL argues that Global was required to file an
answer to the complaint in January 2018, not another motion
to dismiss. KGL argues that Rule 12(g) prevents a second or
subsequent Rule 12(b) motion unless the motion meets certain
exceptions provided by Rule 12(h). Under Rule 12(h)(2), a
subsequent motion to dismiss for failure to state a claim
upon which relief can be granted may be made in any Rule 7(a)
pleading, a Rule 12(c) motion for judgment on the pleadings,
or at a trial on the merits.
5. Global, however, asks this Court to allow its second
motion to dismiss to proceed for the sake of judicial
economy, and because KGL "has not demonstrated that the
Court's adjudication of Global's Rule 12(b)(6) Motion
at this juncture would be burdensome." Global also
points to Leyse v. Bank of Am. Nat 7 Ass
'n, in which the United States Court of Appeals for
the Third Circuit noted that a "district court's
decision to consider a successive Rule 12(b)(6) motion to
dismiss is usually harmless, even if it technically violates
6. If this Court were to entertain Global's second motion
to dismiss on its merits, such a decision may indeed be
considered harmless error on any future appeal. However, this
case is not on appeal. While possibly harmless error, such a
decision would still be error. Global's successive Rule
12(b)(6) motion is a violation of Rule 12(g) and Rule
12(h)(2). According to Rule 12(g), a subsequent Rule 12(b)
motion to dismiss may not be filed unless it raised within
the Rule 12(h)(2) exceptions: (i) in a Rule 9 Answer; (ii) in
a Rule 12(c) motion; or (iii) is raised at
trial. In such a complex case as this instant
consolidated matter, the Court believes all of the Superior
Court Rules of Civil Procedure must be followed as strictly
7. KGL suggests in its Reply that there are motions to amend
complaints or amendments to complaints
forthcoming. If such amendments are to be filed, Global
shall be permitted to file another motion to dismiss ...