IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JOSEPH SCHMIDT,
Plaintiff,

Vv.

THE WASHINGTON C.A. No. N19C-03-262 CLS
NEWSPAPER PUBLISHING
COMPANY, LLC d/b/a
WASHINGTON EXAMINER, a

Delaware entity,

Defendant.

Date Submitted: November 6, 2019
Date Decided: December 20, 2019

ORDER

Upon Defendant Washington Examiner’s Motion for Reconsideration regarding
California’s Applicable Statute of Limitations
Granted.

Bartholomew J. Dalton, Esquire, Ipek Kurul, Esquire, Dalton & Associates, P.A.,
Wilmington, Delaware, Andrea A. Lewis, Esquire (pro hac vice), Searcy Denney
Scarola Barnhart & Shipley, P.A., West Palm Beach, Florida, Attorneys for Plaintiff.

Joseph J. Bellew, Esquire, White and Williams LLP, Wilmington, Delaware, Todd

R. Ehrenreich, Esquire (pro hac vice), David L. Luck, Esquire (pro hac vice), Lewis
Brisbois Bisgaard & Smith LLP, Coral Gables, Florida, Attorneys for Defendant.

SCOTT, J.
Before the Court is Defendant Washington Examiner’s Motion for
Reconsideration regarding California’s Applicable Statute of Limitations. For the
following reasons, Defendant’s motion is GRANTED.

Background

On April 21, 2017, Defendant Washington Examiner (“Defendant”) published
an article about a Navy Seal who was charged with making child pomography. The
article made national news. Attached to the article was a photo of Joseph Schmidt
(“Plaintiff”), who was not the subject of the article but who was also a Navy Seal.

In response to the article, Plaintiff filed a complaint against Defendant in
Florida state court on April 4, 2018. On May 11, 2018, Defendant removed the case
to the U.S. District Court for the Southern District of Florida. A federal magistrate
judge dismissed the case for lack of personal jurisdiction on October 3, 201 8.
Plaintiff then filed a motion for reconsideration and sought to transfer the case to
Washington, D.C.; the federal judge denied this motion on December 6, 2018.

On March 25, 2019, Plaintiff filed a Complaint with this Court. On September
30, 2019, this Court dismissed Plaintiff's case for forum non conveniens. Defendant
filed the instant motion for reconsideration on October 7, 2019.

Parties’ Assertions
In its motion for reconsideration, Defendant argues that the Court

misapprehended California law when the Court found that Plaintiff's claims were
not time-barred. Defendant contends Plaintiff's claims are time-barred because
neither a literal nor an equitable application of California’s Savings Statute applies
to Plaintiff's case. In addition, Defendant argues that the Court improperly
considered California’s Savings Statute because Plaintiff never made this argument
in his response to Defendant’s motion to dismiss.

In response to Defendant’s motion for reconsideration, Plaintiff argues that
the Court correctly concluded his claims were timely because California’s equitable
tolling doctrine applies to Plaintiffs claims. Plaintiff states that he sufficiently
briefed his position on California’s Savings Statute in his response to Defendant’s
motion to dismiss; Plaintiff incorporates that argument by reference here.

Defendant filed a reply to Plaintiffs response arguing that Defendant’s
position is unopposed because Plaintiff did not brief the California’s Savings Statute
in his response to Defendant’s motion to dismiss. Defendant further argues that
Plaintiff impermissibly attempts to make new arguments for the first time in his
opposition to Defendant’s reconsideration motion. Finally, Defendant argues that
Plaintiff's new arguments are meritless.

Standard of Review

A motion for reconsideration under Superior Court Rule of Civil Procedure

59(e) will be granted only if “the Court has overlooked a controlling precedent or

legal principles, or the Court has misapprehended the law or facts such as would
have changed the outcome of the underlying decision.”' A motion for
reconsideration is not an opportunity for a party to rehash the arguments already
decided by the Court or to present new arguments not previously raised.* A party
seeking to have the Court reconsider the earlier ruling must “demonstrate newly
discovered evidence, a change in the law, or manifest injustice.”

Discussion

A. Plaintiff raised the California Savings Statute argument in his
response to Defendant’s motion to dismiss.

Contrary to Defendant’s assertion, Plaintiff did raise the California Savings
Statute argument in his response to Defendant’s motion to dismiss:

Defendant maintains that the “Borrowing Statute trumps the Savings
Statute,” such that if the Borrowing Statute points to another
jurisdiction’s shorter limitations period, then Delaware’s Savings
Statute does not apply. Defendant cites to Frombach for this
proposition, however neglects to mention that in Frombach our
Supreme Court also looked to the other jurisdiction’s statute to see if it
would toll the limitations under the facts of that case.*

The provision of Frombach that Plaintiff referenced—but failed to cite—states:

“{I]n determining whether an action is barred in the state where the cause arose, the

 

' Bank of New York Mellon v. Shrewsbury, 2016 WL 3010187, at *2 (Del. Super.
May 18, 2016) (quoting Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del.
Super. Jan. 31, 2006)).

2 Id.

3 Id. (quoting Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super.
May 23, 2000)).

4 P].’s Opp’n Def.’s Mot. Dismiss 18, May 31, 2019.

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Court looks not to its own Savings act, but to that of the situs. The theory is that the
borrowed statute is accepted with all its accoutrements.”° Based on this rule from
Frombach, the Court reviewed California’s Savings Statute in its decision on
6

Defendant’s motion to dismiss.

B. The Court misapprehended California law when it decided
Defendant’s motion to dismiss.

The Court previously held that Plaintiffs claims were not time-barred because
they were saved by California’s Savings Statute.’ As Defendant correctly argues,
the Court’s decision was based on a misapprehension of California’s Savings
Statute. Under the proper analysis of California’s Savings Statute, Plaintiffs claims
are time-barred.

Under California’s Savings Statute, “[i]f an action is commenced within the
time prescribed therefor, and a judgment therein for the plaintiff be reversed on
appeal other than on the merits, a new action may be commenced within one year

after the reversal.’® California’s Savings Statute applies in two situations: 1) where

 

5 Fyombach v. Gilbert Associates, Inc., 236 A.2d 363, 366 (Del. 1967).

6 See Schmidt v. Washington Newspaper Publishing Co., 2019 WL 4785560, at *5
(Del. Super. Sept. 30, 2019) (citing Frombach, 236 A.2d at 366).

7 Schmidt, 2019 WL 4785560, at *5.

8 Cal. Civ. Proc. Code § 355 (West 1992).

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a judgment for a plaintiff has been reversed on appeal; or 2) where the three
Bollinger factors are satisfied.’ Plaintiffs case does not fall under either category.

First, a judgment for Plaintiff has not been reversed on appeal. The U.S.
District Court for the Southern District of Florida dismissed Plaintiff's claims for
lack of personal jurisdiction on October 3, 2018. Plaintiff then filed a motion for
reconsideration. The U.S. District Court denied Plaintiffs motion for
reconsideration on December 6, 2018.!° Plaintiff did not appeal the U.S. District
Court’s decision; instead, Plaintiff filed the instant action. Under a literal reading of
California’s Savings Statute, Plaintiff's case is not saved because the U.S. District
Court did not rule in Plaintiff's favor and a favorable ruling for Plaintiff was never
reversed on appeal.

Second, Plaintiff's case does not satisfy the Bollinger factors to obtain an
equitable application of California’s Savings Statute. A court will equitably apply
California’s Savings Statute only when: 1) the trial court erroneously granted the
initial nonsuit; 2) dilatory tactics on the part of the defendant “prevented disposition

of the first action in time to permit a second filing within the limitations period”; and

 

° Wood v. Elling Corp., 20 Cal. 3d 353, 361-62 (Cal. 1977); see Allen v.
Greyhound Lines, Inc., 656 F.2d 418, 421 (9th Cir. 1981) (clarifying that Wood
limited Bollinger’s equitable application of § 355 to only those instances which
satisfied the three factors the California Supreme Court used in Bollinger).
10 Schmidt v. Washington Newspaper Publishing Co., 2018 WL 6422705 (S.D. Fla.
Dec. 6, 2018).

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3) the plaintiff has at all times proceeded in a diligent manner.'' The U.S. District
Court did not erroneously grant the initial nonsuit; instead, the U.S. District Court
reasonably held that it lacked personal jurisdiction over Defendant because Plaintiff
had not alleged facts sufficient to show that Defendant “purposefully availed” itself
of the privileges of conducting activities in Florida.’ “The concurrence of the three
factors present in Bollinger is essential to an application of the rule stated therein”; '°
because the first of the Bollinger factors is not present in the instant case, the Court
will not equitably apply California’s Savings Statute to save Plaintiff's claims.
California’s Savings Statute does not save Plaintiff's claims. The statute of
limitations for defamation claims in California is one year.'* As the Court found in
its decision on Defendant’s motion to dismiss, Plaintiff filed the instant action more

than one year after the accrual date.'° Thus, Plaintiff's claims are time-barred.

C.  Plaintiff’s equitable tolling argument is improperly raised.

“A motion for reargument is not intended to rehash the arguments already

decided by the court.”!® In his response to Defendant’s motion for reconsideration,

 

"| Dimcheff v. Bay Valley Pizza Inc., 84 Fed. App’x 981, 982-83 (9th Cir. 2004)
(citing Wood, 20 Cal. 3d at 361) (laying out the critical factors from Bollinger).

12 See Schmidt, 2018 WL 6422705, at *1 (recounting the procedural history of
Plaintiff's case).

13 Wood, 20 Cal. 3d at 361.

14 Cal, Civ. Proc. Code § 340(c) (West 2003).

1S Schmidt, 2019 WL 4785560, at *5 (finding that the statute of limitations has run
even if the time period is tolled for the duration of the Florida proceedings).

16 Kennedy, 2006 WL 488590, at *1.

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Plaintiff rehashes his equitable tolling doctrine argument.'’ The Court declined to
address Plaintiff's equitable tolling argument in its decision on Defendant’s motion
to dismiss; however, even if the Court applies the equitable tolling doctrine to
Plaintiff's claims, Plaintiffs claims are still time-barred.

Based on this Court’s findings in its decision on Defendant’s motion to
dismiss, Plaintiff's claims are untimely even if the time period is tolled for the
duration of the Florida proceedings:

Defendant calculated—and Plaintiff did not oppose—the relevant time

periods in this litigation. If the time period is not tolled for the duration

of the Florida proceedings, then Plaintiff filed this action 1-year-11-

months-and-four-days after the accrual date. If the time period is tolled

for the duration of the Florida proceedings, then Plaintiff filed this

action 421 days after the accrual date.

In California, the statute of limitations for a defamation claim is one year.'*
Plaintiffs claims are untimely filed because Plaintiff filed the instant action 421 days
after the accrual date.

Plaintiff does not deny that his claims were filed more than one year after the

accrual date.!? Plaintiff urges this Court to do as the California Court of Appeal did

 

'7 Compare Resp. Opp’n Def. Washington Examiner’s Mot. Recons. regarding
California’s Applicable Statute of Limitations §{] 2-12, Oct. 22, 2019 (applying
California’s equitable tolling doctrine factors to Plaintiff's claim) with Pl.’s Opp’n
Def.’s Mot. Dismiss 18-21, May 31, 2019 (same).

18 Cal. Civ. Proc. Code § 340(c) (West 2003).

'9 Resp. Opp’n Def. Washington Examiner’s Mot. Recons. regarding California’s
Applicable Statute of Limitations § 10 (“Plaintiff filed suit in Delaware on March
25, 2019—only 57 days after the tolled limitations period ran.”).

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in Tarkington v. California Unemployment Insurance Appeals Board.® In
Tarkington, the California Court of Appeal declined to dismiss a plaintiff's second-
filed claim as untimely even though the plaintiff filed the second action twelve days
too late.2! Tarkington is different from the instant case in two respects. First, in
Tarkington, the plaintiff filed its action in the appropriate court at the outset of the
case.2 In contrast, Plaintiff first filed his action in an inappropriate court because
Plaintiff first filed his claim in Florida state court. Second, in Tarkington, the court
found that the plaintiff's conduct was not dilatory because the plaintiff filed the
second action in a “prompt” manner—13 days—after proceedings which lasted
nearly two years.” In contrast, Plaintiff filed the instant action four months after the
U.S. District Court dismissed his claims; unlike the two-year long proceedings in
Tarkington, Plaintiff's proceedings in Florida lasted only nine months.”* Therefore,
Plaintiff’s case is different from Tarkington and the Court declines to further extend

the statutory time period for Plaintiff.»

 

20 Tarkington v. California Unemployment Ins. Appeals Bd., 172 Cal. App. 4th
1494 (Cal. Ct. App. 2009).

21 Fd. at 1507-508.

22 Td. at 1507.

°3 Td. at 1507-508.

24 Def.’s Reply Supp. Rule 59(e) Mot. 4.

25 See also Mitchell v. Frank R. Howard Mem’l Hosp., 6 Cal. App. 4th 1396, 1407—
408 (Cal. Ct. App. 1992) (“However, equitable tolling is... certainly not available
to a plaintiff who engages in the procedural tactic of moving the case from one
forum to another in the hopes of obtaining more favorable rulings.”).

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Conclusion
For the forgoing reasons, Defendant’s Motion for Reconsideration is
GRANTED. The Court’s decision of September 30, 2019 is amended to reflect that

Plaintiffs claims are dismissed with prejudice as time-barred.

aU

The Honorable@alvin L. Scott, Jr.

IT ISSO ORDERED.

10
