   IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE

                       IN AND FOR NEW CASTLE COUNTY


MOHAMED DIABY                                )
                                             )
       Plaintiff,                            )
                                             )
               v.                            )          C.A. No. CPU4-15-001735
                                             )
INSURANCE AUCTIONS USA INC.,                 )
                                             )
       Defendant.                            )
                                             )


                             Submitted: November 20, 2015
                              Decided: December 15, 2015


Mohamed Diaby                                           Jarret P. Hitchings, Esquire
44 Mohawk Circle                                        Duane Morris LLP
Ferndale, NY 12734                                      222 Delaware Avenue, Suite 1600
Self-Represented                                        Wilmington, DE 19801
                                                        Attorney for TD Bank



                  MEMORANDUM OPINION AND ORDER
           ON PLAINTIFF’S MOTION TO AMEND THE COMPLAINT


                                  INTRODUCTION

       On May 19, 2015, Plaintiff Mohamed Diaby (“Diaby”) filed this breach of contract

action against Insurance Auctions USA Incorporated (“Defendant”) in connection with the

purchase of a 2011 Mercedes-Benz (“Mercedes”). On July 31, 2015, after Defendant failed

to answer Diaby’s Complaint, this Court entered a default judgment against Defendant in the

amount of $11,000.00. On August 12, 2015, TD Bank (“TD”) notified this Court that the
Order was insufficient to compel TD to surrender the money in Defendant’s account.

Subsequently, this Court issued two rules to show cause against TD.                 At hearings held on

September 4, 2015 and November 20, 2015, TD maintained that it held no accounts in

Defendant’s name and therefore could not surrender the money owed. On October 21,

2015, Diaby filed a Motion to Amend the Complaint. The Court took this matter under

advisement on November 20, 2015. This is the Court’s final decision on Plaintiff’s Motion

to Amend the Complaint.

                        FACTUAL AND PROCEDURAL HISTORY

        On April 20, 2015, Plaintiff purchased a 2011 Mercedes from an online auto auction

website and received an invoice memorializing the purchase. The invoice was printed on

TD Bank letterhead and provided Plaintiff with instructions on how to make payment, and

Defendant’s TD bank account number. Over the following three days, Plaintiff paid the

sum of $11,000.00 as provided in the invoice by making three separate cash deposits at two

TD Bank locations in New York City.1

        During his first visit to the bank, Plaintiff submitted a deposit slip containing what he

understood to be Defendant’s business name; however, the teller instructed him to instead

write “Insurance Auction” or “Insurance Auto Auction,” to ensure his payment would be

credited to the proper TD Bank account.                  Subsequently, Plaintiff made the final two

payments using the entity name provided by the teller. Shortly after paying the balance,

Defendant informed Plaintiff that it was unable to obtain the Mercedes. Plaintiff requested a


1 Plaintiff made deposits of $8,000.00 and $2,000.00 on April 21, 2015 and April 22, 2015 at a TD Bank
located in Bronx, New York. On April 23, 2015, Plaintiff deposited the final $1,000.00 at a TD Bank located
in Harlem, New York.
                                                     2
refund but did not receive a response from Defendant. On May 19, 2015, Plaintiff brought

this action and Defendant was served at 300 Delaware Avenue, Suite 210, Wilmington,

Delaware 19801. For failure to file an answer as required by Court of Common Pleas Civil Rule

12(a), on July 31, 2015, Plaintiff obtained a default judgment against Insurance Auctions

USA, Inc., in the amount of $11,000.00.

        On August 12, 2015, TD informed the Court that the Order was “not sufficient” and

that TD needed a “writ or restricted notice” before they would release the funds. As a

result, two rule to show cause hearings were held before the court. At the first, TD

maintained that it was not in possession of Plaintiff’s funds and that Defendant does not

hold an account at TD Bank. After Plaintiff submitted deposit receipts and slips, and the

invoice, TD conceded that Plaintiff made the three deposits, but that the deposits did not

involve Defendant, and the funds belonged to “a different entity” whose name TD was

unwilling to disclose.

        On October 21, 2015, Plaintiff filed a Motion to Amend the Complaint (“Motion”),

to change Defendant’s name from its current form to “Insurance Auctions LLC.” Plaintiff

indicated that Defendant’s account was listed under the name “Insurance Auction LLC” and

not “Insurance Auctions USA, Inc.”2 Plaintiff did not provide Defendant with notice of the

Motion because no responsive pleadings were filed by Defendant. On November 20, 2015,

this Court heard argument on Plaintiff’s Motion and TD’s second rule to show cause.




2 The information’s accuracy is unquestioned; however, it remains unclear whether Plaintiff obtained the
information from TD’s lawyer or a TD Bank teller.
                                                      3
                                 PARTIES’ CONTENTIONS
         Plaintiff contends that he is unable to enforce his judgment unless it is against the

proper TD Bank account holder. TD maintains that it will not enforce what it considers to

be a “procedurally improper” judgment. TD contends that it may enforce this Court’s

judgment if Plaintiff follows the appropriate procedural channels. TD does not oppose

Plaintiff’s Motion to Amend the Complaint.



                                          DISCUSSION

         A. Motion to Amend

         Pursuant to Court of Common Pleas Rule of Civil Procedure 15(a), the Court has the

authority to grant a party leave to amend his pleadings.3 A foreign unregistered limited liability

company doing business in this State, “shall be deemed to have . . . appointed and

constituted the Secretary of State its agent for acceptance of legal process in any civil

action.”4 Similarly, when a foreign registered limited liability company “cannot by due

diligence” be served in the manner provided for in 6 Del. C. § 18-910(a), it is deemed

sufficient to serve process upon the Secretary of State.5

         The Defendant did not file a responsive pleading under Court of Common Pleas Civil

Rule 12(a) and has not filed other pleadings. Under Rule 15, a part may amend a party’s

pleading once as a matter of course at any time before a responsive pleading is served.



3 CCP Civ. R. 15(a).
4 6 Del. C. § 18-911(a).
5 6 Del. C. § 18-910(b).


                                                 4
Therefore, since there has been no responsive pleading the motion to amend is permissible

under the rule.

        B. TD Bank’s Actions

        This case involves a pro se litigant who deposited money into a TD bank account.

The Plaintiff indicated that a TD Bank employee changed the deposit slip so that the funds

may be deposited into Insurance Auctions LLC’s account. This allegation, if proven, could

put the bank in a different position than a mere depository because it has put Plaintiff in a

difficult position to recover his funds. Thus it is a difficulty which the bank, by its employee

helped to create. TD refuses to return Plaintiff’s funds, despite the fact that Plaintiff never

received the goods for which he contracted. These acts put the bank in a precarious

position which may warrant review by other authorities.



                                           ORDER
        Upon consideration of Plaintiff’s Motion to Amend is GRANTED. Plaintiff shall

file an amended complaint and have it served on Insurance Auctions LLC.

                                            SO ORDERED.



                                            ________________________________
                                            Alex J. Smalls
                                            Chief Judge
Diaby-OP Dec 2015




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