IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

SAMANTHA A. DUNFEE, and
CHRISTINA M. DUNFEE,
Administrators of the Estate of
CARL T. DUNFEE

Plaintiffs,
C.A. No. Nl6C-O4-108 RRC

V. CONSOLIDATED

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
Decided: October 30, 2018

On 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.

ORDER

l

Gary S. Nitsche, Esquire, Weik Nitsche & Dougherty, Wilmington, DelaWare,
Attorney for Plaintiffs.

Mary 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.

COOCH, R.J.

This 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:

l.

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 lZ(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.

In its original Motion to Dismiss pursuant to Rule lZ(b)(Z), 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.l

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.2 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
lZ(g) prevents a second or subsequent Rule lZ(b) motion unless the
motion meets certain exceptions provided by Rule lZ(h).3 Under Rule
lZ(h)(Z), 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.4

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 lZ(b)(6)
Motion at this juncture would be burdensome.”5 Global also points to
Leyse v. Bank ofAm. Nat’l 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 lZ(b)(6) motion to dismiss is usually
harmless, even if it technically violates Rule lZ(g)(Z).”6

 

’ Samantha Dunfee, et al. v. KGL Hola’ings Riverfront, LLC, et al., Del. Super., C.A. No. Nl6C-
04-108, Cooch, R.J., at 4, ll (Nov. 29, 2017) (Mem. Op.).

2 Global’s Second Mot. to Dismiss, at 1.

3 See KGL’s Mot. to Strike Global’s Second Mot. to Dismiss, at 3-4.

4 super. Ct. R. Civ. Pro. 12(h)(2).

5 Global’s Resp. to KGL’s Mot. to Strike, at 2.

6 Leyse v. Bank QfAm. Nat’l Ass’n, 804 F.3d 316, 321 (3rd Cir. 2015).

3

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.7 Global’s
successive Rule l2(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.8 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 as possible.

7. KGL suggests in its Reply that there are motions to amend complaints
or amendments to complaints forthcoming9 If such amendments are to
be filed, Global shall be permitted to file another motion to dismiss
pursuant to 12(b)(6) regarding those amended complaints10

Accordingly, KGL’s Motion to Strike Global’s Second Motion to Dismiss is
GRANTED.

IT IS SO ORDERED.

fraud vue@£

Richard R. Cooch, J.

 

cc: Prothonotary

 

7 “A district court's decision to consider a successive Rule 12(b)(6) motion to dismiss is usually
harmless, even ifit technically violates Rule 12(g)(2).” Ia'. (emphasis added).

8 Super. Ct. R. Civ. Pro. 12(g), (h)(2).

9 KGL’s Reply Br., at 2-3.

10 Before the filing of any further motions to dismiss, by any party, the Court and the parties
should establish a deadline for motions being filed to amend pleadings To that end, the Court
requests that Mr. Nitsche and Ms. Sherlock confer with all counsel to determine if the parties can
agree on a deadline date for the amendment of pleadings in all consolidated cases. Ms. Sherlock,
speaking for all parties, shall advise the Court on or before November 19, 2018, of the parties’
agreement on such a deadline date, which the Court believes was inadvertently overlooked by
the Court and counsel in the global scheduling order dated August 20, 2018.

4

