     IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


HYACINTH L. FRASER,                   )
                                      )
              Plaintiff,              )
                                      )
      v.                              )
                                      )
G-WILMINGTON ASSOCIATES L.P., )
ROSEN ASSOCIATES                      )
MANAGEMENT CORP., HOME                )
DEPOT, U.S.A., INC., a Delaware       )
Corporation, and DMC                  )
CONSTRUCTION, LLC, a foreign          )
limited liability company,            )
                                      )
              Defendants,             )
                                      ) C.A. No. N15C-01-235 RRC
      and                             )
                                      )
G-WILMINGTON ASSOCIATES L.P. )
and ROSEN ASSOCIATES                  )
MANAGEMENT CORP.,                     )
                                      )
              Third-Party Plaintiffs, )
                                      )
      v.                              )
                                      )
DMC CONSTRUCTION, LLC, a              )
Foreign limited liability company,    )
                                      )
              Third-Party Defendant.  )

                      Submitted: November 7, 2016
                       Decided: January 24, 2017




                                   1
            On Defendant/Third-Party Defendant DMC Construction, LLC‟s
                           Motion to Dismiss. DENIED.

                       MEMORANDUM OPINION
Samuel D. Pratcher, III, Esquire, Weik, Nitsche & Dougherty, Wilmington,
Delaware, Attorney for Plaintiff.

Scott L. Silar, Esquire, Reger Rizzo & Darnall LLP, Wilmington, Delaware,
Attorney for Defendant and Third-Party Defendant DMC Construction.

Kenneth M. Doss, Esquire, Casarino, Christman, Shalk, Ransom & Doss, P.A.,
Wilmington, Delaware, Attorney for Defendants and Third-Party Plaintiffs G-
Wilmington Associates, L.P. and Rosen Associates Management Corporation.

Melissa L. Rhoads, Esquire, Tighe & Cottrell, P.A., Wilmington, Delaware,
Attorney for Defendant Home Depot, U.S.A., Inc.

COOCH, R.J.

       Before the Court is Defendant/Third-Party Defendant DMC Construction,
LLC‟s (“DMC Construction”) Motion to Dismiss. In its motion, DMC
Construction claims that Plaintiff‟s Amended Complaint against it should be
dismissed under Superior Court Civil Rule 12(b)(6) on grounds that Plaintiff‟s
claims are barred by the statute of limitations. Chiefly at issue in this case is
whether a letter, with Plaintiff‟s original complaint attached, sent by G-
Wilmington Associates L.P. (“G-Wilmington”) and Rosen Associates Management
Corp. (“Rosen”) to DMC Construction before the two-year statute of limitations
had expired and tendering the defense of those defendants to DMC Construction
satisfies the notice requirement of Rule 15(c).

                    I. FACTS AND PROCEDURAL HISTORY

      Plaintiff alleges that on June 1, 2013, she slipped and fell on a “clear plastic
        1
seal” in the parking lot of the Home Depot Shopping Center located on Miller
Road in Wilmington, and that she was injured as a result of the fall. On January 1,
2015, Plaintiff filed suit against Defendants G-Wilmington, Rosen, and Home
Depot, U.S.A., Inc. (“Home Depot”) (collectively the “Original Defendants”). She
1
    Compl. ¶ 4.
                                          2
asserts that she has incurred very large medical expenses as a result of her slip and
fall.2

       On or about March 20, 2015, DMC Construction received a letter, sent via
certified mail, from G-Wilmington and Rosen‟s insurance provider. The letter
advised DMC Construction that Plaintiff had filed a complaint against the G-
Wilmington and Rosen, and that DMC Construction “was responsible for sweeping
and removing all debris in the parking lots and entrances to store fronts.” 3
Plaintiff‟s complaint against the Original Defendants was enclosed with the letter.

       On December 14, 2015, G-Wilmington and Rosen moved to file a third-
party complaint against DMC Construction. In their motion, counsel for G-
Wilmington and Rosen advised the Court that they were not aware of the March
20, 2015 letter‟s existence until December 9, 2015, because G-Wilmington and
Rosen did not provide the letter to their counsel until then. At the scheduling
conference held on June 24, 2015, Plaintiff‟s counsel had requested 120 days to
add a party or to amend a pleading. The Court granted Plaintiff‟s request and set
that deadline for September 25, 2015.

       In their motion to file a third party complaint, filed after the expiration of the
deadline to add a party, counsel for G-Wilmington and Rosen advised the Court
that they first became aware of the sweeping and maintenance contract with DMC
Construction on December 9, 2015. Counsel for G-Wilmington and Rosen have
represented to the Court that had they been aware of the existence of the March 20,
2015 letter as of the June 24, 2015 scheduling conference, they would have
disclosed the existence of that letter to Plaintiff and to the Court. Plaintiff‟s
counsel opposed G-Wilmington and Rosen‟s motion essentially on grounds that
the motion came after the September 25, 2015 deadline and that G-Wilmington and
Rosen had not shown good cause. On January 26, 2016, the Court granted G-
Wilmington and Rosen‟s motion over Plaintiff‟s opposition.4 G-Wilmington and
Rosen filed their third-party complaint against DMC Construction on February 1,
2016.


2
  The original complaint named the defendants as “G-Wilmington Associates L.P. c/o Rosen
Management, d/b/a/ The Home Depot, Inc. foreign corporation.” However, on March 24, 2015,
the Court approved a stipulation to amend the caption. The amended caption then named G-
Wilmington, Rosen, and Home Depot as three separate defendants.
3
  Pl.‟s Resp. to Def.‟s Mot. to Dismiss, Ex. D, at 2.
4
  Fraser v. G-Wilmington Assocs. L.P., C.A. No. 15C-01-235 (Del. Super. Jan. 26, 2016)
(TRANSCRIPT).
                                           3
      Plaintiff and the Original Defendants then stipulated to Plaintiff filing an
Amended Complaint which would bring direct claims against DMC Construction.
The Amended Complaint was filed on March 4, 2016 alleging that DMC
Construction was responsible for sweeping and maintaining the premises. On
September 27, DMC Construction filed its Motion to Dismiss Plaintiff‟s Amended
Complaint.

                            II. PARTIES’ CONTENTIONS5

                          A. DMC Construction’s Contentions6

       DMC Construction claims that Plaintiff‟s complaint against it should be
dismissed under Rule 12(b)(6). In support of its motion, DMC Construction
argues that Plaintiff‟s claims against it are barred by the two-year statute of
limitations, as the Amended Complaint was not filed until March 4, 2016.
Additionally, DMC Construction claims that plaintiffs have failed to meet the
relation-back requirements of Superior Court Civil Rule 15(c).7                DMC
Construction contends that Rule 15(c)(2) is not satisfied because Plaintiff made
“no allegations concerning DMC in the original complaint.”8 With respect to Rule
15(c)(3), DMC Construction states that the party to be added must have “received
such notice of the institution of the action” and “knew or should have known that,
but for a mistake concerning the identity of the proper party, the action would have
been brought against the party.”9 Defendant contends that this requirement must
be met “within the Statute of Limitations or an additional 120 days after the statute

5
  Counsel for Home Depot, U.S.A., Inc. and counsel for G-Wilmington and Rosen informed the
Court by letters of October 25 and October 31, respectively, that they take no position on DMC
Construction‟s Motion to Dismiss.
6
  DMC Construction also contends that Plaintiff should be precluded from claiming a mistake
under Rule 15(c)(3) has occurred. Specifically, DMC Construction argues that “[i]n her
response to the Motion for Leave to File the Third-Party Complaint, arguing against allowing the
Third-Party action to be filed, Plaintiff made statements that she, „. . . cannot rely upon the
relation back doctrine of Rule 15(c), and Plaintiff has no cause of action against DMC‟ and
„Plaintiff cannot bring a claim against DMC because the statute of limitations has now run.‟”
Although Plaintiff did make these statements in her response to the Motion for Leave to File the
Third-Party Complaint, the Court finds that Plaintiff is not precluded from making her present
arguments because the March 20, 2015 letter had not been produced to her at that time.
7
  DMC Construction also argues, and Plaintiff does not dispute, that Rule 15(c)(1) is not
applicable in this case since the two-year time period for filing provided by the statute of
limitations has passed.
8
  DMC Construction‟s Mot. to Dismiss at 3.
9
  DMC Construction‟s Mot. to Dismiss at 3-4; see also Super. Ct. Civ. R. 15(c)(3).
                                               4
expires.”10 In support of its argument that the requirements of Rule 15(c)(3) have
not been met, DMC Construction contends that “[n]o attempt was made to name
DMC in the original complaint, nor was there any attempt to name any other party
that may have had a contract with either original Defendant.”11

                                  B. Plaintiff’s Contentions

       In response to DMC Construction‟s motion, Plaintiff contends that its
Amended Complaint against DMC Construction relates back to the date the
complaint was filed under Rule 15(c) and is therefore not barred by the statute of
limitations. Specifically, Plaintiff contends its “claim asserted against DMC is
from the same occurrence” as required under Rule 15(c)(2), and that “DMC knew
or should have known that, but for a mistake concerning DMC‟s identity, it would
have been brought into this action.”12 “[G-Wilmington and Rosen] knew about
their contract with DMC as early as March 20, 2015.” 13 Accordingly, Plaintiff
argues that it has satisfied the relation back requirements of Rule 15(c).

                                      III. DISCUSSION

       A party moving to dismiss on grounds that the statute of limitations has
expired may do so when the complaint shows that the action was not filed within
the statutory period.14 However, when a complaint was filed within the statutory
period and is then amended once the statutory period has expired, Rule 15(c)
permits the amended complaint, under appropriate circumstances, to relate back to
the date the complaint was originally filed. The Delaware Supreme Court has held
that amendments to complaints should be granted liberally in favor of the policy
for deciding cases on their merits.15

       Rule 15(c) provides:

           (c) Relation Back of Amendments. An amendment of a pleading relates
           back to the date of the original pleading when . . . (2) the claim or defense
           asserted in the amended pleading arose out of the conduct, transaction, or
           occurrence set forth or attempted to be set forth in the original pleading, or

10
   DMC Construction‟s Mot. to Dismiss at 4.
11
   Id.
12
   Pl.‟s Resp. to DMC Construction‟s Mot. to Dismiss at 5.
13
   Id. at 5-6.
14
   Verrastro v. Bayhealth Medical Center, Inc., 119 A.3d 676, 678 (Del. Super. 2015).
15
   Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 263 (Del. 1993).
                                                 5
          (3) the amendment changes the party or the naming of the party against
          whom a claim is asserted if the foregoing provision (2) is satisfied and,
          within the period provided by statute or these Rules for service of the
          summons and complaint, the party to be brought in by amendment (A) has
          received such notice of the institution of the action that the party will not
          be prejudiced in maintaining a defense on the merits, and (B) knew or
          should have known that, but for a mistake concerning the identity of the
          proper party, the action would have been brought against the party.16

       Thus, as stated in Taylor v. Champion,17 Rule 15(c) sets forth three
requirements. First, the claim asserted in the amended complaint “must arise out of
the same conduct, transaction or occurrence asserted in the original pleading.”18
“Second, within the time provided by the rules, the party to be added must have
received notice of the institution of the action, so that the party will not be
prejudiced.”19 “Third, within the time provided by the rules, the party to be added
must have known or should have known that, but for a mistake concerning the
identity of the proper party, the action would have been brought against the party
to be added by the amendment.”20 The Court holds that Plaintiff‟s claim meets the
test set forth in Taylor, and therefore relates back to the date the complaint was
originally filed under Rule 15(c). Accordingly, Defendant‟s Motion to Dismiss is
denied.

       A. Plaintiff’s Claim Arises out of the Same Transaction or Occurrence

       DMC Construction contends that Plaintiff‟s claim against it in her Amended
Complaint does not satisfy Rule 15(c)(2) because Plaintiff made “no allegations
concerning DMC in the original complaint.”21 With respect to the “same
transaction or occurrence” requirement of Rule 15(c), the Delaware Supreme Court
held in Mullen v. Alarmguard of Delmarva, Inc. that “the cause of action concept
embodied in Rule 15(c) has been broadly defined to require simply that there be
fair notice of the general fact situation out of which the claim or defense arose.”22
“[I]f the amendment merely expands or amplifies what was alleged in support of



16
   Super. Ct. Civ. R. 15(c).
17
   Taylor v. Champion, 693 A.2d 1072, 1074 (Del. 1997).
18
   Id.
19
   Id.
20
   Id.
21
   DMC Construction‟s Mot. to Dismiss at 3.
22
   625 A.2d 258 (Del. 1993).
                                               6
the cause of action already asserted, it relates back to the commencement of the
action, and is not affected by the intervening lapse of time.”23

       In the case at bar, Plaintiff‟s claim set forth in her Amended Complaint
against DMC Construction arises out of the “general fact situation” that was
alleged in the initial complaint. Plaintiff alleged in her original complaint that she
slipped and fell in the parking lot of the Original Defendants‟ property. The claim
pleaded in her Amended Complaint expands the original complaint to include a
claim that DMC Construction was responsible for “sweeping, maintenance,
cleaning, and trash removal services.”24 Plaintiff has not asserted a new cause of
action that arises out of a separate factual scenario. Rather, Plaintiff‟s claim in the
Amended Complaint is based on the same slip and fall incident alleged in the
original complaint. Accordingly, Plaintiff‟s claim in her Amended Complaint
arises out of the same occurrence set forth in the original complaint and satisfies
Rule 15(c)(2).

            B. DMC Construction had Sufficient Notice of the Institution
                 of the Action Within the Required Time Period

       The second requirement as discussed in Taylor states that, “within the time
provided by the rules, the party to be added must have received notice of the
institution of the action, so that the party will not be prejudiced” in maintaining a
defense the merits.25 DMC Construction contends that it received no such notice
within the time period set forth by the rules. Plaintiff asserts that the March 20,
2015 letter with the original complaint attached constitutes sufficient notice to
DMC Construction of the institution of the action.

           1. DMC Construction received Sufficient Notice of the Action

      “Delaware courts have held that „such notice‟ under Rule 15(c) is notice of
the pending litigation rather than the incident giving rise to the cause of action.”26
The notice requirement can be formal or informal.27

23
   Id. at 264.
24
   Pl.‟s Am. Compl. ¶ 8.
25
   Taylor v. Champion, 693 A.2d 1072, 1074 (Del. 1997).
26
   Concklin v. WKA Fairfax, LLC, 2016 WL 6875960, at *4 (Del. Super. Nov. 16, 2016); see
also Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258 (Del. 1993). The Delaware
Supreme Court in Mullen stated:
             While 15(c) affords no room for construction as to either the meaning of
             “institution of the action” or application of the time requirement, the spirit
                                            7
       In the recent case of Concklin v. WKA Fairfax, LLC, this Court held that
“service of a third-party complaint [on a third-party defendant] with the original
complaint attached . . . was sufficient so long as such notice is within the
prescribed time period.”28 In Concklin, the plaintiff sued defendant property
owners, alleging that she slipped and fell on ice in the defendants‟ parking lot. The
property owners then filed a third-party complaint, with the original complaint
attached as an exhibit, within the 120-day period after plaintiff filed her complaint.
The third party complaint lodged claims against the snow removal company
allegedly responsible for clearing snow and ice in the parking lot on the date of the
plaintiff‟s alleged injury. The plaintiff then amended her complaint to include a
direct claim against the snow removal company, which the snow removal company
moved to dismiss on grounds that it did not have sufficient notice of the institution
of the proceedings within the prescribed time period. This Court held that the
snow removal company had sufficient notice, as it was served with a third-party
complaint arising out of the same set of facts and that had the plaintiff‟s original
complaint attached as an exhibit within the time period prescribed by Rule 15(c).29

       In the case at bar, DMC Construction argues that the March 20, 2015 letter
with the original complaint attached to it was not sufficient notice of the institution
of the litigation. The letter read, in pertinent part:

           Please be advised we received the enclosed complaint which
           was filed on or about January 30, 2015 by Hyacinth L. Fraser in
           New Castle Superior Court in Delaware against G-Wilmington
           Associates and Rosen Associates Management Corp. . . . Ms.
           Fraser alleges in the complaint that on June 1, 2013 while a
           patron of the Home Depot, Inc. she fell in the parking lot in
           front of the main entrance to the Home Depot Store. She claims
           she tripped over a piece of plastic seal debris and sustained
           injuries.


           of the Rules permits liberality of construction as to the type of the notice.
           The Rule is silent on that point. The Rules Advisory Committee Notes
           state that such notice „. . . need not be formal, we agree. And certain it is
           that notice by service of process is not mandated, and it may not have to
           be in writing.
Mullen, 625 A.2d at 265 (citing Mergenthaler, Inc. v. Jefferson, 332 A.2d 396, 398 (Del. 1975.
27
   Concklin, 2016 WL 6875960, at *5.
28
   Id.
29
   Id.
                                               8
          ...

          Based on the Sweeping Maintenance Service contracts that G-
          Wilmington Associates and Rosen Associates Management
          Corp. had with DMC Construction, LLC . . . you were required
          to name G-Wilmington Associates and Rosen Associates
          Management Corp. as Additional Insured‟s on your
          Commercial General Liability Policy.

          ...

          Therefore, pursuant to the terms and obligations under these
          contracts, we are hereby tendering the defense of G-
          Wilmington Associates and Rosen Associates Management
          Corp. to DMC Construction for this suit filed by Hyacinth
          Fraser.30

       Under Delaware law, this letter constitutes sufficient notice of the institution
of the proceedings. As this Court held in Concklin, DMC Construction was not
required to have formal notice of Plaintiff‟s institution of the action. Mullen
indicates that such notice need not even be in writing. However, this notice alerts
DMC Construction that Plaintiff has filed a lawsuit against the Original Defendants
in which she alleges that she slipped and fell in a parking lot for which DMC
Construction had agreed to provide sweeping and maintenance. Accordingly, the
March 20, 2015 letter with the attached complaint constitutes sufficient notice to
satisfy the requirements of Rule 15(c).

 2. DMC Received Timely Notice of the Institution of the Action Under the Rules

       Additionally, DMC Construction‟s notice was timely. Rule 15(c) requires
that notice be given “within the period provided by statute or these Rules for
service of the summons and complaint.”31 The time period provided by statute is
the two year statute of limitations.32 The time period provided by the Rules for
service of the summons and complaint is 120 days after the filing of the complaint,
as set forth in Superior Court Civil Rule 4(j).


30
   DMC Construction‟s Mot. to Dismiss, Ex. A at 1-2.
31
   Super. Ct. Civ. R. 15(c)(3).
32
   10 Del. C. § 8119.
                                              9
        In the case at bar, the alleged incident occurred on June 1, 2013. The
applicable two-year statute of limitations therefore expired on June 1, 2015.
Plaintiff filed her complaint against the Original Defendants on January 1, 2015.
On or about March 20, 2015, DMC Construction received the letter with the
original complaint attached from G-Wilmington and Rosen‟s insurance company.
Accordingly, as March 20, 2015 is within the statute of limitations governing this
litigation, DMC Construction received notice of the institution of the litigation
“within the period provided by statute.”33 Additionally, the Court notes that DMC
Construction will not be prejudiced in defending Plaintiff‟s claim on the merits
since it will in any event be a part of the lawsuit as a third-party defendant, and
trial is not set until April 9, 2018.

  C. DMC Construction Knew or Should Have Known That, But For a Mistake
Concerning the Identity of the Proper Party, the Action Would Have Been Brought
                                    Against It

       Lastly, DMC Construction contends that Plaintiff made no mistake as to the
identity of the proper party because “[t]here is no reading of the original complaint
that would have indicated Plaintiff intended on suing anyone other than those she
chose to sue.”34 Plaintiff contends that she was mistaken as to the existence of a
contract between the Original Defendants and DMC Construction because G-
Wilmington and Rosen never disclosed such a relationship. It is noteworthy that
G-Wilmington and Rosen did not disclose the letter to counsel until December 9,
2015. At oral argument on this motion, counsel for G-Wilmington and Rosen
stated that had it been aware of the letter‟s existence earlier, they would have
brought it to the Court and all counsel‟s attention sooner.

       “Relation back is not limited to cases of misnomer,” and also applies to the
addition of parties not previously named or attempted to be named.35 “The only
relevant inquiry is whether the party to be added knew or should have known of
the mistake.”36 “The entity sought to be added may or may not share some element
of identity with an original party and the extent of such sharing may determine
whether the added party received „notice of the mistake‟ within the period of


33
   Super. Ct. Civ. R. 15(c)(3).
34
   Def.‟s Mot. to Dismiss at 5.
35
    Mullen v. Alarmguard of Delmarva, Inc., 625 A.2d 258, 260 (Del. 1993) (providing
“[M]isconception of identity of parties within the meaning of Rule 15(c) extends to additional
parties as well as named, original parties.”).
36
   Id.
                                             10
limitations” or the period for service of process.37 In Brown v. City of Wilmington
Zoning Bd. of Adjustment, this Court discussed Delaware cases in which the courts
decided whether a sufficient mistake existed under Rule 15(c):

          In [cases finding no sufficient mistake], [the] plaintiffs all knew the
          identities of the putative defendants/respondents at the time they filed suit,
          yet they did not demonstrate an intent to sue those parties until after the
          limitations period ran. In contrast, the plaintiff in Mullen intended to sue
          all parties involved in decisions concerning the safety of Alarmguard‟s
          products prior to the expiration of the statute of limitations, but was
          mislead as to the identity of those parties by testimony given by a party
          defendant at deposition.38

       Moreover, in Walley v. Harris, the Court denied a motion to amend for
similar reasons to those set forth in Johnson and Trone. This Court in Walley
found that “[t]he identity of the Third-Party Defendant [had] been readily available
to the plaintiff since the day of the accident and shortly thereafter a Delaware
attorney, by the filing of the Third-Party Complaint, certified there is evidentiary
support to establish the Third-Party Defendant‟s liability.” Because the identity of
the potential defendant was readily available to the plaintiff in Walley, especially
when the Defendant filed a third-party complaint against her, the Court found that
the amended complaint did not relate back to the filing date of the original
complaint.

       In the case at bar, it is apparent that DMC Construction knew or should have
known that Plaintiff would have filed suit against it. It is also apparent that
Plaintiff intended to sue all parties involved with the maintenance of the premises,
but was unaware of any contractual relationship between DMC Construction and
the Original Defendants. Unlike in Walley, Plaintiff neither knew the identity of
DMC Construction nor of any claims she may have against it until the Original
Defendants filed their third-party complaint. No party has suggested that Plaintiff
was aware of any arrangement by which DMC Construction or any other potential
defendant was responsible for the sweeping and maintenance of the premises.
Additionally, by receiving a copy of the original complaint with the March 20,
2015 letter from G-Wilmington and Rosen, DMC Construction knew or should
have known Plaintiff would likely hold it responsible for its alleged failure to

37
  Id. at 266.
38
  2007 WL 1828261, at *12 (Del. Super. June 25, 2007); see also Trone v. Delaware Alcoholic
Beverage Control Comm’n, 2000 WL 33113799 (Del. Super. Dec. 28, 2000); Johnson v. Paul’s
Plastering, Inc., 1999 WL 744427 (Del. Super. Jul. 30, 1999).
                                               11
maintain the premises. Accordingly, DMC Construction‟s claim that Plaintiff
made no mistake as to the identity of the proper party is without merit.

                            IV. CONCLUSION

      Therefore, DMC Construction‟s Motion to Dismiss is DENIED.

      IT IS SO ORDERED.

                                                   /s/Richard R. Cooch
                                                      Richard R. Cooch, R.J.

cc: Prothonotary




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