IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DAVID L. HAMILTON and
JUDY HAMILTON,

Plaintiffs,

Vv.
C.A. No. N18C-03-156 CEB
MPB CORPORATION d/b/a TIMKEN
SUPER PRECISION, a Delaware
Corporation, ET AL.,

Nee ee Ne Ne ee ae ee ee ee Se Se Se

Defendants.

Submitted: July 24, 2019
Decided: October 25, 2019

MEMORANDUM OPINION

Upon consideration of MPB Corporation d/b/a TIMKEN ’’s
Motion to Dismiss Plaintiffs Complaint
DENIED

Jason D. Warren, Esquire, SHELSBY & LEONI, P.A., Wilmington, Delaware.
Keith L. Maynard, Esquire, Spohrer & Dodd, P.L., Jacksonville, Florida. Attorneys
for Plaintiffs.

Christian J. Singewald, Esquire and Christopher S. Marques, WHITE AND

WILLIAMS LLP, Wilmington, Delaware. Attorneys for Defendant, MPB
Corporation d/b/a Timken Super Precision.

BUTLER, J.
FACTUAL BACKGROUND

The Complaint in this case arises from near fatal injuries resulting from a
helicopter mishap in Dothan, Alabama.' It is alleged that Plaintiff David Hamilton
was a civilian flight instructor on a helicopter manufactured or maintained by one or
more of the Defendants. While on a training flight, the helicopter suffered an engine
failure and was force landed with some injury to Mr. Hamilton.”

It is further alleged that this mishap occurred while Plaintiff Hamilton was
conducting training of two servicemen who were also in the helicopter when it
malfunctioned.? Because the helicopter was owned by the U.S. Army, the Army
undertook an investigation into the cause of the accident and determined that the
helicopter failed because of a failure of the internal drive bearing within the power
turbine governor.’ It is alleged that Defendants Honeywell and Rolls Royce knew
of the possibility of failure of these parts and issued safety bulletins prescribing

remediation of the problem.’ Finally, it is alleged that other crash safety features of

 

' The facts for purposes of this motion are taken from Plaintiff's Complaint and
Second Amended Complaint, filed as docket entry nos. 1 and 94. The original
grounds stated in the Complaint have not changed and the Second Amended
Complaint does nothing but add Defendant MPB Corporation d/b/a TIMKEN as a
Defendant.

*D.J1 1 at 2.

3 Id.

4 Id.

> Id.
the helicopter failed to deploy during the emergency, exacerbating Plaintiff's
injuries.°
PROCEDURAL HISTORY

Plaintiffs filed their original Complaint on March 16, 2018 about one week
before the two-year anniversary of the crash.’ The original Complaint named
multiple parties and “Fictitious Defendants 1-30” as Defendants.®

On May 9, 2018, Plaintiffs amended the Complaint to add Defendant Kansas
Aviation of Independence, LLC, whom Plaintiffs allege is the company that
performed an overhaul of the drive bearing and power turbine governor on the
subject helicopter.’ In all other respects, the Complaints are the same.

Neither the original Complaint nor the Amended Complaint named MPB
Corporation d/b/a Timken Super Precision (“Timken”) as a Defendant. Rather,
some eight months later, Plaintiffs sought leave to file a Second Amended Complaint
naming Timken.'!° The allegation against Timken is that it was identified by

Defendant Honeywell as the company that manufactured the drive bearing in the

 

6 Id. at 15, 16.
TDI. 1 at 1.

8 Id.

?DI. 11 at 1.
D).1. 94 at 1.
power turbine governor that failed during the flight.’’ In all other respects, the
Second Amended Complaint repeats the allegations of the previous versions. !
Without opposition, Plaintiffs’ motion to file the Second Amended Complaint
was granted.'? Defendant Timken then filed the instant motion to dismiss the Second
Amended Complaint, which has been fully briefed and is now before the Court.'*
For purposes of completing the procedural history, I should note here that
Defendant Honeywell has filed a cross-claim against Defendant Timken, and
Timken has filed a claim for contribution and/or indemnification from Defendant

Honeywell.!>

It would appear, therefore, that Timken’s motion to dismiss the
Plaintiff's Second Amended Complaint will not have the effect of dismissing the

action as to Timken as it will nonetheless be required to remain in the case to sort

out its rights and liabilities with respect to Honeywell.

 

" Td. at 3.

2 There is a Third Amended Complaint, filed on January 29, 2019 that is in all
material respects a copy of the Second Amended Complaint except that it adds
Timken as a Defendant in a general negligence count of the Complaint. As
Defendant Timken has moved to dismiss the Second Amended Complaint under the
relation back doctrine of Rule 15, the Third Amended Complaint does nothing to
cure the alleged defect of the Second Amended Complaint. D.I. 97.

BDI. 93.

4D I. 108.

SDJ. 112 and DI. 118.
PARTIES’ POSITIONS

A. Defendant’s Position

In Delaware, the statute of limitations for an action for personal injuries is 2
years from the date the cause of action accrues.'© The Amended Complaint naming
Timken was filed well after the statute ran, and no facts are alleged that would toll
the statute. Moreover, the Amended Complaint does not relate back to the filing of
the original Complaint under D.R.C.P. Rule 15 because it fails under Rule 15(c),
which requires that:

1. 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

2. The party to be brought in by an amendment 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

3. 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.

The first mention of Timken is in Plaintiffs’ Motion for Leave of Court to
amend the Complaint, filed in December 2018, some 300 days after the running of
the statute of limitations.'’ Timken represents that a Defendant (Honeywell) did

advise Timken of the existence of the lawsuit in November 2018, but even this

informal notice is well beyond expiration of the statute of limitations, even as

 

'6 10 Del. C. §8107.
"DI. 84.
extended by 120 days to account for service of process.'* Plaintiffs’ failure to do
their research and know of Timken as a potential defendant is not a mistake
concerning the identity of a party that D.R.C.P. Rule 15 was designed to ameliorate
and Timken had no reason to know that but for a mistake, it would have been named.

B. Plaintiffs’ Position

Plaintiffs urge that Alabama’s 2-year statute of limitations applies, not
Delaware’s.!? Unlike Delaware, Alabama law permits the use of fictitious
defendants as a place holder for later named defendants.” Because the crash and
resultant injuries all occurred in Alabama, applying Delaware’s choice of law rules,
the Court should apply Alabama law.”!

In the alternative, if the Court applies Delaware’s relation back rule, Plaintiffs
at a minimum seek to conduct limited discovery into when and how Timken knew
or should have known that, but for a mistake concerning the identity of the proper

party, it would have been named as a defendant.”

 

18 See D. R. Civ. P. Rule 4(h)

9D 1. 113 at 6.

20 See Al. St. RCP Rule 9(h): Fictitious parties. “When a party is ignorant of the
name of an opposing party and so alleges in the party's pleading, the opposing party
may be designated by any name, and when that party's true name is discovered, the
process and all pleadings and proceedings in the action may be amended by
substituting the true name.”

211),1. 113 at 6.

22 Td. at 5.
Plaintiffs advise that the crash was investigated by the U.S. Army and
Plaintiffs were limited in the information they were able to glean from the Army’s
redacted investigation.”? Apparently Timken and Honeywell have a close business
relationship and Plaintiffs suspect that Timken had notice of the crash quite early
on24

Plaintiffs note that the Court previously issued a stay of all discovery at the
request of the then existent parties while they entered into settlement discussions.”
Therefore, Plaintiffs repudiate any claim of prejudice as to Timken.”°

ANALYSIS

A. Alabama law applies

The first point worth recalling is that this complaint involves a helicopter
mishap in Alabama.’” The helicopter was owned by the U.S. Army and housed at
Fort Rucker, Alabama.” The Plaintiffs are residents of Alabama.””? Each of the

Defendants were incorporated in Delaware, but save for its state of incorporation,

Delaware has no relationship to the parties or the cause of action.*°

 

3 Td at 4.

24 Td. at 3.

25 Id.

76 TD. 113 at 3.
27 Td. at 4.

28D. J. 1 at 3.

29 Td. at 4, 5.

30 Td. 5-7.
Our Supreme Court has said “When plaintiffs choose not to sue in the place
where they were injured or where they live, or even in the jurisdiction whose law
they contend applies, but instead in a jurisdiction with no connection to the litigation,
our trial courts should be extremely cautious not to intrude on the legitimate interests
of other sovereign states.”?! The Restatement (Second), Conflict of Laws §146
provides that in personal injury actions,

[T]he local law of the state where the injury occurred determines the
rights and liabilities of the parties, unless, with respect to the particular

issue, some other state has a more significant relationship under the

principles stated in § 6 to the occurrence and the parties, in which event

the local law of the other state will be applied.

We see from the above that the presumption is that the law of Alabama will
apply. Defendants have not pointed to any “more significant relationship” to
Delaware that would make application of Delaware law more compelling.

B.  Alabama’s statute of limitations applies

Timken says that under Delaware’s “borrowing statute,”°?

courts only look to
the law of the foreign jurisdiction if there is a conflict between the statute of

limitations of the forum state and the foreign state, and applies the shorter of the

 

3! Bell Helicopter Textron, Inc. v. Arteaga, 113 A.3d 1045, 1051-52 (Del. 2015).
32 10 Del. C. §8121.
two.*> There is no conflict between Delaware and Alabama in that they both apply
a 2-year statute of limitations.** Alabama law is inapplicable.

Timken’s argument assumes that the borrowing statute is implicated in this
case, an assumption the Court cannot abide. Rather, there is no “shorter” statute of
limitations as between Alabama and Delaware and therefore nothing to sort out as
between the two of them. The borrowing statute is of no aid in this analysis.

C. Alabama’s law of relation back applies

Delaware Rule of Civil Procedure Rule 15(c)(1) states that an amendment of
a pleading “relates back to the date of the original pleading when relation back is
permitted by the law that provides the statute of limitations.” Here, the law that
provides the statute of limitations is the law of Alabama, the place where the crash
occurred. So, the question whether the amendment adding Timken to the complaint
relates back must be judged under Alabama law.

D. Relation back under Alabama law

Alabama Rule of Civil Procedure 15 differs from D.R.C.P. Rule 15 in that it

permits relation back of amended pleadings by “principles applicable to fictitious

 

33 Pack v. Beech Aircraft Corp., 132 A.2d 54, 58 (Del. 1957).
34 Compare 10 Del. C. §8119 (2 years for personal injuries) with Ala Code, §6-2-
38(1) (2 years for injury to the person).
party practice pursuant to Rule 9(h).”°° Alabama’s Rule 9(h) in turn provides for
fictitious party practice as follows:

“When a party is ignorant of the name of an opposing party and so

alleges in the party's pleading, the opposing party may be designated by

any name, and when that party's true name is discovered, the process

and all pleadings and proceedings in the action may be amended by

substituting the true name.”

Here, the original Complaint alleged fault by parties involved in the design,
manufacture and repair of the helicopter and its component parts that Plaintiffs
believe to be the source of the helicopter failure.°° The Complaint thus named those
Defendants that Plaintiffs could identify as well as numerous “John Doe” parties
involved in the design, manufacture and repair of the helicopter whose identities
were then unknown to Plaintiffs. Plaintiffs plead, in effect, that they know some of
these parties and they know that others exist, they just do not know their names.

E. Alabama’s fictitious name practice applies

Fictitious name practice differs significantly from Delaware (and federal

rules) practice in that it allows amendment upon discovery of new parties after the

statute of limitations has run, regardless of notice or prejudice to the new party. One

 

39 Ala. R. Civ. P. 15(c)(4).
36D) 1. 97 at 4.
might ask: how is the policy of statutes of limitations enforced if parties can add
defendants when they are discovered throughout the litigation? Doesn’t such an
approach reward the lazy plaintiff who can simply name multiple fictitious
defendants and figure out fault at his leisure, identifying unwary defendants long
after the statute has run, thus undermining the very purpose of statutes of limitation?
The answer is that plaintiffs offering a new party substitute for a fictitious
defendant must demonstrate that the new party’s identity was unknown at the time
of filing, not readily knowable and that the plaintiff exercised due diligence in
learning the identity of the newly named defendant.*”
In this case, Defendants’ primary argument is that Delaware law applies to

both the statute of limitations and the issue of relation back.7® The Court having

rejected that argument, Defendant’s alternative argument is that if Alabama law

 

37 An example of this practice might be found in Ex Parte Nicholson Mfg., Ltd., 182
So.3d 510 (Ala. 2015). In that case, a man died as a result of a sawmill injury.
Unsure of the manufacturer of what plaintiff believed to be defective product, he
filed his complaint within the statute of limitations, naming additional “John Doe”
defendants. After the statute had run, he amended it to include the newly discovered
manufacturer. The manufacturer moved to dismiss on the basis of the statute of
limitations. In this particular case, dismissal was granted for failure of the plaintiff
to use due diligence in learning defendant’s identity. Compare Ex parte VEL, LLC,
225 So.3d 591 (Ala. 2016) (relation back not permitted where no due diligence
shown) with Oliver v. Woodward, 824 So. 2d 693, 698 (Ala. 2011) (due diligence
shown, amended complaint relates back).

38D.1. 117 at 2.

10
applies, Plaintiffs failed to satisfy the due diligence requirement in that they could
have filed the claim long before the statute of limitations expired and failed to
prosecute the case in a timely manner.*? On the other hand, Plaintiffs make a
compelling case of their efforts to identify the potentially responsible parties.”

F. _— Plaintiff exercised due diligence in identifying Timken as a
Defendant

The difficulty in identifying Timken as the internal drive bearing
manufacturer stems from the accident itself and where it happened. This was a
civilian contractor operating a military owned helicopter on a military base. The
helicopter had undergone substantial refurbishing using civilian parts, apparently
civilian contracted repairs and then was returned to military use. Some of those parts
may have been involved in the failure that caused the crash. The accident was not
investigated by the FAA or the NTSB.“ It was investigated by the military, which

2 So getting information for

took control of the crash site and the helicopter.‘
Plaintiffs’ civil lawsuit was subject to the priority the military placed on putative

civil litigants. Perhaps we can say it was not “mission-critical.” Plaintiffs detailed

a laborious task in getting even a redacted accident report from the military and an

 

39 Td. at 4.

40D.J. 113 Ex. B.
41D). J. 97 at 3.

42 Td.

11
equally laborious task in attempting to identify the parts manufacturers of the
Honeywell engine that allegedly failed.

Plaintiff's counsel outlined the difficulty at oral argument. The information
had to be obtained through the Army’s JAG office, not the actual crash investigators.
Plaintiffs filed “Touhy” requests as well as FOIA requests with the JAG office, but
it was not clear exactly which JAG office had clearance authority.” Ultimately, the
Army gave Plaintiffs’ counsel a heavily redacted report. Meanwhile, Plaintiffs
counsel was doing an “open source” investigation, attempting to locate the relevant
parts and repair schedule for the helicopter. Apparently, the military uses a “cage
code” that allows any number of manufacturers to produce a particular part. The
power turbine governor and the drive bearing share a similar serial number. Counsel
learned that the power turbine governor had failed in these helicopters owned by the
Navy. But the manufacturer of specific component parts are only identified in Army
manuals by code, not by manufacturer. Indeed, it was not until September of 2017
that the Army finally identified the drive bearing as the likely cause of the mishap,

but the Army still did not identify the manufacturer.

 

43 See generally U.S. ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). A “Touhy”
request is directed to government agencies seeking information concerning the
agency’s actions with respect to a particular issue that is subject to private litigation
not involving the government. See, e.g., Southeastern Pennsylvania Transp. Auth.

v. Orrstown Fin. Serv., Inc., 367 F. Supp. 3d 267 (M.D. Pa. 2019).
12
The one party that would know who made a particular component for
Honeywell was Honeywell itself. And indeed, it was Honeywell that identified
Timken as the manufacturer, but only after Honeywell had been named in the suit
and was attempting to mediate an early resolution. Timken was approved to make
the part, but it was designed by Honeywell. Plaintiff named Timken in an Amended
Complaint quickly after Honeywell identified Timken as the manufacturer of the
internal drive bearing.“

The Court’s analysis of due diligence is informed by the Third Circuit opinion

4 DeRienzo was a Marine injured in a

in DeRienzo v. Harvard Industries, Inc.
helicopter training exercise involving a rocket-firing device. He brought a diversity
action in federal court in New Jersey, a state permitting fictitious defendant name
practice.*© Pursuant to multiple FOIA requests, the defective part was identified as
LAU-10 but no manufacturing information was provided.*’ A further round of FOIA
requests yielded a response that misidentified the maker of the part.*® Further

discovery and depositions eventually revealed the misidentification, resulting in the

actual manufacturer getting served 14 months after the statute of limitations had

 

4 DI. 94,

45 357 F.3d 348 (3d Cir. 2004).
46 Td. at 349.

47 Td. at 350.

48 Td. at 355.

13
expired.’? The Third Circuit reversed a finding of no due diligence and found instead
that plaintiff had undertaken many steps to get the information he sought from the
military but was stymied numerous times in his efforts.°? While one might always
suppose there was something else that might have been done, the standard of due
diligence does not require perfect hindsight.

In this case, the military provided a severely redacted report and never
identified Timken or any other manufacturer. Timken manufactured an internal part
of a larger unit that was manufactured by another and placed in a helicopter that was
built by yet another. The crash happened on an Army base that was investigated by
the Army that was not immediately forthcoming with information about the details
of the mishap. The Court is satisfied that Plaintiffs did not sit by waiting for
information but pursued the cause and identity of the manufacturer with due
diligence.

CONCLUSION

Once a party has identified the fictitious party and amended the pleadings to
reflect the true identity, and demonstrated due diligence in learning the identity of
the fictitious party, the amended complaint adding the newly discovered party is held

to relate back to the original filing, thus satisfying any complaints that the statute of

 

” Id. at 352.
°° Td. at 356-57.

14
limitations has expired against the newly named party. Upon consideration of the
discussion above, the Court finds that Plaintiffs have met this burden and therefore
the Amended Complaint naming Timken may proceed and the motion to dismiss is
DENIED.

IT IS SO ORDERED.

 
 

 

Judge Charles E. Butle”

15
