         IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


YINKA AJIBODU OSHATOLA,                  )
                                         )
              Plaintiff,                 )
                                         )
                                         )
                                         )
                                         )
    v.                                   ) C.A. No. N19C-02-068 WCC
                                         )
GEORGEANNA STIPE, AMSPEC,                )
L.L.C., and PROGRESSIVE                  )
DIRECT INSURANCE COMPANY                 )
                                         )
              Defendants.                )
                                         )

                            Submitted: January 10, 2020
                              Decided: April 8, 2020

          Defendant AmSpec L.L.C.’S Motion to Dismiss – GRANTED


                           MEMORANDUM OPINION
Andres Gutierrez de Cos, Esquire; Andres de Cos LLC, 5211 West Woodmill
Drive, #36, Wilmington, Delaware 19808. Attorney for Plaintiff.

Jessica L. Tyler, Esquire; Marshall Dennehey Warner Coleman & Goggin,
Nemours Building, 1007 N. Orange Street, Suite 600, P.O. Box 8888, Wilmington,
Delaware 19899. Attorney for Defendants Georgeanna Stipe and AmSpec L.L.C.

Sean A. Dolan, Esquire; Mintzer, Sarowitz, Zeris, Ledva, & Meyers, LLP, 919
North Market Street, Suite 200, Wilmington, Delaware 19801. Attorney for
Defendant Progressive Direct Insurance Company.

CARPENTER, J.
         Before the Court is Defendant AmSpec L.L.C.’s (“AmSpec”) Motion to

Dismiss. For the reasons set forth in this Opinion, Defendant’s Motion is

GRANTED.



    I.   Factual & Procedural Background

         This litigation arises out of a motor vehicle collision that occurred on

February 21, 2017 between Plaintiff Yinka Ajibodu Oshatola (“Oshatola” or

“Plaintiff”) and Defendant Georgeanna Stipe (“Stipe”).1 Oshatola brought suit

alleging Stipe negligently rear-ended her vehicle and claiming that Stipe was

operating her vehicle in the course of her employment at the time of the accident.2

         Oshatola filed her initial Complaint on February 7, 2019 against Stipe, New

Concepts Leasing, Inc. (“New Concepts”), and Progressive Direct Insurance

Company (“Progressive”).3 Plaintiff alleged that Stipe was an employee of New

Concepts and was operating a company vehicle when the accident occurred.4

Oshatola successfully served New Concepts and Progressive, but failed to obtain

service on Stipe. Plaintiff filed a Motion for Enlargement of Time for Completion

of Service on Stipe, which the Court granted on June 4, 2019.5 When Plaintiff’s



1
  Am. Compl. ¶ 5.
2
  Id. ¶¶ 8, 15.
3
  Compl.
4
  Id. ¶¶ 6-8.
5
  See Order Granting Pl.’s Mot. to Enlarge Time for Completion of Service (June 4, 2019).

                                                        2
further attempts to obtain service were unsuccessful, the Court granted her Motion

for Special Process Server on July 3, 2019.6 The Court granted Plaintiff’s second

Motion for Enlargement of Time to serve Stipe on September 20, 2019, allowing an

additional 120 days for service.7

        Thereafter, Plaintiff learned that New Concepts was not, in fact, Stipe’s

employer.8 Oshatola filed a Motion to Amend the Complaint to replace New

Concepts with AmSpec, Stipe’s true employer.9 The Court granted the Motion and

Plaintiff filed an Amended Complaint on October 31, 2019. Stipe was successfully

served on November 21, 2019; although, it appears she first learned of the lawsuit

in July 2019 when she received Plaintiff’s Motion for Special Process Server in the

mail.10 AmSpec was successfully served on November 12, 2019; however, it learned

of the lawsuit from New Concepts on July 9, 2019.11

        AmSpec filed a Motion to Dismiss the Amended Complaint as untimely,

arguing that Plaintiff added AmSpec as a Defendant eight months after the statute of

limitations expired.12 This is the Court’s decision on Defendant AmSpec’s Motion.




6
  See Order Granting Pl.’s Mot. for Special Process Server (July 3, 2019).
7
  See Order Granting Pl.’s Mot. to Enlarge Time for Completion of Service (September 20, 2019).
8
  Pl.’s Mot. to Amend the Compl. ¶ 2.
9
  Id. ¶ 5.
10
   Def. AmSpec LLC’s Mot. to Dismiss ¶¶ 6, 8.
11
   Id. ¶¶ 6-7.
12
   Id. ¶ 9.

                                                        3
 II.    Standard of Review

        When considering a Rule 12(b)(6) motion to dismiss, the Court “must

determine whether the claimant ‘may recover under any reasonably conceivable set

of circumstances susceptible of proof.’”13 It must also accept all well-pleaded

allegations as true, and draw every reasonable factual inference in favor of the non-

moving party.14 At this preliminary stage, dismissal will be granted only when the

claimant would not be entitled to relief under “any set of facts that could be proven

to support the claims asserted” in the pleading.15



III.    Discussion

        AmSpec argues that Plaintiff’s Amended Complaint must be dismissed as

untimely because the amendment does not satisfy the requirements of Superior Court

Civil Rule 15(c)(3) and, thus, does not relate back to the date the original Complaint

was filed.16 AmSpec asserts that it had no notice of the lawsuit until July 9, 2019 and

was not served until November 12, 2019, nine months after the statute of limitations

expired.17 Further, AmSpec maintains that Oshatola cannot demonstrate that it knew



13
   Sun Life Assurance Co. of Can. v. Wilmington Tr., Nat’l Ass’n, 2018 WL 3805740, at *1 (Del. Super. Ct. Aug. 9,
2018) (quoting Spence v. Funk, 396 A.2d 967, 968 (Del. 1978)).
14
   Id.
15
   See Furnari v. Wallpang, Inc., 2014 WL 1678419, at *3–4 (Del. Super. Ct. Apr. 16, 2014) (citing Clinton v.
Enter. Rent–A–Car Co., 977 A.2d 892, 895 (Del. 2009)).
16
   Def. AmSpec LLC’s Mot. to Dismiss ¶ 9.
17
   Id. ¶¶ 7, 14.

                                                        4
or should have known within the statute of limitations that, but for a mistake in

identity, AmSpec would have been included in the lawsuit.18 As such, it contends

the claims cannot relate back and must be dismissed as time barred.19

        In response, Oshatola asserts that the Amended Complaint satisfies Rule

15(c)(3) because AmSpec received timely notice of the suit via service upon its

employee, Stipe, within the extension period granted by the Court.20 Alternatively,

Plaintiff argues two theories of constructive notice: (1) the identity of interests

theory; and (2) the shared attorney theory. Oshatola alleges that AmSpec was on

“constructive notice due to the ‘identify [sic] of interests’ theory once Defendant

Stipe was served with the Complaint” because the “business relationship between

the two parties [AmSpec as employer, Stipe as employee] satisfies the notice

requirement as a matter of law.”21 Additionally, Plaintiff maintains that AmSpec and

Stipe share the same counsel, which she contends establishes constructive notice to

AmSpec based on counsel’s knowledge of the suit.22 Lastly, Plaintiff claims AmSpec

should not be dismissed because it would not be prejudiced by allowing the

amendment to relate back, as their liability “is identical to Defendant Stipe.”23




18
   Id. ¶ 15.
19
   Id. ¶ 19.
20
   Pl.’s Resp. to Def. AmSpec LLC’s Mot. to Dismiss ¶ 6.
21
   Id. ¶ 7.
22
   Id. ¶ 8.
23
   Id. ¶ 9.

                                                       5
         In order to relate back, the amendment must meet the requirements of Superior

Court Civil Rule 15(c)(3). Pursuant to this rule, an amendment of a pleading relates

back to the original date of filing when the claim asserted in the amended pleading

arose out of the same transaction or occurrence set forth in the original pleading and:

          (3) . . . 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.24

         Under this Rule, notice may be given after expiration of the statute of

limitations, provided that it occurs within the 120-day service window, pursuant to

Superior Court Civil Rule 4(j).25 Notice is “liberally construed” and it need not be

“formal or in writing.”26 As such, service of process requires only that the

communication “ensure[s] the new party receives sufficient notice of the

proceedings.”27 In contrast, Delaware has “traditionally followed the ‘strict

approach’ to what a mistake under Rule 15(c) means.”28 The Court has no discretion

in determining whether an amendment filed after the statute of limitations and the


24
   Del. Super. Ct. Civ. R. 15(c)(3).
25
   Pierce v. Williams, 2018 WL 3655863, at *2 (Del. Super. Ct. July 31, 2018); Del. Super. Ct. Civ. R. 4(j).
26
   Atwood v. Cameron, 2012 WL 3642707, at *2 (Del. Super. Ct. July 31, 2012).
27
   Atwood, 2012 WL 3642707, at *2.
28
   Difebo v. Bd. of Adjustment of New Castle Cty., 132 A.3d 1154, 1158 (Del. 2016).

                                                          6
120-day service period has expired relates back to the original complaint under Rule

15(c)(3).29

        In the instant matter, the statute of limitations expired on February 21, 2019

and the 120-day period for service expired on June 21, 2019.30 Oshatola filed the

Amended Complaint on October 31, 2019, eight months after the statute expired. As

such, the amendment must be dismissed, unless it relates back to the original

Complaint pursuant to Rule 15(c)(3). There is no dispute that the claim asserted in

the amended pleading arose out of the same occurrence - the motor vehicle accident

- set forth in the original pleading. However, the parties dispute whether the notice

and mistake elements are satisfied.

        Although Plaintiff alleges that because Stipe was an employee of AmSpec,

notice can be imputed to AmSpec, the Court is not persuaded. In Zhai v. Stein, the

Court, in considering whether to impute notice from an employer to an employee,

found that a non-management employee generally “does not share a sufficient nexus

of interests with his or her employer” so that notice can be imputed.31 As such, the

identity of interests theory cannot be established by a mere allegation of an

employment relationship. The Zhai Court found that the allegations provided “no


29
   Atwood, 2012 WL 3642707, at *1; see Chaplake Holdings, LTD. v. Chrysler Corp., 766 A.2d 1, n. 5 (Del. 2001);
see also Taylor v. Champion, 693 A.2d 1072, 1074 (Del. 1997) (“Unlike subsection (a) of Rule 15, subsection (c)(3)
includes no discretionary powers for the Superior Court to exercise.”).
30
   See 10 Del. C. § 8119.
31
   Zhai v. Stein, 2012 WL 1409358, at *4 (Del. Super. Ct. Jan. 6, 2012).

                                                        7
indication that [the defendant employee was] a management level employee” and,

therefore, there was no credible evidence to conclude that the employee and

employer shared interests.32 Accordingly, the Court held that it could not impute

notice since “[c]ontractual relationships, by themselves, are insufficient to

demonstrate an identity of interest justifying the imputation of knowledge for the

purposes of determining whether the amended complaint naming new defendants

relates back to the filing of the original complaint.”33

        Oshatola has not alleged any facts regarding Stipe’s position at AmSpec and,

as such, has made no assertions that Stipe is a management or upper level employee

of AmSpec. As in Zhai, there is no credible evidence to determine that the employer

and employee share interests based solely on Stipe’s employment. Therefore, the

Court finds that notice cannot be imputed to AmSpec from Stipe.

        Even if the Court were to accept Oshatola’s argument that AmSpec

constructively received notice via service on its employee, service on Stipe occurred

after the statute of limitations and 120-day service window expired on June 21, 2019.

Rule 15(c)(3) requires that notice be timely, and any notice that occurs after this time

period does not satisfy the Rule.34 Although the Court granted an extension for



32
   Id. at *5.
33
   Id. at *4.
34
   Atwood, 2012 WL 3642707, at *2 (finding notice that occurred “a month after the original complaint’s 120-day
service deadline” untimely and insufficient under Rule 15(c)(3)).

                                                        8
Plaintiff to serve Stipe, this extension cannot be used to extend the period of time to

serve AmSpec. Therefore, even if notice could be imputed to AmSpec when Stipe

was first notified in July 2019, it would be untimely and, as such, insufficient to

satisfy the requirements of Rule 15(c)(3).

        Similarly, the shared attorney theory cannot be used to establish timely notice

to AmSpec. Although Plaintiff argues that Stipe and AmSpec share the same counsel

and, thus, notice should be imputed to AmSpec, Plaintiff does not allege nor does

she offer any evidence that Defendants’ counsel knew or should have known of the

lawsuit by June 21, 2019. Further, Plaintiff does not allege any facts pertaining to

when AmSpec or Stipe retained counsel, which is crucial to determining the

timeliness of the notice. In order to impute notice based on attorney knowledge there

must be “some communication or relationship between the shared attorney and the .

. . defendants prior to the expiration of the 120-day period.”35 Since there appears to

be no dispute that the earliest that Stipe knew about the lawsuit was July of 2019 and

therefore would have had no reason to seek counsel before then, the Court is unable

to reasonably conclude there was a shared knowledge of the lawsuit by June 21,

2019. Even construing all facts in the light most favorable to the Plaintiff, the Court




35
  Cordrey v. Doughty, 2017 WL 4676593, at *3 (Del. Super. Ct. Oct. 11, 2017) (quoting Lovett v. Pietlock, 32 A.3d
988, 989 (Del. 2011) (internal quotations omitted)).



                                                        9
must dismiss the claims against AmSpec as untimely because they do not relate back

to the original Complaint.



IV.   Conclusion

      For the foregoing reasons, Defendant AmSpec L.L.C.’s Motion to Dismiss is

GRANTED.

IT IS SO ORDERED.


                                     /s/ William C. Carpenter, Jr.
                                     Judge William C. Carpenter, Jr.




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