IN THE COURT OF COMMON PLEAS FOR THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY

MICHAEL HAAS,
Plaintiff,

V.

C.A. NO.: CPU4-17-002181
PETTINARO MANAGEMENT LLC,
PETTINARO ENTERPRISES LLC, and
PETI`INARO ENTERPRISES

\/\./\_/\_/\/\_/\_/\_/\_/\/\_/\_/

HOLDINGS LLC,
Defendants.
Submitted: Septernber 1, 2017
Decided: October 13, 2017
Tabatha L. Castto, Esq. Eric S. Thompson, Esq.
The Castro Firm, Inc. Franklin & Prokopik
1719 Delaware Ave. 300 Delaware Ave., Ste. 1210
Wilmington, DE 19806 Wilmington, DE 19801
Atfame)/far P/az`nz‘g`[j” Al‘tomgyfor Dg‘ena’ant,r

DECISION ON MOTION TO DISMISS

(Amended Case No.)

sMALLs, c.J.

This is a Motion to Dismiss (the “l\/Iotion”) a Complaint filed by Plaintiff Michael Haas
(“Plaintiff”). Defenda`nts Pettinaro Management, LLC, Pettinaro Enterprises, LLC, and
Pettinaro Enterprises Holdings, LLC (“Defendants”) bring this Motion arguing Plaintiff failed
to state a claim upon Which relief can be granted pursuant to Com“z‘ of Comwon P/ea§ Cz'w'/ Ru/e
12(b)(6). On September 1, 2017, the Court held a hearing on the Motion, and reserved its
decision This is the Court’s decision on the Motion.

FACTS AND PROCEDURAL HISTORY

This case involves a slip-and-fall negligence action that Plaintiff alleges he suffered on
January 12, 2015 While leaving his place of employment, Navient. On December 21, 2016,
Plaintiff filed a complaint against Buccini/Pollin Group, Inc. (“Original Complaint”), alleging
per re negligence When Plaintiff slipped and fell on black ice in the parking lot between the
parking garage and l\lavient.1 On February 3, 2017, Buccini/Pollin Group, Inc. Was properly
served, and on April 5, 2017 a stipulation of dismissal Was filed. Both parties signed the
stipulation and voluntarily dismissed the matter With prejudice against Buccini/Pollin Group,
lnc. Plaintiff stated that it signed the stipulation because it discovered that Defendants Were
the rightful owners of the property, not Buccini/Pollin Group, Inc.

On May 5, 2017, Plaintiff attempted to amend the Original Complaint, substituting
Defendants for Buccini/Pollin Group, Inc. (“Amended Complaint”). However, the Court of
Common Pleas’ Clerk’s Offlce (the “Clerk’s Office”) did not accept the Amended Complaint

because the stipulation of dismissal had been filed under the H¢z¢zr 0. Bm‘cz'm` Po//z`n Grou}> docket.

 

1 Plaintiff’ s Complaint at 1, Michael Haas v. Buccini Pollin Group, C.A. No. CPU4-17-000012 (Del. Com. Pl.
Dec. 21, 2016) (“Plaintiff’s Original Complaint”).

Hence, on May 23, 2017, Plaintiff filed the Complaint in the present action (“Present
Complaint”) against Defendants. The Present Complaint is identical to the Amended
Complaint. On July 11, 2017, Defendants were properly served. On July 18, 2017, they filed
the present l\/Iotion. Defendants allege that Plaintiff’s case is barred by the statute of
limitations2 Defendants argue that because the statute of limitations has passed and Plaintiff
has not presented an argument for equitable tolling, his Present Cornplaint is barred. y
Alternatively, Defendants note that the relation back doctrine under Cozm‘ of Common P/e¢zi Cz'w'/
Rz/¢/e 75 is inapplicable to an original complaint.3

On july 26, 2017, Plaintiff filed a Reipome fo Dej”endanlr’Mofz`on to Dz`.rmz'.ri (“Response”).
Plaintiff argues that his “original intent” was to identify the correct owner of the property
where the injury occurred and “protect his interests.”4 In his Response, Plaintiff asserts that
he “did his due diligence” when attempting to locate the correct owner of the property.5
Additionally, Plaintiff asserts that his attempt to file an amended complaint was curtailed by
the Clerk’s Office.6 Plaintiff alleges that the reviewing clerk in the File&Serve system rejected
his Amended Complaint because the parties had signed the stipulation of dismissal7 ln light
of his intent and the reviewing clerk’s rejection of his Amended Complaint, Plaintiff requests

that the Court deem the Present Complaint to be the Amended Complaint.8 In addition,

 

2 Defendants’ Motion to Dismiss at 2.

3 Id.

4 Plaintist Response to Motion to Dismiss at 3.

5 Ia'. at 4. Exhibit D to Plaintiff’s Response indicates that Plaintiff spoke with Jospeh Lisicky, general counsel
for The Buccini/Pollin Group, Inc., Katie Ada at Star Building LLC, which is allegedly noted as the owner of
the property on the New Castle County Parcel Search website, and “Pettinaro,” an affiliate of Star Building,
LLC. Fee m'., Exhibit D. According to Plaintiff counsel’s legal assistant, “Pettinaro” initially informed
Plaintiff that it did not own the property where he was injured

6 Id. at 4.

7 Ia'.

8 Id.

Plaintiff requests that once the Present Complaint is deemed an amended pleading filed on
May 5, 2017, the Court should relate it back to the original filing date of December 21, 2016.9
Plaintiff argues that the requirements of the relation back doctrine are satisfied because the
claim is identical, Defendants were not prejudiced as they received notice of the action, and
Defendants knew or should have known that the action would have been brought against
them.10

On September 1, 2017, the parties appeared before the Court for the motion hearing.
Naturally, the parties’ arguments mirrored their written arguments Although, defense counsel
deviated slightly by introducing two cases for the Court’s consideration that were not cited in
the Motion: Lwez‘f a Pz`ez‘/oc/é and Wa//éer a Hund/er. On September 11, 2017, Plaintiff filed a
Regbom€ to Defendanfr’ Cme L¢m/ Submz`n‘ed af the Motz`on Hean'ng 012 §e})lember 7, 2077, addressing

the aforementioned case law.11

LEGAL STANDARD

(G(

On a motion to dismiss, the Court must determine whether it appears with reasonable
certainty that, under any set of facts which could be proven to support the claim, the plaintiffs
would be entitled to relief.”’12 ln making this determination, the Court is limited to consider

only facts contained within the four corners of the complaint, and must accept all well-pled

allegations as true.13 In applying this standard, the Court will draw every reasonable factual

 

9 Ia'. at 5~6.

111 Id. at 6.

11 Plaintist relevant analysis of Defendants’ case law will be addressed z'nfm.

12 Szez`/¢z 1). Szez`/a, 2009 WL 2581887, at *1 (Del. Com. Pl. Aug. 20, 2009) (quoting Mor¢<ga<ge E/e¢'lronz`¢' Re<gzkl.‘mz‘z'on
Fyi‘., Im'. a Haare UF/anagan, 2006 WL 1454807, at *1 (Del. Super. May 19, 2006)).

13 3011/den a Pz'nna¢'/e Re/)ab. c’?’Healt/a C/fr., 2015 WL 1733753, at *1 (Del. Super. Apr. 8, 2015) (citing Lovem¢m 1).
Nmmz`/e, Im‘., 2009 \X/L 847655, at *2 (Del. Super. 2009)).

4

inference in favor of the non-moving party.14 While the Court “is required to accept only
those ‘reasonable inferences that logically flow from the face of the complaint,’ [i] ‘is not
required to accept every strained interpretation of the allegations proposed by plaintiff.”’15
Ultimately, “[d]ismissal is warranted only when ‘under no reasonable interpretation of the facts
alleged could the complaint state a claim for which relief might be granted.”’16
DISCUSSION

The procedural posture of this case is unique and, thus, requires a bifurcated analysis.
First, the Court will address whether the Present Complaint, as an original action, will be
deemed the Amended Complaint, which Plaintiff attempted to file with the Clerk’s Office.
Second, if the Present Complaint is deemed to be the Amended Complaint, then the Court
will decide whether the May 5, 2017 filing properly relates back to the Original Complaint that
was filed within the statute of limitations period. For the reasons discussed below, the Court
finds that Plaintiff satisfies the first prong, but fails to meet the requirements of the second
prong.

I. Fairness dictates the substitution of the Present Complaint for the identical
Arnended Complaint.

The Present Complaint will be deemed the identical Amended Complaint because the
Clerk’s Office improperly prevented Plaintiff from amending the Original Complaint under
the lian a Bm‘c‘z'm' Po//z`n Groz¢p docket. A court clerk is not a judicial officer; the Clerk’s Office

does not have the authority to refuse pleadings, unless authorized by law. The foundation of

 

14 D¢pz. graham Bmdy, 2010 wL 8706963, at *2 (Dei. com. P1. Mar. 23, 2010).

15 111 re G€n. Mofori (Hu(gher) § 710/der Lz'z‘z<`g., 897 A.2d 162, 168 @el. 2006) (quoting Ma/]f)z`ea'e a Tou/mon, 780 A.2d
1075, 1083 (De1.2003)).

16 Bou)den, 2015 WL 1733753, at *1 (citing T/?ompmn a Medz'mmane, Im'., 2009 WL 1482237, at *4 (Del. Super,
2009)).

such a rule is to prevent the clerk’s office from becoming final arbiters of court procedure17
Recently, under a similar posture, the United States Bankruptcy Court for the District of
Delaware found that a court clerk’s refusal to accept a complaint_-a decision which ultimately
forced the litigant to file outside the statute of limitations_was improper18 In a well-reasoned
analysis, the court deemed the clerk’s actions purely “[c]lerical duties,” which prevented the
clerk from rejecting pleadings “even if defective.”19 Specifically, the court stated:
[Tjhe clerk has no discretion in the matter and no right to make a judicial
determination of whether the paper complies with the Rules or ought to be filed. lf
the paper has not been presented timely or if it suffers from some other deficiency, it
is subject to being stricken by the court, usually upon motion of a party objecting to
the paper, but so long as it is properly presented, the clerk must accept and file it.20
The bankruptcy court’s analysis is instructive and germane to the present case. Based on
responses from the File&Serve system, law firm correspondence, and argument at the motion
hearing, Plaintiff has presented sufficient evidence that the reviewing clerk improperly rejected
his Amended Complaint through the File&Serve system because of the docketed stipulation
of dismissal.21 This Court sees no reason to disagree with the bankruptcy court’s cohesive
analysis and prevent the substitution of complaints

lndeed, this Court has previously opined on filings based on misinformation from the

Clerk’s Office. After a litigant was informed that a limited liability company owned and

 

17 566 Bz¢mi v. O/Jz'o, 360 U.S. 252, 257 (1959) <finding that “delegation to the clerk of a matter involving no
discretion” makes the clerk’s correspondence a final judgment).

111 566 I/i re Trz'bune M6dz'¢z C0., 552 B.R. 282, 292-95 (Bankr. D. Del. May 25, 2016).

19 566 z`d. at 293 (internal quotation marks omitted) (quoting M¢‘Cr@) 1). May/ami 456 F.2d 1, 4 (4th Cir. 1972)).
211 Id. at 293-94 (quoting M¢Cr@/, 456 F.Zd at 4).

21 These facts distinguish the present case from a factual pattern where the litigant blamed court-personnel
for his tardiness in filing an appeal, yet was unable to support his contentions when challenged 566 5 tafe 1/.
Camcj/, 2008 WL 11343064, at *2-3 CDel. Com. Pl. Oct. 20, 2008) (refusing to accept the defendant’s
“impression that he needed to speak with [court-personnel] before he was able to appeal” amidst
contradictory testimony from the court-personnel).

operated by a sole proprietor would not require legal counsel, this Court held, “[w]hen the
facts indicate there were efforts by a litigant to comply [with court procedure], and through
no-fault of their own are misguided, fundamental fairness requires the Court to balance the
relative equities to achieve the prevailing policy that disputes should be resolved on their
merits.”22 ln denying defendant’s motion to dismiss, this Court stated, “[t]o be barred on such
a technical violation is fundamentally unreasonable and unfair.”23

lmportantly, this Court notes that this case does not involve a litigant who failed to
“act|] diligently” to ascertain a deadline.24 In 5 fate 1/. Cm“e)), this Court found that the defendant
did not practice due diligence in determining the filing deadline for an appeal from the Justice
of the Peace Court.25 Unlike a litigant’s failure to search for information that “is readily
available in any law library,” Plaintiff was prevented in this case from filing a document;
therefore, his counsel’s capacity to research was not deficient.26

While Delaware cases addressing clerical errors often involve pro 16 litigants, these cases
do not involve a Clerk’s Office expressly rejecting a pleading An express refusal to act strikes
the Court as problematic even for represented litigants While the legal profession boasts
many gifted persuaders, an attorney cannot be expected to force the clerk to accept a
document Comparatively, if the facts here simply involved a case of misinformation,
Plainan s represented status would give the Court pause. The attorney would be expected to

research the correct information despite the clerk’s error in communication However, when

 

22 5ta/amz, LLC 1/. Ha/Ma<gyz`, 2017 WL 384686, at *2, 4 (Del. Com. P1. _jan. 27, 2017).
23 Id. at *4.

24 566!6 1). Carey, 2017 WL 3705827, at *2 (Del. Com. Pl. Aug. 18, 2017).

25 566 z'a'.

2(‘ 566 z`¢z'.

an attorney is confronted with a system and court-personnel who prevent the matter from
proceeding, the attorney cannot be said to have acted unreasonably when he or she does not
resort to insults or threats. The Court cannot allow such obfuscation of court procedure to
negatively impact the rights of an innocent litigantl The tenets of fairness and Delaware’s
policy of resolving cases on the merits demand finding in Plaintiff’ s favor.

II. Plaintiff has failed to satisfy the Relation Back Doctrine.

The Relaiion Back doctrine of Com”t ofcommon P/mi Cz`w'/ liu/6 15(c) applies to the filing
of an amended complaint outside the statute of limitations for the claim.27 Here, because the
personal injury, which has a two-year statute of limitations, occurred on january 12, 2015 and
the Amended Complaint was not filed until May 5, 2017, Rule 15(c) is applicable.28 According
to Rule 15(c):

An amendment of a pleading relates back to the date of the original pleading when:

(1) relation back is permitted by the law that provides the statute of limitations
applicable to the action, or

(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

(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,

 

27 566 /lyrar v. D6/au/ar6 5t6zf6 Po/z'6'6, 2011 WL 13175210, at *2 (Del. Com. Pl. Nov. 4, 2011).

211 566 10 D6/. C. § 8119 (“No action for the recovery of damages upon a claim for alleged personal injuries
shall be brought after the expiration of 2 years from the date upon which it is claimed that such alleged
injuries were sustained; subject, however, to the provisions of§ 8127 [“Alleged deficiencies in the
construction of improvements to real property”] of this title.”); award l/z`6',é5 a ]mlz`ian funding Apam., 2016
WL 1740889, at *1 (Del. Super. Apr. 28, 2016) (s]ip-and-fall personal injury subject to two-year statute of
limitations).

but for a mistake concerning the identity of the proper party, the action would
have been brought against the party.29

Pursuant to the applicable subsection, Rule 15(c)(3), Plaintiff must not only prove that the
pled claim “arose out of’ the same conduct, but he must also prove that Defendants were
notified of the action, and Defendants “knew or should have known” that Plaintiff would sue
them “but for a mistake concerning [Defendants’] identit[ies].”30
A. Rule 15(€) ’s “Atose out of”iPtong

The first prong is not at issue in this case since the Amended Complaint concerns the
same claim and conduct as the Original Complaint ln his Original Complaint, Plaintiff
alleged:

3. On january 12, 2015, Plaintiff was leaving his place of employment,
Navient, when he slipped and fell on black ice in the parking lot between the
parking garage and the building in which he works in. As he was attempting to

proceed to his vehicle, Plaintiff fell on black ice, once again.

4. The accident happened as a result of the per se negligence of the
Defendant owner of this property.31

Plaintiff argued that Defendant Buccini/Pollin Group, lnc.’s failure to
inspect/ supervise/ maintain the premises proximately caused Plaintiff s injuries.32 Plaintiff s

Amended Complaint avers the same against Defendants.

 

29 Ct. Com. Pl. Civ. R. 15.

30 ]d_

31 Plaintiff’s Original Complaint at 1.
32 ]d_

B. Rule 15(€)’§ “]Vot.ice” Prong

The second prong regarding notice requires that the intended party to be added have
notice of the “lawsuit, not merely of a claim or allegation” against them.33 The notice of a
lawsuit “need not be formal, include service of process, nor must it be in writing.”34
Nevertheless, if the section does not set forth a distinct period for service, then the notice
must be provided within one-hundred and twenty (120) days from the filing of the original
complaint35

Although not addressed in the Motion, the Court notes preliminarily that Plaintiff
satisfied the time requirement of Rule 15(c)(3).36 The Original Complaint was filed on
December 21, 2016, Plaintiff indicated in March 6, 2017 email correspondence that his
counsel’s law firm spoke with “Pettinaro” regarding ownership of the property, and Plaintiff
filed the Amended Complaint on May 5, 2017. Plaintiff was not required to notify Defendants

of the lawsuit within the statute of lirnitations;37 however, he was required to notify Defendants

 

33 Ma//en 6. A/am;gmzm' 0fD6/mamz, Im‘., 625 A.2d 258, 265 (Del. 1993), iapemdea' 271 pari by amendmenl, Ct. Com.
Pl. Civ. R. 15 (1993), ar r660<gm'z6d 271 56'/90;1‘ a H66hz`ng6r Co., 1997 WL 358306, at *2 (Del. Super. Mar. 20, 1997).
34 566/1}1”66, 2011 WL 13175210, at *3 (citing Ma//en a A/am<guard 0fD6/wmw, Im‘., 625 A.2d 258, 265 (`Del.
1993)) (finding the “notice” prong was satisfied regarding adding previously unidentified Delaware State
Police officers to the action when the State and DSP were already on notice and counsel represented all
defendants);]o/ymon a 5t6zte qu‘)’l omemp., 2011 WL 6016912, at *3 (Del. Com. Pl. Oct. 27, 2011) (finding an
employee of DelDOT was notified of the lawsuit when his employer was served); i66 afro Dobi“on a M¢'Kz`n/@/,
2009 WL 891056, at *4 (Del. Super. Mar. 31, 2009) (holding that an existing third-party defendant who was
“actively engaged in discovery” was on notice when the amended complaint was identical to the third party
complaint).

35 566 Dz`Febo 1). Ba'. of/l¢`a.rzmenf, 132 A.3d 1154, 1156-57 (Del. 2016) (“[The plaintiff] had 120 days from the
time she filed her initial petition to satisfy Rule 15(€)(3)’$ requirements to have her amended petition relate
back to her initial filing.”); W¢z//ew a Hamz'/er, 2010 \X/L 4703403, at *3 (Del. Super. Nov. 17, 2010) (substituted
party received service one day after the statute of limitations expired but before one-hundred and twenty
(120) days allowed for service under Rule 4(j)); 56/3061', 1997 WL 358306, at *1 (complaint amended after the
statute of limitations but within one-hundred and twenty (120) days from the filing of the original complaint).
36 Ct. Com. P1. Civ. R. 15(c)(3) (“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 . . . .”).

37 566 DZ:F660, 132 A.3d at 1156.

10

within the one-hundred and twenty (120) days provided under Rule 4(j).38 Granting Plaintiff s
evidence wide latitude,39 Plaintiff notified Defendants within the one-hundred and twenty
(120) day requirement of Rule 4(j), or prior to April 20, 2017.‘10

Turning to the notice’s substance, there is no evidence that Defendants received
express notice of this /awiz/z`z‘. Again, even if the Court were to grant allowances for the email
correspondence which Plaintiff relies on, the evidence is insufficient The email
correspondence submitted by Plaintiff into evidence does not establish notice of a lawsuit-
only a claim. There is no statement that “Pettinaro” was informed of the lawsuit The only
response attributed to “Pettinaro” is an affirmance that they were not the owners of the
property. lgnoring for the moment that this response was not direct correspondence from
Pettinaro, the statement, “[w]e have reached out to Pettinaro and were told that they are not
the owners,” is vague as to whether Pettinaro was informed that Plaintiff was attempting to
sue them for his injury. The Court will not engage in speculative fact-finding and; therefore,

the record is devoid of express notice to Defendants of this lawsuit

 

311 566 Wa/kw‘, 2010 \X/L 4703403, at *3 (“Under the present Rule 15(c) notice may be given after termination
of the limitations period, provided that service is made Within the additional 120_day period required by Rule
4(j).”); 56/701‘1, 1997 WL 358306, at *1; Ct Com. Pl. Civ. R. 4.

39 First, the Court would need to deem Plaintiff s email correspondence as sufficiently corroborated_despite
it not containing direct responses from Defendants. Second, the Court would need to find the two emails
referencing “Pettinaro” to be referring to the specific entities in this case.

411 Presumably, Defendants did not raise this issue because the result is the same. That is, while the notice
here was sent through email prior to the service period expiring, the substance of the notice did not indicate
that Plaintiff was commencing a lawsuit Because the relation back doctrine requires proving notice of the
lawsuit, properly serving an amended complaint is sufficient to place the new party on “notice,” as defined by
case law. 566 /-l)/m`, 2011 \X/L 13175210, at *3. However, notice of a lawsuit can occur without serving a
complaint, such as informing the party that one intends to sue. 566 z`¢i. ln the present case, as discussed
below, while Plaintiffs instrument of notice was not required to be an amended complaint, the instrument
must be filed within the allowable time period as well as inform the intended party of an impending lawsuit

11

Alternatively, Plaintiff relies on Lowll a Pz'6f/06/é for the argument that Defendants, as
corporate entities, have “constructive knowledge of a potential injury occurring on their
premises.”41 This is a misinterpretation of L066IZ“, the case states no such “corporate entity”
rule.42 l\/loreover, the plaintiffs case in L01)6z‘6‘is bolstered by ew'dence that is not present here.
Love!l involved a plaintiff wishing to amend his complaint against the Delaware State Police
and Corporal Pietlock by adding three additional Delaware State troopers as defendants.43
Lovett advanced two theories of constructive notice: “the shared attorney theory” and
“identity of interest theory.”44 The former theory imputes notice to employees of the State
when the State Attorney General’s Office would be required to represent the three additional
officers in conjunction with the other defendants.45 The latter theory imputes notice “because
the Attorney General has an identity of interest with every police officer in the State.”46 The
court in L066z‘! found neither theory persuasive because the plaintiff did not support his
inferences with evidence of a “specific relationship or pertinent communication between the
State and the three officers.”47 The Court found only a “general organizational connection”
present48

Liberally construing 1_.0666!, Plaintiff s analogy between a corporate employee and a state

employee is not void at inception; however, Plaintiff has failed to present even a “general

 

41 Plaintiff's Response to Defendants’ Case Law Submitted at the l\/[otion Hearing on September 1, 2017
(“Plaintiff’s Response”), at 1.

42 5 66 <gemm@/ Loaez‘! 6. Pz`6f/06k, 2011 WL 149349 (Del. Super. ]an. 5, 2011).

43 566 z`a', at *1.

44 566 Z'd. at *2.

45 566 z`d.

46 566 z`d.

47 566 z'd. at *3.

411 566 z'd.

12

organizational connection” in the case at bar.49 That is, Plaintiff has failed to support a
generalized connection between Buccini/Pollin Group, Inc. and Defendants, let alone

S(¢

establish the specific relationship that the parties are so closely related in their business
operations or other activities that the institution of an action against one serves to provide
notice of the litigation to the other.”’50 Neither connection exists here.51
C. Rule 15(€)’$ ‘Mistake” Ptong
Regarding the third prong, the Delaware Supreme Court recently supported Delaware’s
divergence from federal precedent; precedent which allows the “mistake” prong of the
analogous federal relation back doctrine to be satisfied by “any reason.”52 Supporting a ‘“strict
approach”’ to defining “mistake,” the Delaware Supreme Court stated:
[I]his Court expressed that “a mistake occurs when the petitioner makes a
true mistake as to the identity or name of the proper party as opposed to where
the plaintiff merely chose the wrong party to sue.” That is, “[Delaware] courts
generally decline to find a mistake when the plaintiff cannot demonstrate an
z`nfmf fo 2'166‘/6/6216 6/96 MMMM]SWQ/ before ¢/66 /z'/¢zz'z‘afz'om period 6><j)z'r6d but will find a

mistake if the plaintiff intended to sue certain parties but was misled as to the
identity of those parties.”53

 

49 566 z'd.

511 Wa/kw", 2010 \X/L 4703403, at *3 (quoting G.F. C0. i). P¢m 06661)1 5hzjbpz`ng Co., 23 F.3d 1498, 1503 (9th Cir.
1994)).

51 Plaintiff did not proffer a third theory of “constructive notice,” yet the plaintiff in /ltu/ood 1). Cam6r011 presented
a general theory that a company is “constructively notified” when its employee_who collided with the plaintiff
while the employee was on official business--is the intended defendant to be added to the suit Al‘wooa' i).
C¢z/mro/¢, 2012 WL 3642707, at *2 (Del. Super. july 31, 2012) (internal quotation marks omitted). The Superior
Court was unpersuaded and required the employee to be individually notified by the employer of an actual
lawsuit 566 z`d. This third theory also does not support Plaintiff s position because: (1) an employee is not
alleged to be at fault and, if an analogy was made to Defendants as corporate entities, (2) this general theory
would still require Defendants to be individually notified of the lawsuit

52 566 Dz'Febo, 132 A.3d at 1157-58.

53 Id. at 1158 (emphasis added) (footnotes omitted) (quoting CC5 I)w’nr, LLC 6. Brou/n, 977 A.2d 301, 313
(Del. 2009)) (internal quotation marks omitted).

13

Plaintiff admits that he was “mistaken as to the correct owner of the property,”54
unfortunately, this is not enough.55 Plaintiff s intent to include Defendants is not a “mistake”
as defined by the Delaware Supreme Court in Dz`Fe/ao a Board of/laj'mfment 0fN6u/ CaJI/e Cozmg/,
but simply a choice to sue the improper party.56 In fact, the Supreme Court in Dz`Febo refused
to allow the petitioner to amend a petition that sought review of a Board of Adjustment
decision under the relation back doctrine because the petitioner’s “only excuse for not naming
[the proper owners of the properties] [was] that her attorney did not research who the owners
of the properties were and assumed that the property owner’s engineer . . . was somehow also
the owner of the properties.”\"’7

lndeed, the Delaware Superior Court has prevented the amending of a complaint to

’)7

add a defendant’s company when the “only 5mistake was the plaintiffs “failure to ferret-out
[the company’s] potential involvement sooner.”58 This Court has been presented with no basis
to diverge from this precedent Even if Plaintiff was unaware of who owned the Property
where he was injured, a quick search would have placed Plaintiff on notice of the proper party
to sue. Actions which the general counsel for Buccini/Pollin Group, Inc. performed as

indicated in his email to Plaintiffs counsel on February 7, 2017,59 Plaintiff could have simply

searched the New Castle County Parcel Search website and compared the office location of

 

54 Plaintiffs Response at 2.

55 566 M¢'C/¢zz`n 6. Mc'Domz/d’r Rmaamnlr 0fD6/6zu/ar6, Im'., 2011 WL 2803108, at *5 (Del. Super. july 5, 2011)
(noting that “mistake” is defined as a “misnomer or misidentification” and not a “failure to ascertain the
correct premises (and thus the responsible entity)”), afd, 32 A.3d 989 (Del. 2011).

54 566 DZ`F660, 132 A.3d at 1158.

57 566 z'd. (noting that the attorney could have asked the client or consulted the appropriate documentation).
511 /ltu/ood, 2012 WL 3642707, at *2 (quoting L066!l‘ l/. Pz`6z‘/06'/é, 2011 WL 149349 (Del. Super. jan. 5, 2011)).
59 Plaintiff’ s Response, Exhibit D.

14

Plaintiff’s employer, Navient, with the owner of Navient’s office location, Star Building LLC,
and then compared Star Building LLC’s address with the Defendants’ office location.60
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED. Plaintiff
cannot claim that his Amended Complaint relates back to the Original Complaint and,

therefore, his defense to the statute of limitations is unavailing

716 § faafi/

/r\le. y/j. Smalls
(` hief judge

IT IS SO ORDERED.

HaaS-OP Oct 13 2017

 

611 566 z`a'.
15

