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.
10
Oshatola v. Stipe
Combined Opinion