IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
REVOLUTION RENTALS DE, LLC, )
)
Plaintiff, )
)
v. ) C.A. No. K21C-08-007 NEP
)
ANDREW R. POMERLEAU and )
AMANDA L. ANDERSON, )
)
Defendants. )
Submitted: August 3, 2022
Decided: November 4, 2022
MEMORANDUM OPINION AND ORDER
Upon Defendants’ Motion to Dismiss
GRANTED
Catherine Di Lorenzo, Esquire, Stern & Eisenberg Mid-Atlantic, PC, Newark,
Delaware, Attorney for Plaintiff.
Donald L. Gouge, Jr., Esquire, Donald L. Gouge, Jr., LLC, Wilmington, Delaware
Attorney for Defendants.
Primos, J.
Before this Court is the motion to dismiss of Defendants Andrew Pomerleau
and Amanda Anderson (hereinafter “Defendants”). This action was originated by
Revolution Rentals DE, LLC (hereinafter “Plaintiff”) in the Justice of the Peace
Court (hereinafter “JP Court”). Defendants contend that dismissal is warranted
because Plaintiff was required to file in this Court within 60 days of the JP Court’s
order transferring the case to the Superior Court and failed to do so. For the reasons
set forth below, Defendants’ motion to dismiss is GRANTED.
BACKGROUND
This debt action arises from allegations of breach of contract and damages to
a rental unit.1 The facts and procedural history relevant to this motion to dismiss are
undisputed.
Plaintiff initiated these proceedings in JP Court on September 2, 2020.2
Defendants requested a jury trial and, in light of the JP Court’s inability to hold a
jury trial in a matter of this nature, filed a motion to transfer the case to Superior
Court.3 The JP Court initially denied the motion, stating that “[t]here is no avenue
for a case filed in JP Court to move directly to Superior Court for a trial by jury.” 4
Upon reargument, however, the JP Court concluded that “the demand for a jury trial
has removed the case from Justice of the Peace Court jurisdiction” and that it could
therefore transfer the case to Superior Court pursuant to 10 Del. C. § 1902,5 which
allows cases to be transferred between courts in the Delaware court system when the
initial court lacks subject matter jurisdiction.6 The transfer order, dated June 10,
1
Compl. (D.I. 1) at 2 ¶ 5.
2
Id. ¶ 6.
3
Defs.’ Mot. to Dismiss Pl.’s Compl. (D.I. 13) Ex. A [hereinafter “JP Court Docket”] at 2.
4
Id.
5
Resp. in Opp’n to Defs.’ Mot. to Dismiss Ex. A (D.I. 16) [hereinafter “June 10, 2021 Order”] at
1.
6
10 Del. C. § 1902 provides in full:
No civil action, suit or other proceeding brought in any court of this State shall be
dismissed solely on the ground that such court is without jurisdiction of the
2
2021, stated that “Plaintiff has 60 days to file its action in Superior Court or this
action will be dismissed with prejudice 60 days from the signing of this order.”7
Plaintiff did not file within the 60-day period, which expired on August 9,
2021. On August 10, 2021, Plaintiff filed a complaint in this Court. On the same
day, Defendants moved to dismiss the proceeding in JP Court with prejudice.8 On
August 11, 2021, the JP Court dismissed the action with prejudice because of
Plaintiff’s failure to act within 60 days.9 Plaintiff filed a Motion for Relief and a
Written Election of Transfer with the JP Court, also on August 11, 2021.10 However,
on August 20, 2021, the JP Court found that:
[T]hrough the Plaintiff’s own admission, they have not acted on the
order until the 61st day. Furthermore, a reasonable person would not
wait until the 61st day to establish a procedural argument that the
subject matter, either in the original proceeding or on appeal. Such proceeding
may be transferred to an appropriate court for hearing and determination, provided
that the party otherwise adversely affected, within 60 days after the order denying
the jurisdiction of the first court has become final, files in that court a written
election of transfer, discharges all costs accrued in the first court, and makes the
usual deposit for costs in the second court. All or part of the papers filed, or copies
thereof, and a transcript of the entries, in the court where the proceeding was
originally instituted shall be delivered in accordance with the rules or special orders
of such court, by the prothonotary, clerk, or register of that court to the
prothonotary, clerk or register of the court to which the proceeding is transferred.
The latter court shall thereupon entertain such applications in the proceeding as
conform to law and to the rules and practice of such court, and may by rule or
special order provide for amendments in pleadings and for all other matters
concerning the course of procedure for hearing and determining the cause as justice
may require. For the purpose of laches or of any statute of limitations, the time of
bringing the proceeding shall be deemed to be the time when it was brought in the
first court. This section shall be liberally construed to permit and facilitate
transfers of proceedings between the courts of this State in the interests of
justice (emphasis supplied).
7
June 10, 2021 Order at 2.
8
JP Court Docket at 2. Defendants’ counsel represented at oral argument that the timing was
coincidental and that he was not yet aware of the action in this Court when he moved to dismiss
the action in JP Court. Tr. of Zoom Oral Arg. at 28:11–16.
9
Resp. in Opp’n to Defs.’ Mot. to Dismiss Ex. B (D.I. 17) [hereinafter “August 11, 2021 Order”]
at 1.
10
JP Court Docket at 1.
3
judge’s order is invalid because it should have considered the case’s
rightful 15-day window to file an appeal. . . . This matter remains
dismissed with prejudice.11
On May 16, 2022, Defendants filed a motion to dismiss this action for lack of
subject matter jurisdiction pursuant to Superior Court Rules of Civil Procedure
12(b)(1) and 12(h)(3).12 On May 31, 2022, Plaintiff filed a Response opposing the
motion to dismiss.13 The Court held oral argument on the motion on July 8, 2022,
and the matter was submitted for decision on August 3, 2022.
PARTIES’ CONTENTIONS
Defendants argue that the case must be dismissed because Plaintiff took no
action within the 60-day period provided for in 10 Del. C. § 1902 and in the JP
Court’s June 10, 2021, order. Specifically, Plaintiff was required to and did not 1)
file an election of transfer in the JP Court14; and 2) file the action in this Court.15
Defendants assert that the complaint should be dismissed with prejudice, but note
that if it is dismissed without prejudice, Plaintiffs could seek leave to assert these
causes of action as counterclaims in pending litigation between the parties in the
Court of Common Pleas.16
Plaintiff seeks to prevent dismissal by arguing, in essence, that the Court
should excuse its failure to file within 60 days because it was “an inadvertent
mistake” by a pro se litigant.17 Plaintiff argues two primary points in support of its
11
Id.
12
Defs.’ Mot. to Dismiss Pl.’s Compl. (D.I. 13) [hereinafter “Mot. to Dismiss”].
13
Resp. in Opp’n to Defs.’ Mot. to Dismiss (D.I. 15) [hereinafter “Response”].
14
While the Motion to Dismiss states that Plaintiff “failed to submit a written order to create a
final judgment for transfer purposes,” Mot. to Dismiss at 3, ¶ 14, Defendants’ counsel clarified at
oral argument that the required filing is actually called an “election of transfer.” Oral Arg. Tr. at
11:12–15, 13:9–19.
15
Mot. to Dismiss at 4, ¶ 15.
16
Id. ¶ 17.
17
Tr. of Zoom Oral Arg. at 16:22–17:2. Plaintiff retained counsel shortly before filing in this
Court.
4
opposition to dismissal: 1) 10 Del. C. § 1902 expressly provides that it “shall be
liberally construed to permit and facilitate transfers of proceedings between the
courts of this State in the interests of justice”18; and 2) the JP Court should not have
relied on 10 Del. C. § 1902 to transfer this action because it had subject matter
jurisdiction.19
ANALYSIS
As the foregoing discussion shows, this matter is before this Court in an
unusual procedural posture. Defendants move to dismiss, invoking Superior Court
Civil Rules 12(b)(1) and 12(h)(3), which call for dismissal when the Superior Court
lacks subject matter jurisdiction. Plaintiff’s arguments call into question both the JP
Court’s decision to rely on 10 Del. C. § 1902 and the manner in which it was applied.
At the outset, it is important to clarify that this action is not an appeal of the JP
Court’s orders: the appropriate forum for appellate review of orders of the JP Court
would be on appeal to the Court of Common Pleas (hereinafter “CCP”) pursuant to
10 Del. C. § 9571.20 What Plaintiff seeks is for this Court to accept a transfer of this
action from JP Court, even though the JP Court ordered that it be dismissed with
prejudice if untimely filed. Thus understood, this is not a question of this Court’s
jurisdiction. Rather, the precise issue before this Court is whether Plaintiff
successfully effectuated a transfer of this action from the JP Court to the Superior
Court pursuant to 10 Del. C. § 1902 and the JP Court’s order, which is, for reasons
explained below, the law of the case. The Court finds that Plaintiff has failed to do
18
Resp. ¶¶ 12 and 20; Tr. of Zoom Oral Arg. at 16:4–6.
19
Resp. ¶¶ 6 and 18.
20
The JP Court’s June 10, 2021, order most likely would have been unappealable as an
interlocutory order. See Plant v. State ex rel. Sims, 801 A.2d 11, 2002 WL 1472245, at *1 (Del.
2002) (TABLE) (“The Superior Court’s order transferring jurisdiction to the Court of Chancery
is, by its terms, interlocutory in nature because it is not a final ruling on the merits of the underlying
controversy.”). However, following the dismissal with prejudice on August 11, 2021, the
appropriate avenue to seek de novo review of the JP Court’s rulings would have been on appeal to
the CCP, not on attempted transfer to this Court.
5
so and will thus leave undisturbed the JP Court’s dismissal with prejudice.
Accordingly, Defendants’ motion to dismiss shall be granted and the action
dismissed with prejudice.
1. Liberal Construction of 10 Del. C. § 1902 Does Not Excuse the 60-Day Time
Limit
Plaintiff argues that the Court should allow the filing on the 61st day because
it was only one day late and 10 Del. C. § 1902, by its own terms, “shall be liberally
construed to permit and facilitate transfers of proceedings between the courts of this
State in the interests of justice.” However, what Plaintiff asks for is not a liberal
construction of the statute, but outright excusal of an explicit time limit stated in the
statute and in the JP Court order.
Case law interpreting the liberal construction provision sheds light on what a
liberal construction of the statute can, and cannot, accommodate. The Delaware
Supreme Court explained in Wilmington Trust Company v. Schneider that 10 Del.
C. § 1902 is “a remedial statute designed to prevent a case from being totally ousted
because it was brought in the wrong Court.”21 In Schneider, the Court addressed
whether the 60-day period continued to run pending appeal of the trial court’s order
dismissing the case subject to the plaintiff’s right to transfer.22 On appeal, the
defendant specifically challenged the plaintiff’s right to transfer, and the plaintiff
defended the appeal without initiating the transfer process. “In view of the
legislative policy declared” in Section 1902, the Court concluded that a plaintiff
should not be “barred because of his failure to take further actions to perfect a
transfer while his opponent actively pursues an attack upon the capability of the
party to undertake the transfer at all.”23
21
342 A.2d 240, 242 (Del. 1975).
22
Id. at 241–42.
23
Id. at 242. The language that is now § 1902 was in § 1901 at the time Schneider was decided.
Admiral Holding v. Town of Bowers, 2004 WL 2744581, at *2 n.9 (Del. Super. Oct. 18, 2004).
6
Other cases have expanded on Schneider’s reasoning in the context of
pending appeals to the Supreme Court. In Benge v. Oak Grove Motor Court, Inc.,
the plaintiff filed a motion to transfer 55 days after the Supreme Court affirmed the
Chancery Court’s ruling that he “had filed suit in the wrong court” but several
months after the Chancery Court’s initial order dismissing the case subject to the
plaintiff’s right to transfer.24 The Vice Chancellor held that the 60-day period began
upon the Delaware Supreme Court’s affirmance of the Chancery Court’s dismissal
order, rather than upon the issuance of the original order.25 The plaintiff’s motion to
transfer to Family Court was thus held timely because it was within 60 days of the
Supreme Court’s order dismissing the appeal.26 More recently, in Olga J. Nowak
Irrevocable Trust v. Voya Financial, Inc., this Court considered whether it could
grant a motion to transfer when the election of transfer was filed with the Superior
Court while an appeal was already pending with the Delaware Supreme Court.27
Analyzing Benge and Schneider, the Court concluded that “granting the motion to
transfer fulfills the statutory direction to liberally construe § 1902 to permit and
facilitate transfers.”28
Unlike the aforementioned cases, here there is no pending appeal, or any
other procedural contingency, to call into question when the 60-day statutory period
began or ended. The 60-day countdown was initiated by the JP Court’s order on
24
2006 WL 2588934, at *1 (Del. Ch. Aug. 30, 2006).
25
Id. at *3 (“Here, even though Benge did not follow the proper procedures to seek interlocutory
review of what is ordinarily a non-appealable order, this State’s highest court accepted his appeal,
and placed itself in the position of having the power to reverse my ruling and permit Benge to
proceed with his case here. As a result, I cannot find that my earlier order was final in the sense of
being the decisive ruling contemplated by § 1902.”).
26
Id. at *4.
27
2021 WL 3700815, at *1 (Del. Super. Aug. 20, 2021).
28
Id. at *2–3.
7
June 10, 2021, and ended on August 9, 2021.29 Plaintiff’s contention is essentially
that the Court should liberally construe “60 days” in effect to mean “61 days” or
“roughly 60 days.” However, Plaintiff identifies no case law supporting the Court’s
authority to simply excuse the time limit, nor has the Court identified any in its own
review.
The Court finds instructive the opinions of the Master in Chancery and Vice
Chancellor in Wells Fargo Bank, NA v. Strong.30 There, as here, the party required
to transfer the case “failed to follow the direct order” of the transferring court and
“also failed to abide by the plain language of Section 1902” because it did not deposit
the required costs in the second court within 60 days.31 Citing Schneider for the
proposition that § 1902 is meant to prevent cases from being dismissed merely on
account of initial filing in the wrong court, the Master in Chancery nevertheless
concluded that “[t]he remedy was properly applied by the Superior Court in this
case” because the party was “given the opportunity . . . to transfer its case to the
Court of Chancery.”32 The party’s failure to complete the process of effectuating the
transfer, not its initial mistake of filing the case in the wrong court, was the basis for
the dismissal.
The Vice Chancellor affirmed, noting that “the Plaintiff does not suggest a
construction of the statute with which it has complied” and that the liberal
“construction” sought would effectively “write the 60–day transfer requirement
29
See Lorenzetti v. Hodges, 2012 WL 1410103, at *3 n.7 (Del. Super. Jan. 27, 2012) (“The transfer
period runs from the date of an order denying the jurisdiction of the first court.”); J.P. Ct. Civ. R.
6(a) (“In computing any period of time prescribed or allowed by these Rules[,] by order of Court,
or by any applicable statute, the day of the act, event, or default from which the designated period
of time begins to run shall not be included unless specifically included by statute, order or rule.”).
30
Wells Fargo Bank, NA v. Strong (“Wells Fargo I”), 2014 WL 3530829 (Del. Ch. July 15,
2014), exceptions denied Wells Fargo Bank, NA v. Strong (“Wells Fargo II”), 2014 WL 6478788
(Del. Ch. Nov. 19, 2014).
31
Wells Fargo I at *3.
32
Id.
8
completely out of Section 1902.”33 Like the plaintiff in Wells Fargo, Plaintiff here
has failed to offer a plausible construction of the statute with which it has complied.
In fact, Plaintiff is even further from compliance than the plaintiff in Wells Fargo,
which at least timely filed an election of transfer in the transferring court and only
failed to follow through in the transferee court. In sum, this case was not timely
transferred to the Superior Court under 10 Del. C. § 1902.34
2. The JP Court’s Transfer Order is the Law of the Case and Compels
Dismissal with Prejudice
While 10 Del. C. § 1902 does not call for a specific result in light of an
untimely attempt at transfer, the Court must also consider the effect of the JP Court’s
June 10, 2021, order. Three aspects of that order are important to the disposition of
this matter, and the Court will address each in turn. The JP Court 1) concluded that
transfer via 10 Del. C. § 1902 was appropriate because the Defendants’ demand for
a jury trial deprived it of jurisdiction; 2) ordered Plaintiff to file in this Court within
60 days; and 3) stated that failure to do so would result in dismissal of the action
with prejudice. The Court concludes that this order is the law of the case and that
the action must therefore be dismissed with prejudice.
Law of the case doctrine serves as “a form of intra-litigation stare decisis”35
and “is founded on the principles of efficiency, finality, stability and respect for the
judicial system.”36 In Preston Hollow Capital LLC v. Nuveen LLC, this Court stated
that “[o]nce a matter has been addressed in a procedurally proper way by a court, it
is generally held to be the law of that case and will not be disturbed by that court
33
Wells Fargo II, 2014 WL 6478788, at *4 (Del. Ch. Nov. 19, 2014).
34
See Johnson v. Div. of Child Prot. Servs., 560 A.2d 490, 1989 WL 42310, at *1 (Del. 1989)
(TABLE) (declining to hear an appeal from Family Court after no action was taken within 60 days
of the Superior Court’s granting leave to transfer the appeal to the Supreme Court).
35
Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 WL 5278913, at *7 (Del. Ch. Sept. 10,
2015).
36
Cede & Co. v. Technicolor, Inc., 884 A.2d 26, 39 (Del. 2005).
9
unless a compelling reason to do so appears.”37 The doctrine requires trial judges to
respect prior rulings made within the same “continuous action within the same court
system,”38 including rulings made by a different trial judge.39 Where rulings of a
prior judge in the same case are at issue, law of the case is “founded upon additional
considerations of courtesy and comity.”40 There are three recognized exceptions to
law of the case: a trial court should reconsider a prior decision only when it is
“clearly wrong, produces an injustice or should be revisited because of changed
circumstances.”41
When a case is transferred via 10 Del. C. § 1902, the transferee court should
apply law of the case doctrine to rulings of the transferring court.42 For example, in
Preston Hollow, this Court concluded that law of the case doctrine extended to
decisions made by the Court of Chancery prior to the case’s transfer to Superior
Court via 10 Del. C. § 1902.43 The Court explained that “[a]lthough the docket
numbers and judicial officers are different, such a transfer does not create an entirely
new action.”44 Thus, the Court concluded that “[f]or purposes of law of the case, the
prior rulings of the Court of Chancery are treated as if they were made by a Superior
Court judge.”45 Likewise, this Court will treat prior rulings of the JP Court in this
37
2020 WL 7365808, at *5 (Del. Super. Dec. 15, 2020) (quoting Zirn v. VLI Corp., 1994 WL
548938, at *2 (Del. Ch. Sept. 23, 1994)).
38
Id. (quoting Carlyle, 2015 WL 5278913, at *8 (Del. Ch. Sept. 10, 2015)); see also State v.
Wright, 131 A.3d 310, 321 (Del. 2016) (“The law of the case is established when a specific legal
principle is applied to an issue presented by facts which remain constant throughout the subsequent
course of the same litigation.” (quoting Hoskins v. State, 102 A.3d 724, 729 (Del. 2014))).
39
Wright, 131 A.3d at 321 (“[A] trial court’s previous decision in a case will form the law of
the case for the issue decided.”).
40
Preston Hollow, 2020 WL 7365808, at *5 (quoting Frank v. Carol, 457 A.2d 715, 719 (Del.
1983)).
41
Wright, 131 A.3d at 322 (quoting Hoskins, 102 A.3d at 729).
42
See e.g. Otto Candies, LLC v. KPMG LLP, 2019 WL 994050, at *6–7 (Del. Ch. Feb. 28, 2019)
(treating prior rulings by the Superior Court, made prior to transfer, as law of the case).
43
2020 WL 7365808, at *6.
44
Id.
45
Id.
10
action as though they were made by the Superior Court.
Applicability of 10 Del. C. § 1902
Plaintiff argues that the JP Court had subject matter jurisdiction and thus
should not have relied on 10 Del. C. § 1902. However, this argument fails for three
separate reasons.
First, the JP Court’s ruling that “pursuant to 10 Del. C. § 1902, the demand
for a jury trial has removed the case from [JP Court] jurisdiction and hence allows
the court to have the case transferred”46 is the law of the case, and Plaintiff has
supplied no sufficient reason to revisit it. 47 The only law of the case exception that
might apply is that this conclusion is clearly wrong as a matter of law. While
Plaintiff does argue that the JP Court had jurisdiction because it has “concurrent
jurisdiction over disputes of this type” and cites to the JP Court’s general grant of
civil jurisdiction contained in 10 Del. C. § 9301,48 this argument is unresponsive to
the JP Court’s conclusion that the jury trial demand removed the case from its
jurisdiction. Here, the JP Court concluded, based on briefing and argument not
provided by the parties to this Court, that transfer via 10 Del. C. § 1902 was the
appropriate procedural mechanism to accommodate Defendants’ jury demand. The
Court is not prepared to rule that this determination was clearly wrong.
Second, even if it was clearly wrong, the issue of whether the JP Court erred
in relying upon 10 Del. C. § 1902 to transfer this action is not properly before this
Court. Had Plaintiff intended to challenge the JP Court’s conclusions with respect
46
June 10, 2021 Order at 1.
47
In Wells Fargo II, the Chancery Court also treated the Superior Court’s determination that it
lacked jurisdiction over the subject matter as the law of the case. 2014 WL 6478788, at *3 (“The
law of this case, as found by the Superior Court, is that the Plaintiff’s attempt to proceed in
Superior Court was in fact an attempt to enforce an equitable mortgage, because the mortgage
document on which it attempted to rely was unsealed and thus legally insufficient. Therefore, the
Superior Court dismissed the matter as outside its jurisdiction, subject to transfer under
Section 1902.”) (emphasis supplied).
48
Resp. ¶ 6.
11
to its own jurisdiction or the applicability of the transfer statute, an appeal should
have been filed in the Court of Common Pleas pursuant to 10 Del. C. § 9571 after
the case was dismissed with prejudice. However, Plaintiff concedes that Defendant
has a right to a jury and does not contest the transfer to this court.49 If, as Plaintiff
contends, the JP Court had subject matter jurisdiction and should not have
transferred the case via 10 Del. C. § 1902, it simply does not follow that the remedy
would be to accept an untimely transfer in this Court.
Finally, a finding that the JP Court did have jurisdiction would create yet
another problem for Plaintiff’s position. If the JP Court acted with subject matter
jurisdiction, then its order dismissing the action with prejudice would operate as an
adjudication on the merits, by a court with jurisdiction, of an action with the same
cause of action, the same issues, and the same parties as the present proceeding. This
Court would thus be barred from proceeding with this case by the doctrine of res
judicata.50
Order to Refile the Complaint in this Court
Plaintiff also argues that the JP Court erred in ordering it to “file its action in
Superior Court”51 because the statute actually requires the transferring party only to
49
Oral Arg. Tr. at 17:3–12.
50
Under Delaware law, the doctrine of res judicata bars an action when the following elements are
met:
(1) [T]he court making the prior adjudication had jurisdiction, (2) the parties
in the present action are either the same parties or in privity with the parties from
the prior adjudication, (3) the cause of action must be the same in both cases or the
issues decided in the prior action must be the same as those raised in the present
case, (4) the issues in the prior action must be decided adversely to the plaintiff’s
contentions in the instant case, and (5) the prior adjudication must be final.
Bailey v. City of Wilmington, 766 A.2d 477, 481 (Del. 2001) (emphasis supplied). A
dismissal with prejudice is generally considered final and on the merits for res judicata
purposes. See RBC Capital Markets, LLC v. Educ. Loan Tr. IV, 87 A.3d 632, 643 (Del.
2014) (“In general, a dismissal with prejudice constitutes a final decree for res
judicata purposes.”).
51
June 10, 2021 Order at 2.
12
file a “written election of transfer, discharge[] all costs accrued in the first court, and
make[] the usual deposit for costs in the second court.”52 Plaintiff correctly states
that, per the terms of the statute, the clerk of the transferring court is to transfer the
case upon the filing of the election of transfer and discharge of court costs.53 In
ordering refiling of the action instead, Plaintiff asserts, the order created unnecessary
confusion and directed Plaintiff to do something it was not legally obligated to do.54
However, it is abundantly clear that whatever Plaintiff was required to do, it was
required to do within 60 days. Plaintiff did not file in this Court until the 61st day,
and did not file a written election of transfer in the JP Court until the 62nd day, after
the JP Court had already dismissed the action.
The Court accepts as the law of the case that Plaintiff had 60 days to take
affirmative steps to effectuate the transfer. The question of whether strict
compliance with the statute but not the terms of the order, or vice versa, would have
been sufficient is not before this Court because Plaintiff complied with neither within
the prescribed time period.
Dismissal with Prejudice
Finally, the JP Court’s June 10, 2021, order directs that the action is to be
dismissed with prejudice unless Plaintiff filed in this Court within 60 days. The
Court concludes that, regardless of whether dismissal with prejudice is the sanction
it would have itself imposed for untimely filing, the JP Court’s directive is the law
of the case and must be carried out.
The Wells Fargo case is again instructive here. There, the Vice Chancellor
52
10 Del. C. § 1902.
53
Id. (“All or part of the papers filed, or copies thereof, and a transcript of the entries, in the court
where the proceeding was originally instituted shall be delivered in accordance with the rules or
special orders of such court, by the prothonotary, clerk, or register of that court to the
prothonotary, clerk or register of the court to which the proceeding is transferred.”)
(emphasis supplied).
54
Response ¶ 7; Tr. of Zoom Oral Arg. at 15:9–14.
13
discussed the implications of the Superior Court’s dismissal subject to the Plaintiff’s
right of transfer:
If the Superior Court Order is read as an unconditional dismissal
without prejudice, then nothing in Section 1902 prevents the Plaintiff
from re-filing this matter in Chancery as a new complaint, albeit
without the benefit of the filing date relating back to the original
Superior Court complaint. On the other hand, if the Superior Court
Order is read as providing for a dismissal without prejudice conditioned
upon compliance with the requirement to file in Chancery within 60
days, the matter may be considered dismissed with prejudice.55
Here, as in Wells Fargo, the transferring court is entitled to deference in crafting the
disposition of the action in the event that a plaintiff fails to carry out the transfer as
ordered. However, unlike the Superior Court’s order in Wells Fargo, the JP Court’s
order in this case requires no interpretation—it clearly calls for dismissal with
prejudice as the sanction for untimely filing.
None of the exceptions to law of the case apply here. Circumstances have not
changed and dismissal with prejudice is not clearly wrong. Insofar as Plaintiff
argues that it produces an injustice because Plaintiff was proceeding pro se in JP
Court, the Court notes that “[t]here is no different set of rules for pro se plaintiffs,
and the trial court should not sacrifice the orderly and efficient administration of
justice to accommodate an unrepresented plaintiff.”56 Moreover, this result is
consistent with a key underlying purpose of law of the case, to “prevent the
relitigation of prior determinations and inconsistent judgments.”57 Here, the JP
Court followed through on its own directive and dismissed the action with
prejudice.58 If this Court were to dismiss the action without prejudice, inconsistent
55
Wells Fargo II, 2014 WL 6478788, at *4 (emphasis supplied).
56
Draper v. Med. Ctr. of Delaware, 767 A.2d 796, 799 (Del. 2001).
57
Fanean v. Rite Aid Corp. of Delaware, Inc., 984 A.2d 812, 818 (Del. Super. 2009) (quoting E.I.
du Pont de Nemours & Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995)).
58
Since the JP Court’s dismissal with prejudice occurred after the case was filed in this Court, that
order is not itself the law of the case. However, on its own terms, the August 11, 2021, order was
14
judgments would clearly result—a single action cannot be dismissed both with and
without prejudice. The Court will not resurrect an action already disposed of with
finality by the JP Court.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss is GRANTED, and
Plaintiff’s action is dismissed WITH PREJUDICE.
IT IS SO ORDERED.
NEP:tls
Via File & ServeXpress
oc: Prothonotary
cc: Counsel of Record
simply carrying out the directive of the June 10, 2021, order. It is not clear whether the JP Court
was aware that a complaint had been untimely filed in this Court when it dismissed the JP Court
action with prejudice.
15