Cohen v. Continental Motors, Inc.

• Court: District Court, D. Delaware
• Decided: February 18, 2021
• Docket: 1:20-cv-00487
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

FRED COHEN, Executor of the Estates of DENNIS ALAN O’NEAL and DEBRA DEE O’NEAL,

Plaintiff,

v. No. 1:20-cv-00487-SB

CONTINENTAL MOTORS, INC. and JOHN DOE 1-50,

Defendants.

Brian E. Farnan, Michael J. Farnan, FARNAN LLP, Wilmington, Delaware; Michael S. Miska, WOLK LAW FIRM, Philadelphia, Pennsylvania.

Counsel for Plaintiff.

Andrea S. Brooks, Julie M. O’Dell, WILKS, LUKOFF & BRACEGRIDLE, LLC, Wilming- ton, Delaware; Sherri R. Ginger, Lacey D. Smith, ARMBRECHT JACKSON LLP, Mobile, Alabama.

Counsel for Defendants.

MEMORANDUM OPINION

February 18, 2021 BIBAS, Circuit Judge, sitting by designation. This is a wrongful-death suit stemming from a deadly plane crash in North Carolina.

The defendant, Continental Motors Inc., built the plane’s engine. Because the suit is not yet ripe, I will dismiss it without prejudice. Cohen first sued Continental in North Carolina. Compl., D.I. 1, ¶ 43. But in March 2020, the North Carolina court dismissed his claims, ruling that it lacked jurisdiction over Con- tinental. Id. ¶ 44–45. Cohen appealed, and his appeal is still pending. D.I. 17, at 2. Mean- while, he sued Continental here.

In Delaware, plaintiffs must sue for wrongful death within two years. 10 Del. C. § 8107. Plus, if a timely suit is dismissed on procedural grounds—by a Delaware court or by any other—the plaintiff gets one year to refile the case, even if the limitations period has ended. 10 Del. C. § 8118; Leavy v. Saunders, 319 A.2d 44, 48 (Del. Super. Ct. 1974). Cohen filed this suit seven years after the crash, so § 8107 would normally bar his claim. But he argues

that § 8118 saves it. I disagree. Under § 8118, the one-year period to refile starts only after the previous dismissal becomes final and cannot be appealed any further. Puig v. Seminole Night Club, LLC, 2011 WL 3275948, at *4–5 (Del. Ch. July 29, 2011) (citing Gosnell v. Whetsel, 198 A.2d 924, 926 (Del. 1964)). Until then, “[§ 8118] is not applicable.” Id. at *5. Cohen is still

appealing the North Carolina dismissal. So while he has sued too late to rely on § 8107, he has sued too early to rely on § 8118. Id. But if Cohen loses the North Carolina appeal, then he might be able to rely on § 8118. Id. So I will dismiss his claims without prejudice.