Moody v. 2701 Kirkwood, LLC

• Court: Superior Court of Delaware
• Decided: October 9, 2023
• Docket: N22C-12-153 MMJ
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

BELINDA MOODY, ) ) Plaintiff, ) ) v. ) C.A. No. N22C-12-153 MMJ ) 2701 KIRKWOOD, LLC, FAMILY ) PRACTICE ASSOCIATES, P.A. and ) WILCOX LANDSCAPING, INC., ) ) Defendants. )

Submitted: August 31, 2023 Decided: October 9, 2023

On Defendant Wilcox Landscaping, Inc.’s Motion to Dismiss DENIED

ORDER

1. On December 17, 2020, Plaintiff fell on the sidewalk leading to her doctor’s

office. Plaintiff alleges that the fall was caused by the failure to clear the sidewalk of

snow and ice.

2. Plaintiff filed a Complaint on December 14, 2022 against Defendants 2701

Kirkwood, LLC and Family Practice Associates, P.A. The Complaint seeks damages for

injuries allegedly sustained as a result of the fall.

3. By email dated February 9, 2023, Plaintiff’s counsel was informed that Wilcox

Landscaping, Inc. had been hired by 2701 Kirkwood to clear snow and ice from the

premises. On March 14, 2024, Plaintiff moved pursuant to Superior Court Civil Rule

15(c) to add Wilcox as a Defendant. The motion was granted. Wilcox was served on

April 6, 2023.

1 4. Wilcox filed this Motion to Dismiss on May 12, 2023. Wilcox argues that the

two-year statute of limitations in 10 Del. C. § 8119 applies, making Plaintiff’s claim

against Wilcox untimely.

5. Superior Court Civil Rule 4(j) provides a period of 120 days within which a

complaint must be served on a defendant (unless the Court permits extension). Rule

15(c)(3) provides:

(c) Relation back of Amendments. An amendment of a pleading relates back to the date of the original pleading when …

(3) the amendment changes the party or the naming of the party against whom a claim is asserted … 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 they 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. [Emphasis added].

6. The Court finds that Wilcox was served within the 120 days period following

the expiration of the statute of limitations. Wilcox has not presented a sufficient basis for

a finding of prejudice. Wilcox is in essentially the same position as the other Defendants

with respect to timing of notice of the lawsuit, and the stage of discovery. Had Plaintiff

been aware of the identity of Wilcox as the alleged party responsible for snow and ice

removal, the Complaint would have been filed against Wilcox as an original Defendant.

2 7. The Court finds that the Amended Complaint against Wilcox is not barred by

10 Del. C. § 8119. See Cutting v. Live Nation Worldwide, Inc., 2023 WL 4363895 (Del.

Super.).

THEREFORE, Defendant Wilcox Landscaping, Inc.’s Motion to Dismiss is

hereby DENIED.

IT IS SO ORDERED.

Mary M. Johnston The Honorable Mary M. Johnston