Donald M. Durkin Contracting, Inc. v. City of Newark ( 2020 )

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE
DONALD M. DURKIN )
CONTRACTING, INC., )
)
Plaintiff
)
)
v. C.A. No. N19C-09-206 DCS
)
CITY OF NEWARK, )
)
Defendant. )
Submitted: October 28, 2019
Decided: June 4, 2020
Upon Defendant’s Motion to Dismiss–
GRANTED.
OPINION
Paul A. Logan, Esquire, Attorney for Plaintiff.
Max B. Walton, Esquire, Attorney for Defendant.
STREETT, J.
Introduction
Donald M. Durkin Contracting, Inc. (the “Plaintiff”) filed a Declaratory
Judgment Action alleging breach of contract by the City of Newark (the
“Defendant”). Plaintiff requests that the Court issue a judgment that Defendant is
and was obligated to cooperate with Plaintiff pursuant to a Settlement Agreement
between Plaintiff and Defendant in their 2004 Delaware District Court case (the
“Federal Case”).1 Plaintiff also asks this Court to find that Defendant has materially
breached the Settlement Agreement in the past and seeks damages.
Defendant was represented by Paul Cottrell, Esquire, Victoria Patrone,
Esquire, and the law firm Tighe, Cottrell and Logan, P.A. (“Cottrell”) in the Federal
Case. Plaintiff instituted a lawsuit against Cottrell in Pennsylvania (the
“Pennsylvania litigation”) arising from the Federal Case.2 Plaintiff alleges that
Defendant’s cooperation is necessary in its litigation against Cottrell.3
1
Donald M. Durkin Contracting, Inc. v. City of Newark, et al., United States District Court for the
District of Delaware, No. 04-163 GMS.
2
Donald M. Durkin Contracting, Inc. v. Paul Cottrell, Esquire; Victoria K. Petrone, Esquire; and
Tighe, Cottrell & Logan, P.A., Court of Common Pleas of Bucks County, Pennsylvania, No.
0804799-18-2. Although the instant action refers to the Pennsylvania litigation as the Bucks
County Action, this Court has renamed it for clarification.
3
Also, in its Complaint, Response to the Motion to Dismiss, and Response to the Motion for
Sanctions, Plaintiff misinformed the Court that Defendant had asserted claims against Cottrell for
the same reasons that Plaintiff had asserted claims against Cottrell. Plaintiff wrote:
“Those same actions [Cottrell’s conduct while representing Defendant in the
Federal Case], described herein, prompted [Defendant] to pursue its own claim
1
against [Cottrell] after entering into the Settlement Agreement with [Plaintiff].”
Plaintiff’s Complaint, at 4 (emphasis in original).
“In May 2009, [Cottrell] disclosed to [Plaintiff] that [Defendant] and its insurer in
the Federal Action had asserted “separate claims” against [Cottrell] over their
representation of [Defendant] in the Federal Action, that those claims were subject
to a tolling agreement, and that any resolution of the Bucks County Action would
be contingent on the [Defendant’s insurer’s] acceptance of [Cottrell’s] offer to settle
those claims.” Id. at 9-10.
“[Plaintiff] does not specifically know whether [Defendant] settled its claims
against [Cottrell] or whether [Defendant’s] claims, which fell under [Cottrell’s]
malpractice insurance, remain pending, but believe that [Defendant] has likely
settled with [Cottrell].” Id. at 10.
“In October 2013, because [Plaintiff] knew that [Defendant] asserted claims against
[Cottrell] for its representation of [Defendant] in the Federal Court Action,
[Plaintiff] requested [Defendant’s] cooperation and requested an affidavit waiving
any purported attorney/client privilege [Cottrell] might assert.” Id.
“…[Defendant’s] assertion of claims against [Cottrell] vis-à-vis their handling of
the Federal Action placed squarely at issue facts and communications connected
with the representations.” Id. at 12.
“…because [Defendant] made claims against [Cottrell] for the same reasons as
[Plaintiff] has in the Bucks County Action, [Defendant] cannot rely on privilege as
a basis to dismiss this action.” Response to Motion to Dismiss, at 5 (emphasis in
original).
“[Defendant], itself, made claims against [Cottrell] for the same reasons as
[Plaintiff] has in the Bucks County Action. [Defendant] cannot rely on ‘privileged
communications’ in its pursuit of [Cottrell] and then claim a ‘restored’ privilege as
its basis to dismiss this action.” Response to Motion for Sanctions, at 3 (emphasis
in original).
After reviewing these allegations, this Court insisted on citations or documentation
concerning Plaintiff’s allegation that Defendant had filed a claim against Cottrell. Defendant
responded that it did not file a claim against Cottrell and that its insurer (Travelers/St. Paul) merely
engaged in “discussions and eventually reached a settlement with the insurer for [Cottrell].”
Defendant’s May 26, 2020 Supplemental Brief, at para. 1.
Plaintiff, only after the Court’s inquiry and Defendant’s denial, acknowledged that
Defendant did not initiate litigation against Cottrell and conceded that its representations to the
Court were inaccurate. Plaintiff’s May 28, 2020 Supplemental Brief, at para. 1. (emphasis in
original).
2
Defendant moves for dismissal, contending that the Settlement Agreement
released Defendant from further litigation, the Settlement Agreement does not
require Defendant’s cooperation in the Pennsylvania litigation, and Plaintiff’s
instant action is barred by the statute of limitations. For the following reasons, the
Court finds that Plaintiff’s action is barred by the statute of limitations.4
Statement of Facts
On March 16, 2004, Plaintiff sued Defendant in the United States District
Court for the District of Delaware for wrongful termination of a contract to erect a
reservoir and violation of Plaintiff’s civil rights.5 Defendant was represented by
Cottrell.6
4
The Court finds that Defendant’s statute of limitations defense is dispositive. Therefore, the
Court will not address Defendant’s other defenses.
5
In the Federal Case, Plaintiff alleged that Defendant violated its civil rights by depriving it of
property without due process. Defendant then filed a counterclaim against Plaintiff alleging that
Plaintiff breached the contract. See Plaintiff’s Complaint, at 1-3. Defendant also filed a third-party
complaint against Plaintiff’s surety Federal Insurance Company. The suit against Federal
Insurance Company was dismissed on summary judgment on September 22, 2006. See Durkin
Contracting, Inc. v. City of Newark, et al., Del. D. No. 04-163 (Sept. 22, 2006) (ORDER), attached
to Plaintiff’s Complaint, at Ex. B.
6
In the Federal Case, there was an issue involving whether Defendant’s disclosure of a certain
letter sent from Defendant’s representative to Cottrell (that was apparently attached as an exhibit
to Defendant’s brief in the Federal Case) constituted a waiver of attorney/client privilege on certain
communications. In a September 12, 2006 Order, the District Court ruled that the letter did indeed
constitute a subject matter waiver on certain attorney/client privileged communications. It appears
that the court limited the scope of the waiver to certain issues that related to Defendant’s defense
in the Federal Case. Specifically, the court held that the following topics (without elaboration), at
issue in the Federal Case, fell under the scope of the waiver: communications concerning
Defendant’s allegation of Plaintiff’s “failure to proceed,” Defendant’s allegation that Plaintiff
“failed to follow the direction of the engineer,” Defendant’s allegation that Plaintiff “would not
complete the project at the price it bid,” Defendant’s statement that Defendant “worked to address
3
On October 12, 2006, following a jury trial, Plaintiff was awarded
$36,700,000.00.
On April 9, 2008, after considering Defendant’s post-trial motions, the District
Court reduced the award to $25,630,819.40. Both parties then filed appeals with the
United States Court of Appeals for the Third Circuit.7 Both parties also pursued
mediation.
On May 14, 2008, Plaintiff filed a lawsuit against Cottrell in the Pennsylvania
Court of Common Pleas in Bucks County while Cottrell was still representing
Defendant in the Third Circuit appeal.8 Plaintiff’s litigation against Cottrell alleged
claims of abuse of process, malicious prosecution, and intentional interference with
contractual relations.
concerns,” and Defendant’s statement that Defendant “paid on time.” Durkin Contracting, Inc. v.
City of Newark, et al., Del. D. No. 04-163 (Sept. 12, 2006) (ORDER), attached to Plaintiff’s
Response to the Motion for Sanctions, at Ex. H.
Also in the Federal Case, there was an issue involving whether Defendant should be
sanctioned for violating certain discovery obligations. In a September 28, 2006 Order, the District
Court concluded that Defendant violated its discovery obligations by failing to timely produce
responsive documents. The court found that Plaintiff was prejudiced by the delay. The court
determined that sanctions were warranted and sanctioned Defendant by dismissing its
counterclaim. Durkin Contracting, Inc. v. City of Newark, et al., Del. D. No. 04-163 (Sept. 28,
2006) (ORDER), attached to Plaintiff’s May 28, 2020 Supplemental Brief, at Ex. D.
7
Durkin Contracting, Inc. v. City of Newark, et al., Third Circuit, Nos. 06-4762, 06-4761, and 06-
4850.
8
See footnote 2.
4
On June 23, 2008, prior to submitting briefs to the Third Circuit, Plaintiff and
Defendant reached a Settlement Agreement and Mutual Release (the “Settlement
Agreement”) and ended the Federal Case.
On July 18, 2012, Plaintiff sought discovery from Cottrell in its Pennsylvania
lawsuit against Cottrell.9 Defendant Cottrell invoked attorney/client privilege
stating that the privilege stemmed from their representation of Defendant in the
Federal Case.10
In October 2013, more than a year later, Plaintiff then requested Defendant’s
cooperation against Cottrell in the Pennsylvania case. In fact, Plaintiff drafted and
presented an affidavit to Defendant that would have waived any purported
attorney/client privilege for any and all communications between Defendant and
Cottrell. Defendant refused to sign the affidavit or cooperate.
9
On July 18, 2012, Plaintiff served Cottrell with Interrogatories and Requests for Production of
Documents. On August 24, 2012, Cottrell served Plaintiff with its Answers and Objections to the
Interrogatories and Requests for Production of Documents. See Donald M. Durkin Contracting,
Inc., v. Cottrell, Petrone, and Tighe, Cottrell & Logan, P.A., No. 2513 EDA 2014, at 3 (Sept. 28,
2015) (MEMORANDUM), attached to Plaintiff’s May 28, 2020 Supplemental Brief, at Ex. E.
10
On April 9, 2013, Plaintiff filed a Motion against Cottrell to Determine their Objections and to
Compel their Responses to Discovery Requests. Plaintiff also moved for sanctions against
Cottrell. On May 7, 2013, Cottrell responded in opposition and included a New Matter. On April
9, 2014, Plaintiff replied to Plaintiff’s New Matter. On July 30, 2014, the Pennsylvania trial court
granted Plaintiff’s Motion to Compel Discovery but denied its Motion for Sanctions. On August
29, 2014, Cottrell appealed. On September 28, 2015, the Pennsylvania Superior Court affirmed
the trial court’s decision. However, the Pennsylvania Superior Court stated that, “[m]oving
forward, because the attorney-client privilege is a deeply rooted right,… the trial court should grant
[Cottrell] the opportunity to meet their burden that the privilege should apply should they seek to
do so.” Id. at 3-4, 15, fn. 10.
5
On January 9, 2014, Plaintiff obtained an Out of State Subpoena from the
Delaware Superior Court for Defendant to produce the Federal Case
communications between Defendant and Cottrell for use in the Pennsylvania
litigation.11
On January 17, 2014, Defendant filed a Motion to Quash the subpoena.
On February 3, 2014, Plaintiff withdrew the subpoena.12
On November 23, 2016, more than two years later, Plaintiff obtained another
Out of State Subpoena from the Delaware Superior Court for Defendant to produce
the Federal Case communications between Defendant and Cottrell for use in the
Pennsylvania litigation.13
On December 8, 2016, Defendant filed a Motion to Quash this second
subpoena.
11
Donald M. Durkin Contracting, Inc. v. Paul Cottrell, Esquire; Victoria K. Petrone, Esquire;
and Tighe, Cottrell & Logan, P.A., Delaware Superior Court, No. 14M-01-014 (2014). Plaintiff
requested all documents made between Defendant and Cottrell relating to the Federal Case.
12
Plaintiff writes that it withdrew this subpoena based on a notice that it received form Cottrell’s
counsel in the Pennsylvania litigation that Cottrell “would seek a protective order to halt the
discovery from, inter alia, [Defendant].” Plaintiff’s May 28, 2020 Supplemental Brief, at para. 2.
Plaintiff then writes that it withdrew the subpoena because it concluded that Cottrell’s objections
“needed to be resolved in [the Pennsylvania litigation] before proceeding with the discovery with
[Defendant].” Id.
13
Donald M. Durkin Contracting, Inc. v. Paul Cottrell, Esquire; Victoria K. Petrone, Esquire;
and Tighe, Cottrell & Logan, P.A., Delaware Superior Court, No. N16M-11-143 (2016). Plaintiff
requested all documents created between Defendant and Cottrell relating to the Federal Case.
6
On February 3, 2017, Plaintiff withdrew this second subpoena.14
On January 15, 2019, almost two years later and for the third time, Plaintiff
obtained another Out of State Subpoena from the Delaware Superior Court for
Defendant to produce the Federal Case communications between Defendant and
Cottrell for use in the Pennsylvania litigation.15
On February 5, 2019, Defendant filed a Motion to Quash the third subpoena.
On March 28, 2019, Plaintiff withdrew the third subpoena.16
On September 20, 2019, Plaintiff filed its complaint seeking a Declaratory
Judgment and a finding that Defendant had breached its Settlement Agreement
obligation.
14
Plaintiff states that it withdrew the second subpoena because it failed to provide sufficient time
for Defendant to respond to the requests, which is procedurally inconsistent with Delaware court
rules. Plaintiff’s May 28, 2020 Supplemental Brief, at para. 5.
15
Donald M. Durkin Contracting, Inc. v. Paul Cottrell, Esquire; Victoria K. Petrone, Esquire;
and Tighe, Cottrell & Logan, P.A., Delaware Superior Court, No. 19M-01-106 (2019). Plaintiff
requested all documents created between Defendant and Cottrell relating to the Federal Case.
16
Plaintiff writes that it withdrew the third subpoena “after it became obvious that [Defendant]
would continue its objections to produce documents, continue to assert privilege … and continue
to refuse to cooperate with [Plaintiff] as required by Settlement Agreement.” Plaintiff’s May 28,
2020 Supplemental Brief, at para. 6. Plaintiff states that it “concluded that absent a declaratory
judgment of the total obligations of [Defendant] in the Settlement Agreement (including its
obligation to produce documents and participate in depositions without substantial objections)
[Defendant or Cottrell] will persist to interpose objections and further delay the decision in the
[Pennsylvania litigation].” Id.
7
Procedural History
On September 20, 2019, Plaintiff sought declaratory relief against Defendant
in this Court. Plaintiff alleges that the Settlement Agreement “obligated [Defendant]
to cooperate with [Plaintiff] in the pursuit of its claims against [Cottrell]” in the
Pennsylvania litigation.17 Plaintiff contends that it “is entitled to judgment from this
Court declaring [Defendant’s] obligations pursuant to the Settlement Agreement and
that [Defendant] has materially breached the Settlement Agreement.”18 It also
requests the right to pursue “damages, including but not limited to reimbursement
from [Defendant] of its costs in enforcing the Settlement Agreement and all direct
and consequential damages resulting from [Defendant’s] breach.”19
On October 28, 2019, Defendant filed the instant Motion to Dismiss.
Defendant contends that Plaintiff’s action should be dismissed because the
Settlement Agreement does not require Defendant to waive any attorney/client
17
Without discussing the basis for the declaratory judgment action, the Court notes that Plaintiff
cites a combination of two separate provisions in the Settlement Agreement (paragraphs 7 and 18)
for this assertion. Plaintiff argues that paragraph 7 of the Settlement Agreement (titled: “Joint
Tortfeasor Release Hold Harmless and Indemnification of Newark Parties”) provided notice to
Defendant that Plaintiff is suing Cottrell. Plaintiff then argues that paragraph 18 obligates
Defendant to cooperate in that lawsuit (the Pennsylvania litigation). Paragraph 18 states that “[t]he
Parties agree to cooperate with each other and take such additional actions as necessary to
effectuate the purposes of this [Settlement] Agreement.” Plaintiff’s Complaint, at Ex. A. Plaintiff
appears to interpret paragraph 18 as an agreement on the part of Defendant to help Plaintiff in
Plaintiff’s separate lawsuit against Cottrell (in the Pennsylvania litigation).
18
Plaintiff’s Complaint, at 13.
19
Id.
8
privilege or divulge work product; the Settlement Agreement releases Defendant
from any claim related to the Pennsylvania litigation; and Plaintiff’s action is barred
by the statute of limitations.20
On March 4, 2020, Plaintiff filed its Response. Plaintiff argues that the
Settlement Agreement requires Defendant to cooperate in Plaintiff’s Pennsylvania
litigation, Defendant previously waived its attorney/client privilege in the Federal
Case, and the action is not barred by the statute of limitations.21
On April 16, 2020, the Court sent a letter to the parties requesting
Supplemental Briefing seeking clarification and identification of the date of the
alleged breach.
On April 24, 2020, Plaintiff submitted its Supplemental Brief. Plaintiff
denied that there was a specific breach.
20
On February 7, 2020, Defendant also filed a Motion for Sanctions contending that the Settlement
Agreement obligates Plaintiff to indemnify Defendant for any litigation (including the instant
action) relating to the Pennsylvania litigation. On March 4, 2020, Plaintiff filed its Response to
Defendant’s Motion for Sanctions. Plaintiff contends that it is not obligated to indemnify
Defendant for the instant action because “[t]his litigation follows [Defendant’s] refusal to
cooperate in breach of the Settlement Agreement for which no indemnification is owed.”
Plaintiff’s Response to Defendant’s Motion for Sanctions, at 2. Defendant’s Motion for Sanctions
is pending.
21
Plaintiff contends that Defendant cannot assert its attorney/client privilege to avoid its obligation
to cooperate under the Settlement Agreement because Defendant’s attorney/client privilege was
judicially determined to be waived in the Federal Case. See Plaintiff’s Response to the Motion to
Dismiss, at 4. Plaintiff also argues that Defendant cannot rely on its attorney/client privilege
because Defendant asserted claims against Cottrell for the same reasons that Plaintiff asserted
claims against Cottrell. Id. at 5.
9
On May 8, 2020, Defendant submitted its Supplemental Brief and identified
October 2013 as the date of the alleged breach.
The Parties’ Contentions22
In its Motion to Dismiss, Defendant writes that the Settlement Agreement is a
contract, the statute of limitations starts to run at the time of the alleged breach of
the contract, and the statute of limitations for breach of contract is three years from
the alleged breach. Defendant asserts that the alleged breach of the Settlement
Agreement occurred in 2013 when Defendant refused to sign an affidavit or waive
the privilege. Defendant argues that more than three years have passed since the
time of the breach and the action is now barred.
In Response, Plaintiff contends that its action is not barred by the statute of
limitations. Plaintiff argues that it “is seeking declaratory relief in connection with
[Defendant’s] ongoing obligations to cooperate with [Plaintiff].”23 Plaintiff, without
citing authority, further claims that “[Defendant’s] prior resistance to provide
documents in connection with third-party subpoena does not trigger a breach of
contract statute of limitations; instead it invokes the Court’s power to interpret the
terms of an agreement.”24
22
Because the statute of limitations issue is dispositive, this Opinion focuses only on the Parties’
contentions concerning the statute of limitations.
23
Plaintiff’s Response to Defendant’s Motion to Dismiss, at 6 (emphases in the original).
24
Id.
10
In its Supplemental Brief pursuant to the Court’s inquiry, Plaintiff asserts that
there is not “any specific breach which disposed of [Plaintiff’s] rights.”25 Instead,
Plaintiff writes, “there is a well-documented history of [Defendant’s] non-
cooperation… [and] the positions maintained by [Defendant] continue to adversely
affect [Plaintiff’s] pursuit of its claims [in the Pennsylvania litigation].”26 Plaintiff
adds that:
[Defendant’s] duty of cooperation set forth in the Settlement
Agreement remains effective until the [Pennsylvania litigation] is
finally resolved and while past refusals to provide documents are
evidence of non-compliance, there is a current, continuing necessity for
[Defendant’s] cooperation because discovery in the [Pennsylvania
litigation] is not completed…27
In its Supplemental Brief, Defendant writes that “the statute of limitations (sic)
determination is straightforward.”28 It explains that Plaintiff’s declaratory judgment
case is “founded upon the theory that [Defendant] breached the cooperation clause
of the Settlement Agreement by refusing to waive the attorney client privilege.”29
Defendant adds that the alleged breach of contract occurred in October 2013 when
Defendant refused to sign an affidavit or waive the attorney/client privilege.
25
Plaintiff’s Supplemental Brief, at 2. (internal quotation marks removed).
26
Id.
27
Id.
28
Defendant’s Supplemental Brief, at 2.
29
Id. at 3.
11
Defendant also points out that Plaintiff’s Complaint repeatedly references a breach
(i.e. Defendant materially breached the Settlement Agreement by refusing to waive
the attorney/client privilege).
Defendant also explains that the continuing breach doctrine (advanced by
Plaintiff) to extend the statute of limitations is “rarely invoked and cannot apply if
the Plaintiff could have alleged a claim after the initial breach.”30 It further contends
that “there is no doubt that [Plaintiff] could have alleged a prima facie case for breach
of contract in 2013 when, as [Plaintiff] admits, [Defendant] first refused to waive
privilege to assist [Plaintiff] in the [Pennsylvania litigation].”31
Standard of Review
The law is clear that the Court “accepts as true all well-pleaded allegations in
the complaint, and must view all inferences drawn from the facts plead in the light
most favorable to the plaintiff.”32 However, under Delaware Superior Court Rule
12(b)(6), the Court will dismiss a complaint “if it appears with reasonable certainty
that, under any set of facts that could be proven to support the claims asserted, the
plaintiff would not be entitled to relief.”33
30
Id. at 4. (internal quotation marks removed). citing Ocimum Biosolutions (India) Ltd. v.
AstraZeneca UK Ltd., 2019 WL 6726836, at *15 (Del. Super. Dec. 4, 2019).
31
Id.
32
Thomas v. Capano Homes Inc., 2015 WL 1593618, at *2 (Del. Super. Apr. 2, 2015).
33
Id.
12
Discussion
Delaware statutory law gives this Court authority to issue declaratory
judgments. The Delaware Declaratory Judgment Act states:
Except where the Constitution of this State provides otherwise, courts
of record within their respective jurisdictions shall have power to
declare rights, status and other legal relations whether or not further
relief is or could be claimed. No action or proceeding shall be open to
objection on the ground that a declaratory judgment or decree is prayed
for. The declaration may be either affirmative or negative in form and
effect, and such declaration shall have the force and effect of a final
judgment or decree.34
After reviewing the Complaint, Response, and Supplemental Briefs, it is
apparent that Plaintiff requests this Court to interpret the terms of the Settlement
Agreement and declare that Defendant is henceforward obligated to provide Plaintiff
with requested documents for use in the Pennsylvania litigation. Plaintiff is also
asking that this Court find that Defendant has already breached the Settlement
Agreement based on Defendant’s past refusal to provide the requested documents.
34
10 Del. C. § 6501.
13
In Delaware, the law is clear that settlement agreements are contracts.35 As
such, 10 Del. C. § 8106 controls the statute of limitations of contracts.36 Under §
8106, the statute of limitations for breach of contract is “three years from the date
that the cause of action accrued.”37 Furthermore, this Court has consistently held
that “the statute of limitations accrues at the time the contract is broken, not at the
time when actual damage results or is ascertained.”38
35
Crescent/Mach I Partners, L.P. v. Dr Pepper Bottling Co. of Texas, 962 A.2d 205, 208 (Del.
Dec. 1, 2008) (“Delaware law favors settlements and treats them as binding contracts.”), cited
favorably in Samuel L. Guy v. City of Wilmington, 2020 WL 2511122, at *2, fn. 6 (Del. Super.
May 15, 2020); Trexler v. Billingsley, 2017 WL 2665059, at *3, f.n. 14 (Del. June 21, 2017)
(“Settlement Agreements are contracts.”) quoting Schwartz v. Chase, 2010 WL 2601608, at *4
(Del. Ch. June 29, 2010). See also In Matter of Appraisal of Enstar Corp., 1989 WL 11139, at *5
(Del. Ch. Jan. 31, 1989); Parker-Hannifin Corp. v. Schlegal Electronics Materials, Inc., 589
F. Supp. 2d 457, 461 (Del. D. Dec. 9, 2008).
36
10 Del. C. § 8106 (a):
No action to recover damages for trespass, no action to regain possession of
personal chattels, no action to recover damages for the detention of personal
chattels, no action to recover a debt not evidenced by a record or by an instrument
under seal, no action based on a detailed statement of the mutual demands in the
nature of debit and credit between parties arising out of contractual or fiduciary
relations, no action based on a promise, no action based on a statute, and no action
to recover damages caused by an injury unaccompanied with force or resulting
indirectly from the act of the defendant shall be brought after the expiration of 3
years from the accruing of the cause of such action; subject, however, to the
provisions of §§ 8108-8110, 8119 and 8127 of this title.
37
Levey v. Brownstone Asset Management, LP, 76 A.3d 764, 768 (Del. Aug. 27, 2013).
38
Lavender v. Koenig, 2017 WL 443696, at *3 (Del. Super. Feb. 1, 2017) (internal quotation marks
removed). See also Greto v. Joseph L. Messa, Jr. & Associates, P.C., 2018 WL 3559262, at *2
(Del. Super. July 23, 2018) (“a cause of action for breach of contract accrues at the time of the
breach.”); Nardo v. Guido DeAscanis & Sons, Inc., 254 A.2d 254, 256 (Del. Super. May 26, 1969)
(“A cause of action for breach of contract accrues at the time of the breach and a cause of action
in tort accrues at the time of the injury.”); Eshelman v. Thomson, 1979 WL 193327, at *1 (Del.
Super. Jan. 29, 1979) (“The cause of action for breach of a contract accrues at the time of the
breach”); Ensminger v. Merritt Marine Coast, Inc., 597 A.2d 854, 856 (Del. Super. Dec. 22, 1988)
14
Although Plaintiff appears to suggest that the three-year statute of limitations
applies only to breach of contract actions and not to declaratory judgment actions,
the three-year statute of limitations applies to any action that is based on a promise
– including a judgment action.39 This Court has held that where a declaratory
judgment action “bears little difference… from… a potential breach-of-contract
claim,” contract defenses are applicable.40 So too, the Delaware Chancery Court has
concluded that a declaratory judgment claim that is the functional equivalent of a
breach of contract claim and is subject to the three-year statute of limitations defense
by analogy.41
(“An action for breach of contract accrues at the time of the breach.”); Kaplan v. Jackson, 1994
WL 45429, (Del. Super. Jan. 20, 1994) (“Delaware courts have… held a cause of action for breach
of contract accrues at the time of the breach.”); Christiana Marine Service Corp. v. Texaco Fuel
and Marine Marketing, 2002 WL 1335360, at *3 (Del. Super. June 13, 2002) (“The 3 year
limitation on cause of actions for an alleged breach of contract accrues at the time of the breach.”).
39
Eluv Holdings (BVI) Ltd. v. Dotomi, LLC, 2013 WL 1200273, at *5 (Del. Ch. Mar. 26, 2013)
(In a declaratory judgment action, the Chancery Court held that “[u]nder 10 Del. C. § 8106, an
action based on a promise is subject to a three-year limitations period [and] [p]laintiffs’ claims are
based on a promise.”) (internal quotation marks removed). See also Coit Capital SEC., LLC v.
Turbine Asset Holdings, LLC, 2019 WL 3949800, at *9 (Del. Super. Aug. 21, 2019) (“[A] request
for declaratory relief is a claim seeking non-monetary, affirmative relief. And any cross- or
counterclaim for such affirmative relief must satisfy any applicable statute of limitations.”).
40
Bobcat North America, LLC v. Inland Waste Holdings, LLC, 2019 WL 1877400, at **5-6 (Del.
Super. Apr. 26, 2019) (concluding that contract defenses can be applied to a declaratory judgment
action).
41
See Eluv Holdings (BVI) Ltd, 2013 WL 1200273, at **5, 9; Kraft v. Wisdom Tree Investment
Inc., 145 A.3d 969, 985, fn. 62 (Del. Ch. Aug. 3, 2016).
15
Here, Plaintiff’s action is based on an alleged promise in a contract, Plaintiff
requests interpretation of the terms of that contract, and Plaintiff seeks to pursue
damages for a breach of that contract.42 Plaintiff’s claims present little, if any,
difference from a breach of contract claim. Indeed, Plaintiff repeatedly alleged (in
its Complaint and, again, in its Response to Defendant’s Motion for Sanctions) that
Defendant materially breached the Settlement Agreement.43 Plaintiff’s Complaint
asserts:
42
In addition to requesting a declaration that Defendant is obligated to cooperate in the
Pennsylvania litigation, Plaintiff requests a declaration that it “may pursue damages, including but
not limited to reimbursement from [Defendant] of its costs in enforcing the Settlement Agreement
and all direct and consequential damages resulting from [Defendant’s] breach.” Plaintiff’s
Complaint, at 14.
43
Several instances when Plaintiff alleges the breach of contract include:
“[Plaintiff] believes that this conduct is a material breach of the Settlement
Agreement.” Plaintiff’s Complaint, at 12. (emphasis added).
“[Defendant’s] actions constitute a material breach of the Settlement Agreement.”
Id. at 13. (emphasis added).
“An actual, present, and justiciable controversy exists between [Plaintiff] and
[Defendant] concerning [Defendant’s] obligations pursuant to the Settlement
Agreement and whether the actions of [Defendant] have been a material breach of
the Settlement Agreement.” Id. at 13. (emphasis added).
“[Plaintiff] is entitled to judgment from this Court declaring [Defendant’s]
obligations pursuant to the Settlement Agreement and that [Defendant] has
materially breached the Settlement Agreement.” Id. (emphasis added).
“[Plaintiff] owes [Defendant] nothing for its breach of its duty to cooperate… This
litigation follows [Defendant’s] refusal to cooperate in breach of the Settlement
Agreement for which no indemnification is owed.” Plaintiff’s Response to
Defendant’s Motion for Sanctions, at 2. (emphasis added).
“This litigation is based on [Defendant’s] breached duty of cooperation…” Id. at
5. (emphasis added).
16
Based on the lack of cooperation by [Defendant], and despite its
knowledge of the relevance of the documents and depositions in
[Plaintiff’s] action against [Cottrell]; [Defendant] has assisted
[Cottrell,] and denied [Plaintiff] access to relevant discovery.
[Plaintiff] believes that this conduct is a material breach of the
Settlement Agreement.44
The gravamen of Plaintiff’s complaint is Defendant’s “confrontation” to
subpoenas obtained by Plaintiff after Defendant refused to cooperate in Plaintiff’s
October 2013 request for “Defendant’s] cooperation and… affidavit waiving any
purported attorney/client privilege [Cottrell] might assert.”45 It is clear that Plaintiff
understood in 2013 that Defendant “refused to sign the affidavit” and that
Defendant’s action was unequivocal.46 As such, the alleged breach of the Settlement
Agreement occurred in 2013 and Defendant’s subsequent non-cooperation and
“resistance” to subpoenas (that Plaintiff ultimately withdrew) does not change the
date of the alleged breach. Plaintiff had until 2016 to file a timely action against
Defendant concerning the breach. Plaintiff did not file its action within the three-
year period.
Furthermore, Plaintiff’s recent denial of a “specific breach” does not insulate
its case from the statute of limitations’ bar. Plaintiff fails to reconcile this denial
44
Plaintiff’s Complaint, at 12.
45
Id. at 10.
46
Id.
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with his previous and repeated assertions (in its Complaint and its Response to
Defendant’s Motion for Sanctions) that beginning in 2013 Defendant materially
breached the Settlement Agreement.47 Moreover, Plaintiff provides no legal
authority to support its position that Defendant’s “well-documented history” of
unwavering “non-cooperation,” after the (alleged) 2013 breach, tolls the statute of
limitations for the 2013 breach.
Additionally, to the extent that Plaintiff is invoking the continuing breach
doctrine, also called the “continuous contract doctrine,”48 its argument fails. That
doctrine is for exceptional circumstances. In Ocimum Biosolutions (India) Limited
v. AstraZeneca UK Limited, this Court explained the continuing breach doctrine may
be applicable:
… [in] limited circumstances in which a breach of contract claim cannot
be alleged at the time of breach because damages cannot be ascertained
at that time. Under this exception, if there is a continuing injury for
which the damages cannot be determined until the alleged wrong
ceases, the statute of limitations begins to run on the last date of the
alleged wrong.49
This Court has held that this doctrine has limited use. “The continuing breach
doctrine applies in narrow and unusual factual situations where the alleged wrongful
47
See Footnote 43.
48
Ocimum Biosolutions (India) Limited v. AstraZeneca UK Limited, 2019 WL 6726836, at *14,
fn. 127 (Del. Super. Dec. 4, 2019).
49
Id. at 14.
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acts are so inexorably intertwined that there is but one continuing wrong.”50 The
doctrine does not apply if “a plaintiff could allege a prima facie case for breach of
contract after a single incident… even if a defendant engages in numerous repeated
wrongs of similar, if not same, character over an extended period.”51 Plaintiff’s
complaint of a “continuing necessity” does not constitute a continuing breach.
Here, Plaintiff’s Complaint clearly alleges that Defendant, in October 2013,
refused to provide documents. Plaintiff was aware in 2013 of that distinct and
definite refusal to cooperate. Plaintiff could have asserted its request to the Court
up to and until 2016. Plaintiff has not provided a reason for waiting beyond that
time and more than three years after the breach to file its action, Plaintiff’s 2019
complaint does not change anything concerning its ability to allege a prima facie
case that Defendant breached the Settlement Agreement in 2013, and Defendant’s
subsequent refusals (to divulge arguably privileged information) do not create any
new causes of action or statutes of limitations.
Therefore, accepting Plaintiff’s allegations as true, the Court finds that
Defendant’s alleged breach of an alleged obligation occurred in 2013. Plaintiff’s
instant action, filed nearly six years later, is barred by the statute of limitations.
50
Id. at 15 (internal quotation marks removed).
51
Id. See also, AM General Holdings LLC v. The Renco Group, Inc., 2016 WL 4440476, at *12
(Del. Ch. Aug. 22, 2016) (“[T]he doctrine of continuing breach will not serve to extend the accrual
date for a breach of contract claim where the alleged wrongful acts are not so inexorably
intertwined that there is but one continuing wrong.”) (internal quotation marks removed).
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Conclusion
Accordingly, for the foregoing reasons, Defendant’s Motion to Dismiss is
GRANTED.
IT IS SO ORDERED.
/s/ Diane Clarke Streett___
Diane Clarke Streett, Judge
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