Moody v. 2701 Kirkwood, LLC ( 2023 )

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.
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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.
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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
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