Walker v. Handler, 2010 Del. Super. LEXIS 486 (Del. Super. Ct. Nov. 17, 2010) (Johnston, J.)

Del.R.Civ.P. 15(c)(3) permits plaintiff to amend complaint after expiration of statute of limitations because defendant was served within 120 days required by Del.R.Civ.P. 4(j) and knew/should know it should have been named efendant in original complaint.

Handler was allegedly working as a pizza delivery man for Nino's Pizza when his car impacted the plaintiffs' vehicle. The plaintiffs sued Handler and Nino's a day before the relevant statute of limitations was set to expire and served Nino's with the complaint about a month later. The plaintiffs moved to amend their complaint, after expiration of the statute of limitations, to substitute Diomede Enterprises of Middletown, Inc. for Handler's co-defendant, Nino's Pizza. The Superior Court concluded that, as amended, Del. R. Civ. P. 15(c)(3) permitted the amendment because Diomede was served within the 120 days required by Del. R. Civ. P. 4(j), and because Diomede knew or should have known that it should have been named as a defendant in the Walkers' original complaint. The Walkers later filed a motion, pursuant to Del. R. Civ. P. 15(c), to substitute Diomede for Nino's. Diomede argued that it could not be substituted as a defendant because it had not received notice of the complaint within the statute of limitations applicable to the Walkers' claims. The question before the court was whether, under Del. R. Civ. P. 15(c)(3), an amendment substituting a party may "relate back" to the date the complaint was filed when the new party received notice after the statute of limitations expired, but within the 120 days provided for service. The court concluded that "the only reasonable interpretation" of the rule "is that the party subject to amendment may be added (or substituted) if that party received notice of the claim within the 120 days permitted for service of a complaint following termination of the relevant statute of limitations." The court found Diomede had notice of the Action and that Diomede knew, or should have known, that, but for a mistake in naming Nino's as a defendant, it would have been named as a defendant from the start. The court concluded that, "in the interests of justice," the Walkers were permitted to amend the complaint to substitute Diomede for Nino's.

Case Law Alert - 1st Qtr 2011