Opinion
C.A. No. 99C-07-323 JRJ.
Submitted: July 12, 2005.
Decided: August 5, 2005.
Upon Defendant Diane Gadow's Motion to Dismiss — GRANTED.
John M. LaRosa, Esquire, Law Office of John M. LaRosa, Two East Seventh Street, Suite 302, Wilmington, Delaware 19801, and Thomas S. Neuberger, Esquire, Thomas S. Neuberger, P.A., Two East Seventh Street, Suite 302, Wilmington, Delaware 19801, for plaintiffs.
Michael F. Foster, Esquire, Deputy Attorney General, Carvel State Office Building, 820 North French Street, Wilmington, Delaware 19801 for defendants.
ORDER
This matter is presently before the Court on Diane Gadow's (hereinafter "Gadow") motion to dismiss. For the reasons that follow, the motion is GRANTED.
1. The procedural posture of this case is well documented and will not be reiterated here except as is necessary to provide background to this Order. In its October 14, 2003 Opinion (which the Court amended on April 30, 2004), this Court granted leave for Joyce Parker (hereinafter the "Plaintiff") to amend her original complaint. Gadow and then co-defendant Janet Kramer (hereinafter "Kramer") each subsequently filed motions to dismiss. In an office conference on April 16, 2004, the Court granted Kramer's motion to dismiss, ruling that the statute of limitations had run on her claims and that the Delaware savings statute (10 Del. C. § 8118) did not apply to her claims. The Court denied Gadow's motion to dismiss, holding that she had waived her statute of limitations defense. The Court granted Gadow leave to appeal from this interlocutory order stating that, if the Supreme Court found that Gadow had not waived her statute of limitations defense, and that the Plaintiff's cause of action was not subject to the Delaware savings statute, then this case would be dismissed.
On June 29, 2005, the Court issued an Order granting Gadow's motion to dismiss. On July 12, 2005, the Court vacated that Order. The following Order is the Court's final determination on Gadow's motion to dismiss.
The full text of 10 Del. C. § 8118 reads as follows:
If in any action duly commenced within the time limited therefor in this chapter, the writ fails of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to whom it is committed; or if the writ is abated, or the action otherwise avoided or defeated by the death of any party thereto, or for any matter of form; or if after a verdict for the plaintiff, the judgment shall not be given for the plaintiff because of some error appearing on the face of the record which vitiates the proceedings; or if a judgment for the plaintiff is reversed on appeal or a writ of error; a new action may be commenced, for the same cause of action, at any time within one year after the abatement or other determination of the original action, or after the reversal of the judgment therein.
See Docket No. 63.
2. On January 5, 2005, the Supreme Court of Delaware held that Gadow had not waived her statute of limitations defense and remanded this case to the Superior Court. In its opinion, the Supreme Court held that the Plaintiff was free to raise an argument that the Delaware savings statute applied to her claims and suggested that both parties "brief the impact, if any, of the recent decision of the United States Supreme Court decision (sic) in Jones v. Donnelly Sons, Co., 124 S.Ct. 1836 (2004)."
See Gadow v. Parker, Del. Supr., No. 228, 2004, Jacobs, J. (January 5, 2005).
Id.
3. This Court has already ruled that a two-year statute of limitations applies to the Plaintiff's claims. Here, the Plaintiff alleges that she was wrongfully terminated by Gadow on July 31, 1996. The Plaintiff filed her complaint in this Court on July 30, 1999. The Plaintiff, therefore, filed her complaint after the expiration of the two-year statute of limitations. As noted above, this Court stated in its order granting the interlocutory appeal that if the Supreme Court ruled in favor of Gadow on the waiver issue, then the Plaintiff's claims against her would be dismissed.
See Parker v. State, 2003 WL 2401961 (Del.Super.Ct. 2003).
Docket No. 63 at 3 (stating "[i]f the Supreme Court finds that the defendants have not waived their statute of limitations defense, and that the plaintiff's cause of action is not subject to the savings statute, then this case will be dismissed.").
4. The next issue is whether the Delaware savings statute is available to save the Plaintiff's cause of action. If the Plaintiff's Superior Court complaint relates back to the filing date of her District Court action, then Gadow's statute of limitations defense fails because the District Court Action was timely filed. The Court has already ruled, however, in granting Kramer's motion to dismiss, that the Delaware savings statute does not apply to the Plaintiff's case. Specifically, the Court held that the Delaware savings statute is only triggered when the original action is abated. Here, the Plaintiff filed her Superior Court action while the District Court action was still pending. The Court held that to allow relation back in this case would not serve the purpose of the Delaware savings statute. There is nothing factually or procedurally in the record to lead the Court to reach a different conclusion with respect to the Plaintiff's claims against Gadow. Thus, the Court holds that the Delaware savings statute does not apply to save the Plaintiff's action against Gadow.
On July 30, 1998, the Plaintiff filed a complaint in the United States District Court for the District of Delaware asserting the identical discrimination claims against the same defendants as those in the present case.
The parties have already briefed the relation back issue in contesting the instant motion to dismiss. ( See Docket Nos. 38, 39, 42, 43, 45 and 46.).
See Docket No. 60 at 10-17.
5. Finally, the Court does not find that the recent United States Supreme Court decision in Jones v. Donnelly Sons, Co., 124 S.Ct. 1836 (2004) affects the outcome here. On December 1, 1990, Congress enacted 28 U.S.C. § 1658 which created a four-year catch all statute of limitations for all claims arising under federal legislation enacted after December 1, 1990. In Jones, the Petitioners asserted claims against their private employer alleging discrimination under 42 U.S.C. § 1981. The Supreme Court applied the new four-year catch all statute of limitations to the Petitioners' hostile work environment, wrongful termination and failure-to-transfer claims, brought under § 1981.
6. The Plaintiff in this case argue that the four-year catch all statute of limitations should apply to her discrimination claims based on the ruling in Jones. However, the present case is distinguishable from the Jones case for two reasons. First, the Plaintiff has not brought claims exclusively under 42 U.S.C. § 1981. Rather, the Plaintiff has also asserted identical discrimination claims under 42 U.S.C. § 1983. Second, this case is further distinguishable from Jones because the Plaintiff's claims are asserted against state actors, whereas, in Jones, the claims were asserted against a private actor. As the United States Supreme Court held, "Congress intended that the explicit remedial provisions of § 1983 be controlling in the context of damages actions brought against state actors alleging violation of the rights declared in § 1981." There is no question that Gadow is a state actor, acting in her capacity as a state actor. Thus, the express cause of action for damages created by § 1983 constitutes the "exclusive federal remedy for violation of the rights guaranteed in § 1981 by state governmental units." However, this exclusive federal remedy under § 1983 does not apply to the Plaintiff's § 1981 claims because her § 1983 claims are barred by the two year statute of limitations, and thus, so are her § 1981 claims. Therefore, the four-year catch all statute of limitations and Jones do not apply to this case.
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731 (1989) (emphasis added).
Id. at 733.
7. Based on the reasons set forth above, the Court finds that dismissal in this case is appropriate. The Plaintiff's action is barred by the statute of limitations and the Delaware savings statute does not apply. Gadow's motion to dismiss, therefore, is GRANTED.