Opinion
C.A. No. 04C-07-028 WCC.
Submitted: January 21, 2005.
Decided: April 27, 2005.
Upon Defendants' Motion to Dismiss. DENIED.
Joseph J. Longobardi, III, Wilmington, Delaware, Attorney for Plaintiffs.
Michael I. Silverman, Silverman, McDonald Friedman, Wilmington, Delaware, Attorney for Defendants.
ORDER
After consideration of the record and the parties' submissions, the Court will deny Defendants' Motion to Dismiss.
On Tuesday July 6, 2004, Plaintiffs filed a complaint for personal injuries resulting from an automobile accident which occurred on July 3, 2002. Defendants moved to dismiss the complaint, claiming that the Plaintiffs' case is jurisdictionally time barred because it was filed after the two year statute of limitations had expired. However, July 3, 2004 was a Saturday and Plaintiffs assert that despite the fact that the two years expired on July 3, 2004, Super. Ct. Civ. R. 6(a) provides the latitude necessary to save their complaint.
If a plaintiff may recover under any reasonably conceivable set of circumstances, a motion to dismiss must be denied. "Only if a court can say that the plaintiff could prevail on no set of fact inferable from the pleadings may it dismiss the complaint . . . [for failure to state a claim]. In addition, for the purposes of a motion to dismiss for failure to state a claim under Rule 12(b)(6), all the allegations in the complaint must be accepted as true. A motion to dismiss must be decided solely upon the allegations set forth in the complaint. In addition, a party "is bound by the allegations in the complaint."
See Spence v. Funk, 396 A.2d 967 (Del. 1978).
Rammuno v. Cawley, 705 A.2d 1029, 1034 (Del. 1998).
See Barni v. Kutner, 76 A.2d 801 (Del. 1950).
See Growbow v. Perot, 539 A.2d 180, 187 (Del. 1988).
Monsanto Co. v. Aetna Casualty and Surety Co., 1993 WL 542399, at *6 (Del.Super.).
In Associated Transport, Inc. v. Pusey, this Court held that "where the last day of the period prescribed by a statute of limitations for commencing an action falls on a Sunday, such action is not barred if commenced on the next day which is not dies non juridicus." Similarly, in Bivens v. Mattero, this Court denied the defendant's motion for summary judgment, holding that where the statute of limitations expired on a Saturday the fact that the plaintiff did not file until the following Monday did not constitute grounds for summary judgment. Rule 6(a) states that
118 A.2d 362, 363 (Del.Super.Ct. 1955).
2004 WL 1732213, *1 (Del.Super.).
"[i]n computing any period of time prescribed or allowed by these Rules, by order of court, or by statute, the day of the act, event or default after which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday or Sunday, or other legal holiday, or other day on which the office of the Prothonotary is closed, in which event the period shall run until the end of the next day on which the office of the Prothonotary is open." The Court agrees with Plaintiffs that Rule 6(a) governs the present set of circumstances and as a result their complaint will not be dismissed for violating the statute of limitations.
Super. Ct. Civ. R. 6(a) (emphasis added).
Associated Transp., Inc., 118 A.2d at 363.
The Court already addressed Defendants' concerns regarding service in a letter dated January 1, 2005, which concluded that issue lacked merit. For the reasons set forth above, Defendants' Motion to Dismiss is hereby DENIED.
IT IS SO ORDERED.