Opinion
C.A. No. 06C-08-031 JTV.
Submitted: December 8, 2006.
Decided: March 30, 2007.
Upon Consideration of Defendant Correctional Medical Services, Inc.'s Motion to Dismiss.
DENIED.
Stephen A. Hampton, Esq., Grady Hampton, Dover, Delaware. Attorney for Plaintiff.
Ophelia Waters, Esq., Department of Justice, Wilmington, Delaware. Attorney for the State.
Bradly J. Goewert, Esq., and Lorenza A. Wolhar, Esq., Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, Delaware. Attorneys for Defendant Correctional Medical Services, Inc. Daniel L. McKenty, Esq., and Dana S. Monzo, Esq., McCullough McKenty, Wilmington, Delaware. Attorneys for Defendants First Correctional Medical-Delaware, LLC., Sitta Gombeh-Alie, M.D., and Tammy Kastre, M.D.
Colleen D. Shields, Esq., Elzufon, Austin, Reardon, Tarlov Mondell, Wilmington, Delaware. Attorney for Defendant Christina Damron, R.N.
ORDER
Upon consideration of defendant Correctional Medical Services, Inc.'s motion to dismiss portions of the plaintiff's complaint pursuant to Superior Court Civil Rule 12(b)(6) and to strike portions of plaintiff's complaint pursuant to Superior Court Civil Rule 12(f), the plaintiff's opposition, and the record of the case, it appears:
1. In his complaint, the plaintiff, a former inmate held by the Department of Correction, alleges that the defendant violated his constitutional rights and committed medical negligence.
2. The defendant contends that the complaint should be dismissed under Rule 12(b)(6) for any acts or omissions of the defendant which are alleged to have occurred before June 30, 2002. The rationale of the defendant's contention is that it provided medical services to inmates, including the plaintiff, under a contract from July 1, 2000 through June 30, 2002; that claims of constitutional violations and medical negligence are both subject to a two-year statute of limitations; and that, therefore, any claim brought after June 30, 2004 is barred by the statute of limitations. This action was filed in 2006.
3. In response, the plaintiff contends that the statute of limitations for claims of constitutional violations is subject to the "time of discovery" rule, and that under this rule his constitutional allegations are not barred. He also contends that the defendant engaged in fraudulent concealment of facts, and that this tolls the statute of limitations for both his constitutional and medical negligence claims. He also contends that he received continuous negligent medical treatment from July 1, 2000 through July 21, 2005. Under this theory, the plaintiff contends, the statute of limitations does not begin to run until the last act, which allegedly occurred in July 2005.
4. Before addressing the substance of this motion in this case, I note that the statute of limitations is an affirmative defense. It should be pled in an answer, not raised by way of a Rule 12(b)(6) motion. After being so pled, it can be raised by a motion for judgment on the pleadings or a motion for summary judgment.
Superior Court Civil Rule 8(c). I acknowledge that at times the Court has proceeded to address the merits of a statute of limitations defense in the context of a 12(b)(6) motion. Middlebrook v. Ayres, 2004 Del. Super. LEXIS 179.
Superior Court Civil Rule 12(c).
5. Turning to the issues raised by the motion, at this point there is no record beyond the complaint and the papers required to be filed with it, the defendant's motion and the plaintiff's response. There is not an adequate factual record to support or defeat the plaintiff's contention that the "time of discovery" rule applies. Nor is there an adequate factual record to support or defeat his allegation that the defendant "fraudulently concealed" facts, or that he received continuous negligent medical treatment.
At argument on the motion, there was some mention of the requirement of Superior Court Civil Rule 9(b) that fraud be alleged with particularity. However, the plaintiff is not required to anticipate affirmative defenses in his complaint.
5. The motion to strike portions of the plaintiff's complaint pursuant to Superior Court Rule 12(f) is too vague to be addressed.
6. Therefore, the defendant's motion is denied without prejudice to the defendant to re-raise these issues at a later point in the litigation. I express no opinion here concerning either the legal or factual merits of the issues raised.
IT IS SO ORDERED.