Opinion
C.A. No. 99C-07-323 JRJ.
June 17, 2004.
ORDER GRANTING LEAVE TO APPEAL FROM INTERLOCUTORY ORDER
This 17th day of June, 2004, the Defendants having made application pursuant to Rule 42 of the Supreme Court for an order certifying an appeal from the interlocutory order of this Court, dated April 16, 2004; and the Court having found that such order determines substantial issues and establishes legal rights, and having further found that the Court's ruling involves case dispositive issues that may terminate the litigation, and a review of these issues would serve considerations of justice as further explained below;
IT IS ORDERED that the Court's order of April 16, 2004, is hereby certified to the Supreme Court of the State of Delaware pursuant to Supreme Court Rule 42(b).
CASE DISPOSITIVE ISSUES
After extensive briefing, this Court granted leave for the plaintiff to amend the original complaint in a lengthy October 14, 2003 Opinion (which was amended on April 30, 2004). The defendants subsequently filed a Motion to Dismiss in which they asserted that the statute of limitations had expired on plaintiffs' claims. The Court denied the defendants' Motion to Dismiss in a bench ruling on April 16, 2004, and the defendants then sought certification of an interlocutory appeal. The Court hereby grants leave to appeal from this interlocutory order because there are at least two central issues that are dispositive and may lead to a termination of the litigation in this case.
There were originally two plaintiffs in this action, but Willie Parker was dropped as a named party in the Amended Complaint. The original caption read in full: Joyce Parker and Willie Parker v. State of Delaware, Secretary Thomas Eichler, Individually and as Agent for the State of Delaware, and Janet Kramer, Individually and as agent for the State of Delaware, and Diane Gadow, Individually and as Agent for the State of Delaware.
(1) Waiver of the Statute of Limitations Defense
This Court denied the defendant's Motion to Dismiss and ruled that their statute of limitations argument had been waived because they failed to present this affirmative defense at the earliest practicable moment. The Court based this ruling in part on the fact that party and judicial resources were wasted when this dispositive argument was not raised when both parties extensively briefed whether leave to amend the complaint should be granted. Defendants contend that they timely raised the statute of limitations defense in their first responsive pleading to the Amended Complaint. This Court disagrees with the defendant's argument that this affirmative defense was raised in a timely manner. If 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.
See Robinson v. Johnson, 313 F.3d 128 (3rd Cir. 2002) (holding that a statute of limitations defense must be raised at the earliest practicable moment).
If the plaintiff's action is truly barred by the statute of limitations, then granting leave to amend the original state compliant would have been futile. Futility is one of the factors to be considered when deciding whether to grant leave to amend, but the defendants did not argue that granting leave to amend would be futile. As the April 30, 2004 Amended Opinion explains, the defendants only mentioned the statute of limitations in arguing that Section 1983 was a new cause of action. But this Court found that the Section 1983 claims were not newly introduced by the Amended Complaint.
(2) Relation Back of Amendments — The United Phosphorous Footnote
As explained in this Court's October 14, 2003 Opinion and the April 30, 2004 Amended Opinion, if the plaintiff's State Action ("State I" filed in Delaware Superior Court) relates back to the filing date of her virtually identical Federal Action ("USDC I" filed in the District Court for the District of Delaware), then the defendants' statute of limitations argument will fail because the Federal Action was timely filed. Whether the savings statute ( 10 Del. C. § 8118) applies or mandates that State I relate back to the date of filing of USDC I is the precise issue that was not addressed by the Delaware Supreme Court in United Phosphorous, Ltd. v. Micro-Flo, LLC, 808 A.2d 761, n. 8 (Del. 2002) ("We do not reach the question of whether the savings statute mandates that the Delaware State Action relate back to the date of filing of the Delaware Federal Action."). If this relation back issue and the waiver issue are determined in the defendants' favor, then this case will be dismissed. Prompt resolution of these legal issues will certainly save substantial time and expense while serving the administration of justice.
Although the parties did not specifically address the relation back issue left open by the United Phosphorous decision when arguing over leave to amend the Original Complaint, they briefed the relation back issue in contesting the instant Motion to Dismiss. ( See Docket Nos. 38, 39, 42, 43, 45 and 46.)
Addressing Plaintiff's Opposition to Granting an Interlocutory Appeal
Plaintiff argues that the defendants' application for an interlocutory appeal is untimely. However, this Court verbally granted the defendants an extension of time to file and serve the application because of the substantial legal issues involved and in order to accommodate vacation schedules. In light of the substantial legal issues and the extraordinary amount of latitude that the plaintiffs have been afforded on the deadlines in this case, the Court exercised its discretion in granting defendants some extra time in order to prepare an interlocutory appeal. Furthermore, once this Order granting leave for an interlocutory appeal is filed, the defendants can file the Supplemental Notice as required by Delaware Supreme Court Rule 42.
Given the tortured procedural history of this case, an immediate determination of these legal issues will serve considerations of justice. The Court does not want to allow discovery and a trial to go forward if the plaintiff will only find her action to be barred by the statute of limitations on a subsequent appeal.