JAN R. JURDEN, JUDGE.

Dear Counsel:

This letter follows the December 8, 2003 oral argument on defendant Asset Management Alliance's Motion to Dismiss. Because of the looming trial date and my heavy criminal trial schedule, I am issuing a brief opinion which I will be happy to elaborate on during the pretrial conference or before then, on a teleconference, if you so desire.

As you know, this matter stems from a slip and fall which occurred on January 26, 2000. The only defendant named by plaintiff in the complaint was the City of Wilmington. On October 17, 2002, after the two year statute of limitation had expired, plaintiffs filed an amended complaint naming Asset Management Alliance as an additional defendant. Prior to the filing of the amended complaint, the Court granted the City of Wilmington's request to name Asset Management Alliance as a co-defendant in August 2002.

Asset Management Alliance has filed the instant Motion to Dismiss claiming that plaintiffs were required under 10 Del. C. § 8119 to institute their action against Asset Management Alliance on or before January 26, 2002.

Plaintiffs claim that the amended complaint, adding Asset Management Alliance as a defendant after the statute of limitations expired, relates back to the original complaint because the requirements of Super. Ct. Civ. R. 15(c) are met. Super. Ct. Civ. R. 15(c) provides:

An amendment of a pleading relates back to the date of the original pleading when: (1) relation back is permitted by the law that provides the statute of limitations applicable to the action, or (2) the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading; or (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party.

There is no dispute that the claims against Asset Management Alliance arise from the same conduct, transaction or occurrence set forth in the original pleading. However, Asset Management Alliance disputes that it received such notice of the institution of the action that it will not be prejudiced in maintaining a defense on the merits, or that it knew or should of known that, but for a mistake concerning the identity of the proper party, plaintiffs would have included it as a defendant in the original complaint.

On October 2, 2001, plaintiffs took the deposition of Richard Stevenson, an employee of Asset Management Alliance. Plaintiffs learned through Mr. Stevenson's testimony that he was responsible for snow and ice removal from the area in question during the relevant time period. During oral argument, the Court questioned plaintiffs extensively as to why Asset Management Alliance knew or should have known that, but for a mistake concerning the identity of the proper party, it would have been named in the original complaint. Plaintiffs' counsel responded that Asset Management Alliance knew or should have known about the existence of a contract between the City of Wilmington and itself and what responsibilities that contract imposed upon it, the City of Wilmington and/or other subcontractors for snow and ice removal. The Court is unpersuaded by this argument. There is simply no evidence in the record suggesting that Asset Management Alliance knew or should have known that plaintiffs made a mistake concerning the identity of the proper party, or knew or should have known that, but for such a mistake, the plaintiffs would have sued Asset Management Alliance. Once Mr. Stevenson's deposition was taken and plaintiffs were on notice of Mr. Stevenson's role and responsibility (as an employee of Asset Management Alliance) for removal of ice and snow from the premises in question, and plaintiffs then failed to file an amended complaint naming Asset Management Alliance as a defendant before the expiration of the statute of limitation on January 26, 2002, it was reasonable for Asset Management Alliance to conclude that plaintiffs had made a conscious decision not to include Asset Management Alliance as a named defendant.

This case is distinguishable from Mullen v. Alarmguard of Delmarva, Inc., in that there is no evidence in the record that Asset Management Alliance, through Mr. Stevenson's testimony or in any other way, attempted to obscure its identity or mislead plaintiffs in any way. This case is more on par with Johnson v. Paul's Plastering, Inc. Asset Management Alliance had a good faith basis, in light of plaintiffs' failure to name Asset Management Alliance as a defendant after the Stevenson deposition, to conclude there had been no mistake by plaintiffs as to Asset Management Alliance's identity or role, and that plaintiffs deliberately chose not to sue Asset Management Alliance. By their own admission, plaintiffs acknowledge that they took no additional discovery after the Stevenson deposition in order to further clarify the role Asset Management Alliance played (or did not play) in ice and snow removal from the premises in question.

The Court further finds that plaintiffs have failed to satisfy their burden of proof on the issue of whether defendant Asset Management Alliance received such notice of the institution of the action that it would not be prejudiced in maintaining a defense on the merits. As Asset Management Alliance points out, the event which triggered the initial lawsuit against the City of Wilmington occurred almost four years ago. Memories have faded, it is possible witnesses have left the employ and control of Asset Management Alliance and/or the City of Wilmington, and Asset Management Alliance would be forced, if its motion is not granted, to somehow reconstruct the events of long ago in order to defend this lawsuit on the merits.

In conclusion, the Court does not find that there was a mistake concerning the identity of Asset Management Alliance or, that at anytime prior to receiving actual notice of the suit against it, Asset Management Alliance should have suspected or assumed that, but for such a mistake, plaintiffs would have instituted an action against it.

For the reasons stated above, Asset Management Alliance's Motion to Dismiss is GRANTED. The Court will hear oral argument on the City of Wilmington's Motion for Summary Judgment at the time previously set aside for the pretrial conference — January 27, 2004 at 9:00 a.m. The pretrial conference is postponed and will be rescheduled at a later date.