Posted by: Patricia Salkin | February 3, 2016

DE Supreme Court Upholds Dismissal of Amended Complaint For Failure to Timely Join a Necessary Party in Variance Dispute

Petitioner Mary Sue DiFebo argued that the Superior Court erred by dismissing her amended petition seeking review of a Board of Adjustment decision that granted a variance application for two land plots located near DiFebo’s home to be subdivided into four flag lots. The Superior Court dismissed, finding DiFebo had not named the owners of the two properties that were the subject of the Board’s proceeding within the thirty-day statute of limitations. As an alternative reason for dismissal, the Superior Court found that DiFebo had not met the requirements for relation back under Superior Court Civil Rule 15(c)(3).

DiFebo first argued that the Superior Court erred because it held that her amendment to add the indispensible property owners could not relate back to her timely initial filing unless it was filed within the statute of limitations under the relevant statute which, she argued, applied the old version of Rule 15(c). The court found that the Superior Court failed to take account of a 1993 amendment to Rule 15(c); importantly, Rule 15(c)(3) allows for the relation back of an amendment as long as the rule’s requirements are satisfied “within the period provided by … these Rules for service of the summons and complaint.” Thus, DiFedo’s petition should not have been dismissed on this ground.

One of the conditions for relation back to apply was that DiFebo was required to show that, within the period of time for service, the property owners “knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against them.” However, the court noted that Delaware courts generally decline to find a mistake when the plaintiff cannot demonstrate an intent to include the unnamed party before the limitations period expired, but will find a mistake if the plaintiff intended to sue certain parties but was misled as to the identity of those parties. Here, the only excuse for not naming these parties was that DiFedo’s attorney did not research who the owners of the properties were. Accordingly, because the Superior Court correctly determined that DiFebo did not satisfy all of Rule 15(c)(3)’s relation back requirements, the court affirmed the Superior Court’s judgment dismissing DiFebo’s amended petition.

Difebo v. Board of Adjustment of New Castle County, 2016 WL 297490 (DE 1/25/2016)


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