Revolution Rentals DE, LLC v. Pomerleau, C. A. K21C-08-007 NEP

CourtSuperior Court of Delaware
Writing for the CourtNOEL EASON PRIMOS, JUDGE
Docket NumberC. A. K21C-08-007 NEP
Decision Date04 November 2022



C. A. No. K21C-08-007 NEP

Superior Court of Delaware

November 4, 2022

Submitted: August 3, 2022

Upon Defendants' Motion to Dismiss GRANTED

Catherine Di Lorenzo, Esquire, Stern & Eisenberg Mid-Atlantic, PC, Newark, Delaware, Attorney for Plaintiff.

Donald L. Gouge, Jr., Esquire, Donald L. Gouge, Jr., LLC, Wilmington, Delaware Attorney for Defendants.




Before this Court is the motion to dismiss of Defendants Andrew Pomerleau and Amanda Anderson (hereinafter "Defendants"). This action was originated by Revolution Rentals DE, LLC (hereinafter "Plaintiff") in the Justice of the Peace Court (hereinafter "JP Court"). Defendants contend that dismissal is warranted because Plaintiff was required to file in this Court within 60 days of the JP Court's order transferring the case to the Superior Court and failed to do so. For the reasons set forth below, Defendants' motion to dismiss is GRANTED.


This debt action arises from allegations of breach of contract and damages to a rental unit.[1] The facts and procedural history relevant to this motion to dismiss are undisputed.

Plaintiff initiated these proceedings in JP Court on September 2, 2020.[2]Defendants requested a jury trial and, in light of the JP Court's inability to hold a jury trial in a matter of this nature, filed a motion to transfer the case to Superior Court.[3] The JP Court initially denied the motion, stating that "[t]here is no avenue for a case filed in JP Court to move directly to Superior Court for a trial by jury."[4]Upon reargument, however, the JP Court concluded that "the demand for a jury trial has removed the case from Justice of the Peace Court jurisdiction" and that it could therefore transfer the case to Superior Court pursuant to 10 Del. C. § 1902,[5] which allows cases to be transferred between courts in the Delaware court system when the initial court lacks subject matter jurisdiction.[6] The transfer order, dated June 10,


2021, stated that "Plaintiff has 60 days to file its action in Superior Court or this action will be dismissed with prejudice 60 days from the signing of this order."[7]

Plaintiff did not file within the 60-day period, which expired on August 9, 2021. On August 10, 2021, Plaintiff filed a complaint in this Court. On the same day, Defendants moved to dismiss the proceeding in JP Court with prejudice.[8] On August 11, 2021, the JP Court dismissed the action with prejudice because of Plaintiff's failure to act within 60 days.[9] Plaintiff filed a Motion for Relief and a Written Election of Transfer with the JP Court, also on August 11, 2021.[10] However, on August 20, 2021, the JP Court found that:

[T]hrough the Plaintiff's own admission, they have not acted on the order until the 61st day. Furthermore, a reasonable person would not wait until the 61st day to establish a procedural argument that the
judge's order is invalid because it should have considered the case's rightful 15-day window to file an appeal. . . . This matter remains dismissed with prejudice.[11]

On May 16, 2022, Defendants filed a motion to dismiss this action for lack of subject matter jurisdiction pursuant to Superior Court Rules of Civil Procedure 12(b)(1) and 12(h)(3).[12] On May 31, 2022, Plaintiff filed a Response opposing the motion to dismiss.[13] The Court held oral argument on the motion on July 8, 2022, and the matter was submitted for decision on August 3, 2022.


Defendants argue that the case must be dismissed because Plaintiff took no action within the 60-day period provided for in 10 Del. C. § 1902 and in the JP Court's June 10, 2021, order. Specifically, Plaintiff was required to and did not 1) file an election of transfer in the JP Court[14]; and 2) file the action in this Court.[15] Defendants assert that the complaint should be dismissed with prejudice, but note that if it is dismissed without prejudice, Plaintiffs could seek leave to assert these causes of action as counterclaims in pending litigation between the parties in the Court of Common Pleas.[16]

Plaintiff seeks to prevent dismissal by arguing, in essence, that the Court should excuse its failure to file within 60 days because it was "an inadvertent mistake" by a pro se litigant.[17] Plaintiff argues two primary points in support of its


opposition to dismissal: 1) 10 Del. C. § 1902 expressly provides that it "shall be liberally construed to permit and facilitate transfers of proceedings between the courts of this State in the interests of justice"[18]; and 2) the JP Court should not have relied on 10 Del. C. § 1902 to transfer this action because it had subject matter jurisdiction.[19]


As the foregoing discussion shows, this matter is before this Court in an unusual procedural posture. Defendants move to dismiss, invoking Superior Court Civil Rules 12(b)(1) and 12(h)(3), which call for dismissal when the Superior Court lacks subject matter jurisdiction. Plaintiff's arguments call into question both the JP Court's decision to rely on 10 Del. C. § 1902 and the manner in which it was applied. At the outset, it is important to clarify that this action is not an appeal of the JP Court's orders: the appropriate forum for appellate review of orders of the JP Court would be on appeal to the Court of Common Pleas (hereinafter "CCP") pursuant to 10 Del. C. § 9571.[20] What Plaintiff seeks is for this Court to accept a transfer of this action from JP Court, even though the JP Court ordered that it be dismissed with prejudice if untimely filed. Thus understood, this is not a question of this Court's jurisdiction. Rather, the precise issue before this Court is whether Plaintiff successfully effectuated a transfer of this action from the JP Court to the Superior Court pursuant to 10 Del. C. § 1902 and the JP Court's order, which is, for reasons explained below, the law of the case. The Court finds that Plaintiff has failed to do


so and will thus leave undisturbed the JP Court's dismissal with prejudice. Accordingly, Defendants' motion to dismiss shall be granted and the action dismissed with prejudice.

1. Liberal Construction of 10 Del. C. § 1902 Does Not Excuse the 60-Day Time Limit

Plaintiff argues that the Court should allow the filing on the 61st day because it was only one day late and 10 Del. C. § 1902, by its own terms, "shall be liberally construed to permit and facilitate transfers of proceedings between the courts of this State in the interests of justice." However, what Plaintiff asks for is not a liberal construction of the statute, but outright excusal of an explicit time limit stated in the statute and in the JP Court order.

Case law interpreting the liberal construction provision sheds light on what a liberal construction of the statute can, and cannot, accommodate. The Delaware Supreme Court explained in Wilmington Trust Company v. Schneider that 10 Del. C. § 1902 is "a remedial statute designed to prevent a case from being totally ousted because it was brought in the wrong Court."[21] In Schneider, the Court addressed whether the 60-day period continued to run pending appeal of the trial court's order dismissing the case subject to the plaintiff's right to transfer.[22] On appeal, the defendant specifically challenged the plaintiff's right to transfer, and the plaintiff defended the appeal without initiating the transfer process. "In view of the legislative policy declared" in Section 1902, the Court concluded that a plaintiff should not be "barred because of his failure to take further actions to perfect a transfer while his opponent actively pursues an attack upon the capability of the party to undertake the transfer at all."[23]


Other cases have expanded on Schneider's reasoning in the context of pending appeals to the Supreme Court. In Benge v. Oak Grove Motor Court, Inc., the plaintiff filed a motion to transfer 55 days after the Supreme Court affirmed the Chancery Court's ruling that he "had filed suit in the wrong court" but several months after the Chancery Court's initial order dismissing the case subject to the plaintiff's right to transfer.[24] The Vice Chancellor held that the 60-day period began upon the Delaware Supreme Court's affirmance of the Chancery Court's dismissal order, rather than upon the issuance of the original order.[25] The plaintiff's motion to transfer to Family Court was thus held timely because it was within 60 days of the Supreme Court's order dismissing the appeal.[26] More recently, in Olga J. Nowak Irrevocable Trust v. Voya Financial, Inc., this Court considered whether it could grant a motion to transfer when the election of transfer was filed with the Superior Court while an appeal was already pending with the Delaware Supreme Court.[27]Analyzing Benge and Schneider, the Court concluded that "granting the motion to transfer fulfills the statutory direction to liberally construe § 1902 to permit and facilitate transfers."[28]

Unlike the aforementioned cases, here there is no pending appeal, or any other procedural contingency, to call into question when the 60-day statutory period began or ended. The 60-day countdown was initiated by the JP Court's order on


June 10, 2021, and ended on August 9, 2021.[29] Plaintiff's contention is essentially that the Court should liberally construe "60 days" in effect to mean "61 days" or "roughly 60 days." However, Plaintiff identifies no case law supporting the Court's authority to simply excuse the time limit, nor has the Court identified any in its own review.

The Court finds instructive the opinions of the Master in Chancery and Vice Chancellor in Wells Fargo Bank, NA v. Strong.[30] There, as here, the party required to transfer the case "failed to follow the direct order" of the...

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