Mason v. Allstate Indemnity Company

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KYAIR MASON, )
)
Plaintiff, )
)
v. ) C.A. No.: N23C-07-179 FWW
)
ALLSTATE INDEMNITY )
COMPANY, )
)
Defendant. )

Submitted: August 20, 2024
Decided: October 23, 2024

Upon Defendant Allstate Indemnity Company’s Motion to Dismiss for Lack of
Jurisdiction,
DENIED

ORDER

Gary S. Nitsche, Esquire, James Gaspero, Jr., Esquire, NITSCHE & FREDRICKS,
LLC, 305 North Union Street, Second Floor, P.O. Box 2324, Wilmington, DE 19899,
Attorneys for Plaintiff Kyair Mason.

Robert Ranieri, Esquire, Allstate Client Legal Services, 111 Continental Drive, Suite
307, Newark, DE 19713, Attorney for Defendant Allstate Indemnity Company.

WHARTON, J.
This 23rd day of October 2024, upon consideration of the Motion to Dismiss

for Lack of Jurisdiction of Defendant Allstate Indemnity Company (“Allstate”),1 the

Response of Plaintiff Kyair Mason (“Mason”),2 Allstate’s Reply,3 and the record, it

appears to the Court that:

1. Giovanna Tanzilli (“Tanzilli”) was the driver of a rental vehicle

involved in an accident in Maryland on May 1, 2022.4 Mason was a passenger in

that rental vehicle.5 Another vehicle with an unknown driver struck Tanzilli’s rental

vehicle and caused the accident.6 Tanzilli held an automobile insurance policy with

Allstate that was current on the date of the accident.7 The policy was issued to

Tanzilli at her Maryland address.8

2. Mason filed his Complaint on July 25, 2023.9 Allstate filed its Answer

on August 9, 2023.10 Mason was deposed on May 29, 2024.11 Allstate moved to

1
Def.’s Mot. to Dismiss, D.I. 14.
2
Pl.’s Response, D.I.16.
3
Def.’s Reply, D.I. 17.
4
Compl. at ¶ 3, D.I. 1.
5
Id.
6
Id. at ¶ 4.
7
See Allstate’s Mot. to Dismiss at Ex. A, D.I.14.
8
Id.
9
D.I. 1.
10
D.I. 4.
11
Allstate’s Mot. to Dismiss at Ex. B, D.I.14.
2
dismiss Mason’s Complaint for lack of jurisdiction on July 17, 2024.12 Mason

responded13 and Allstate replied.14

3. In moving to dismiss for lack of jurisdiction, Allstate asserts that there

is no specific basis for jurisdiction listed in the Complaint and that “there is no

personal jurisdiction which allows this suit to be brought in Delaware.”15 Allstate

contends that specific jurisdiction cannot arise from a car accident in Maryland.16

The only relationship with Delaware is that the unknown tortfeasor may or may not

live in Delaware, which does not convey jurisdiction in any event.17 Citing Eaton v.

Allstate Prop. & Cas. Ins. Co.,18 Rosado v. State Farm Mut. Ins. Co.19 and Donaldson

v. Progressive Advanced Ins. Co.,20 Allstate argues that Delaware does not have

general jurisdiction either -- the fact that it conducts its insurance business and drafts

insurance policies in Delaware is insufficient for general jurisdiction purposes.21

4. Mason responds that Allstate’s Motion focusing on a lack of

jurisdiction is the first mention of a jurisdictional question in this case.22 He does

12
Def.’s Mot. to Dismiss, D.I. 14.
13
Pl.’s Resp., D.I. 16.
14
Def.’s Reply, D.I. 17.
15
Def.’s Mot. to Dismiss at 1, 5, D.I. 14.
16
Id.
17
Id. at 6.
18
2021 WL 3662451 (Del. Super. Ct. Apr. 28, 2021).
19
2020 WL 3887880 (Del. Super. Ct. July 9, 2020).
20
2022 WL 951260 (Del. Super. Ct. Mar. 29, 2022), aff'd, 288 A.3d 251 (Del. 2022).
21
Def.’s Mot. to Dismiss at 6, D.I. 14.
22
Pl.’s Resp. at ¶ 3, D.I. 16.
3
not deny that Delaware lacked personal jurisdiction when he filed suit. Instead, he

cites Superior Court Civil Rule 12(h)(1) and the Delaware Supreme Court’s analysis

in Plummer v. Sherman,23 contending Allstate waived its personal jurisdiction

challenge since it did not raise the issue until eleven months after it answered the

Complaint.24 Mason also argues Allstate is an “active actor” that has waived its

personal jurisdiction challenge under the Court’s analysis in Sussex Farms Limited

v. Mbanefo.25 Mason cites Superior Court Civil Rule 1 in arguing that “[b]y filing

the motion to dismiss for lack of jurisdiction so long after the answer and after

substantial activity in the litigation, the Defendant is defying the central purpose of

the Delaware Superior Court rules which is to support the ‘just, speedy and

inexpensive determination of every proceeding’”26

5. Next, Mason argues that “[i]n Rosado[,] the Court found that the only

relationship between Delaware and the dispute was that the tortfeasor may or may

not have lived in the state.”27 Further, “[t]hat is not the case here, as it is unclear if

the Plaintiff was a Delaware or Maryland resident at the time of the accident.”28

Mason contends that the cases cited by Allstate do not evaluate a motion to dismiss

23
861 A.2d 1238 (Del. 2004).
24
Pl.’s Resp. at ¶ 3, D.I. 16.
25
2022 WL 2126228 (Del. Super. Ct. June 9, 2022); Pl.’s Resp. ¶ 4, D.I. 16.
26
Pl.’s Resp. at ¶ 4, D.I. 16.
27
Id. at ¶ 5.
28
Id.
4
where discovery has already occurred and there is a judicial economy issue present.29

He concludes that it is more efficient to proceed with this case in Delaware rather

than to conduct duplicative efforts in Maryland.30

6. Allstate replies that both cases cited by Mason have a significant

difference from this case because “[i]n both of those cases there was an active

defendant with knowledge of the facts.”31 “In this case, the allegation involves an

unknown motorist, and the active defendant is an insurance company with no

personal knowledge of the facts at issue.”32 Allstate asserts that Mason’s answers to

its interrogatories did not add any significant new facts to the Complaint, and “at

least one interrogatory referenced that plaintiff would be forthcoming with

additional facts at [his] deposition[.]”33 Allstate writes that “[b]ased upon the

[Court’s] disinclination to have litigation regarding the Complaint and because the

defendant was unaware of the entirety of the facts [at] issue in this case, no motion

was made in lieu of an Answer.”34 It only became clear during Mason’s deposition

that this case has no connection to Delaware.35 Allstate claims it did not have access

to the facts to determine if this initial filing was in error and could not file a motion

29
Id.
30
Id. at ¶ 6.
31
Def.’s Reply at 1, D.I. 17.
32
Id.
33
Id. at 2.
34
Id.
35
Id.
5
until after Mason was deposed.36 Allstate points out that the statute of limitations

has not run in Maryland, and the witnesses and accident locations are in Maryland.37

Allstate believes that the correct jurisdiction for this case is Maryland and that

Mason’s mistake in filing in Delaware should not be absolved simply because

Allstate did not have access to the facts that led to this Motion.38

7. Without expressly stating so in its Motion, Allstate moves under this

Court's Civil Rule 12(b)(2) to dismiss Mason’s Complaint for lack of personal

jurisdiction. “A non-resident defendant may move to dismiss for lack of personal

jurisdiction under this Court's Civil Rule 12(b)(2). ‘Generally, a plaintiff does not

have the burden to plead in its complaint facts establishing a court's personal

jurisdiction over [a non-resident] defendant.’”39 On a motion to dismiss pursuant to

Superior Court Rule 12(b)(2) for lack of personal jurisdiction over a defendant, “[a]

plaintiff bears the burden of showing a basis for a trial court's exercise of jurisdiction

over a nonresident defendant.”40 “In ruling on a Rule 12(b)(2) motion, the Court

36
Id.
37
Id. at 4.
38
Id.
39
Green Am. Recycling, LLC v. Clean Earth, Inc., 2021 WL 2211696, at *3 (Del.
Super. Ct. June 1, 2021) (citations omitted).
40
AeroGlobal Capital Management, LLC v. Cirrus Industries, Inc., 871 A.2d 428,
437 (Del. 2005).
6
may consider the pleadings, affidavits, and discovery of record.”41 Normally, the

Court applies a two-pronged analysis, first considering whether Delaware's Long

Arm Statute is applicable, and then determining whether subjecting the nonresident

defendant to jurisdiction in Delaware violates the Due Process clause of the

Fourteenth Amendment.42 Thus, if Allstate challenged this Court’s jurisdiction over

it in a timely manner, Mason would have been tasked with showing a basis for its

jurisdiction.43

8. “Because the requirement of personal jurisdiction represents first of all

an individual right, it can, like other such rights, be waived.”44 And “[b]ecause the

personal jurisdiction requirement is a waivable right, there are a ‘variety of legal

arrangements’ by which a litigant may give ‘express or implied consent to the

personal jurisdiction of the court.’”45 The Court finds that Allstate has impliedly

consented to the personal jurisdiction of this Court and its Rule 12(b)(2) personal

jurisdiction challenge is untimely.

41
Economical Steel Building Technologies, LLC v. E. West Construction, Inc., 2020
WL 1866869, at *1 (Del. Super. Ct. Apr. 14, 2020) (quoting Ryan v. Gifford, 935
A.2d 258, 265 (Del. Ch. 2007)).
42
Biomeme, Inc. v. McAnallen, 2021 WL 5411094, at *2 (Del. Super. Ct. Nov. 10,
2021).
43
See AeroGlobal Capital Management, LLC, 871 A.2d at 437.
44
Genuine Parts Co. v. Cepec, 137 A.3d 123, 130 (Del. 2016) (quoting Ins. Corp. of
Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703, 102 S.Ct. 2099,
72 L.Ed.2d 492 (1982).
45
Id. (citations omitted).
7
9. In Plummer, the defendant filed an answer to the complaint and moved

to dismiss for failure to prosecute under Superior Court Civil Rule 41(b).46 Neither

the answer to the complaint nor the Rule 41(b) motion included a challenge to

personal jurisdiction over the defendant.47 It was during oral argument on the Rule

41(b) motion that the defendant raised a lack of personal jurisdiction issue for the

first time.48 On appeal, the Delaware Supreme Court discussed the relationship

between Rules 12(b) and (h)(1):

Rule 12(h)(1) provides for the waiver of the lack of
personal jurisdiction defense if it is not raised in the initial
motion or responsive pleading. This is unlike challenges
to subject matter jurisdiction, which a defendant may raise
and the court must hear at any time. When read in pari
materia, the provisions of Rule 12(b) and (h) require that
a Rule 12 defense of lack of personal jurisdiction must be
raised by a timely Rule 12 motion or, if no motion is filed,
in the first responsive pleading. Otherwise, the defense is
waived.49

A motion based on Rule 12(b) defenses “shall be made
before a pleading if a further pleading is permitted.”50
…

[Defendant] was required to expressly raise the defense of
lack of personal jurisdiction no later than her answer, but
she did not do so. Her failure to expressly raise a lack of

46
Id. at 1241.
47
Id. at 1241-42.
48
Id. at 1242.
49
Plummer, 861 A.2d at 1243-1244 (internal citations omitted).
50
Id. at 1244 (quoting Del. Super. Ct. Civ. R. 12(b)).
8
personal jurisdiction defense in a timely manner waived
this defense.51

10. The Supreme Court in Plummer held that a personal jurisdiction

challenge must occur no later than in an answer or the challenge is waived.

Importantly, as quoted above, “[a] motion based on Rule 12(b) defenses ‘shall be

made before a pleading if a further pleading is permitted.’”52 Here, no further

pleading was permitted after Allstate’s Answer.53 And, Allstate did not plead lack of

personal jurisdiction in its Answer. Allstate only challenged personal jurisdiction in

a Rule 12(b)(2) motion after it answered the Complaint.54 Thus, Allstate’s Rule

12(b) motion is untimely. It has waived its personal jurisdiction defense, and, for

this reason, impliedly consented to the jurisdiction of this Court. As this Court has

noted before:

[T]he message conveyed by the present version of Rule
12(h)(1) seems quite clear. It advises a litigant to exercise
great diligence in challenging personal jurisdiction, venue,
or service of process. If he wishes to raise any of these

51
Id. at 1244.
52
Id. (quoting Del. Super. Ct. Civ. R. 12(b)).
53
See Del. Super. Ct. Civ. R. 7(a) (“Pleadings. There shall be a complaint and an
answer; a reply to a counterclaim denominated as such; an answer to a cross-claim,
if the answer contains a cross-claim; a third-party complaint, if a person who was
not an original party is served under the provisions of Rule 14; and a third-party
answer, if a third-party complaint is served. No other pleading shall be allowed,
except that the Court may order a reply to an answer or a third-party answer.”).
54
Pl.’s Answer was submitted to the Court on August 9, 2023. D.I. 4 and its Motion
to Dismiss for Lack of Jurisdiction was submitted to the Court on July 17, 2024. D.I.
14.
9
defenses he must do so at the time he makes his first
defensive move-whether it be a Rule 12 motion or a
responsive pleading.55
…

In Delaware issues questioning the Court's jurisdiction
over the person of the defendant have historically been
required to be raised at the earliest time in the proceedings.
And if the party overlook it, and take steps in the cause, he
cannot afterward turn back and object.56

12. In its Reply, Allstate asserts that it did not move to dismiss until after

Mason’s deposition because the facts establishing a lack of personal jurisdiction over

Allstate were not available until then. But information was available to Allstate

before Mason’s deposition was taken. Mason listed an insurance claim number in

his Answers to Form 30 Interrogatories.57 Allstate properly listed an insurance

55
Mergenthaler v. Asbestos Corp. of Am., 1989 WL 158501, at *2 (Del. Super. Ct.
Nov. 8, 1989); see also Tuckman v. Aerosonic Corp., 394 A.2d 226, 232 (Del. Ch.
1978) (citing Del. Ch. Ct. R. 12(h)(1)) (“Under Rule 12(h) the defenses of lack of
jurisdiction over the person and insufficiency of process are waived unless raised by
motion before pleading or included in a responsive pleading.”); Grynberg v. Burke,
388 A.2d 443, 448 (Del. Ch. 1978) (“[D]efenses of lack of jurisdiction over the
person and insufficiency of service of process are considered waived as a matter of
course by the filing of a motion or responsive pleading which fails to assert them.”);
Bank of Am. Nat. Tr. & Sav. Ass'n v. GAC Properties Credit, Inc., 389 A.2d 1304,
1314 (Del. Ch. 1978).
56
Mergenthaler, 1989 WL 158501, at *3 (internal citations and quotations omitted).
57
Pl’s Answers to Form 30 Interrogatories at ¶ 6(A)(b), D.I. 1. Mason should have
listed the insurance policy number under which he made his claim under Superior
Court Civil Rule Form 30(6)(b) requiring the policy number in a party’s Form 30
Interrogatories, but it appears Allstate was able to correctly identify the policy
number.
10
policy number in its Answers to Form 30 Interrogatories.58 Tanzilli is the named

insured on that policy.59 Allstate admits in its Answer to Paragraph 6 of the

Complaint that “On or about May 1, 2022, the Plaintiff was insured by a policy of

insurance with the Defendant, Allstate Insurance Company for

uninsured/underinsured motorist coverage. The Complaint alleged that Allstate “is

a foreign corporation licensed to engage in the business of insurance under the laws

of the state of Delaware.”60 In considering all of his information, provided in part

pursuant to Superior Court Civil Rule 3(h)(1)(I), it is apparent to the Court that

Allstate had notice of sufficient facts which, with appropriate investigative diligence,

would have provided it a basis to challenge personal jurisdiction prior to Mason’s

deposition.

13. Mason also contends Allstate waived its personal jurisdiction challenge

through conduct which demonstrates it is an “active actor” in the case.61 “[I]f not

raised promptly, a party may waive its right to contest personal jurisdiction when it

becomes an ‘active actor’ in the case.”62 In making his argument that Allstate is an

“active actor,” Mason points out that Allstate responded to the Complaint, submitted

58
Def.’s Answers to Form 30 Interrogatories ¶ 6(ANSWER)(b), D.I. 4.
59
See Def.’s Mot. to Dismiss at Ex. A, D.I.14.
60
Compl. ¶ 2, D.I. 1.
61
Pl.’s Resp. at ¶ 4, D.I. 16.
62
Connecticut Gen. Life Ins. Co. v. Pinkas, 2011 WL 5222796, at *3 (Del. Ch. Oct.
28, 2011).
11
the first set of interrogatories and a request for production, filed a notice of

deposition of Mason, answered Plaintiff’s interrogatories and request for production,

attended a judicial scheduling teleconference, and conducted Mason’s deposition.63

14. The term “active actor” describes a litigant who has waived a personal

jurisdiction challenge and consented to a court’s jurisdiction through conduct in a

case.64 Mason cites Sussex Farms Limited in support of his argument that Allstate

was an “active actor.”65 But, “[m]inimal participation in the litigation does not

necessarily constitute waiver.”66 Unfortunately, it appears that the line between

active actors and minimal participants is not clearly drawn.67 However, because

63
Pl.’s Resp. at ¶ 4, D.I. 16.
64
E.g., Bigelow/Diversified Secondary P'ship Fund 1990 v. Damson/Birtcher
Partners, 2001 WL 1641239, at *7 (Del. Ch. Dec. 4, 2001); Ross Hldg. & Mgmt.
Co. v. Advance Realty Grp., LLC, 2010 WL 1838608, at *11-12 (Del. Ch. Apr. 28,
2010); Connecticut Gen. Life Ins. Co., 2011 WL 5222796, at *3; In re Asbestos Litig.,
2015 WL 556434, at *5 (Del. Super. Ct. Jan. 30, 2015); CelestialRX Invs., LLC v.
Krivulka, 2019 WL 1396764, at *17 (Del. Ch. Mar. 27, 2019); Sussex Farms Ltd.,
2022 WL 2126228, at *2; Est. of Mergenthaler, 2024 WL 4052994, n.55 (Del. Ch.
Sept. 4, 2024).
65
Pl.’s Resp. at ¶ 4, D.I. 16.
66
Est. of Mergenthaler, 2024 WL 4052994, at *4.
67
See CelestialRX Invs., LLC, 2019 WL 1396764, at *17 (concluding that acceding
to being deposed before being added as a party did not waive a personal jurisdiction
defense); Ross Hldg., 2010 WL 1838608, at *5, *12 (finding a defendant did not
become an active actor for purposes of waiver despite having “actively participated
as a party in this case, including filing an answer, defending against and filing
motions, and serving and responding to discovery”); Hornberger Mgmt. Co. v. Haws
& Tingle Gen. Contractors, Inc., 768 A.2d 983, 989 (Del. Super. Ct. 2000)
(“Defendant submitted to the jurisdiction of this Court by participating in the
arbitration process without raising jurisdiction, filing a motion for a trial de novo,
entering into a case scheduling order, participating in discovery, stipulating to an
12
Allstate waived its personal jurisdiction challenge due to its untimely Rule 12(b)(2)

motion, the Court need not draw that line here.

15. Finally, the Court notes that this litigation has been active in Delaware

for nearly 15 months. A Trial Scheduling Order has been entered establishing

various deadlines, a number of which have passed, and setting trial for July 21,

2025.68 It makes little sense for the parties to pick up stakes here only put them

down anew in Maryland in order the litigate the same facts at issue here.

THEREFORE, Defendant Allstate Indemnity Company’s Motion to Dismiss

for Lack of Jurisdiction is DENIED.

IT IS SO ORDERED.

/s/ Ferris W. Wharton
Ferris W. Wharton. J.

extension of time for filing case dispositive motions, and failing to file the motion
before the deadline for the filing of case dispositive motions.”); but see, In re
Asbestos Litig., 2015 WL 556434, at *5 (finding a defendant who raised a personal
jurisdiction defense in its answer, served and responded to discovery, and filed
motions related to personal jurisdiction was not an active actor)).
68
Trial Scheduling Order, D.I. 12.
13