Sokolove v. Marenberg – (Del. Super. December 5, 2013 ) (sex abuse not time barred actionable post CVA)(subsequent: 12/23 decision refusing Defendant’s request for certification of the interlocutory appeal)

View Opinion PDF: 2013-12-05 – Sokolove v.__ Marenberg – (Del. Super. December 5, 2013 ) (sex abuse not time barred__ actionable post CVA)

[1]

Date Submitted: November 15, 2013

Dear Counsel:

Before the Court is Defendant Roxane Sokolove Marenberg’s (“Roxane’s”)

Motion to Dismiss in an action for personal injury filed by her natural son, Evan

Warren Sokolove (“Evan”). For the reasons that follow, Roxane’s Motion is

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DENIEDin part, and GRANTED in part, with further consideration to be given

in this matter after submissions of supplemental memoranda consistent with this

opinion.

Facts and Procedural Background

For purposes of ruling upon a Motion to Dismiss, this Court looks to the

plaintiff’s complaint and accepts all well-pleaded factual allegations as true.1 The

following facts are taken from Evan’s Amended Complaint.

Evan was born on September 11, 1992 to Roxane and Robert Sokolove. Evan

is currently twenty-one-years old, engaged to be married, and resides in Baltimore,

Maryland. Roxane, a former Assistant United States Attorney, also resides in

Baltimore, Maryland. She is currently remarried to a man that she met during the

events surrounding this case. Robert moved away from the family in 1999 and

remarried, but retained a relationship with Evan during the relevant time period.

According to Evan, Roxanne sexually abused him from the ages  [2] of six to

fourteen. Evan alleged that the first instances occurred when Evan was six years old

at the Sokoloves’ home in Potomic, Maryland. He claims that during that time, he

 

1 See, e.g., Spence v. Funk, 396 A.2d 967, 968 (Del. 1978) (citation omitted).

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and his mother began to spend “special nights” together in bed.2 Evan alleges that

these encounters began with Evan feeling pressure on his genitals during sleep and

then escalated to Evan’s orally stimulating his mother’s breasts at her command. The

frequency of these encounters began to escalate as well. Also during this time,

Roxane supposedly instructed Evan not to divulge their activities.

In 2000, the two moved to a hotel in Gaithersburg, Maryland,3 where the

nightly visits increased further in frequency and intensity. Evan claims that he began

orally touching his mother’s genitalia at her bidding, and eventually, his mother

performed oral sex on him and “the two engag[ed] in genital-to-genital contact.”4

Roxane also allegedly showed Evan pornographic materials, including a DVD which

the two acted out. It was during this time that Roxane met her present husband.

Evan and Roxane then moved to Baltimore, where Evan avers that the

encounters continued.  [3] He also claims that Roxane continued to instruct him not to

divulge their activities, gave him a credit card to confirm his silence, and threatened

him that no one would believe him if he told and that therefore, if he did tell, he

 

2 Am. Compl. at 5. Evan states that these encounters began while his father was away from the home on business trips, and believes they began at the time Robert and Roxane’s marriage began to deteriorate.

3 Evan claims that Roxane, in an attempt to villify Robert, blamed Robert for their having to live in a hotel.

4 Am. Compl. at 6.

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would be subject to criminal prosecution, which Evan claims Roxane illustrated on

one instance when she allegedly placed5 him in a holding cell while giving him a tour

of an empty courthouse. Also during this time, Evan claims that his mother informed

him that when he attended college, the two “would get a room together off of campus

and sleep together ‘every night.'”6

Evan avers that his mother committed similar acts against him while on trips

to London, England in 2002 or 2003, Roxane’s vacation home in Florida in 2005,

Utah in 2005, and New York in 2006. Also in 2005, Roxane took an executive level

job in California, where she maintained  [4] an apartment. In the summer of 2006, Evan

states that he spent time with Roxane there, where he claims that the abuse and threats

continued.

In 2005, Evan began to spend time with his father, Robert, at Robert’s vacation

home in Rehoboth Beach, Delaware. Evan alleges that during these visits, Roxane

would reserve a hotel room in Rehoboth, and Evan would, on occasion, spend the

evenings with her, where the abuse continued.

In 2007, Evan lived with Robert and his wife in Rehoboth. According to the

complaint, during the Fourth of July holiday of that summer, Roxane and her mother

 

5 Evan does not claim that his mother locked the cell door.

6 See Am. Comp. at 7.

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traveled to Rehoboth and reserved a hotel room. Evan stayed with them as well.

Evan alleges that on more than one occasion during that trip, after Roxane’s mother

had fallen asleep, Roxane came into Evan’s bed and the two engaged in sexual

intercourse.

Evan states that he disclosed his mother’s abuse to his father on July 16, 2007,

and thereafter asked his mother to leave him alone.7 Subsequently, Roxane allegedly

began a series of harassing behavior ranging from incessant phone calls to following

Evan and his fiancee on a trip to Mexico. Evan also  [5] avers that Roxane began to

contact people outside of their circle, such as Evan’s future in-laws, to convince them

of the falsity of Evan’s claims against her and to plea for their help in reuniting her

with her son.8

Based on Roxane’s alleged abuse, Evan avers eight separate counts against his

mother: sexual assault and battery of a minor, intentional infliction of emotional harm

through sexual abuse of a minor, negligent infliction of emotional harm through

sexual abuse of a minor, reckless infliction of emotional harm through sexual abuse

 

7 Am. Compl. at 10. Evan also claims that his father had no knowledge of the abuse prior to this date.

8 Evan believes that Roxane asked his future in-laws to talk to Evan, telling him that they did not believe Evan’s claims and that Evan should invite Roxane to his wedding. Evan also believes that Roxane offered him a large engagement ring to give to his fiancee as an enticement. These two beliefs may be substantiated by an email authored by Evan’s future mother-in-law at Ex. C. to Opp’n to Ex Parte Mot to Seal and Entry of Gag Order.

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of a minor, false imprisonment for purposes of sexual abuse of a minor, breach of

parental/fiduciary duty, action for personal  [6] injuries pursuant to 18 U.S.C.§ 2255,9 and

egregious conduct. Evan claims that his mother’s alleged abuse has caused him to

suffer emotionally, psychologically, and physically, such as instances when,

immediately following the abuse, he claims that he engaged in acts of self mutilation.

He also claims that his future earning capacity has been hindered. Evan asks for, inter

alia, compensatory and punitive damages.

Evan initiated this lawsuit on August 20, 2013. He amended his Complaint on

September 11, 2013. Roxane filed a Motion to Seal and Entry of Gag Order on

August 21, 2013, which this Court granted on August 22, 2013. Roxane then filed

the present Motion on September 25, 2013; and the Court heard oral argument on

November 15, 2013. Evan filed a Motion to Open Record and Vacate Gag Order on

November 6, 2013, for which oral argument will be heard on December 20, 2013.

 

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Any person who, while a minor, was a victim of a violation of [various sections] . .

. of this title and who suffers personal injury occurred while such person was a minor, may sue in any appropriate United States District Court and shall recover the actual damages such person sustains and the cost of the suit, including a reasonable  [7] attorney’s fee.

18 U.S.C.A. § 2255 (2013).

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Analysis

Parties arguments

Roxane begins by flatly denying all of Evan’s allegations and asserting that

Evan’s ravings are the product of his “well documented mental illness.”10

Additionally, Roxane notes that Evan has filed criminal charges relating to alleged

abuse against her in five separate jurisdictions, each resulting in failure for lack of

evidence.

Roxane first argues that all of Evan’s counts relating to abuse are time-barred.

Evan claims that he suffered abuse in seven separate jurisdictions, excluding

Delaware; thus, Roxane points to 10 Del. C. § 812111 as requiring this Court to apply

the shortest statute of limitations possible. Applying the Delaware limitations period,

Roxane argues that the normal two-year limitations period in 10 Del. C. § 8119 for

 

10 Mot. to Dismiss at 1.

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Where a cause of action arises outside of this State, an action cannot be brought in a court of this State to enforce such cause of action after the expiration of whichever is shorter, the time limited by the law of this State, or the time limited by the law of the state or country where the cause of action arose, for bringing an action upon such cause of action. Where  [8] the cause of action originally accrued in favor of a person who at the time of such accrual was a resident of this State, the time limited by the law of this State shall apply.

10 Del. C. § 8121.

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tort actions bars Evan’s claim. Moreover, Roxane asserts that Evan is not entitled to

the protection against the limitations period provided by the Child Victim’s Act

(“CVA”) as codified in 10 Del. C. § 814512 because, as she claims, Delaware case law

establishes that § 8145 does not apply to cases such as this, where the alleged abuse

was not time-barred as of the date of the statute’s enactment.13 Further, she asserts

that to read into § 8145 any retroactive effect other than the statute’s explicit

resurrection of time-barred claims is contrary to Delaware law.14

 

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(a) A cause of action based upon the sexual abuse of a minor by an adult may be filed in the Superior Court of this State at any time following the commission of the act or acts that constituted the sexual abuse. A civil cause of action for sexual abuse of a minor shall be based upon sexual acts that would constitute a criminal offense under the Delaware Code.

(b) For a period of 2 years following July 9, 2007, victims of child sexual  [9] abuse that occurred in this State who have been barred from filing suit against their abusers by virtue of the expiration of the former civil statute of limitations, shall be permitted to file those claims in the Superior Court of this State. If the person committing the act of sexual abuse against a minor was employed by an institution, agency, firm, business, corporation, or other public or private legal entity that owned a duty of care to the victim, or the accused and the minor were engaged in some activity over which the legal entity had some degree of responsibility or control, damages against the legal entity shall be awarded under this subsection only if there is a finding of gross negligence on the part of the legal entity.

10 Del. C. § 8145.

13Mot. to Dismiss at 2 (citing Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1251 (Del. 2011); John Doe 6 v. Boy Scouts of America, 2013 WL 1143698, at *5 (Del. Super. Mar. 5, 2013); Keller v. Maccubbin, 2012 WL 1980417, at *6-7 (Del. Super. May 16, 2012).

14Roxane cites Chrysler Corp. v. State, 457 A.2d 345, 350-51 (Del. 1983) for this proposition.

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Roxane next contends that Evan’s breach of fiduciary duty claim must fail

because  [10] Delaware law does not recognize a parent’s fiduciary duty to a minor child.

Alternatively, Roxane claims that even if such a duty exists, a claim based on it

should be brought in the Delaware Court of Chancery, rather than this Court.

Additionally, Roxane notes that a breach of fiduciary duty claim is subject to a three-

year statute of limitations period; and thus Evan is time-barred from presenting this

claim.

Roxane lastly asserts that Evan’s 18 U.S.C. § 2255 claim must fail because this

Court lacks subject matter jurisdiction over the federal claim. Even if the United

States Congress did not direct federal courts to hold exclusive jurisdiction over §

2255 claims, as Roxane contends it did, this Court should so limit its jurisdiction

because the Delaware Court of Chancery so limited its jurisdiction over the similarly-

worded federal RICO statute in Levinson v. American Accident Reinsurance Group,

and no case law exists in Delaware, or perhaps in any jurisdiction at all, in which a

state court has found concurrent jurisdiction over § 2255 claims.15

Evan maintains that all of the abuse he allegedly suffered both in and out of

Delaware constitutes a continuous course of abuse, none of which is time-barred  [11] and

 

15 Levinson v. Am. Accident Reinsurance Group, 503 A.2d 632, 635 (Del. Ch. 1985).

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all of which can be litigated in Delaware.16 Noting this Court’s obligation to apply

the shortest limitations period available under 10 Del. C. § 8121, Evan argues that the

Delaware limitations period to be applied is not the two-year period in 10 Del. C. §

8119, but rather the infinite period in 10 Del. C. § 8145. Evan asserts that, as this

Court held in the recent case of Waterhouse v. Hollingsworth, § 8145’s statutory

exemption from the limitations period indeed encompasses claims such as his.17 Evan

argues that § 8145 constitutes a remedial legislative measure that only affects

Roxane’s procedural, non-substantive rights.18 Thus, Delaware’s limitations period

does not bar Evan’s claims.

Also, Evan argues that Roxane is estopped from arguing that his claim is time-

barred because Roxane entered into a tolling agreement which Evan asserts preserved

 

16The Court rejects this argument because the Court “considers each instance of sexual abuse to be a separate and distinct claim.” Waterhouse v. Hollingsworth, 2013 WL 5803136, at *3 n.5 (Del. Super. Oct. 10, 2013) (citing Whitwell v. Archmere Acad., Inc., 2008 WL 1735370 (Del. Super. Apr. 16, 2008);  [12] Eden v. Oblate of St. Francis de Sales, 2006 WL 3512482 (Del.

Super. Dec. 4, 2006); )).

17Id. at *1-4.

18 See Pl’s. Supplemental Letter Mem. at 1-3 (citing, inter alia, Hoennicke v. State, 13 A.3d 744, 747 (Del. 2010); Hubbard v. Hibbard Brown & Co., 633 A.2d 345, 354 (Del. 1993)).

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all claims that had not been barred.19 Also, Roxane’s alleged use of threats against

Evan if he ever disclosed the abuse should toll the limitations period.20

Evan further contends that a parent-child relationship does give rise to a

parent’s fiduciary duties, and that a parent’s sexual abuse of a child constitutes a

violation of that duty.21

Regarding Roxane’s assertion that this Court lacks subject matter jurisdiction

over18 U.S.C. § 2255 claims, Evan counters that in Tafflin v. Levitt,22 the U.S.

Supreme Court held that the permissive “may” in the RICO statute allows state courts

to have concurrent jurisdiction over RICO claims; and thus Roxane’s reliance on the

Delaware Court of Chancery’s opinion in Levinson, which predated Tafflin, is

misplaced.

 

19See Ex. 2 to Pl’s. Opp’n to Mot. to Dismiss. Thus, the question is whether the claims are barred except for the remedial effect of § 8145.

20See Pl’s. Opp’n to Mot. to  [13] Dismiss at 3 (citing, inter alia, the California Supreme Court case of John R. v. Oakland Unified School Dist., 48 Cal. 3d 438, 443-47 (Cal. 1989) (holding

that threats which prevented the filing of a timely claim would toll the statute of limitations on estoppel grounds).

21 See id. at 4 (citing Evans v. Eckelman, 216 Cal. App. 3d 1609, 1613-15 (Cal. Ct. App.

1990)).

22 Tafflin v. Levitt, 493 U.S. 455, 455 (1990) (“[T]here is nothing in RICO’s explicit language to suggest that Congress has, by affirmative enactment, divested state courts of civil RICO jurisdiction. To the contrary, § 1964(c)’s grant of federal jurisdiction over civil RICO claims is plainly permissive and thus does not operate to oust state courts from concurrent jurisdiction.”).

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Discussion

Evan correctly argues that 10 Del. C. § 8145’s lifting of Delaware’s limitations

period saves his claims, at least in part. The issue before this Court is § 8145’s effect

on unstale claims (i.e., claims which arose prior to July 9, 2007, but had not yet

reached their two-year limitations period as of that date). Recently, this Court held

in Waterhouse v. Hollingsworth that such claims receive the full protection of § 8145.

Analyzing the  [14] statute’s text, the Court reasoned that § 8145(b), which resurrected

previously time-barred claims for a two-year period, applied only to stale claims

(i.e., claims which arose prior to July 9, 2007, and had reached their two-year

limitations period as of that date).23 The question thus became whether § 8145(a)

applied to unstale claims. The Court deduced that it did because, even though the

subsection did not expressly mention unstale claims, those claims could not be barred

by § 8119 because the claims, being unstale, technically survived § 8119 until one

 

23 See Waterhouse v. Hollingsworth, 2013 WL 5803136, at *1-4 (Del. Super. Oct. 10, 2013) (“It is still necessary to resolve what happens to claims for alleged acts of abuse occurring between July 9, 2005 and July 9, 2007. At the time the statute was enacted those claims were not barred by [§] 8119 because they were not yet more than two years old. Thus for purposes of the resurrection provision of [§ 8145], they could not be claims which [required resurrection].”).

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day after July 9, 2007.24 By virtue of that one day, § 8145 triggered and saved the

claims forever.25

Roxane argues that § 8145(a) has no retroactive affect, as supported by  [15] the

statute’s legislative history. Additionally, she points to Chrysler Corp. v. State, in

which the Delaware Supreme Court held that a court may “not infer an intention to

make an act retrospective, and that to give an act a retrospective operation would be

contrary to well settled principles of law applicable to the construction of statutes

unless it be plainly and unmistakably so provided by the statute.”26 This point is not

persuasive because § 8145 plainly has retroactive effect for stale claims. Moreover,

changes to a statute of limitations, such as the CVA in its entirety, are to be

considered remedial, may be applied retroactively, and do not destroy fundamental

rights.27 Further, this Court concurs with the Waterhouse reasoning that at the time

 

24 See id. at 4-5.

25See id.

26 Chrysler Corp. v. State, 457 A.2d 345, 351 (Del. 1983) (internal quotation marks omitted) (quoting and citing, inter alia, Keller v. Wilson & Co., 190 A. 115, 125 (Del. 1936)).

27See Sheehan v. Oblates of St. Francis de Sales, 15 A.3d 1247, 1257 (Del. 2011). The

Chrysler decision involved an assessment similar to a tax on a corporation’s capital structure. This was a substantial change, imposing greater liabilities  [16] than beforehand, and prospective. On the other hand, remedial changes to statutes of limitations affect procedures and remedies only, and under Delaware law, the CVA can be applied retroactively for stale claims that were filed within the two-year window. See id.

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of § 8145’s enactment, unstale claims technically were not time-barred. Thus, they

must have been saved by § 8145(a).

Because § 8145’s language is plain and unambiguous, the Court will not

undertake a fishing expedition into the statute’s legislative history.28 While this

Court’s decision in Keller v. Maccubin, which predated Waterhouse, referenced §

8145,29 Keller involved a twenty-year-old claim of abuse that was not filed within the

statute’s resurrection period. Keller focused on a repressed memory issue and

whether the injury was inherently unknowable because of the alleged victim’s

condition. This Court in Keller did not address the questions posed in Waterhouse;

and thus Keller is inapposite to this case.

This does not mean, however, that all of Evan’s claims survive the Delaware

limitations period. As Waterhouse also makes clear, when a stale claim is not

resurrected by § 8145(b), it is indeed time-barred. It is now 2013; and  [17] July 9, 2005

serves as the cut-off date. Thus, Evan’s theory of a continuous course of abuse must

 

28Both the Delaware Supreme Court and this Court have noted the CVA’s plain language. Id.;Waterhouse, 2013 WL 5803136, at *4-7.

29 See Keller v. Maccubbin, 2012 WL 1980417, at *2 (Del. Super. May 16, 2012) (“Toplace the issues into context, this case falls within the temporarily unique class of cases that do not enjoy reprieve from the statute of limitations under the Child Victim’s Act. Here, Plaintiff alleges abuse to have occurred prior to the Act’s enactment. He did not file within the two-year window afforded to those victims of child sexual abuse upon whom the statute of limitations window had closed. However, because the alleged abuse did not occur after the Act’s enactment, he is not entitled to the Act’s elimination of the statute of limitations.”).

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fail because each alleged instance constitutes a discrete action.30 He may present

claims of abuse arising on or after July 9, 2005, but may not present claims arising

before that date.31

The parties shall confer and submit memoranda regarding whether Evan’s

claims arising before July 9, 2005 can be saved via a tolling argument stemming  [18] from

the duress that Roxane allegedly inflicted on Evan. The memoranda should first

address whether the parties agree that as a matter of law, a duress argument can toll

the statute of limitations.32 If the answer is yes, the memoranda should then address

whether, as a matter of law, the duress claim would be ineffective. Evan identified

July 16, 2007 as the date when he informed his father of the abuse and wanted

Roxane out of his life. A disclosure to an interested adult, such as a parent or a

teacher, would defeat a time-of-discovery argument on an inherently unknowable

injury.33 The limitations period would run from the time of the disclosure.

 

30 Waterhouse, 2013 WL 5803136, at *3 n.5 (citations omitted).

31 Assumedly, the parties agree that Delaware law will apply to any claim that survives the limitations period, whether arising in Delaware or not. This case does not seem appropriate for a “choice of law analysis.” See, e.g., State Farm Mut. Auto Ins. Co. v. Patterson, 7 A.3d 454, 457-59 (Del. 2010) (determining that Delaware, and not New Jersey law would apply to the tort claim).

32See Mergenthaler v. Asbestos Corp. of Am., 500 A.2d 1357 (Del. Super. 1985).

33 See, e.g., Garcia v. Nekarda, 1993 WL 54491, at *1 (Del. Super. Feb. 19, 1993)  [19] (“Thus, while plaintiffs did not discover the child’s injuries until August of 1991, someone, although an unrelated teacher of the child, knew of the harm. No one filed a claim within the

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Evan’s claim regarding Roxane’s breach of a fiduciary duty must be dismissed

entirely. At its core, a fiduciary duty is a creature of equity, and as research has not

disclosed a Delaware case that flatly holds that a breach of fiduciary duty claim

against a parent lies in a child abuse case, this Court is not prepared to so hold.34

Regarding Evan’s federal claim stemming from 18 U.S.C. § 2255, further

memoranda on this matter is required. There is no case law discussing a state court’s

jurisdiction over this federal claim. The memoranda should address the pertinent

principles regarding this Court’s possible jurisdiction, as discussed in Tafflin, in

which the U.S. Supreme Court explained how a state court’s presumed concurrent

jurisdiction over a federal claim can be rebutted.35 Additionally, the parties should

 

two[-]year statute of limitations.”). See also, Warner v. Univ. of Del., 1995 WL 656797, at *3 (Del. Super. Oct. 2, 1995) (“Because plaintiffs did not suffer an inherently unknowable injury, the discovery  [20] rule cannot be revoked in the instant case.”); Russell G. Donaldson, Running ofLimitations Against Action for Civil Damages for Sexual Abuse of a Child, 9 A.L.R.5th 321 (1993).

34 The term “fiduciary duty” can apply to the parent-child relationship, but in wholly different contexts. See, e.g., Myer v. Dyer, 643 A.2d 1382, 1389 (Del. Super. 1993) (“Here, a fiduciary duty is statutorily imposed on Jennifer’s parents as her guardians. Their status as fiduciaries is reinforced by their appointment as guardians ad litem.”); Russum v. Russum, 2012 Wl 2589960, at *3 (Del. Fam. Ct. June 6, 2012) (“Fiduciary duties also impute to parents who act as custodians on certificates of deposit for their children.” (citation omitted)).

35 Tafflin v. Levitt, 493 U.S. 455, 459-60 (1990) (“In considering the proprietary of state-court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction. Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative [21] history, or by a clear incompatibility between state-court jurisdiction and federal interests.” (citation omitted) (quoting another source)). The parties shall not rely upon the Delaware Court

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address whether the federal statute of limitations over a § 2255 claim is controlling,

and if so whether the limitations period is satisfied, should the Court find that it has

jurisdiction.

Based on the above, Roxane’s Motion is DENIED in part, and GRANTED in

part, with further consideration to be given to this matter after submissions of

supplemental memoranda consistent with this opinion. The parties shall confer and

submit appropriate stipulations.

IT IS SO ORDERED.

 

Very truly yours,

/s/ Richard F. Stokes

Richard F. Stokes

Cc: Prothonotary

Judicial Case Manager

 

of Chancery’s opinion in Levinson v. Am. Accident Reinsurance Group, 503 A.2d 632, 635 (Del. Ch. 1985), as that case has been overruled. See Hem Research, Inc. v. E.I. du Pont de Nemours& Co., 1990 WL 7429, at *4 (E.D. Pa. Jan. 30, 1990) (“The Tafflin decision, decided by a unanimous Court, now squarely overrules the Levinson opinion of the Delaware Chancery Court

. . . .”).

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