Date Submitted: November 15, 2013
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
DENIEDin part, and GRANTED in part, with further consideration to be given
in this matter after submissions of supplemental memoranda consistent with this
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  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).
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.  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.
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  an apartment. In the summer of 2006, Evan
states that he spent time with Roxane there, where he claims that the abuse and threats
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.
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
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  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.
of a minor, false imprisonment for purposes of sexual abuse of a minor, breach of
parental/fiduciary duty, action for personal  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.
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  attorney’s fee.
18 U.S.C.A. § 2255 (2013).
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
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.
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  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.
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
(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  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.
Roxane next contends that Evan’s breach of fiduciary duty claim must fail
because  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
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  and
15 Levinson v. Am. Accident Reinsurance Group, 503 A.2d 632, 635 (Del. Ch. 1985).
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);  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)).
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
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  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.
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.”).
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  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].”).
day after July 9, 2007.24 By virtue of that one day, § 8145 triggered and saved the
Roxane argues that § 8145(a) has no retroactive affect, as supported by  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.
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  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.
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  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.”).
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  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)  (“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
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  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  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
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
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
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
. . . .”).