COURT OF CHANCERY

OF THE

STATE OF DELAWARE

MORGAN T. ZURN

VICE CHANCELLOR

LEONARD L. WILLIAMS JUSTICE CENTER

500 N. KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19801-3734

August 25, 2023

Julian Karpoff

33026 W. Falling Creek Street

Lewes, Delaware 19958

captainkarpoff@outlook.com

David C. Hutt, Esquire

Morris James, LLP

107 W. Market Street

Georgetown, Delaware 19947

Vincent G. Robertson, Esquire

Parkowski, Guerke & Swayze, P.A.

19354C Miller Road

Rehoboth Beach, Delaware 19971

RE: Julian Karpoff v. Atlantic Concrete Co., Inc. and Sussex County,

Civil Action No. 2022-0621-SEM

Dear counsel and Mr. Karpoff,

I write to address plaintiff Julian Karpoff (“Plaintiff”)’s exceptions to 

Magistrate Molina’s February 28, 2023 Final Report.1 The Final Report dismissed 

Plaintiff’s claims in favor of a first-filed Sussex County Board of Adjustment 

proceeding. Plaintiff’s exceptions are limited to the decision to issue that report 

notwithstanding Plaintiff’s pending motion for leave to file an amended complaint, 

which he filed after the motion to dismiss was taken under advisement.

2

 Plaintiff 

1 Karpoff v. Atlantic Concrete Co., Inc., 2023 WL 2260588 (Del. Ch. Feb. 28, 2023) 

[hereinafter “Final Report”]. The Final Report is also available at Docket Item (“D.I.”) 

63.

2 Final Report at *1 n.1.
Karpoff v. Atlantic Concrete Co., Inc.,

Civil Action No. 2022-0621-SEM

August 28, 2023

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then filed a second motion to amend. For the reasons that follow, I remand 

consideration of Plaintiff’s motions to amend to the Magistrate for her 

consideration. On this procedural matter, I rely on the parties’ familiarity with the 

underlying dispute.

I. Background

On November 7, 2022, the Magistrate heard oral argument on defendant 

Atlantic Concrete Co., Inc.’s motion to dismiss, as well as a motion by defendant

Sussex County to compel election of a single forum, and took the motions under 

advisement.3 After those motions were fully briefed, argued, and taken under 

advisement, Plaintiff filed a motion for leave to amend (the “First Motion”) that

was docketed on February 6, 2023.4 The First Motion seeks leave to add a new 

defendant, the Department of Natural Resources and Environmental Control 

(“DNREC”), and two new counts pled against DNREC and Atlantic Concrete for 

abatement and for a declaratory judgment based on violations of the Coastal Zone 

Act and lack of proper permits.

5

On February 28, the Magistrate issued her Final Report with the following 

footnoted language: 

3 D.I. 58, D.I. 56, D.I. 57.

4 D.I. 59, D.I. 62.

5 D.I. 62.
Karpoff v. Atlantic Concrete Co., Inc.,

Civil Action No. 2022-0621-SEM

August 28, 2023

Page 3 of 7

On February 6, 2023, the Plaintiff moved for leave to file an amended 

complaint to add (1) the Department of Natural Resources and 

Environmental Control as a defendant and (2) two additional counts. 

D.I. 59-62. The motion is not fully briefed but I decline to delay 

issuing this report under the rationale of Hillblom v. Wilmington Tr. 

Co., 2022 WL 17428978, at *1 (Del. Ch. Dec. 6, 2022) (denying a 

motion to amend without prejudice because “Court of Chancery Rule 

15 does not permit a plaintiff to amend his complaint after he filed his 

answering brief but before the motion to dismiss is decided”).6

The next day, March 1, Plaintiff’s motion to fix a briefing schedule on the First 

Motion was docketed.

7

 As Atlantic Concrete noted in opposition, “Based upon the 

timestamp, it appears that Mr. Karpoff filed his request before learning that the 

Court had issued its February 28, 2023 Final Report.”8 

Plaintiff’s notice of exceptions was filed on March 7, and the matter was 

reassigned to me “for the limited purpose of resolving Plaintiff’s exceptions to the 

Master’s Final Report.”9 On March 16, Plaintiff renewed his request to establish a 

briefing schedule and filed another motion for leave to file an amended complaint 

(the “Second Motion”), which he stated was “without prejudice” to the First 

Motion.

10

 From there, the parties briefed Plaintiff’s exceptions; they also briefed 

6 Final Report at *1 n.1.

7 D.I. 64.

8 D.I. 65 at 1.

9 D.I. 67, D.I. 68.

10 D.I. 71 ¶ 1.
Karpoff v. Atlantic Concrete Co., Inc.,

Civil Action No. 2022-0621-SEM

August 28, 2023

Page 4 of 7

the propriety of the Second Motion.11 Plaintiff has requested oral argument, but I 

do not find it necessary.

II. Analysis

I consider the issues presented by Plaintiff’s exceptions de novo.12 Court of 

Chancery Rule 15 governs amendments to pleadings. Rule 15(a) states:

A party may amend the party’s pleading once as a matter of course at 

any time before a responsive pleading is served or, if the pleading is 

one to which no responsive pleading is permitted and the action has 

not been set for trial, the party may so amend it any time within 20 

days after it is served. Otherwise a party may amend the party’s 

pleading only by leave of Court or by written consent of the adverse 

party; and leave shall be freely given when justice so requires.13 

Rule 15(aaa) governs “[w]hen a party seeks to amend its pleading in response to a 

motion to dismiss.”14 It states: “Notwithstanding subsection (a) of this Rule, a 

party that wishes to respond to a motion to dismiss under Rules 12(b)(6) or 23.1 by 

amending its pleading must file an amended complaint, or a motion to amend in 

conformity with this Rule, no later than the time such party’s answering brief in 

response to either of the foregoing motions is due to be filed.”15 “Rule 15(aaa) is 

not applicable to an amendment that states a new claim not addressed in a motion 

11 D.I. 75, D.I. 76, D.I. 80.

12 DiGiacobbe v. Sestak, 743 A.2d 180, 184 (Del. 1999).

13 Ct. Ch. R. 15(a).

14 TVI Corp. v. Gallagher, 2013 WL 5809271, at *20 (Del. Ch. Oct. 28, 2013).

15 Ct. Ch. R. 15(aaa).
Karpoff v. Atlantic Concrete Co., Inc.,

Civil Action No. 2022-0621-SEM

August 28, 2023

Page 5 of 7

to dismiss.”16 That is so even where such an amendment was sought while the 

motion to dismiss was pending.17 The addition of new claims that would not have 

informed the Court’s decision on a pending motion to dismiss is assessed under 

Rule 15(a).18

If Plaintiff’s First Motion had proposed amendments to his allegations and 

pending claims subject to the motion to dismiss he had already opposed, Rule 

15(aaa) would have governed, and it would have been appropriate to stay 

consideration of the First Motion.

19

 But the First Motion seeks to add DNREC as a 

party and to plead additional claims against DNREC, together with Atlantic 

Concrete, based on violations of the Coastal Zone Act—claims that were not 

within the purview of the motion to dismiss.

20

 Based on my review of the docket, I 

do not believe Plaintiff “wish[ed] to respond to a motion to dismiss . . . by 

amending [his] pleading”—he wished to add a party and a new legal theory 

16 In re USG Corp. S’holder Litig., 2021 WL 930620, at *2 (Del. Ch. Mar. 11, 2021).

17 TVI Corp., 2013 WL 5809271, at *21.

18 Id.

19 See Hillblom v. Wilmington Tr. Co., 2022 WL 17428978, at *4–6 (Del. Ch. Dec. 6, 

2022); Kablaoui v. Gerar Place Condo. Ass’n, 2022 WL 17827089, at *1, *4 (Del. Ch. 

Dec. 21, 2022) (where plaintiff sought “to supplement an insufficient complaint after 

answering a motion to dismiss, attempting thereby to include facts and allegations known 

to that plaintiff before he filed the answer to the motion, and tailored to defeat the 

motion,” that motion was clearly “responsive to the pending motion to dismiss,” and Rule 

15(aaa) was instructive).

20 D.I. 62.
Karpoff v. Atlantic Concrete Co., Inc.,

Civil Action No. 2022-0621-SEM

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independent from the motion to dismiss other claims against existing parties.

21

 

Plaintiff has indicated that the timing of the First Motion is based on the timing of 

his factual investigation, not the timing of the motion to dismiss.22 Plaintiff stood 

on his complaint against the moving defendants and opposed their motion to 

dismiss, as Rule 15(aaa) intends, and he has not taken exception to the Final 

Report granting that motion.

23

 The First Motion does not squarely fall within Rule 

15(aaa). I conclude the First Motion is generally governed by Rule 15(a)’s liberal 

standard, not Rule 15(aaa)’s good cause standard. Any additional allegations 

regarding the claims subject to dismissal are subject to Rule 15(aaa).24 

That conclusion begs the question of what to do next. Plaintiff has not taken 

exception to the Magistrate’s conclusion that his original claims, against Atlantic 

Concrete Company and Sussex County, should be dismissed in favor of the firstfiled Board of Adjustment proceeding. For what it is worth, I believe the 

Magistrate’s reasoning and conclusion on that point are sound, and that the Final 

21 See Ct. Ch. R. 15(aaa); TVI Corp., 2013 WL 5809271, at *21. 

22 D.I. 59 ¶ 4; D.I. 80 at 5 (“[T]he motions to amend do not ask that the Master revisit the 

deferral of the zoning claims to the BOA, but only to amend the complaint.”).

23 D.I. 75, D.I. 80; see Lillis v. AT&T Corp., 896 A.2d 871, 878 (Del. Ch. 2005).

24 TVI Corp., 2013 WL 5809271, at *21.
Karpoff v. Atlantic Concrete Co., Inc.,

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Report should be adopted.

25

 With Counts I and II against Atlantic Concrete 

Company and Sussex County dismissed, the question remains whether the First 

Motion to plead the new counts against DNREC and Atlantic Concrete under the 

Coastal Zone Act should be granted under Rule 15(a). I remand this question for 

the Magistrate’s review. 

Briefing on Plaintiff’s exceptions also addressed the Second Motion. I do 

not have authority to decide the Second Motion: that should be heard by the 

Magistrate in the first instance. I leave it to the Magistrate to decide if the parties’ 

briefing submitted on exception adequately addresses the Second Motion, and 

leave this matter to her capable jurisdiction.

III. Conclusion

This matter is remanded to the Magistrate for consideration of the First 

Motion under Rules 15(a) and 15(aaa) as set forth above, and for consideration of 

the Second Motion in the first instance. 

Sincerely,

/s/ Morgan T. Zurn 

Vice Chancellor

cc: All Counsel of Record, via File & ServeXpress

25 Because I have been assigned this matter only to consider Plaintiff’s exceptions, and he 

did not take exception to that reasoning or conclusion, my belief may be worth nothing; 

adopting the Final Report may still be a task for the Chancellor, as it is in cases in which 

no exceptions were taken.