COURT OF CHANCERY

OF THE

STATE OF DELAWARE

TAMIKA R. MONTGOMERY-REEVES

VICE CHANCELLOR

New Castle County Courthouse

500 N. King Street, Suite 11400

Wilmington, Delaware 19801-3734

Date Submitted: February 2, 2016

Date Decided: May 4, 2016

John M. LaRosa, Esquire

Law Office of John M. LaRosa

Two East 7th Street

Suite 302

Wilmington, DE 19801-3707

Joseph C. Handlon, Esquire

Department of Justice 

State of Delaware

Deputy Attorneys General 

Carvel State Building

820 North French Street, 6th Floor

Wilmington, DE 19801

RE: First State Towing, LLC and Katharine E. Morris v. Div. of State 

Police, Dep’t of Safety and Homeland Sec., State of Delaware, et al.

Civil Action No. 11045-VCMR

Dear Counsel:

This Letter Opinion addresses the defendants’ motion to dismiss the 

plaintiffs’ complaint (the “Complaint”). For the reasons stated below, the 

defendants’ motion to dismiss is granted.

I. BACKGROUND

Subject to certain qualifications, the Delaware Code authorizes “[a]ny police 

officer of this State, or a county or municipality therein, while in the performance 

of duty, [to] remove, store or cause to be removed or stored from any public 

highway, right-of-way, street or alley, at the owner’s or operator’s expense, any 
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motor vehicle, trailer or part thereof,”1and further requires the Delaware 

Department of Safety and Homeland Security (“DSHS”) to promulgate regulations 

governing the selection of towers (the “Towing Regulations”).

2

 These Towing 

Regulations define “Approved Tower” as “a towing operator that has applied to the 

Division of State Police for certification and been approved by the Division after 

meeting all criteria for approval, including but not limited to the inspection of the 

operator’s tow vehicle(s).”3 Each Approved Tower must complete and submit a 

renewal form to its assigned troop each January. 

Plaintiffs, First State Towing, LLC (“FST”) and Katharine E. Morris, FST’s 

President, majority owner, and operator, submitted an application to Defendant 

Division of State Police, Department of Safety and Homeland Security, State of 

Delaware (“Delaware State Police” or “DSP”), to become an Approved Tower as 

early as 2000, were approved on or about January 2, 2001, and were assigned a 

Troop Area (“Troop Area 6”) patrolled by Delaware State Police Troop 6 (“Troop 

6”). As of the filing of the Complaint on May 20, 2015, Defendant Colonel 

Nathaniel McQueen, Jr. was the superintendent of DSP and its highest-ranking 

 

1

21 Del. C. § 6901(a).

2

Id. § 6901(c).

3

2 Del. Admin. § 1301 (“Towing Regulations”).
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officer, and Defendant John Doe was the current Troop Commander of Troop 6 

(together with DSP, “Defendants”).

The purpose of the Towing Regulations is “to protect and promote public 

safety and to maintain hazard-free streets and highways by: requiring tow vehicles 

and equipment to meet minimum specifications; requiring tow truck operators to 

be licensed and insured and to hire only competent and responsible drivers; and by 

creating a more equitable and uniform system of handling towing calls.”4 The 

Towing Regulations provide as follows:

6.1 Based on the needs of public safety, the Troop 

Commander may designate part of the Troop Area as a 

Special Assigned Area to be served by one or more 

Approved Towers taking into account such criteria as, 

but not limited to, motor vehicle accident statistics; 

traffic patterns; and other criteria relating to the response 

time of towing companies; the density of approved 

towing companies; and prior history of reliable and 

expeditious towing services.

6.2 Each Troop Commander shall have the discretion, 

based on the needs of public safety, to designate one or 

more Approved Towers to provide all non-consensual 

towing services in either the Troop Area or a Special

Assigned Area. The Troop Commander shall establish 

the number of Approved Towers based on the need to 

maintain adequate and timely public services to minimize 

management of a rotation system. The Troop 

 

4

Towing Regulations § 1.0.
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Commander may revise the number of approved Towers 

if he or she finds that the public is not being 

appropriately served by the existing number of towers.

6.3 If there are more than one Approved Tower for the 

Troop Area or Special Assigned Area, they shall be 

placed on a rotating list and shall be called by the Troop 

duty officer to remove a wrecked, disabled, stolen or 

abandoned vehicle, or a vehicle following an arrest, 

according to the tower’s placement on a Troop towing 

rotation list for that area and according to the tow vehicle 

classification for the size of the vehicle to be towed. 

Approved Towers will be called in succession from the 

top of the list.

5

FST is one of Troop 6’s five Approved Towers. Troop 6 utilizes Special 

Assigned Areas, to which only one Approved Tower is assigned, rather than a 

rotating list. In 2002, after the owner of a then-Approved Tower, Colemery’s, was 

accused of committing gun crimes, DSP revoked Colemery’s Approved Tower 

status and reassigned its Special Assigned Area to FST. The next day, however, 

DSP divided that area and assigned the newly created Special Assigned Areas to 

two other Approved Towers, leaving FST without any Special Assigned Area. 

Plaintiffs protested for two years until, in 2004, DSP assigned FST a small Special 

Assigned Area and promised to give FST an area comparable to those assigned to 

the other Troop 6 Approved Towers within one year. 

 

5

Id. §§ 6.1-6.3.
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Plaintiffs allege that, to this day, Defendants have not assigned FST, the only 

female-owned towing company in Delaware, additional territory. Additionally, all 

male-owned Approved Towers tow vehicles for more than one Troop, whereas 

Plaintiffs are the only Approved Tower assigned to just one Troop. Further, when 

the Christiana Mall parking lot “most recently” became available, it was assigned 

to B & F Towing (“B & F”). In fact, Plaintiffs allege that B & F removes the most 

towable vehicles from Troop Area 6, while FST receives the fourth most calls from 

Troop 6.

6

 This is despite the fact that FST’s average response times are within the 

acceptable limit of thirty minutes, but the response times of B & F average fortyfive minutes or longer. Plaintiffs seem to suggest that B & F’s favored status 

might result from its owner’s relationship to certain state employees. Specifically, 

the owner of B & F has a male relative who is a retired State Trooper previously 

assigned to Troop 6, and B & F also employed at least one Delaware State Police 

officer part-time until he retired recently.

Plaintiffs allege that they have lost and continue to lose tens of thousands of 

dollars in revenues each month as a result of Defendants’ refusal to implement an 

equitable and uniform system of handling towing calls in the Troop Area, which 

 

6

For example, in a three day period, B & F commonly receives thirty calls from 

Troop 6 while Plaintiffs only receive one call.
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Plaintiffs argue is a failure to comply with the Towing Regulations. Plaintiffs state 

that over the past fourteen years, from 2002 to the present, they made numerous 

efforts (both on their own and with the help of state legislators in Dover) to resolve 

this issue, including contacting prior Captains at Troop 6, the Colonel of the 

Delaware State Police, and the DSHS, but Defendants transferred away the 

Captains at Troop 6 who attempted to remedy this issue. Plaintiffs contend 

Defendants unlawfully exclude Plaintiffs and use male-owned businesses instead.

II. PROCEDURAL HISTORY AND CONTENTIONS

On May 20, 2015, Plaintiffs filed their three-count Complaint. Count I 

alleges violations of 21 Del. C. § 6901 and 2 Del. Admin. § 1301; Count II alleges 

Defendants discriminate against Morris on the basis of her sex and against FST as 

a minority-owned business in violation of the Equal Protection Clause of the 

Fourteenth Amendment and 42 U.S.C. § 1983; and Count III alleges Defendants 

treat Plaintiffs differently for arbitrary or malicious reasons and without rational 

basis in violation of the Equal Protection Clause of the Fourteenth Amendment and 

42 U.S.C. § 1983. The Complaint seeks a judgment declaring Defendants’ acts to 

be in violation of Plaintiffs’ rights under constitutional, statutory, and regulatory 

law; a mandatory injunction directing Defendants to (1) implement a rotating list 

of all Approved Towers for Troop 6 and to place Plaintiffs at the top of the rotating 
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list of Approved Towers, (2) call FST to remove the next wrecked, disabled, stolen 

or abandoned vehicle, or a vehicle following an arrest, located in the Troop Area 6, 

and (3) continue to call FST to remove towable vehicles in succession according to 

FST’s placement on the rotating list and equally as often as the other Approved 

Towers; a judgment against Defendants, jointly and severally, for compensatory 

damages, lost revenue, decreased earnings opportunities, humiliation, 

embarrassment, injury to reputation, emotional distress, and other pecuniary and 

non-pecuniary losses and permanent injuries; and award Plaintiffs attorneys’ fees, 

costs, and pre- and post-judgment interest.

On August 10, 2015, Defendants moved to dismiss Plaintiffs’ Complaint on 

several bases. First, Defendants contend the Delaware statutory and regulatory 

claims should be dismissed under Court of Chancery Rule 12(b)(6) because no 

private cause of action is available to enforce any perceived rights under the 

statute. Second, Defendants assert that sovereign immunity bars the action. Third, 

Defendants argue that Plaintiffs’ claims are time-barred. Fourth, Defendants 

contend that the Complaint fails to state an equal protection claim. Fifth, and 

finally, Defendants contend that the case should be dismissed under Court of 

Chancery Rules 12(b)(7) and 19(b) for failure to join all Troop 6 Approved 
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Towers. Several of these grounds are strong and potentially dispositive, but 

because Plaintiffs’ claims are time-barred, I limit my discussion to that issue.

Plaintiffs argue Defendants’ laches defense fails because it is a factual 

inquiry not well-suited for a motion to dismiss; no unreasonable delay, change of 

position, or prejudice occurred; any analogous statute of limitations was tolled 

until Plaintiffs were on inquiry notice that other towers were receiving more calls; 

and the continuing violation doctrine preserves the § 1983 claims. On September 

10, 2015, in support of their argument that no unreasonable delay occurred, 

Plaintiffs attached an affidavit and a purported contract (the “Supplemental 

Materials”) to their Answering Brief attempting to explain how they gained

knowledge of the facts underlying their cause of action during the winter of 2014. 

Defendants argue that the Court should disregard the Supplemental Materials and 

consider only the well-pled facts in the Complaint.

III. STANDARD OF REVIEW

The standard of review for dismissal pursuant to Rule 12(b)(6) is well 

established. Delaware applies the reasonable conceivability standard, under which 

a motion to dismiss will be denied if a plaintiff’s well-pled factual allegations 

would entitle him or her to relief under any reasonably conceivable set of 
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circumstances.7 The Court accepts all well-pled facts as true and draws all 

reasonable inferences in favor of plaintiffs.

8

 The Court, however, need not accept 

conclusory allegations unsupported by specific facts or draw unreasonable 

inferences in favor of plaintiffs.9

I decline to accept and consider the Supplemental Materials purporting to 

explain how Plaintiffs gained knowledge of facts underlying their causes of action 

in the winter of 2014. Plaintiffs could have amended their Complaint or filed a 

motion to amend in conformity with Court of Chancery Rule 15, but chose not to

do so. Furthermore, even if I consider the Supplemental Materials (and I do not), 

the facts alleged therein relating to the dates on which Plaintiffs learn of the 

alleged discrimination largely are contrary to those pled in the Complaint. 

Therefore, I consider only the well-pled facts of the Complaint and all reasonable 

inferences drawn therefrom in Plaintiffs’ favor. 

 

7 Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Hldgs. LLC, 27 A.2d 531, 537 

& n. 13 (Del. 2011).

8

Id. at 536.

9

Price v. E.I. duPont de Nemours & Co., Inc., 26 A.3d 162, 166 (Del. 2011).
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IV. LACHES ANALYSIS

“[A]ffirmative defenses, such as laches, are not ordinarily well-suited for 

treatment on [a Rule 12(b)(6) motion to dismiss].”10 Nevertheless, laches can be 

applied at the pleadings stage if “the complaint itself alleges facts that show that 

the complaint is filed too late.”11 Under Delaware law, laches bars a cause of 

action if a plaintiff waited an unreasonable length of time before asserting the 

claim and the delay unfairly prejudiced the defendant.12 Laches requires the Court 

to determine whether a defendant can show three elements: “first, knowledge by 

the claimant; second, unreasonable delay in bringing the claim; and third, resulting 

prejudice to the defendant.”

13

 

Because equity generally follows the law,14 “a party’s failure to file within 

the analogous period of limitations will be given great weight in deciding whether 

 

10 Reid v. Spazio, 970 A.2d 176, 183 (Del. 2009); see also Capano v. Capano, 2014 

WL 2964071, at *7 (Del. Ch. June 30, 2014) (“Thus, motions to dismiss based 

upon laches are not routinely granted . . . .”).

11 Kahn v. Seaboard Corp., 625 A.2d 269, 277 (Del. Ch. 1993).

12 Bean v. Fursa Capital P’rs, LP, 2013 WL 755792, at *4 (Del. Ch. Feb. 28, 2013).

13 Whittington v. Dragon Gp., L.L.C., 991 A.2d 1, 8 (Del. 2009) (citation omitted).

14 See State ex rel. Brady v. Pettinaro Enters., 870 A.2d 513, 527 (Del. Ch. 2005) 

(“[W]hen claims are barred by a controlling statute of limitations, a court of equity 

need not engage in a traditional laches analysis.”).
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the claims are barred by laches.”15 The analogous period for an action based on a 

statute is three years,16 and claims brought for violation of the United States 

Constitution pursuant to 42 U.S.C. § 1983 are subject to a two-year statute of 

limitations.17 

A. Plaintiffs Knew of Their Claims, but Unreasonably Delayed

The Complaint itself alleges facts that show it was filed long after Plaintiffs’

claims accrued and the analogous statute of limitations expired. All of the specific 

facts Plaintiffs plead to support their causes of action occurred in or before 2005, at 

the latest. In short, FST became an Approved Tower in 2001; Defendants 

assigned, then unassigned, a large Special Assigned Area to FST in 2002; and 

Plaintiffs protested for two years until Defendants assigned FST a small Special 

Assigned Area in or around 2004 and promised to give FST an area comparable to 

 

15 Whittington, 991 A.2d at 9 (citing Adams v. Jankouskas, 452 A.2d 148, 157 (Del. 

1982)); In re Sirius XM S’holder Litig., 2013 WL 5411268, at *4 (Del. Ch. Sept. 

27, 2013) (“[A] filing after the analogous statute of limitations has run cannot be 

justified except in the ‘rare’ and ‘unusual’ circumstances that a recognized tolling 

doctrine excuses the late filing.”) (citing Gordon Scott Levey v. Brownstone Asset 

Mgmt., 76 A.3d 764, 772 (Del. 2013); IAC/InterActiveCorp v. O’Brien, 26 A.3d 

174, 177-78 (Del. 2011); Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital 

Hldgs. LLC, 2012 WL 3201139, at *15 (Del. Ch. Aug. 7, 2012)).

16 See 10 Del. C. § 8106(a) (“[N]o action based on a statute . . . shall be brought after 

the expiration of 3 years from the accruing of the cause of such action.”).

17 Parker v. Gadow, 893 A.2d 964, 968 (Del. 2006).
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those assigned to the other Troop 6 Approved Towers within one year, i.e., in or 

before 2005. Accordingly, the Complaint pleads that Plaintiffs objectively were 

aware that Defendants were using Special Assigned Areas instead of a rotating list 

as early as 2002 and that the size of their Special Assigned Area was smaller and 

the number of towing calls they received was lower than those of other Approved 

Towers in or before 2005 at the latest. 

B. Tolling Doctrines Do Not Apply

Plaintiffs’ claims presumptively will be barred unless a tolling doctrine 

exists that would justify the late filing.

18

 “[A] cause of action ‘accrues’ under 

Section 8106 at the time of the wrongful act, even if the plaintiff is ignorant of that 

cause of action.”19 Plaintiffs bear the burden of pleading facts demonstrating that a 

tolling doctrine applies.20 But “no theory will toll the statute beyond the point 

where the plaintiff was objectively aware, or should have been aware, of facts 

 

18 Sunrise Ventures, LLC v. Rehoboth Canal Ventures, LLC, 2010 WL 363845, at *6 

(Del. Ch. Jan. 27, 2010) (“In the absence of an applicable tolling doctrine, a claim 

cannot be pressed in the Court of Chancery if the statute of limitations has 

passed.”), aff’d, 7 A.3d 485 (Del. 2010).

19 Meso Scale Diagnostics, LLC v. Roche Diagnostics GmbH, 62 A.3d 62, 77 (Del. 

Ch. 2013).

20 Smith v. Mattia, 2010 WL 412030, at *3 (Del. Ch. Feb. 1, 2010); Albert v. Alex. 

Brown Mgmt. Servs., Inc., 2005 WL 1594085, at *19 (Del. Ch. June 25, 2005).
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giving rise to the wrong.”21 Here, Plaintiffs argue that the doctrine of inherently 

unknowable injuries, equitable tolling, and the continuing violation doctrine 

preserve their claims. 

The inherently unknowable injury doctrine, which tolls the limitations 

period until a plaintiff has reason to know that a wrong was committed,22 is facially 

inapplicable because Plaintiffs pled that they knew a wrong was committed by

2005, at the latest.

Plaintiffs’ equitable tolling argument fails for the same reason. Plaintiffs 

argue that, “[u]nder the theory of equitable tolling, the statute . . . is tolled for 

claims of wrongful self-dealing, even in the absence of actual fraudulent 

concealment, where a plaintiff reasonably relies on the competence and good faith 

of a fiduciary.”23 Defendants challenge whether equitable tolling can apply to 

these claims, but I need not resolve that dispute because if any of Plaintiffs’

theories toll the limitations period, “it is tolled only until the plaintiff discovers (or

exercising reasonable diligence should have discovered) his injury. Thus, the 

 

21 Capano, 2014 WL 2964071, at *9 (citing In re Tyson Foods, Inc., 919 A.2d 563, 

585 (Del. Ch. 2007)). 

22 In re Dean Witter P’ship Litig., 1998 WL 442456, at *5 (Del. Ch. July 17, 1998).

23 Pls.’ Answering Br. 42 (citing Dean Witter, 1998 WL 442456, at *6). 
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limitations period begins to run when the plaintiff is objectively aware of the facts 

giving rise to the wrong, i.e., on inquiry notice.”24 Plaintiffs’ effort to invoke the 

equitable tolling doctrine fails because they pled that they objectively were aware 

of the conduct they now allege was wrongful by 2005 at the latest.

Finally, Plaintiffs rely on federal case law to argue that the continuing 

violation doctrine preserves their § 1983 claims, stating as follows:

Here, Defendants are engaging in a prohibited course of 

conduct by refusing to create a more equitable and 

uniform system of handling towing calls still to this day. 

Alternatively, their conduct in providing an inequitable 

and non-uniform system with significantly more calls to 

B & F is a continuing practice. Thus, the two year 

limitations period for § 1983 claims runs from the date of 

the last alleged violation. Here, Plaintiffs allege that 

“[a]s a result, an inequitable and non-uniform system of 

handling towing calls in the Troop Area remains in place 

to this day.”25

The United States Court of Appeals for the Third Circuit applies the 

continuing violation doctrine to Section 1983 claims.26 “To allege a continuing 

 

24 Dean Witter, 1998 WL 442456, at *6 (citations omitted). 

25 Pls.’ Answering Br. 47 (quoting Compl. ¶ 76). 

26 Gould v. Council of Bristol Borough, 2014 WL 296944, at *1 (E.D. Pa. Jan. 27, 

2014), aff’d sub nom., Gould v. Borough, 615 F. App’x 112 (3d Cir. 2015); see, 

e.g., Cowell v. Palmer Twp., 263 F.3d 286 (3d Cir. 2001); Centifanti v. Nix, 865 

F.2d 1422 (3d Cir. 1989); Burnette v. City of Phila., 2003 WL 21293682, at *2 

(E.D. Pa. Jan. 14, 2003).
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violation, the plaintiff must show that all acts which constitute the claim are part of 

the same unlawful . . . practice and that at least one act falls within the applicable 

limitations period.”27 “[A] continuing violation is occasioned by continual 

unlawful acts, not continual ill effects from an original violation,” and “[t]he focus 

of the . . . doctrine is on affirmative acts of the defendants.”28 However, “discrete 

[violations] are not actionable if time barred, even when they are related to acts 

alleged in timely filed charges.”29 

Here, the affirmative acts of which Plaintiffs complain occurred over ten 

years ago when (1) Defendants assigned FST a large Special Assigned Area one 

day and took it away the next, and (2) Defendants gave FST a small Special 

Assigned Area and promised to assign FST a larger Special Assigned Area within 

a year, which never happened. Plaintiffs also allege that DSP “frequently” assigns 

additional areas within the Troop 6 Area or the state to B & F and that DSP 

transferred Captains away from Troop 6 when they attempted to remedy Plaintiffs’

 

27 Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165-66 (3d Cir. 2013). 

28 Cowell, 263 F.3d at 293 (emphasis added); Sameric Corp. of Del., Inc. v. City of 

Phila., 142 F.3d 582, 599 (3d. Cir. 1998).

29 Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002).
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grievances, but the Complaint fails to plead facts placing those affirmative acts 

specifically within the statute of limitations. 

Further, allegations that Defendants are allowing an inequitable and nonuniform system to remain in place to this day exemplifies the “ill effects from an 

original violation” that the Third Circuit does not consider a continuing violation, 

rather than the affirmative acts on which the Third Circuit’s analysis focuses. 

Thus, taking the well-pled facts of the Complaint and drawing all reasonable 

inferences therefrom in favor of Plaintiffs, I conclude Plaintiffs have not satisfied 

their burden of demonstrating that the continuing violation doctrine preserves their 

§ 1983 claims. 

C. Plaintiffs’ Unreasonable Delay Prejudiced Defendants

Finally, Plaintiffs’ failure to file within the analogous statute of limitations 

prejudiced Defendants. Such prejudice arises primarily from the extent to which 

facts and circumstances change, witnesses retire or relocate, and memories fade 

over the course of fifteen years. For example, to defend against Plaintiffs’ claim 

that the current system is discriminatory, Defendants would have to explain how 

Troop Area 6 evolved since 2001 and justify Approved Tower applications and 

area assignments during that period, which includes establishing the motivations 

and decision-making processes of unnamed officials. More specifically, Plaintiffs 
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plead that an unnamed person promised them a larger Special Assigned Area in 

2004 and that multiple unnamed Captains at Troop 6 attempted to remedy the issue 

over the years. Defendants cannot fairly be expected to defend adequately against 

Plaintiffs’ claims more than ten years after the analogous statutes of limitations 

ran. In addition, Plaintiffs seek damages for the entire fifteen-year period; had they 

filed suit before 2015, Defendants could have avoided significant losses by taking 

interim corrective action.30 Accordingly, Plaintiffs’ claims are barred by laches.

V. CONCLUSION

Defendants established that the Complaint itself alleges facts that show it 

was filed too late, and Plaintiffs failed to carry their burden of pleading facts 

demonstrating that tolling applies. Therefore, Defendants’ motion to dismiss is 

granted.

IT IS SO ORDERED.

Sincerely,

/s/ Tamika Montgomery-Reeves

Vice Chancellor

TMR/jp

 

30 See, e.g., Fike v. Ruger, 752 A.2d 112, 114 (Del. 2000) (holding that the plaintiffs’ 

unreasonable delay in bringing its claims prejudiced the defendants by preventing 

them from avoiding significant losses).