IN THE SUPERIOR COURT OF THE STATE OF DELAWARE PREFFERED FINANCIAL SERVICES ) INC., ) ) Plaintiff, ) ) v. ) C.A. No.: N19C-05-335 SKR ) A&R BAIL BONDS, LLC, and RODNEY ) BURNS ) ) Defendants. ) MEMORANDUM ORDER This 3rd day of June, 2020, upon consideration of Defendant’s Motion to Dismiss pursuant to Superior Court Civil Rule 12(b)(6) (the “Motion”), 1 Plaintiff’s Response, 2 the Superior Court’s decision and the Supreme Court’s affirmance in Preferred Financial Services, Inc. v. A & R Bail Bonds LLC, et al.,3 (“Preferred I”), and oral arguments on the Motion, it appears to the Court that: 1. The standard by which this Court reviews a motion to dismiss, pursuant to Superior Court Civil Rule 12(b)(6), is well-established. The Court must accept as true all well-pleaded allegations; 4 however, only claims that are “clearly without merit” will be dismissed. 5 Further, a motion to dismiss shall be denied “unless the 1 Trans. ID 63617369. 2 Trans. ID 64373859. 3 2018 WL 587023 (Del. Super. Jan. 26, 2018), aff’d, 217 A.3d 60 (Del. 2019). 4 Janeve Co., Inc. v. City of Wilmington, 2009 WL 1482230 at *1 (Del. Super. May 7, 2009). 5 Id. plaintiff would not be entitled to recover under any reasonably conceivable set of circumstances susceptible of proof.”6 2. Defendant contends that the doctrines of res judicata and collateral estoppel preclude Plaintiff from bringing this action because issues that would dispose of this case, have previously been adjudicated in Preferred I. Res Judicata 3. Res judicata will preclude a plaintiff’s claim where the following elements are met: (1) the original court had jurisdiction over the subject matter and the parties; (2) the parties to the original action were the same as those parties, or in privity, in the case at bar; (3) the original cause of action or the issues decided was the same as the case at bar; (4) the issues in the prior action must have been decided adversely to the appellants in the case at bar; (5) the decree in the prior action was a final decree. 7 4. The parties dispute whether element (3) above is met; whether the Plaintiff actually brought, or should have brought, the claims that are now in front of the Court in the previous action. 8 Under Delaware law, to assert res judicata as a bar to a plaintiff’s claim, in addition to showing that the same transaction formed the basis for both the present and former suits, the defendant must show that the plaintiff 6 Id. 7 LaPoint v. AmerisourceBergen Corp., 2009 WL 623288, at *4 (Del. Mar.12, 2009) 8 Kossol v. Ashton Condominium Ass’n, Inc., 637 A.2d 827 (Del. 1994). 2 “neglected or failed to assert claims which in fairness should have been asserted in the first action.” 9 5. The Court finds that Preferred I and this action arise out of the same transaction, but that Plaintiff did not neglect or fail to assert the claims that are now before …Original document

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