Summary
holding plaintiff were unable to show good casue to allow for an extension made a "half-hearted effort by counsel" to serve defendants when the complaint was filed in April, service of process was attempted once in May and then not again until October
Summary of this case from Lynam v. Blue Diamond LLCOpinion
C.A. No. 99C-04-341 WTQ.
Date Argued: January 20, 2000.
Date Decided: January 20, 2000.
Letter Opinion and Order on: 1) Defendant Susan Wogan M.D.'s Motion to Dismiss for Plaintiffs' Failure to Effectuate Service of Process — MOTION GRANTED without prejudice; 2) Plaintiffs' Motion for Enlargement of Time for Service under Rule 6(b) — MOTION DENIED .
Bartholomew J. Dalton, Esquire, Laura J. Kominkiewicz, Esquire, Brandt Dalton, 900 Mellon Bank Center, 919 Market Street, Wilmington, Delaware 19899-2307
Sherry C. McReynolds, Esquire, Morris James Hitches Williams, 222 Delaware Avenue, P.O. Box 2306, Wilmington, Delaware 19899
John D. Balaguer, Esquire, Susan G. Harron, Esquire, White Williams, 824 Market Street, Suite 902, Wilmington, Delaware 19899-0709
Anne L. Naczi, Esquire, Griffin Hackett, 116 West Market Street, P.O. Box 612, Georgetown, Delaware 19947
Dear Mr. Dalton, Ms. Kominkiewicz, Mr. Balaguer, Ms. Harron, Ms. McReynolds and Ms. Naczi:
This is the Court's Letter Opinion and Order on Defendant Susan Wogan, M.D.'s ("Wogan") Motion to Dismiss for the Plaintiffs' failure to effectuate service of process on her within the time provided by the rules. For the reasons stated herein, that Motion is GRANTED without prejudice.
FACTS
This is a medical negligence case that arises out of a lithotripsy performed on Plaintiff Joseph R. Anticaglia on May 14, 1994. The procedure was performed by Bruce N. Benge, M.D. and the attending anesthesiologist was Wogan.
Wogan has filed this Motion to Dismiss asserting that this negligence action was filed on April 29, 1999 and service was not perfected upon her until some five months later. The first attempt at service was returned non est as to Wogan as of May 26, 1999. Evidently, no further service attempts were made upon her until October 22, 1999 when the Plaintiffs issued an alias summons to the Sheriffs office to be issued as to Wogan at Christiana Care Health Services. Wogan was not served until November 5, 1999, after the statute of limitations had run on Plaintiffs' medical negligence claims under 18 Del. C. § 6856. The Plaintiffs argue that the alias summons was not previously made upon Christiana Care Services because it was their understanding that Wogan was employed by Anesthesia Services and not Christiana Care Health Services.
In response to Wogan's Motion, Plaintiffs state that, on May 10, 1999, service was made on Defendant Anesthesia Services for whom Wogan was an agent. The writ was returned non est because the registered agent for Anesthesia Services refused, quite properly, to accept service for Wogan. On June 9, 1999, an answer and cross-claim was filed by Christiana Care Health Services, Inc. against all other Defendants, including Wogan. At that time, service was made on Anne L. Naczi, who is Wogan and Anesthesia Services' attorney in this matter. Plaintiffs, however, do not dispute that service was not perfected on Wogan until November 5, 1999. On January 6, 2000, Plaintiffs filed a Motion for an enlargement of time. Plaintiffs argue that Wogan had notice of the lawsuit and that the circumstances surrounding the failure to serve her constituted excusable neglect. Plaintiffs claim that Wogan would not be prejudiced if this lawsuit proceeded, and they have subsequently filed a Motion for an enlargement of time for service. (Dkt. No. 38). Because the statute of limitations had run before service was perfected, the effect of this Court not granting the Motion for an enlargement of time will be to preclude a subsequent cause of action against Wogan by Anticaglia. That independent fact cannot, however, procedurally change the nature of this Motion or deny Wogan the opportunity to move to dismiss under the Rules.
The Court notes that Wogan's employer, Anesthesia Services, is a party and the absence of Wogan as a party will, in all likelihood, make no practical difference to the Plaintiffs.
DECISION
The public policy of this State favors permitting a litigant his or her day in Court. Dolan v. Williams, Del. Supr., 707 A.2d 34, 36 (1998) (citing Del. Const. art. I § 9). There are, however, limits. It is undisputed that the Plaintiffs did not perfect service on Wogan before the expiration of the 120 day period as provided by Super. Ct. Civ. R. 4(j). That Rule states:
j) Summons: Time Limit for Service. If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.
So, under this Rule, unless a Plaintiff makes a showing of good cause, an action will be dismissed without prejudice if service of the summons and the Complaint are not made within 120 days after the filing of the Complaint. Dolan, 707 A.2d 36. But, this Court has discretion to allow service beyond the 120-day limit for good cause, and the Rule seeks to balance the need for speedy, just, and efficient litigation with a desire to provide litigants their right to a day in Court. Id.
Good cause requires at least a showing of good faith and entails a demonstration of excusable neglect. Id., Fluharty v. Reicheson, Del. Super., C.A. No. 97C-09-078, Quillen, J. (Apr. 20, 1998); Wass v. Calloway, Del. Super., C.A. No. 94C-11-011, Ridgely, P.J. (Feb. 21, 1996). Excusable neglect has been defined as that neglect which might have been the act of a reasonably prudent person under the circumstances. Williams v. DelCollo Electric Co. Inc., Del. Super., 576 A.2d 683, 685 (1989); Cohen v. Brandywine Raceway Assn., Del. Super., 238 A.2d 320, 325 (1968) (interpreting "excusable neglect" in Rule 60(b)) see also Dolan, 707 A.2d at 36 (using the same standard to interpret the meaning of good cause). Negligence without a valid reason is not sufficient to constitute excusable neglect. Falcon Steel Co. Inc. v. Maryland Casualty Co., Del. Super., 366 A.2d 512, 515 (1976). And, whether a party's refusal to act constitutes excusable neglect is a matter of judicial discretion. Radzewicz v. Neuberger, Del. Super., 490 A.2d 588, 591 (1985); see also Lightburn v. Delaware Power and Light Co., Del. Supr., 2 Storey 415, 158 A.2d 919, 923 (1960).
The Plaintiffs have asked for an enlargement of time under Super. Ct. Civ. R. 6(b). Excusable neglect is the term that is used for an enlargement of time under Rule 6(b). That rule states:
(b) Enlargement. When by these Rules or by a notice given thereunder or by order of court an act is required or allowed to be done at or within a specified time, the Court for cause shown may at any time in its discretion (1) with or without motion or notice order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order or (2) upon motion made after the expiration of the specified period permit the act to be done where the failure to act was the result of excusable neglect; but it may not extend the time for taking any action under Rules 50(b), 52(b) [omitted], 59(b). (d) and (e), 60(b), except to the extent and under the conditions stated in them.
The determination of excusable neglect under Rule 6(b) is a discretionary finding implicating considerations of fairness with the liberal granting of extensions to the end that disputes be resolved on their merits. PNC Bank, Delaware v. Hudson, Del. Supr., 687 A.2d 915, 917 (1997). This Judge has stated that under both Rules 4(j) and 6(b) the determinative factor is good cause. Fluharty v. Reicheson, Del. Super., 97C-09-078, Quillen, J. (Apr. 20, 1998) (citing Ellis v. Davis, et al., Del. Super., C.A. No. 96C-11-035, Quillen, J. (July 22, 1997)).
Diligent efforts to comply with the Rule demonstrates excusable neglect, whereas delays resulting from half-hearted efforts by counsel to perfect service do not. Ellis v. Davis, Del. Super., C.A. No. 96C-11-035, Quillen, J. (July 22, 1997); Wass v. Calloway, Del. Super., C.A. No. 94C-11-010, Ridgely, P.J. (Feb. 21, 1996) (citing Federal Third Circuit authority). I have stated more than once that although Rule 4(j) does not prohibit a showing of "good cause" after the 120-day period, it would seem safer to move before an expiration of the 120 days for an enlargement of the proscribed period under Rule 6(b). Ellis v. Davis, Del. Super., C.A. No. 96C-11-035, Quillen, J. (July 22, 1997); Naylor v. Smith, Del. Super., C.A. No. 96C-07-317, Quillen, J. (Feb. 10, 1997).
In this case, there has been no good cause shown that would allow an extension of time for service under Rule 6(b). This case was filed in this Court on April 29, 1999. The only timely attempt at service on Wogan was returned non est as to Wogan on May 27, 1999 after Anesthesia Services' registered agent refused service. (Dkt. No. 4). There is no allegation that any further attempt of service was made on Wogan from May 27, 1999 through October 22 1999. Service was not made until November 5, 1999. Plaintiffs' counsel knew that Wogan had not been served but did absolutely nothing formally about it for nearly five months, well after the 120 days for service of process had passed. The Plaintiffs certainly had plenty of time to perfect service.
Plaintiffs argue that Wogan had notice of the claims against her because her attorney was served with papers dealing with Christiana Care's cross claims. Plaintiffs further argue that they reasonably believed that Wogan was an employee of Anesthesia Services and that Wogan will not be prejudiced by the late service. Such arguments miss the point. A finding of good cause or excusable neglect certainly requires some attempt to perfect service after the first attempt at service failed. This is not a case where the time for service had run due to a typographical error or where the Plaintiff is unable to locate the Defendant after genuine effort or where the Defendant actively evaded service. Additionally, there is no proof in the record that Wogan purposefully avoided process. Moreover, the Plaintiffs did not miss the 120-day limit by just a few days, they missed it by several months. The conduct exhibited here is not excusable neglect and it is not good cause for any relief. Ellis v. Davis, Del. Super., C.A. No. 96C-11-035, Quillen, J. (July 22, 1997).
In a case like this, if the Plaintiffs were allowed to enlarge the time for service, the Court would be forced to grant all applications for the extension of service and the term "excusable neglect" would have no meaning. See Vechery v. McCabe, Del. Super., 9 Terry 195, 100 A.2d 460 (1953). The Plaintiffs will have to shoulder the consequences of the time for service elapsing and the intervening expiration of the statute of limitations period. Therefore, Defendant Wogan's Motion to Dismiss must be GRANTED without prejudice and the Plaintiffs' Motion for an enlargement of time is DENIED. IT IS SO ORDERED.
Sincerely,
William T. Quillen