Summary
granting defendant's motion to dismiss based upon defective process and service, where the only evidence concerning good cause was the plaintiff's letter to a New Jersey attorney inquiring whether an estate had been opened on defendant's behalf
Summary of this case from Doe v. Catholic Diocese of WilmingtonOpinion
C.A. No. 99C-09-002-RFS
Date Submitted: February 22, 2002
Date Decided: May 31, 2002 June 3, 2002
Craig A. Karsnitz, Esquire, Young Conaway Stargatt Taylor, LLP, Georgetown, Delaware.
Rodney Don Sweet, Esquire, Millsboro, Delaware.
Dear Counsel:
Defendant's Motion to Dismiss alleging defective process and service is granted.
Factual Background
On September 3, 1999, Martha E. Cord ("Plaintiff") filed a Complaint against Henry Menendez, alleging a cause of action from a motor vehicle collision that occurred on September 7, 1997. The Complaint asserted that Mr. Menendez resided in New Jersey. The suit papers were served upon the Delaware Secretary of State on September 20, 1999, under 10 Del. C. § 3112(b).
§ 3112(b) requires that:
Service of the legal process provided for in this section with the fee of $2, shall be made upon the Secretary of State of this State in the same manner as is provided by law for service of writs of summons, and when so made shall be effectual to all intents and purposes as if made personally upon the defendant within this State; provided, that not later than 7 days following the filing of the return of service of process in the court in which the civil action is commenced or following the filing with the court of the proof of the nonreceipt of notice provided for in subsection (e) of this section, the plaintiff or a person acting on the plaintiff's behalf shall send by registered mail to the nonresident defendant, or to the defendant's executor or administrator, a notice consisting of a copy of the process and complaint served upon the Secretary of State and the statement that service of the original of such process has been made upon the Secretary of State of this State, and that under the provisions of this section such service is as effectual to all intents and purposes as if it had been made upon such nonresident personally within this State.
On September 29, 1999, the Sheriff's Return was filed with the Prothonotary's Office.
Plaintiff sent a certified mailing to Mr. Menendez which was returned marked "Refused/Deceased." Plaintiff did not amend her Complaint to attach the refusal of service as required by Superior Court Civil Rule 4(h). Plaintiff did, however, send a letter dated October 22, 1999, to a New Jersey lawyer, inquiring whether an estate had been opened on behalf of Mr. Menendez. Apparently, there was no further communication before this attorney sent Plaintiff Mr. Menendez's will by letter dated April 6, 2000. Neither letter was filed with the Court.
Presumably, this mailing contained a copy of the Complaint as well as the Notice that the Complaint had been served upon the Secretary of State as required by 10 Del. C. § 3112(b).
Rule 4(h) reads:
In an action in which the plaintiff serves process pursuant to 10 Del. C. § 3104, § 3112, § 3113, the defendant's return receipt and the affidavit of the plaintiff or the plaintiff's attorney of the defendant's nonresidence and the sending of a copy of the complaint with the notice required by the statute shall be filed as an amendment to the complaint within 10 days of the receiving by the plaintiff or the plaintiff's attorney of the defendant's return receipt; provided however, that the amendment shall not be served in accordance with the provisions of Rule 5(a).
This chain of events has only been uncovered as a result of Defendant's filing this Motion to Dismiss; there is no record of this activity in the Court file.
Of course, the Rules do not require Plaintiff to file such correspondence with the Court.
Plaintiff filed an Amended Complaint on April 12, 2000. It named Shirley Menendez, the Personal Representative of the Estate of Henry Menendez, as Defendant. The Amended Complaint was served upon the Secretary of State on April 24, 2000, as required by statute. However, Plaintiff did not file the amendment to her Amended Complaint. Consequently, there is no record evidence that Plaintiff served a copy of the Amended Complaint and the Notice on Ms. Menendez.
On April 24, 2001, the Prothonotary's office sent a Superior Court Civil Rule 41(e) Notice of Dismissal to Plaintiff. On May 29, 2001, pursuant to an Alias Praecipe, Ms. Menendez was again served by service on the Secretary of State. Plaintiff did not move to amend her pleading as required by Rule 4(h) nor did she request this Court to enlarge the time frame for which she was required to do so.
Rule 41(e) permits the Court to "order an action dismissed, sua sponte, upon notice of the Court, for failure of a party diligently to prosecute the action, for failure to comply with any rule, statute, or order of the Court, or for any other reason deemed by the Court to be appropriate."
Ms. Menendez has filed a Motion to Dismiss for failure to follow proper procedure for perfecting service upon a non-resident defendant. The material facts concerning this question are undisputed.
Motion to Dismiss
Plaintiff sued a known non-resident defendant. Both the Superior Court Rules and the Delaware statutory procedure provide a framework for perfecting service upon such a defendant. See Sup. Ct. Civ.R. 4; 10 Del. C. § 3104, 3112. Defendant argues that Plaintiff has failed to abide by these requirements of law because (1) Plaintiff failed to amend either her original or amended complaints as required by Rule 4(h); and (2) Plaintiff failed to serve Defendant within the time period proscribed by Rule 4(j).
The relevant portions of Rule 4 and § 3112 have been set out previously. § 3104 defines acts of nonresidents which constitute "legal presence" in the State of Delaware as well as the procedural requirements for acquiring personal jurisdiction over such nonresidents.
Rule 4(j) reads:
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.
Plaintiff argues that service was perfected when the first letter was refused, that is, on September 20, 1999. In the alternative, Plaintiff asserts that she may initiate a new proceeding under 10 Del. C. § 8118(a) and, accordingly, for the Court to dismiss the action now "does not make judicial efficiency or inexpensive determination." Although Plaintiff requested supplemental briefing in her answer to Defendant's Motion to Dismiss, she did not submit anything further.
The relevant portion of the statute declares:
If in any action duly commenced within the time limited therefor in this chapter, the writ . . . is abated, or the action otherwise avoided or defeated by the death of any party thereto, or for any matter of form . . . a new action may be commenced for the same cause of action, at any time within one year after the abatement or other determination of the original action . . . .10 Del. C. § 8118(a).
A. Service
Pursuant to Rule 4(j), the summons and complaint must be served upon a defendant within 120 days after the filing of the complaint. If not, the plaintiff must demonstrate good cause explaining why timely service failed. Therefore, Plaintiff's failure to serve Defendant within 120 days of September 3, 1999, the filing date, requires a showing of good cause.
In Dolan v. Williams, the Supreme Court interpreted "good cause" as "requir[ing] a showing of excusable neglect, by a `demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules.' That is, by showing `neglect which might have been the act of a reasonably prudent person under the circumstances.'" 707 A.2d 34, 36 (Del. 1998) (quoting Cohen v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3rd Cir. 1988)). Whether a party's failure to act constitutes excusable neglect is a matter of judicial discretion. Anticaglia v. Benge, Del. Super., C.A. No. 99C-04-341, Quillen, J. (Jan. 20, 2000). Generally, diligent efforts to comply with the Rule constitute excusable neglect, while "delays resulting from half-hearted efforts by counsel to perfect service do not." Id.
This litigation is remarkably different from case law on this subject. Plaintiff has never moved to enlarge either the time for serving Defendant or for the filing of the amendment required by Rule 4(h). However, precedent provides helpful principles.
Rule 6(b) governs the circumstances under which a motion to enlarge may be granted:
When by these Rules . . . 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 is 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 . . . .
At no point during these proceedings has Plaintiff made a motion to extend the applicable time frames.
The courts have found good cause for failure to serve the defendant in cases where (1) a typographical error in the original complaint was coupled with service seven days after the 120 day limit, Fluharty v. Richeson, Del. Super., C.A. No. 97C-09-078, Quillen, J. (Apr. 20, 1998); (2) the plaintiff was unable to locate the defendant after a genuine effort, that is, the plaintiff followed several leads himself and also hired a private investigator to locate the defendant, Viars v. Surbaugh, 335 A.2d 285 (Del.Super. 1975); and (3) the defendant purposefully avoided process, Franklin v. Millsboro Nursing Rehabilitation Center, Inc., Del. Super., C.A. No. 95C-11-008, Graves, J. (June 10, 1997).
Here, Plaintiff asserts that service was completed on September 20, 1999, when the letter was refused. This argument lacks merit. Because Plaintiff failed to file an amendment regarding service under 10 Del. C. § 3112, this Court does not know whether service was perfected. See Delaware Cedar Co. v. Price, Del. Super., C.A. No. 91A-12-010, Graves, J. (Apr. 14, 1992). The filing requirement of Rule 4(h) confirms jurisdiction under 10 Del. C. § 3112. See Felstead v. Eastern Shore Express, Inc., 160 A. 910 (Del. 1932).
Furthermore, the only evidence concerning good cause was Plaintiff's letter to a New Jersey attorney. It merely inquired about the decedent's will. This effort cannot excuse late service. Indeed, the need to use out-of-state counsel should have prompted an enlargement of time motion.
Even if Plaintiff demonstrated good cause for failing to serve the original Complaint, the motion nonetheless must be granted.
In this regard, Plaintiff filed an Amended Complaint, suing Ms. Menendez, as the personal representative and executrix of Mr. Menendez's estate, on April 12, 2000. The Amended Complaint was served upon the Secretary of State on April 24, 2000. A Return of Service was mailed to Plaintiff on May 30, 2000. Plaintiff did not file an amendment to her Amended Complaint as required by 10 Del. C. § 3104, 3112, and Rule 4(h). Plaintiff did not make a motion to enlarge the time frame in which such an amendment might be made. In fact, there is no docket activity until a Rule 41(e) Notice for failure to prosecute was sent to Plaintiff on April 24, 2001. This is well outside the 120 day period allowed for service upon Defendant. Plaintiff's position that the Amended Complaint was served is immaterial. Proof of service was not provided. Therefore, this Court lacks jurisdiction to decide the case on its merits.
Considering the problems with the first two filed Complaints, I do not need to consider the belated service of the third Complaint, on May 29, 2001. The earlier defects could not be cured. Plaintiff's argument that she had "settlement negotiations" with Defendant in this later time frame is inconsequential.
B. The Savings Statute
Plaintiff believes a new action may be initiated under 10 Del. C. § 8118(a). Section 8118(a) aids a litigant whose claim would expire by the statute of limitations where death causes delay. DeFrancesco v. Davis, Del. Super., C.A. No. 01C-01-182, Toliver, J. (Jan. 11, 2002). To obtain relief, the date the decedent's estate was opened must be known. Id. This information is not provided here. Regardless, § 8118(a) requires that the plaintiff begin anew. The filing of an amended complaint does not constitute compliance with this section. Radzewicz v. Neuberger, 490 A.2d 588, 590 (Del. 1985).
Conclusion
Considering the foregoing, the Defendant's Motion to Dismiss is granted.
IT IS SO ORDERED.