Opinion
C.A. No. 04C-03-286 PLA.
Submitted: October 15, 2007.
Decided: October 17, 2007.
On Plaintiff's Motion to Vacate to Enlarge Time to Answer Defendant's Motion for Reargument DENIED.
This 17th day of October, 2007, upon consideration of the Motion to Vacate and Motion to Enlarge Time to Answer Defendant First South Utility Construction, Inc.'s Motion for Reargument filed by Plaintiff Delmarva Power Light Co. ("Delmarva), it appears to the Court that:
1. On September 18, 2007, this Court granted the Motion for Summary Judgment filed by Plaintiff Delmarva Power Light Co. ("Delmarva") and denied the Motion for Summary Judgment filed by First South.
Delmarva Power Light Co. v. First S. Util. Constr., Inc., 2007 WL 2758777 (Del.Super.Ct. Sept. 18, 2007)
2. First South filed a Motion for Reargument on September 25, 2007. Delmarva failed to file a timely response in opposition to First South's motion. This Court granted First South's motion on October 11, 2007, vacated its earlier decision on September 18, 2007, and denied Delmarva's motion for summary judgment.
As the Court noted in its decision to grant First South's motion for reargument, Delmarva had the option to file a response to First South's Motion for Reargument within five days of service of the motion. Super. Ct. Civ. R. 59(e). Delmarva, however, failed to respond by October 2, 2007 as required by Court rules. See Super. Ct. Civ. R. 6(a) ("When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and other legal holidays shall be excluded in the computation.").
Docket 82.
3. Delmarva has now filed this motion seeking to enlarge the time under Superior Court Civil Rule 59 and Superior Court Civil Rule 60. Delmarva argues that its attorney had two back-to-back family emergencies out of state that prevented her from filing a response within the time allotted. Accordingly, Delmarva argues that its attorney has shown "excusable neglect" and circumstances beyond her control that should permit her to file a late response to First South's motion.
4. "The Supreme Court has indicated that there are circumstances which the court should consider hardship or impracticability when considering the strict application of the tight time limitations of Superior Court Civil Rule 59 regarding rearguments." For example, in Oropeza v. Maurer, the Court considered an untimely motion filed by an inmate against his attorney for legal malpractice because the process at the prison library for mailing took a few days, the prothonotary mailed a copy of his court order a few days after the order was issued, and the prison did not receive the order until after the period had expired. Similarly, in In re Dingee, the Delaware Supreme Court permitted a father to file a motion for a new trial under Rule 59 twenty-two days after the expiration of the time period for the motion because the father was incarcerated in Maryland and did not have counsel. The Court noted, "[u]nder such circumstances, this Court makes allowances for hardship and impracticability in the strict application of Rule 59."
Oropeza v. Maurer, 2004 WL 728939, at *1 (Del.Super.Ct. Mar. 11, 2004) (citing In re Dingee, 316 A.2d 555 (Del. 1974)).
Oropeza, 2004 WL 728939 at *1.
Dingee, 316 A.2d at 556-57.
Id. at 557.
5. Similarly, Superior Court Civil Rule 60(b) permits the Court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding for . . . [m]istake, inadvertence, surprise, or excusable neglect." Excusable neglect is "neglect which might have been the act of a reasonably prudent person under the circumstances." "A mere showing of negligence or carelessness without a valid reason may be deemed insufficient." A party must also "act without unreasonable delay (after knowing that his action had been dismissed) in making his motion [for relief]."
Super. Ct. Civ. R. 60(b).
Hardy v. Harvell, 930 A.2d 928, at *2 (Del. Jul. 3, 2007) (Table).
Id. (quoting Cohen v. Brandywine Raceway Ass'n, 238 A.2d 320, 325 (Del.Super.Ct. 1968)).
Id. (quoting Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979)).
6. In this case, the Court will not permit Delmarva to file a response to First South's motion for reargument. Delmarva's attorney learned of First South's motion before she had to leave town for family emergency. She then learned of another family emergency on October 3, 2007, a day after the time to file a response expired. Unlike the parties in Oropeza and Dingee who had no access to communications and were restricted by prison procedures, Delmarva's attorney could have easily sent an email or called the Court to inform the Judge that she would be unable to respond on time. Moreover, Delmarva filed this Motion to vacate on October 16, 2007, exactly two weeks after the date the response was due. Though the Court granted First South's motion on October 11, 2007, Delmarva was on notice from at least September 27, 2007, almost three weeks before it filed this motion, that a response was due and that the Court could grant First South's motion.
Docket 83, ¶ 3.
Id., ¶ 4.
Delmarva's counsel states in her motion that she learned of First South's Motion for Reargument on September 27, 2007. Docket 83, ¶ 3. Thus, Delmarva had almost three weeks to respond to First South's motion or, at the very least, to notify the Court of an emergency.
7. Most importantly, while the Court is not insensitive to the fact that a death in the family is an event that constitutes a hardship, and would constitute "excusable neglect" under Rule 60(b), the Court's decision to grant the motion for reargument does not constitute a final decision. In fact, the Court's decision to grant First South's motion does nothing more than permit both sides to try their case. By vacating its earlier decision, which the Court did only after realizing and acknowledging itsown error, the litigation has not been terminated, a final order has not been entered, and neither party is prevented from pursuing its rights in court. As a practical matter, if Delmarva believes its case to be strong, Delmarva should not feel that the Court has treated it unfairly, as it now has the same opportunity to convince a jury of its position that it had when this litigation was instituted.
See, e.g., Bailey v. ACME/ASCO/Albertson's Inc., 2006 WL 496139, at *2 (Del.Super.Ct. Feb. 21, 2006) ("Defendant's few days delay in entering an appearance and answering the complaint due to a death in the family constitutes excusable neglect under the circumstances.").
Rule 60(b) permits the Court to relieve a party from a final judgment, order or proceeding where the party can show excusable neglect. Super. Ct. Civ. R. 60(b)(1). As explained herein, however, the Court's decision to grant First South's motion for reargument allows the trial to proceed and, in essence, vacates a final order.
8. Accordingly, Delmarva's Motion to Vacate and Motion to Enlarge Time to Answer Defendant First South Utility Construction, Inc.'s Motion for Reargument is hereby DENIED.
IT IS SO ORDERED.