Opinion
C.A. No. 98C-04-231-CHT.
November 10, 1999.
ARBITRATION TRIAL BY JURY OF TWELVE DEMANDED
ORDER
This the 10th day of November, 1999, upon consideration of the Defendant's Motion for Summary Judgment and record in this case, it appears that:
1. On September 23, 1994, the Plaintiff was involved in an automobile accident with Edward M. Knight. On August 29, 1996, she commenced an action in the United States District Court for the District of Massachusetts for personal injuries arising from that accident. On October 7, 1996, Mr. Knight was personally served with a summons and complaint. The Defendant moved to dismiss the Massachusetts federal action for lack of personal jurisdiction, insufficient service of process and improper venue on November 11, 1996. The Massachusetts court granted the motion to dismiss, but subsequently vacated its order and transferred the action to the United States District Court for the District of Delaware pursuant to 28 U.S.C. § 1406. For reasons unrelated to this litigation, Mr. Knight passed away on November 21, 1996.
There is no specific information regarding what district within Massachusetts this suit was originally filed.
A New Castle County, Delaware Sheriff personally served Mr. Knight with the summons and complaint on October 7, 1996, after an earlier unsuccessful attempt at service had failed. Both parties acknowledge that proof of service was never docketed with the Massachusetts court.
2. Thereafter, on May 30, 1997, Counsel entered a limited appearance and flied a motion to dismiss the action on behalf of Mr. Knight. Judge Longobardi, on behalf of the Delaware District Court, granted that motion on March 11, 1998 based upon a lack of personal jurisdiction and insufficiency of service of process.
The Plaintiff filed a motion for substitution of parties for Mrs. Knight due to the death of Mr. Knight with the District Court for the District of Delaware. The court did not consider this motion and found it to be inappropriate because Mrs. Knight was not properly served with the motion for substitution.Quillen v. Knight, D. Del., C.A. No. 97-100-LON, Longobardi, J. (March 11, 1998) (Order).
3. On April 24, 1998, the Plaintiff initiated the present action pursuant to the Delaware savings statute, 10 Del. C. § 8118. The statute reads in part:
(a) If in any action duly commenced within the time limited therefor in this chapter, the writ fails of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to whom it is committed; or if the writ is abated, or the action otherwise avoided or defeated by the death of any party thereto, or for any matter of form; or if after a verdict for the plaintiff, the judgment shall not be given for the plaintiff because of some error appearing on the face of the record which vitiates the proceedings; or if a judgment for the plaintiff is reversed on appeal or a writ of error; 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, or after the reversal of the judgment therein.
On October 4, 1999, the Defendant filed the instant motion for summary judgment.
4. The defense argues that the action was not "duly commenced" within the meaning of the statute. Specifically, it alleges that Mr. Knight was never effectively served with process before his death or during the course of the Massachusetts litigation, and the Plaintiff did not diligently attempt to correct that deficiency prior to the transfer of the action to the Delaware District Court almost two years later. The Court is further urged to rule in favor of the defense because as a result of Mr. Knight's death, it would be prejudiced in its defense of the action. Finally, the defense argues that Section 8118 does not apply to this litigation because the original action was filed in a foreign forum (Massachusetts).
5. The Plaintiff contends that the action was in fact "duly commenced" as required by the statute and that Defendants reliance on Ellis v. Davis, Del. Super., C.A. No. 97C-08-014, Quillen, J. (May 11, 1998), is unfounded as is the suggestion that the Plaintiff did not diligently bring Mr. Knight within the court's jurisdiction. There is also no prejudice to the defense because it received timely notice of the litigation when Mr. Knight was personally served with the summons and complaint before his death. Lastly, the Plaintiff asserts that this action can be brought under the savings statute based on the ruling in Leavy v. Sanders, Del. Super., 319 A.2d 44 (1974).
6. A motion for summary judgment will be granted where the evidence shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. The moving party bears the burden of showing that no genuine issue of material fact exists and the record must be viewed in the light most favorable to the non-moving party. Borish v. Graham et. al., Del. Super., 655 A.2d 831, 833 (1994). If there is any evidence to support an outcome favorable to the non-moving party, summary judgment must be denied. Plant v. Catalytic Construction Co., Del. Super., 287 A.2d 682, 684 (1972).
7. According to Super. Ct. Civ. R. 3(a), an action is "commenced" by filing a complaint and a praecipe directing that the former be served on a defendant. However, in order for an action to be "duly commenced", the plaintiff must also diligently seek to bring the defendant into court and subject him to its jurisdiction. Russell v. Olmedo, Del Supr., 275 A.2d 249, 250 (1971). The purpose behind Section 8118 was to mitigate against the harshness of the defense of the statute of limitations raised against a plaintiff who, through no fault of his own, finds his cause technically barred by the lapse of time. Giles v. Rodolico, Del. Supr., 140 A.2d 263 (1958).
8. This action was initiated in the Massachusetts District Court where service on the Defendant was never effectuated. It was then transferred to the Delaware District Court where that deficiency was never corrected. The Delaware District Court, in dismissing the action, stated that: "Plaintiff was aware, however, that the Massachusetts court lacked jurisdiction over defendant. In light of the Massachusetts Court's ruling, plaintiff should have known that service was ineffective. The parties acknowledge that there was time to serve defendant upon transfer to this district, however, plaintiff never made any attempt to re-serve." Quillen v. Knight, D. Del., C.A. No. 97-100-LON, Longobardi, J. (March 11, 1998) (Order).
That Court granted Mr. Knight's motion to dismiss for lack of personal jurisdiction, insufficient service of process, and improper venue in the Massachusetts court on November 11, 1996. No opposition had been filed by Ms. Quillen. She then filed a motion for reconsideration asserting that she had indeed filed a memorandum in opposition to Mr. Knight's motion to dismiss, but her memorandum did not appear on the court's docket. Thereafter, the Court reopened the case, vacated the judgment of dismissal and transferred the matter to the Delaware District Court.Id.
9. In order for the present action to proceed, the failure to properly serve defendant within the prescribed time must result from excusable neglect. Lyles v. Cybak, Del. Supr., 357 A.2d 739 (1976). It was through the Plaintiffs' negligence that the cause of action was improperly brought in Massachusetts and service never perfected. Nor has that negligence been shown to be excusable or otherwise meriting inclusion within the ambit of Section 8118. Consequently, since the Plaintiff did not diligently seek to bring the Defendant before the bar of justice, the Court must conclude that this action was not "duly commenced" as required by Section 8118.
Based on the foregoing, the Defendant's Motion for Summary Judgment is granted.
IT IS SO ORDERED.
TOLIVER, Judge.