Opinion
C.A. No. 02C-12-029 WLW.
Submitted: July 9, 2004.
Decided: July 27, 2004.
Upon Defendants' Motion to Dismiss. Granted.
Charles E. Whitehurst, Esquire of Whitehurst Curley, P.A., Dover, Delaware; attorneys for the Plaintiff.
Douglass Lee Mowrey, Esquire of Bouchelle Palmer, Newark, Delaware; attorneys for the Defendants.
ORDER
The initial complaint in this automobile accident case was filed on December 20, 2002. Plaintiff attempted to make service on a resident of New Jersey named David Chilkotowsky by serving the Secretary of State on December 30, 2002. No further action was taken until the Prothonotary mailed a "120 day" letter on June 10, 2003, advising Plaintiff that proof of service must be made within 120 days of the filing of the complaint. On July 8, 2003, service was made on David Chilkotowsky and D.C. Windows and Doors by again serving the Secretary of State. Then, without the Court's permission, Plaintiff employed a special process server to serve the Complaint on Defense counsel on July 9, 2003. However, Defense counsel advised Plaintiff by letter that she was not authorized by her clients to accept service. In addition, the Court advised Plaintiff that service was not completed because the Court had not given authorization to use a special process server as is required by Superior Court Civil Rule 4(d). Finally, on August 11, 2003, Defendants David and Wendy Chilkotowsky and D.C. Windows and Doors were served by making personal service on Wendy Chilkotowsky at her residence. On September 2, 2004, Defendants filed their answer asserting lack of service and service of process as an affirmative defense.
Superior Court Civil Rule 4 governs the procedure for serving a defendant. Rule 4(j) provides that if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the plaintiff cannot show good cause why service was not made within that time period, the action shall be dismissed as to that defendant without prejudice. "Good cause requires a showing of good faith and excusable neglect such as `when the plaintiff has made all possible efforts to comply with Rule 4, but has not been able to obtain service within 120 days.'" The determination of excusable neglect is a matter of judicial discretion.
Larimore v. Stella, 2003 Del. Super. LEXIS 312, *4 (citing Franklin v. Millsboro Nursing and Rehabilitation Center, Inc., 1997 Del. Super. LEXIS 164, *22).
Franklin, 1997 Del. Super. LEXIS 164, at *22.
Plaintiff's motion indicates that service was attempted on the wrong person in another state and that Plaintiff did not learn that a David Chilkotowsky resided in Delaware until August 2003. However, the complaint was filed on December 20, 2002, and, although Plaintiff had attempted to serve the incorrect David Chilkotowsky in New Jersey through the Long-Arm Statute, no return receipt or affidavit were filed as an amendment to the complaint. Therefore, it appears Plaintiff should have been aware that service was not properly perfected. In addition, Plaintiff never requested an enlargement of the time frame in which to make service on the Defendants. Finally, when Plaintiff attempted to make service on Defendants' attorney, service was improperly made using a special process server without the Court's permission. As such, even if Defense counsel was authorized to receive service for Defendants, service was not perfected because it was made improperly.
The Court has concluded that a plaintiff established good cause for failing to serve a defendant within 120 days when the defendant changed addresses a number of times as there was justifiable difficulty in locating the defendant. However, the Court did not find excusable neglect when the plaintiff offered no excuses for his failure to comply with Rule 4.
Larimore, 2003 Del. Super. LEXIS 312, at *4-5.
Muzzi v. Lewis, 1997 Del. Super. LEXIS 69, *11.
Public policy favors giving litigants their day in court, rather than dismissing actions on technicalities. However, Rule 4(j) must be strictly construed unless plaintiff can establish good cause for its failure to comply. In this case, Plaintiff has not established good cause for her failure to serve Defendants within the 120 day time frame. Eight months went by without service being made or a request to enlarge the time. In addition, no permission has been obtained to use a special process server. Accordingly, Defendants' motion to dismiss will be granted.
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998).
IT IS SO ORDERED.