Opinion
C.A. No. 09C-07-042 PLA.
Submitted: September 28, 2010. Submitted: August 16, 2010.
Decided: October 25, 2010.
UPON PLAINTIFF'S MOTION PURSUANT TO RULE 60(b) AND RULE 60(a) DENIED.
UPON DEFENDANT JOHN FLEMING'S MOTION TO DISMISS GRANTED.
This 25th day of October, 2010, it appears to the Court that:
1. Before the Court is a Motion for Relief from Judgment pursuant to Superior Court Civil Rule 60, wherein Plaintiff John Doe ("Doe") seeks to re-open an order entered by this Court on August 24, 2010, which granted a motion to dismiss brought by Defendants Saint Edmond's Academy, Inc. ("St. Edmond's") and Brothers of Holy Cross of the Eastern Province of the United States of America, Inc. ("Holy Cross"). St. Edmond's and Holy Cross sought dismissal on the basis that Doe failed to comply with Rule 4(j) because they were not served with process within the 120-day time period set forth in that rule. The Court granted dismissal as a result of Doe's failure to file a response by the deadline set by the Court. In the absence of a response from the plaintiff, the Court deemed the motion to dismiss unopposed and therefore dismissed Doe's claims against St. Edmond's and Holy Cross.
2. In the instant motion, Plaintiff seeks to reopen the Court's judgment on the basis of excusable neglect under subsection (b)(1) of Rule 60. Plaintiff's counsel submits that while he was on vacation during the time the response to the motion was due, he was under the impression that his law and business partner would handle the matter in his absence — a belief which he contends was particularly reasonable because his response to a similar motion had been filed in this case with respect to Defendant Fleming. Plaintiff's counsel asserts that, upon his return from vacation, he learned that his partner had relocated his office without fulfilling his promise to file a response. Based upon these circumstances, Doe's counsel requests an additional ten days from the Court's ruling on this motion to file a responsive pleading to St. Edmond's and Holy Cross's Motion to Dismiss.
Although Plaintiff also cites Rule 60(a) as an alternative basis for relief, this subsection of Rule 60 enables the Court to remedy "[c]lerical mistakes in judgments, order or other parts of the record." The Court is hard-pressed to identify how its order, which was based upon Plaintiff's failure to respond to a pending motion, can be considered a clerical mistake.
3. St. Edmond's and Holy Cross have filed a response opposing Plaintiff's motion for relief, arguing that the Court has already received and considered a response to a motion to dismiss ( i.e., the motion filed by Fleming) setting forth the same legal arguments that Doe now seeks to have the Court reconsider.
4. Rule 60(b)(1) provides that "upon such terms as are just, the Court may relieve a party or a party's legal representative from a final judgment, order, or proceeding" for "[m]istake, inadvertence, surprise, or excusable neglect." Although Rule 60(b) is given a liberal construction, "the burden is upon the movant to establish the basis for relief." Excusable neglect under Rule 60(b)(1) occurs when the moving party has committed "neglect which might have been the act of a reasonably prudent person under the circumstances." A motion to vacate judgment on the basis of excusable neglect will be granted only where the moving party can further demonstrate the possibility of a meritorious defense and a lack of substantial prejudice to the non-moving party.
Phillips v. Siano, 1999 WL 1225245, at *2 (Del. Super. Oct. 29, 1999)
Hardy v. Harvell, 930 A.2d 928, 2007 WL 1933158, at *2 (Del. July 3, 2007) (TABLE) (quoting Battaglia v. Wilm. Sav. Fund Soc'y, 379 A.2d 1132, 1135 n. 4 (Del. 1977)).
Keith v. Melvin L. Joseph Constr. Co., 451 A.2d 842, 846 Del. Super. 1982); Lost Creek Land and Cattle Co. v. Wilson, 2002 WL 31478004 (Del. Super. Oct. 16, 2002).
5. Unfortunately for Plaintiff, the Court has considered and rejected the same arguments he seeks to assert against St. Edmond's and Holy Cross in its opinion issued today granting Fleming's motion to dismiss on the basis of its recent decision in Jane Doe v. Catholic Diocese of Wilmington, Inc. To the extent that the contentions and facts presented here are virtually identical to those that were the subject of those decisions, as well as the Court's earlier ruling in Jane Doe granting an individual defendant's motion to dismiss for failure to timely effect service, it would be futile to reopen the instant judgment.
Doe v. Catholic Diocese of Wilm., Inc., 2010 WL 3946280 (Del. Super. Sept. 28, 2010).
Doe v. Catholic Diocese of Wilm., Inc., 2010 WL 2106181 (Del. Super. May 26, 2010).
6. Thus, while the Court sympathizes with the unusual predicament in which Plaintiff's counsel found himself upon his return from vacation — a circumstance which the Court would consider excusable neglect — Plaintiff has not established the possibility of a different outcome if the Court vacated its prior order. The relief Plaintiff seeks in requesting the opportunity to file a response to St. Edmond's and Holy Cross's motion to dismiss would amount to yet another attempt to advance an argument that has twice been rejected. Furthermore, in light of the fact that Plaintiff did have the opportunity to present essentially indistinguishable arguments on the merits with respect to the motion filed by Defendant Fleming, the Court does not consider his counsel's failure to respond to be "extraordinary circumstances" justifying relief under Rule 60(b)(6).
7. While counsel's failure to file a timely response to the Motion to Dismiss could be considered excusable neglect, the underlying failure on Plaintiff's part to effect timely service upon St. Edmond's and Holy Cross cannot. Accordingly, Plaintiff's Motion Pursuant to Rule 60(b) and Rule 60(a) is hereby DENIED.
IT IS SO ORDERED
This 25th day of October, 2010, it appears to the Court that:
1. John Fleming is the second defendant to move for dismissal of claims brought by Plaintiff John Doe ("Doe") under the Delaware Child Victim's Act of 2007. Doe alleges personal injuries arising from repeated acts of sexual abuse by Fleming, who was employed as a teacher and coach by Defendant St. Edmond's Academy, Inc. ("St. Edmond's"). In addition to Fleming, Doe has also named St. Edmond's, Catholic Diocese of Wilmington, Inc., and Brothers of the Holy Cross of the Eastern Province of the United States of America, Inc. as defendants.
2. Fleming's motion and Doe's response raise issues similar to those addressed in the Court's two recent decisions in Jane Doe v. Catholic Diocese of Wilmington, Inc. In that case, the plaintiff failed to comply with Superior Court Civil Rule 4(j) with respect to service upon two defendants, Charles Wiggins and St. Mark's High School. The Court granted motions to dismiss filed by both of the affected defendants after analyzing the requirements of Rule 4(j) in the context of Jane Doe's failure to take any action to effect service of process within the 120-day period required by the rule until 119 days after the filing of her Complaint. In dismissing Jane Doe's claims, the Court determined that the plaintiff's negligence was inexcusable and that her conduct did not constitute a good faith effort to effect timely service. In the opinion granting St. Mark's motion, the Court also thoroughly considered and rejected an argument that the October 7, 2009 order entered by Judge Scott staying Child Victim's Act litigation involving the Catholic Church tolled the time for effecting service of process on the defendant.
Doe v. Catholic Diocese of Wilm., Inc., 2010 WL 2106181 (Del. Super. May 26, 2010); Doe v. Catholic Diocese of Wilm., Inc., 2010 WL 3946280 (Del. Super. Sept. 28, 2010).
3. The impact of the Court's prior decisions upon this case should be manifest. Since John Doe did not effect service upon Fleming until December 15, 2009, which was 162 days after the filing of his Complaint, his action is equally (if not more) inexcusable than the delay at issue in Jane Doe, and cannot constitute a good faith effort as that term is defined in the Jane Doe decisions. Likewise, Plaintiff's contention that the stay tolled the time for effecting service of process must be rejected for the legal reasons set forth in those two decisions, which are incorporated herein by reference.
4. Accordingly, Defendant Fleming's Motion to Dismiss is GRANTED.
IT IS SO ORDERED.