Opinion
C.A. No. 09C-06-251 PLA.
Submitted: August 27, 2010.
Decided: September 28, 2010.
UPON DEFENDANT ST. MARK'S HIGH SCHOOL'S MOTION TO DISMISS GRANTED.
Thomas P. Conaty, IV, Mark D. Sisk, and James P. Curran, Jr., Esquires, CONATY, CURRAN SISK, Newark, Delaware, Attorneys for Plaintiff Jane Doe.
John P. Deckers, Esquire, JOHN P. DECKERS, P.A., Wilmington, Delaware, Attorney for Defendant Charles W. Wiggins.
Anthony Flynn, Esquire, YOUNG CONAWAY STARGATT TAYLOR, LLP, Wilmington, Delaware, Attorney for Defendant Catholic Diocese of Wilmington, Inc.
Stephen E. Jenkins, Esquire, ASHBY GEDDES, Wilmington, Delaware, Attorney for Defendant St. Mark's High School.
St. Mark's High School ("St. Mark's") is the second defendant to move for dismissal of claims brought by Plaintiff Jane Doe ("Doe") under the Delaware Child Victim's Act of 2007. Doe alleges personal injuries arising from repeated acts of sexual abuse by Charles W. Wiggins ("Wiggins"), a Roman Catholic priest, during her time as a student at St. Mark's. In addition to Wiggins, Doe has named as defendants St. Mark's High School and Catholic Diocese of Wilmington, Inc.
See 10 Del. C. § 8145(b).
As was set forth in the Court's May 26, 2010 opinion in this case, Doe failed to comply with Superior Court Civil Rule 4(j) with respect to service of the summons and Complaint upon defendant Wiggins. In that decision, this Court thoroughly analyzed the requirements of Rule 4(j) in the context of 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. Since Doe made no effort to comply with Rule 4 and never sought an extension of time to effect service, this Court found that she had failed to establish good cause for her failure to effect service of process within the statutorily mandated time period. In so holding, the Court determined that plaintiff's negligence in doing nothing to advance her interests during the 119 days following the electronic filing of her Complaint was inexcusable, and did not constitute a good faith effort on her part. The Court further emphasized that allegations of prejudice alone would not suffice to excuse Doe from the consequences of her own negligence. Wiggins' Motion to Dismiss was therefore granted.
See 2010 WL 2106181 (Del. Super. May 26, 2010).
Now before the Court is a similar Motion to Dismiss, this one filed by defendant Diocese of Wilmington Schools, Inc., d/b/a St. Mark's High School, which presents virtually the same argument as was raised by Wiggins — that is, that Doe took no steps to effect service of process upon St. Mark's until after the passage of 119 days from the filing of the Complaint. Service was thus not accomplished until November 5, 2009, so that a total of 133 days had elapsed between filing and service. As with regard to Wiggins, Plaintiff never requested an enlargement of time to perfect service of process against St. Mark's. For the same reasons as set forth in the Court's opinion on Wiggins' earlier motion, Doe's inactivity with respect to St. Mark's does not constitute excusable neglect, and she has not established good cause for her conduct.
The primary difference between the instant motion to dismiss and the previous motion filed by Wiggins is that Doe now advances a new and different excuse for failing to perfect service within the 120 days required by Rule 4(j). In this instance, Doe claims the Complaint was timely served against St. Mark's because "the Honorable Calvin Scott stayed all action regarding Child Victim's Act Litigation involving the Catholic Church" by order dated October 7, 2009, which stay remained in effect until December 23, 2009. Unfortunately for Plaintiff, this novel explanation for her inaction is belied by the actual facts and circumstances that have occurred in this case. Therefore, this Court concludes that Plaintiff's latest excuse for missing the service deadline represents nothing more than a last-ditch effort to have this Court find her neglect excusable when in fact it is not. As will be shown hereafter, Doe's claim to have relied upon the stay as a basis for her failure to accomplish service upon St. Mark's is neither legally justified nor consistent with her actions following the entry of the stay.
Pl.'s Opp'n to Def. St. Mark's High School's Mot. to Dismiss 2.
Even if the Court were to accept at face value Doe's position that the order of stay lured her into believing that she did not have to accomplish service of process within the 120-day period, her own actions plainly discredit this argument. On October 22, 2009, while the stay remained in effect, Doe made her first attempt to initiate service of process in compliance with Rule 4(a) and Administrative Directive No. 2007-6. That date was only one day before the 120-day deadline (as was the attempted service on Wiggins), and fifteen days after the stay was entered. If Plaintiff genuinely believed from October 7 to October 22 that the stay tolled the 120-day period for service of process against defendants not yet served, then that argument would have applied in response to Wiggins' motion as well. The Court cannot reach any other conclusion but that Plaintiff, who was unsuccessful in having the Court deem this same sequence of events good cause for missing the 120-day deadline as to Wiggins, has simply manufactured a new explanation in an attempt to convince the Court to excuse indistinguishable inactivity with regard to St. Mark's.
Moreover, the order of stay entered by Judge Scott did not and could not affect the duty of any plaintiff to serve his or her complaint in a timely fashion. The order specifically sets forth that the responsive pleading deadline for "any defendant [that] has not yet filed an answer or other pleading in response to the complaint" would be stayed. Nothing in the order of stay reflects an intention on the part of the Court to extend indefinitely Plaintiff's responsibility to commence the litigation by summoning the defendant. The filing of a complaint alone, without more, has no legal significance until a defendant is summoned to answer or otherwise plead to the complaint. The wording of the October 2009 order implicitly recognizes that a defendant must be in the litigation — or, in other words, served — before the stay can be invoked. Indeed, the order of stay imposes certain affirmative obligations on defendants, including requiring the defendants in stayed cases to provide documents and insurance information, to identify individuals interviewed in connection with their cases, and to participate in mediation. These requirements presuppose that the defendants have been properly served, or else the Court would lack the authority to order their participation.
In re Child Victim's Act Litig., LexisNexis Transaction ID 27449669, at ¶ 1(c) (Oct. 7, 2009) (Scott, J.) (ORDER).
Thus, not only did Plaintiff's actions suggest that she was not relying upon the stay, but the order of stay did not and could not reasonably have been interpreted to apply to the basic and fundamental act of bringing a defendant within the jurisdiction of the Court. In Cornerstone Technologies, LLC v. Conrad, for example, a dispute involving two limited liability companies both based in Pennsylvania but domiciled in Delaware, the Chancery Court was called upon to decide whether it should dismiss or stay the Delaware action in favor of consolidating it with a previously filed action pending in Pennsylvania. Although the specific facts of the dispute in the Cornerstone case are not relevant to those in the instant case, what is significant is the language utilized by Vice Chancellor Strine in granting defendant Conrad's motion to stay with a view towards permitting the plaintiff to complete litigation against the defendants in Pennsylvania, in accordance with the schedule already established in that case. The Chancery Court ruled that "[t]he stay shall remain in effect indefinitely, but the plaintiffs may perfect service of process on Conrad and may move to lift the stay no earlier than March 1, 2004 or the date of the final termination of the Pennsylvania Equity Action." While the foregoing ruling alone may not expressly signify that service of process must first be accomplished before a lawsuit can even be affected by a stay, the language of the Vice Chancellor's footnote to that sentence emphasizes that point: " Of course, whatever actions the plaintiffs will need to take to effect service of process over Conrad . . . are exempt from the stay."
2003 WL 1787959 (Del. Ch. Mar. 31, 2003).
Id. at *15 (emphasis added).
Id. at *15 n. 57 (emphasis added).
The issue of whether a stay tolls the time period for a plaintiff to effect service of process upon a defendant was more directly addressed by the Sixth Circuit Court of Appeals in Friedman v. Estate of Presser. In rejecting the plaintiff's argument that a district court's "stay of all proceedings" tolled the 120-day period for effecting service of process under Rule 4(j) because service of process constitutes a "proceeding," the Sixth Circuit emphasized that in personam jurisdiction over the defendants is an absolute prerequisite for any order, including a stay, to be effective:
929 F.2d 1151 (6th Cir. 1991).
Without personal jurisdiction over an individual . . . a court lacks all jurisdiction to adjudicate that party's right, whether or not the court has valid subject matter jurisdiction. In other words, given our prior conclusion that plaintiffs did not effect proper mail service the district court's subsequent stay was nullified, as the court had not yet acquired in personam jurisdiction over any defendant. The district court was as powerless to issue orders affecting defendants as it was powerless to issues orders affecting any other non-party. Accordingly, the stay did not toll the 120-day period for services of process. We therefore find that plaintiffs did not effect personal service of process under Rule 4(d) within the required 120-day period.
Id. at 1156-57 (internal citations omitted).
In the final analysis, and perhaps the most critical to the Court's decision herein, is the fact that even now — more than fourteen months after the Complaint was filed, and over eight months after the stay was lifted — Plaintiff has failed to exercise minimal due diligence to discern the correct name of the defendant and the appropriate individual who could legally accept service. As a result, Plaintiff has not only ignored the time requirements of Rule 4, but has neglected to serve the proper party.
Plaintiff suggests that her counsel "reached an agreement with the Diocese, through its legal counsel, that legal counsel for the Diocese would accept service for Diocese of Wilmington Schools, Inc. d/b/a St. Mark's High School." According to Plaintiff, "St. Mark's is not a separate entity, but rather one of the operating segments of the Diocese of Wilmington." Because the deposition testimony submitted by Plaintiff appeared instead to suggest that St. Mark's was an operating segment of Catholic Diocese of Wilmington Schools, Inc., the Court specifically requested counsel to clarify the relationships between St. Mark's, the Catholic Diocese of Wilmington Schools, Inc. ("Schools"), and the Catholic Diocese of Wilmington, Inc. ("CDOW, Inc."), in connection with this motion.
Pl.'s Opp'n to Def. St. Mark's High School's Mot. to Dismiss 3.
Id. at 2.
Within only ten days of the Court's request, counsel for St. Mark's was able to provide the necessary information, an effort that could and should have been undertaken by Doe's counsel immediately after filing the Complaint, if not sooner. The structure and organization of those entities are adequately explained in St. Mark's supplemental submission in support of its Motion to Dismiss. While the entity names are indeed similar and somewhat confusing, St. Mark's is not part of CDOW, Inc., but is owned by Schools and has its own operational structure. Schools is a non-profit organization that seeks to serve the mission of Catholic education ministry, and operates several educational institutions, including St. Mark's, as part of the ecclesiastical entity "Diocese of Wilmington." This ecclesiastical entity is entirely distinct from CDOW, Inc. The Court therefore rejects Doe's argument that St. Mark's is an "operating segment" of CDOW, Inc.
Counsel for CDOW, Inc. provided an affidavit in connection with this motion which explains that he did not agree to accept service on behalf of Schools or its operational units in the Diocese of Wilmington (such as St. Mark's), but only on behalf of his client, Catholic Diocese of Wilmington, Inc. Thus, service upon St. Mark's could properly be accomplished by service upon a designee of Schools, but not by serving CDOW, Inc. or its counsel.
Furthermore, Plaintiff's efforts to serve the Complaint on St. Mark's in October and November 2009 belie her claim that she considered the July 23, 2009 service on CDOW, Inc.'s counsel to be tantamount to service on St. Mark's. These later attempts at service strongly suggest that Plaintiff's counsel was fully aware that the agreement with CDOW, Inc.'s counsel to accept service "for the Diocese" did not include St. Mark's. Had Plaintiff sought to comply with Rule 4 earlier than a day before the deadline, she would have had sufficient time to correct any genuine misunderstanding on this point, but her decision to wait until the 119th day to attempt to serve St. Mark's leads this Court to conclude, as it did with regard to Wiggins, that Plaintiff did not make good-faith efforts to effect service within the 120-day period.
Finally, dismissal is warranted at this juncture because the individual who accepted service of process on St. Mark's was not authorized to do so. The original and corrected praecipes that Doe submitted requested the issuance of a summons to "St. Mark's High School c/o Jan Malkowski." Jan Malkowski, an employee of Follett College Bookstores who manages St. Mark's bookstore, is not authorized to accept service on behalf of St. Mark's or Schools. The likely recipient of the service papers was Kathy Neyers, the assistant to St. Mark's principal, who is also not recognized as an individual who may accept service under Rule 4.
See Paras v. Corr. Med. Servs., 817 A.2d 804, 2003 WL 328254, at *1 (Del. 2003) (TABLE) ("The undisputed record . . . reflects that Paras did not properly serve any of the defendants within 120 days of filing his complaint. Accordingly, the Superior Court did not err in dismissing his complaint."); Alston v. Hudson, Jones, Jaywork, Williams and Liguori, 748 A.2d 406 (Del. 2000) (TABLE).
Plaintiff's failure to serve St. Mark's within 120 days of filing the Complaint was inexcusable neglect, and she has not demonstrated good cause for her inaction or her failure to serve a proper individual authorized to accept service on St. Mark's behalf. Accordingly, the Motion to Dismiss filed by Diocese of Wilmington School, Inc., d/b/a St. Mark's High School, is hereby GRANTED.
IT IS SO ORDERED.