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In Doe v. Catholic Diocese of Wilmington, Inc., the plaintiff failed to offer any explanation as to why she did nothing to complete service upon the defendant in the four-month period following the filing of the complaint.
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C.A. No. 09C-06-251 PLA.
Submitted: April 5, 2010.
Decided: May 26, 2010.
UPON DEFENDANT CHARLES W. WIGGINS' 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.
This is the Court's decision on a Motion to Dismiss filed by Defendant Charles W. Wiggins ("Wiggins"). In the instant action, filed under the Delaware Child Victim's Act of 2007, Plaintiff Jane Doe ("Doe") alleges personal injuries arising from repeated acts of sexual abuse by Wiggins, a Roman Catholic priest, during Doe's time as a student at St. Mark's School.
By this motion, Wiggins seeks dismissal based upon Doe's failure to comply with Superior Court Civil Rule 4(j), which requires service of the summons and Complaint within 120 days after the filing of the Complaint. Doe took no action to obtain service until 119 days after she filed the Complaint. On the 119th day, she finally produced the actual paper documents required for service of process, and thereby allowed 131 days to elapse before service could be completed.
The Complaint and first Praecipe in this case were electronically filed on June 25, 2009. Doe took no steps to effect service upon Wiggins until October 22, 2009 — one day before the 120-day deadline — nor did she promptly comply with Civil Rule 4(a) or Administrative Directive Number 2007-6, which require the additional filing of paper copies "to facilitate service of process." As of the date of the Complaint was e-filed, Doe was aware that Wiggins resided in Marcus Hook, Pennsylvania, and the proper address was provided in the e-filed first Praecipe. During the entire 119-day period, Doe never requested an enlargement of time to perfect service of process, and never sought permission from the Court to use a special process server.
Admin. Directive No. 2007-6 (Del. Super. Dec. 13, 2007).
Doe concedes that Wiggins was not served within the 120-day time period required under Rule 4(j), and that she did not seek either an extension or the appointment of a special process server. Rather, she summarily contends that good cause exists for her failure to perfect service as to Wiggins. Although this argument is asserted repeatedly in her Response to the Motion to Dismiss, she sets forth no specific facts or circumstances to support her claim of good cause for her failure to serve, nor are there any specific facts included her in Response to establish either good faith or excusable neglect.
For the reasons set forth hereafter, the Court cannot conclude that Doe made "all possible efforts" to effect timely service of process, particularly given that she knew where Wiggins resided when the Complaint was e-filed, did absolutely nothing to accomplish the task until 119 days after the filing of the Complaint, and never sought an extension of time to effect service. Since Doe made no effort to comply with Rule 4 and Administrative Directive 2007-6 by filing paper copies — let alone a diligent effort — this Court finds that Doe has failed to establish good cause for her failure to effect service of process within the statutorily mandated time period. Accordingly, Wiggins' Motion to Dismiss must be granted.
Prior to the 1983 amendments to the Federal Rules of Civil Procedure, no time limit was imposed on service of process, so that a defendant's only recourse when service was delayed was to file a motion to dismiss under Rule 41(b) for failure to prosecute. In that circumstance, the court was required to determine if the plaintiff's failure to effect service amounted to a lack of due diligence.
In the 1983 amendments to the Federal Rules, Rule 4(j) was amended to require that service be accomplished within 120 days after the filing of the Complaint. Subsequently, in 1993, Delaware adopted Superior Court Civil Rule 4(j), which is similar, although not identical, to its counterpart in the Federal Rules. It provides as follows:
If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.
Under the rule, unless a plaintiff makes a showing of good cause, an action will be dismissed without prejudice if service of the summons and the Complaint are not made within 120 days after filing of the Complaint. Although the rule does allow the trial court some flexibility to exercise its discretion to permit service beyond the 120-day limit for good cause, the concept of good cause is not defined within the rule. Rather, it has been interpreted by Delaware courts to require a showing of excusable neglect by a "demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules," that is, by showing "neglect which might have been the act of a reasonably prudent person under the circumstances." Establishing the existence of "good cause" under Rule 4 "requires a showing of good faith and excusable neglect" such that the plaintiff's failure to obtain service within 120 days of filing arose in spite of the plaintiff making "all possible efforts to comply with Rule 4." Whether a party's failure to act constitutes excusable neglect is a matter of judicial discretion.
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998); see also Wass v. Calloway, 1996 Del. Super. LEXIS 85, at *8 (Del. Super. Feb. 21, 1996).
Cohen v. Brandywine Raceway Ass'n, 238 A.2d 320, 325 (Del. Super. 1968).
Larimore v. Stella, 2003 WL 22064107, at *2 (Del. Super. Aug. 29, 2003) (quoting Franklin v. Millsboro Nursing Rehab. Ctr., Inc., 1997 Del. Super. LEXIS 164 (Del. Super. June 10, 1997)).
Franklin, 1997 Del. Super. LEXIS 164, at *23 (citing Radzewicz v. Neuberger, 490 A.2d 588, 591 (1985)).
Doe sets forth no facts or circumstances that would constitute good faith in her Response. While she claims that she will be prejudiced by a dismissal, the entire Response consists only of conclusory statements to the effect that she made a "good faith effort," and that there is no prejudice to Wiggins. Noticeably absent from the Response is mention of any acts or efforts Doe undertook to accomplish service within the required time. Nor is there any explanation whatsoever for why Doe waited a full 119 days to attempt service, or why she took no action during the four-month period following the filing of the Complaint and first Praecipe.
That Doe was ultimately able to serve Wiggins within 12 days without having to file an alias summons actually demonstrates that Wiggins' whereabouts were not unknown, that the address in the e-filed Praecipe was correct, that Wiggins was not deliberately avoiding service, and that, once Plaintiff acted, prompt service was possible.
The Court cannot under these circumstances deem Doe's actions (or lack thereof) to constitute "good cause" as Delaware case law has defined that term. Nor can the Court accept the plaintiff's contention that she made "good faith efforts" to serve Wiggins within 120 days. Although the case was filed in June 2009, it appears that Doe's counsel too no action to effect service upon Wiggins until he filed a Praecipe on October 30, 2009, more than four months later, and only a few days short of the 190-day period — despite the fact that Wiggins' residence in Marcus Hook, Pennsylvania was already known to Doe at the time she filed her Complaint. Plaintiff had to have been aware that it was highly unlikely that service by the sheriff could be completed within a day or two. Even so, Doe failed thereafter to take the simple step of filing a motion to enlarge the time to effect service. Not surprisingly, Doe's counsel's last-ditch effort was "too little, too late," as service was not accomplished within the time required by the Rule.
Plaintiff has not offered any explanation for why she did nothing to complete service upon Wiggins in the four-month period following the filing of the Complaint, nor is any reason for this neglect readily apparent from the record. If plaintiff's counsel had indeed made diligent efforts to comply with the Court's Rule and Administrative Directive 2007-6, or had some — indeed, any — explanation or excuse justifying her failure to perfect service, such as a typographical error in the number of an address or a showing that Wiggins was purposefully avoiding service, then those facts would have been included in her response. An unsubstantiated statement of "good cause," without more, provides this Court with no basis for a finding of excusable neglect. Instead, the Court is left to draw the conclusion that the reason that such facts are not included in the response is that none exist. In the Court's judgment, the sole reason that Doe did not comply with the 120-day time limit for service was her in excusable failure to initiate the process. Not only were Doe's actions not reasonable — as is required for a finding of "good cause" — but they were non-existence. This is certainly neglect, but it is hardly of the excusable kind.
Furthermore, Plaintiff's efforts to salvage this action by relying upon decisions applying the Federal Rules of Civil Procedure as support for her position are misguided for a number of reasons. First and foremost, in none of the federal cases cited by Doe did the courts address a situation in which the plaintiff took absolutely no action to serve the defendant until one day before the deadline. Rather, each case involved a plaintiff making some effort or attempt, albeit unsuccessfully, to accomplish service — and in each of those cases, the totality of the circumstances supplied a basis for a finding of good cause.
Second, the federal counterpart to Delaware's Civil Rule 4(j), while similar, does not contain identical wording and, as such, as been interpreted differently by federal courts from Delaware courts analyzing the Delaware rule. Indeed, the determination whether to extend time to effect personal service pursuant to Federal Rule of Civil Procedure 4(m) requires a two-step inquiry. First, the court must determine whether good cause exists for the plaintiff's failure to effect timely service. If good cause exists, the court must grant the extension. If good cause does not exist, the court then must consider whether to grant a discretionary extension of time in the interest of justice.
Boley v. Kaymark, 123 F.3d 756, 758 (3d Cir. 1997); Ritter v. Cooper, 2003 WL 23112306, at *2-4 (D. Del. Dec. 30, 2003).
By contrast, cases decided under Delaware's rule are far less forgiving. Delaware Superior Court Civil Rule 4(j) states that when service is not made within 120 days after the filing of the Complaint, the trial court "shall" dismiss the Complaint without prejudice unless the plaintiff can show "good cause." As an example, in Muzzi v. Lewis, under facts that essentially mirror the circumstances of this case, the Court declined to find excusable neglect where the plaintiff offered no excuse for his failure to comply with Rule 4(j) and failed to establish any estoppel argument against the defendant.
DeSantis v. Chilkotowsky, 877 A.2d 52, 2005 WL 1653640, at *1-2 (Del. Super. June 27, 2005) (TABLE).
1997 WL 127010, at *4 (Del. Super. Jan. 23, 1997), aff'd, 700 A.2d 736 (Del. 1997).
Similarly, in Anticaglia v. Benge, a defendant's motion to dismiss was granted where plaintiffs, whose original writ was returned non est against the moving defendant, made no further service attempts until some five months later, and waited an additional two months before moving to enlarge the time period for service, long after the 120-day period had passed. As in this case, the plaintiffs in Anticaglia argued excusable neglect without giving an explanation for their inaction, relying instead upon their contention that the moving defendant would not be prejudiced if the lawsuit proceeded.
2000 WL 145822, at *3 (Del. Super. Jan. 20, 2000).
Id. at *2.
The Court in Anticaglia noted that the effect of denying the motion for enlargement of time for service would be to preclude a subsequent cause of action against the moving defendant, as the statute of limitations had run. Furthermore, the Court acknowledged that the public policy of this state favors permitting a litigant his or her day in court, and that the Civil Rules accordingly seek to balance the need for speedy justice and efficient litigation with a desire to decide cases on the merits. Nevertheless, the Court denied the motion to enlarge time, stating that "[n]egligence without a valid reason is not sufficient to constitute excusable neglect." In so holding, the Court emphasized that
[a] finding of good cause or excusable neglect certainly requires some attempt to perfect service after the first attempt at service failed. This is not a case where the time for service had run due to a typographical error or where the Plaintiff is unable to locate the Defendant after genuine effort or where the Defendant actively evaded service. . . . The conduct exhibited here is not excusable neglect and it is not good cause for any relief.
Id. (citing Falcon Steel Co. v. Md. Cas. Co., 366 A.2d 512, 515 (Del. Super. 1976)).
Id. at *3.
Surely, if the minimal efforts that were made by the plaintiffs in the Anticaglia case were insufficient to constitute excusable neglect, then Doe's total failure to do anything until just days before the deadline cannot be deemed to satisfy the good cause requirement of Rule 4. The reason that dismissal is justified in this case is the same as was suggested in Anticaglia by Judge Quillen:
In a case like this, if the Plaintiffs were allowed to enlarge the time for service, the Court would be forced to grant all applications for the extension of service and the term "excusable neglect" would have no meaning. The Plaintiffs will have to shoulder the consequences of the time for service elapsing and the intervening expiration of the statute of limitations period.
Id. (internal citation omitted); see also Cord v. Menendez, 2002 Del. Super. LEXIS 454 (Del. Super. May 31, 2002) (granting defendant's motion to dismiss based upon defective process and service, where the only evidence concerning good cause was the plaintiff's letter to a New Jersey attorney inquiring whether an estate had been opened on defendant's behalf).
Even in those cases where this Court has exercised its discretion to grant additional time for service, the enlargement of time has been prompted by the plaintiffs' diligent efforts or a genuine inability to locate the defendant, as in Wass v. Calloway. In that case, the Court emphasized that under both Superior Court Rule 4 and its federal counterpart, dismissal is required except upon a showing of good cause:
1996 Del. Super. LEXIS 85, at *9.
Superior Court Civil Rule 4(j) provides that, except upon a showing of good cause, an action against a defendant shall be dismissed without prejudice if service of the summons and complaint is not made within 120 days after the filing of the complaint. The Third Circuit has consistently held that this time limit must be "strictly applied." Lovelace v. Acme Markets, Inc., 820 F.2d 81, 84 (3d Cir. 1987), cert. denied, 484 U.S. 965 (1987). In fact, "Congress [has] provided only one example of a 'good cause' exception to the 120-day rule — when failure to timely serve is caused by the defendant's intentional evasion of service of process." Id. This is not the only exception, however, it "illustrates Congress's intent that the plaintiff's excuse be one approaching hardship." Dion v. Capital Housing Associates III, Inc., E.D. Pa., C.A. No. 92-7225, Gawthrop, Dist. J. (Dec. 9, 1993).
Id. at *7-8; see also Dolan, 707 A.2d at 37 (finding good cause existed where the plaintiff's attorney and the defendant's insurer were engaged in claim discussions, as a result of which the plaintiff agreed not to seek a default judgment based upon statements that reasonably misled her into believing the Complaint had been timely served).
In contrast, the plaintiff here made no effort to accomplish service until the 119th day after filing. If total inaction were to constitute a good faith effort, Rule 4 would be rendered meaningless.
Without any specific factual basis to support the existence of good cause and good faith efforts to secure service, Doe chooses instead to rely solely on the prejudice she will experience if her claims against Wiggins are dismissed. The implications of Doe's argument are significant, because if all that need be shown by a plaintiff to avoid dismissal were prejudice, then there would be no use for any rule: all plaintiffs in all circumstances would have an unlimited amount of time to perfect service of process. For this reason, "nothing in the rule . . . excuses non-compliance when it is alleged that a defendant is not prejudiced by the failure of service. Proper service is a jurisdictional requirement."
DeSantis, 2005 WL 1653650, at *2.
Stated another way, a plaintiff who did nothing at all to accomplish service could avoid the effects of the Rule merely by alleging prejudice, which would always arise from the dismissal of a defendant. Not only does the law in Delaware not allow prejudice to be the single guiding factor, but our decisional law does not excuse any non-compliance with the jurisdictional requirements on that basis alone, as to do so would effectively emasculate the Rule.
Id.
In the final analysis, the outcome demanded in this case is the same whether the stark facts are viewed under Federal Rule of Civil Procedure 4(m) and the cases cited by the plaintiff, or under Superior Court Rule 4(j) and Delaware cases that have applied it. Neither rule would save Doe from the consequences of her negligence in doing nothing to advance her interests during the 119 days following the electronic filing of her Complaint and the first Praecipe.
Accordingly, Defendant Wiggins' Motion to Dismiss must be GRANTED.
IT IS SO ORDERED.