Opinion
C.A. No. 06C-06-074-PLA.
Submitted: October 5, 2006.
Decided: October 27, 2006.
UPON CONSIDERATION OF PLAINTIFFS' MOTION FOR RELIEF FROM ORDER. DENIED.
This 27th day of October, 2006, upon consideration of Plaintiffs' motion for relief from the Court's Order, it appears to the Court that:
1. On July 25, 2006, the Court sent to counsel a letter indicating that a hearing on Defendants' motion to dismiss was scheduled for September 27, 2006. The Court also informed counsel that Plaintiffs' response to the motion was due on or before September 1, 2006, and that failure to file a response by that date would be deemed lack of opposition to the motion.
See Docket 9.
2. On September 12, 2006, there having been no response filed by Plaintiffs, the Court granted Defendants' motion to dismiss as unopposed pursuant to Superior Court Civil Rule 107(b) and the Superior Court for New Castle County Civil Case Management Plan § IV.A(3)(b). Plaintiffs have now filed the instant motion for relief from the Court's Order.
See Docket 10.
3. Plaintiffs bring this motion under Superior Court Civil Rule 60(b) ("Rule 60(b)"), which provides in pertinent part: "On motion and 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[.]" Plaintiffs' counsel maintains that, while he was in receipt of the Court's correspondence dated July 25, 2006, he inadvertently failed to notice the September 1, 2006 deadline to file the response. Counsel was operating under the assumption that the response was due four days prior to the September 27, 2006 hearing pursuant to Superior Court for New Castle County Civil Case Management Plan § IV.A(3)(b). Therefore, because of counsel's "mistake, inadvertence, or excusable neglect," Plaintiffs request that the Court reinstate this action.
Docket 13,1115-7.
4. "A motion for relief under Rule 60(b) is addressed to the Court's sound discretion." "In exercising this discretion, the Court must examine the facts of each case."
Wife B v. Husband B., 395 A.2d 358, 359 (Del. 1978).
Paul L.S. v. Kimberly L.A., 1995 WL 807143, at *1 (Del. Fam. Ct. Oct. 18, 1995) (citing Model Fin. Co. v. Barton, 188 A.2d 233, 235 (Del.Super.Ct. 1963)).
5. A "[m]istake of counsel may be a ground for remedial action under Rule 60(b) if timely action and justice permit." However, "an admission of carelessness on the part of counsel cannot automatically be deemed `excusable neglect,' as that term is employed in the rule." "Excusable neglect has been described as that neglect which might have been the act of a reasonably prudent person under the circumstances." Carelessness and negligence, however, are not necessarily "excusable neglect." To the contrary, a "mere showing of negligence or carelessness without a valid reason may be deemed insufficient." "Whether a party's failure to act constitutes excusable neglect is a matter of judicial discretion."
Nashold v. Giles Ransom, Inc., 245 A.2d 175, 176 (Del. 1968) (emphasis added).
Barton, 188 A.2d at 235.
Cohen v. Brandywine Raceway Ass'n, 238 A.2d 320, 325 (Del.Super.Ct. 1968).
Id.
Id.
Young v. Reynoso, 2001 WL 880128, at *2 (Del.Super.Ct. July 25, 2001) (quoting Radzewicz v. Neuberger, 490 A.2d 588, 591 (Del.Super.Ct. 1985)).
6. In this case, the Court finds that counsel's mistake or inadvertence in failing to file a timely response to Defendants' motion to dismiss does not amount to "excusable neglect." Plaintiffs' counsel was admittedly in receipt of the Court's correspondence dated July 25, 2006, which stated that Plaintiffs' response to the motion was due on or before September 1, 2006. The fact that counsel assumed that a response to the motion was not due until four days before the hearing, when the Court's correspondence clearly stated otherwise, is not a "valid reason" to excuse counsel's failure to act. What is more, even after receipt of the Court's Order granting the motion to dismiss, counsel failed to file a motion for reargument and waited almost a month before filing the instant request for relief — an unreasonable delay in the Court's judgment. Therefore, the circumstances in this case do not warrant remedial action under Rule 60(b).
See Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979) ("Plaintiff was . . . obliged to act without unreasonable delay (after knowing that his action had been dismissed) in making his motion."); Ramirez v. Rackley, 70 A.2d 18, 20 (Del.Super.Ct. 1949) ("While Rule 60(b) provides no time limit for moving to vacate a default judgment entered without jurisdiction, contenting itself by stating `on motion and upon such terms as are just * * *', nevertheless I take it that the framers did not intend that such motions should be entertained . . . if found to have been brought after an `unreasonable delay.').
The Court notes that Defendants would have likely been successful on the merits of their motion to dismiss as there does not appear to be a dispute that Plaintiffs executed a "Full Release of All Claims with Indemnity" which stated that Plaintiffs, as individuals and as a married coupled, release Defendants from any and all claims arising out of the car accident between the two parties. Docket 5, Ex. B.
7. For the foregoing reasons, Plaintiffs' motion for relief from order is DENIED.