Opinion
C.A. No. 99C-03-162 CLS.
Submitted: December 2, 2003.
Decided: December 9, 2003.
On Plaintiffs' Motion for Enlargement of Time. DENIED.
On Plaintiffs' Motion for Costs. DENIED.
John E. Sullivan, Esquire, Wilmington, Delaware, Attorney for Plaintiffs.
Louis B. Ferrara, Esquire, Ferrara Haley Bevis Solomon, Wilmington, Delaware, Attorney for Defendant Danielle M. Lang.
MEMORANDUM ORDER
I. INTRODUCTION
Plaintiffs have filed a Motion for Costs pursuant to Superior Court Civil Rule 54 ("Rule 54"). Plaintiffs have also filed a Motion for Enlargement of Time pursuant to Superior Court Civil Rule 6(b)(1) ("Rule 6(b)(1)"). Upon a review of the motions and defendant's responses, this court concludes Plaintiffs' motions should be DENIED.
II. BACKGROUND
On October 8, 2003, a jury returned a verdict for plaintiffs against defendant Danielle M. Lang ("Lang") in the amount of $25,000. Plaintiffs filed a Motion for Costs on November 3, 2003. Lang filed a response on November 19, 2003. Plaintiffs filed a Motion for Enlargement of Time on November 24, 2003. Lang filed a response to that motion on December 2, 2003.
III. STANDARD OF REVIEW
Rule 54 provides that "costs shall be allowed . . . to the prevailing party upon application to the Court within ten (10) days of the entry of final judgment unless the court otherwise directs. Rule 6(b)(1) provides the court discretion to enlarge the time for filing such a motion, provided application for enlargement was made before the expiration of the 10-day time period. The court may enlarge the time after the expiration of the specified time upon motion and a finding of excusable neglect.
Super. Ct. Civ. R. 54(d).
Super. Ct. Civ. R. 6(b)(1).
Super. Ct. Civ. R. 6(b)(2).
IV. DISCUSSION
Plaintiffs filed their Motion for Costs after the expiration of the 10-day period for filing such motions under Rule 54. Plaintiffs moved to enlarge the time for filing their motion after this time expired, claiming excusable neglect. Plaintiffs claim their Motion for Costs was filed late due to waiting to receive a bill for expert testimony from one of their expert witnesses. Plaintiffs argue the Motion for Costs was filed only a few days late and did not cause identifiable harm to Lang.
Lang counters Plaintiffs could have filed their Motion for Costs timely and amended it after receiving the expert's bill. Lang points out Plaintiffs could also have timely filed under Rule 6(b)(1) to enlarge the time to file their Motion for Costs.
The court finds Plaintiffs' explanation does not amount to excusable neglect. Plaintiffs acknowledge their Motion for Costs was filed late. ". . . [T]he present Civil Rules are not intended to permit a party and his counsel to proceed with laxity and excuse that laxity by an appeal to the court's sense of fair play." Had a Motion for Enlargement of Time been filed simultaneously with the Motion for Costs, the court might rule differently.
Food Fair Stores Corp. v. Vari, 191 A.2d 257, 259 (Del. 1963).
V. CONCLUSION
The court DENIES Plaintiffs' Motion for Enlargement of Time. The court, therefore, finds Plaintiffs' Motion for Costs procedurally barred. Therefore, Plaintiffs' Motion for Costs is DENIED.