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concluding that "avoiding or defeating" an action for a "matter of form" is "directed toward instances such as lack of jurisdiction or filing in the wrong venue."
Summary of this case from Graleski v. DoverOpinion
C.A. No. 01C-10-291 RRC.
Submitted: February 24, 2003.
Decided: May 20, 2003.
Upon Defendant's Motion to Dismiss.
GRANTED.
Bruce C. Herron, Esquire, Sawyer, Akin Herron, P.A. Wilmington, Delaware, Attorney for Plaintiffs
William L. Doerler, Esquire, White and Williams LLP Wilmington, Delaware, Attorney for Defendant
Dear Counsel:
Currently before the Court is defendant Nixon Uniform Service, Inc.'s ("Nixon Uniform") motion to dismiss the complaint. It is the second such motion that Nixon Uniform has filed during the progression of this and an earlier, related case. The issue is whether the current complaint, filed after the prior dismissal of Nixon Uniform "with prejudice" following Plaintiffs' failure to have responded to a motion to dismiss in the earlier case, falls within the purview of Delaware's "savings" statute (title 10, section 8118 of the Delaware Code); if it does not, then Plaintiffs' second complaint is void as to Nixon Uniform because the statute of limitations otherwise applies. The Court finds that the statute does not pertain to the Plaintiffs' second complaint because Plaintiffs failed to respond to a Court-ordered request for a response to a motion to dismiss, which led to the November 14, 2000 Order and Letter Opinion dismissing Nixon Uniform from that earlier, related action "with prejudice," thus constituting a final judgment "on the merits." Thus Plaintiffs' current action does not fall within the terms of the statute, and Plaintiffs' current against Nixon Uniform is therefore barred. Accordingly, Nixon Uniform's Motion to Dismiss is GRANTED.
See DEL. CODE ANN. tit. 10, § 8118 (1999) (providing that "[i]f in any action duly commenced within the [applicable statute of limitations] . . . the writ is abated, or the action otherwise avoided or defeated . . . for any matter of form[,] . . . a new action may be commenced, for the same cause of action, at any time within one year. . . .").
FACTUAL AND PROCEDURAL HISTORY
Plaintiffs were involved in an automobile accident with Thomas A. Lilly ("Lilly") on March 11, 1998. On March 7, 2000, Plaintiffs filed a complaint against Lilly and Nixon Uniform, alleging that Lilly was negligent and was otherwise acting within the course and scope of his employment with Nixon Uniform when the accident occurred. Lilly was a resident of Pennsylvania, and Plaintiffs attempted to serve him via Delaware's nonresident motorist "long-arm" statute (title 10, section 3112 of the Delaware Code). Because Plaintiffs failed to comply with the technical requirements of that statute, on August 24, 2000, this Court granted Lilly's motion to dismiss the complaint for failure to have perfected service upon him.
O'Donnell v. Lilly and Nixon Unif. Serv., Inc., Del. Super., C.A. No. 00C-03-072, Cooch, J. (Aug. 24, 2000) (ORDER) (dismissing plaintiffs' claims because they failed to mail a second copy of the summons and complaint to the nonresident motorist following the return of the first copy marked as "unclaimed").
Although Nixon Uniform had been properly served, it thereafter sought dismissal of the complaint as well. It argued that Plaintiffs could not maintain an independent cause of action against it once Lilly was dismissed as a party to the case, because the only claim lodged against it was for vicarious liability under principles of respondeat superior. The proposed order attached to its motion indicated that Nixon Uniform sought dismissal "with prejudice."
After receiving Nixon Uniform's motion, the Court sent a letter to Plaintiffs' counsel requiring a response by a date certain. When no opposition to Nixon Uniform's motion was filed by that date, counsel for Nixon Uniform wrote to the Court requesting that the motion be granted as unopposed; Plaintiffs' counsel was copied on the letter. Counsel for Nixon Uniform also filed a "Responsive Motion to Dismiss," in which counsel set forth the fact that Plaintiffs had failed to respond to the earlier-filed motion. Again attached to that motion was the proposed order that included the words dismissed "with prejudice."
Dkt. #13.
The Court granted Nixon Uniform's motion, "with prejudice," by short letter opinion and order on November 14, 2000. Plaintiffs did not seek reargument of, and did not appeal, the Court's August 24, 2000 decision dismissing the complaint against Lilly or of the Court's November 14, 2000 decision dismissing the complaint against Nixon Uniform.
The Court sent a letter to counsel indicating that "[i]n light of Plaintiffs' failure to have filed a timely response to [d]efendant [Nixon Uniform's] Motion to Dismiss, the Court deems . . . [the] motion as unopposed." Letter from the Court to Counsel of 11/14/00. The Court simultaneously entered an order dismissing Nixon Uniform's from the action "with prejudice." O'Donnell v. Lilly and Nixon Unif. Serv., Inc., Del. Super., C.A. No. 00C-03-072, Cooch, J. (Nov. 14, 2000) (ORDER).
On October 31, 2001, Plaintiffs, then represented by other counsel, filed a second complaint against Lilly and Nixon Uniform. Plaintiffs' asserted that the Delaware "savings" statute, which generally provides for an additional one-year time period within which to re-file a lawsuit under certain circumstances, applied to that filing. Again the basis for suit was the March 11, 1998 automobile accident, and again the only claim against Nixon Uniform was for vicarious liability under principles of respondeat superior.
Plaintiffs' previous attorney, H. James Childerston, had by then been suspended from the practice of law and various new attorneys had undertaken representation of Childerston's clients through a receivership process.
Lilly thereafter filed a motion to dismiss, arguing that: 1) Plaintiffs had again failed to perfect service upon him under Delaware's nonresident motorist "long-arm" statute; and 2) the second complaint had otherwise been filed outside of one year of the Court's August 24, 2000 Order. By letter opinion dated October 25, 2002, the Court granted Lilly's motion to dismiss on the ground that Plaintiff had failed to perfect service upon Lilly within the year following the August 24, 2000 dismissal of that part of the original action. In that letter opinion, the Court "expresse[d] no opinion on the viability of Plaintiffs' remaining claim against Nixon Uniform. . . ."
Plaintiffs did not mail a second copy of the summons and complaint to the nonresident motorist following the return of the first copy marked as "unclaimed." See DEL. CODE ANN. tit. 10, § 3112(e) (1999)
O'Donnell v. Lilly and Nixon Unif. Serv., Inc., C.A. No. 01C-10-291 RRC, 2002 WL 31409621 (Del.Super. Oct. 25, 2002).
Id. at *3 n. 24.
Nixon Uniform then filed the present Motion to Dismiss.
CONTENTIONS OF THE PARTIES
Nixon Uniform argues that the second complaint must be dismissed on various grounds, some of which are interrelated. Nixon Uniform preliminarily contends that "[b]ecause the first cause of action against Nixon Uniform was not dismissed based upon insufficient service . . . or any other matter of form [as is otherwise required by the "savings" statute], the Plaintiffs cannot invoke the savings statute to preserve their claim . . . [i.e., the `second' complaint is barred as against Nixon Uniform]." Next, citing Greco v. University of Delaware, Nixon Uniform argues "the Plaintiffs have failed to state a cause of action against . . . [it] because Nixon Uniform . . . cannot be held liable unless Lilly is [also] liable." Lastly, Nixon Uniform argues that the bar to Plaintiffs' suit resulting from Plaintiffs' failure to perfect service upon Lilly within the year provided by the "savings" statute accrues to its benefit as well.
Def.'s Mot. at 2. In its Reply in support of its motion, Nixon Uniform characterizes the Court's November 14, 2000 Order as having been "on the merits." Def.'s Reply at 1.
619 A.2d 900 (Del. 1993) (holding that a "viable cause of action" against an employee is generally a condition precedent to imputing vicarious liability to an employer).
Def.'s Mot. at 2.
Id. at 3.
In response, Plaintiffs argue the "savings" statute applies to their second complaint because this Court "has found the savings statute applicable where, as here, the original suit is dismissed due to the inaction of [a] plaintiff's attorney." As against Nixon Uniform, they contend that "the original action was not finally `determined' until the Court's November 14, 2000 dismissal for matters of form . . ." so that "[t]he filing of the new [c]omplaint on October 31, 2001 falls within the permissible time frame [to maintain an action against Nixon Uniform based upon the March 11, 1998 accident]." With regard to Nixon Uniform's Greco argument, Plaintiffs contend that Nixon Uniform can be held liable even Lilly's absence, and rely upon Latina v. Kledaras et al. for that proposition. Lastly, Plaintiffs assert that because the Court's October 25, 2002 Letter Opinion was specifically limited to defendant Lilly, "[t]he defect in service resulting in dismissal of the claim against Lilly does not require dismissal of the claim against the employer[,] Nixon Uniform."
Pls.' Resp. § 4.
Id. § 3. (In contrast to Nixon Uniform, Plaintiffs assert that the November 14, 2000 Order "did not address the merits. . . ." Pls.' Resp. § 1.)
Id.
Del. Super., C.A. No. 00C-01-230, Toliver, J. (Dec. 14, 2001) (ORDER) (holding that if a plaintiff can demonstrate the negligence of hospital employees in the context of a medical negligence case involving a claim against a hospital for vicarious liability, the hospital may be found liable regardless of whether the employees were named as defendants). (Nixon Uniform argues, however, that the Latina Court "misconstrue[d] Greco because th[at] [C]ourt never decided the issue of . . . the statute of limitations." Def.'s Reply at 3).
Pls.' Resp. § 6.
DISCUSSION
A "savings" statute is generally defined as a statute or rule that has been enacted "to permit the bringing of a new action within a specified time after [a] former action has failed, even if the statute of limitations has expired." But "[a] great variety of language is used in these . . . statutes . . . [making] it difficult to make helpful general comments." Nevertheless, "[t]he usual situation to which the saving statute is applied . . . is one in which the plaintiff has been nonsuited, or the like, because of lack of jurisdiction, wrong venue, or failure to prosecute." Under Delaware law, however, dismissals for failure to prosecute are generally considered to be "with prejudice," i.e., "on the merits." Thus, a second suit filed after a dismissal for failure to prosecute would appear to fall outside the ambit of the "savings" statute, so a second suit following a dismissal for failure to prosecute would be barred.
51 AM. JUR. 2D Limitation of Actions § 273 (2000).
4 AM. JUR. TRIALS Statutes of Limitation § 56 (1966).
A nonsuit is a "procedural step that terminates the pending litigation but . . . leaves the issues . . . undecided"; it is "equivalent to a dismissal[.]" 24 AM. JUR. 2D Dismissal, Discontinuance, and Nonsuit § 4 (1998) (citations omitted).
4 AM. JUR. TRIALS Statutes of Limitation § 56 (1966).
See Wilmington Trust Co. v. Connors, C.A. No. 96C-03-023 WSL, 1997 WL 127957, at *3 (Del.Super. Feb. 14, 1997) (refusing to "attribute . . . any intent to . . . Rule 41(e) dismissals [as] be[ing] without prejudice unless otherwise specified").
See notes 25 and 27, infra, and accompanying text.
Nonetheless, Delaware's statute provides, in pertinent part, that
[i]f in any action duly commenced within the time limited therefor [by the applicable statute of limitations] . . . the writ is abated, or the action otherwise avoided or defeated . . . for any matter of form[,] . . . a new action may be commenced, for the same cause of action, at any time within one year after the abatement or other determination of the original action. . . .
DEL. CODE ANN. tit. 10, § 8118 (1999).
The statute is "designed to allow a plaintiff . . . one year to file a second cause of action following a final judgment adverse to his position if such judgment was not upon the merits of the cause of action [and the terms of the statute are otherwise satisfied]." For purposes of the present motion, the statute in effect has two alternative prongs: a prong that applies whenever "the writ has abated," and a prong that applies whenever the action is "avoided or defeated . . . for any matter of form." Plaintiffs potentially need only satisfy one.
Gosnell v. Whetsel, 198 A.2d 924, 926 (Del. 1964) (emphasis added).
At first blush, Plaintiffs' action might be thought to fall within the first prong of the statute, i.e., "abatement" of the writ. At common law, an abatement was "an overthrow of a suit, the equivalent of a dismissal, resulting from the fact that the defendant pleads some matter that defeats the action, either for the time being or permanently." Here, Nixon Uniform had pleaded in the earlier, related action "some matter", i.e., Plaintiffs' inability to maintain suit against it following dismissal of defendant Lilly, and that "matter" defeated Plaintiffs' original action because Nixon Uniform's motion containing that language was granted "with prejudice." Thus the question is whether the granting of the motion "with prejudice" was or was not "upon the merits."
1 AM. JUR. 2D Abatement, Survival, and Revival § 1 (1994) (citations omitted). Alternatively, "abatement" can be defined as "the result . . . of defects which vitiate the propriety of [a] suit as brought, as opposed to the existence . . . of the cause of action." 1 C.J.S. Abatement and Revival § 2 (1985).
In similar contexts, other courts, as well as the Restatement of Judgments, have referred to dismissals "with prejudice" as "generally signif[ying] that the court intended to dismiss the action `on the merits,' that is, to bring the action to a final conclusion against the plaintiff." Applying that principle here, this Court finds that, by granting Nixon Uniform's original motion to dismiss "with prejudice," this Court granted Nixon Uniform a final judgment "on the merits" so that the "savings" statute does not apply. This finding is particularly warranted given that Plaintiffs neither responded to the original Motion to Dismiss despite a direction to do so from the Court, nor did they seek reargument of or appeal this Court's decision granting the motion as unopposed. Plaintiffs had been put on notice of the potential finality of the relief sought by virtue of the inclusion of the words "with prejudice" in the proposed order submitted with Nixon Uniform's Motion to Dismiss and again in its "Responsive Motion to Dismiss."
Yonkers Contr. Co. v. Port Auth. Trans-Hudson Corp., 712 N.E.2d 678, 681 (N.Y. 1999) (citing RESTATEMENT OF JUDGMENTS § 53 cmt. c (1942); RESTATEMENT (SECOND) OF JUDGMENTS § 20 cmt. d (1980)).
Gosnell, 198 A.2d at 926.
As noted, however, Plaintiffs contend that Delaware's "savings" statute should apply here because this Court has previously found that the statute can apply where an original suit "is dismissed due to the inaction of [a] plaintiff's attorney." It is true that this Court, in an automobile personal injury action wherein the plaintiff's attorney failed to perfect service under the nonresident motorist "long arm" statute, stated that the statute "has been described as designed to mitigate against the harshness of the defense of the statute of limitations against a plaintiff, who, through no fault of his own, finds his case technically barred by lapse of time." On the other hand, however, the Court of Chancery, in a declaratory judgment action relating to professional liability insurance coverage and following an attorney's failure to "properly serve process" upon a party, noted in a footnote without resolution (or discussion of the Gaspero case) that the "savings" statute "is not directed to neglect of an attorney." It is difficult to reconcile Gasepro and Higgins, but this Court need not do so.
Pls.' Resp. § 4.
Gaspero v. Douglas, C.A. No. 80C-DE-45 ADC, 1981 WL 10228, at *1 (Del.Super. Nov. 6, 1981) (citing Giles v. Rodolico, 140 A.2d 263, 267 (Del. 1958)).
Pacific Ins. Co. v. Higgins, C.A. No. 11284, 1993 WL 133181, at *2 n. 1 (Del.Ch. Apr. 15, 1993).
Turning to the Giles case from which the Gaspero Court quoted, it is clear that the facts of that case brought the action there within the ambit of the "savings" statute because, although not stated in the opinion, dismissal of the original suit in that case was not "upon the merits": the original summons was returned non est and the plaintiff's attorneys thereafter made no attempt to file for an alias summons until 28 days outside of the statutorily-provided timeframe; by the time the summons was served, the statute of limitations had run. Nevertheless, the Supreme Court in Giles (despite the question not having been presented to it) permitted plaintiff to file a second complaint because "[t]here c[ould] be no question of harm to the defendant arising from the late filing for it clearly appear[ed] that his insurance adjustor knew not only that the original action had been filed . . . but also that through faulty directions to the sheriff the defendant had not been served with process."
Giles, 140 A.2d at 264-265.
The Supreme Court noted that "much saving in the way of time, expense and effort might be made if we [nonetheless] proceed to [consider plaintiff's right to re-file]." Id. at 267.
Giles, 140 A.2d at 267-268.
The facts of the Giles case, however, should be contrasted with the facts of this case. It has been said that a party "is not excused from failure to obey an order of the court because of nonfeasance on the part of his or her attorney[,]" which is exactly what happened here. As stated, in addition to Nixon Uniform's original and "responsive" motions, the Court also issued a letter to Plaintiffs' prior counsel directing him to respond to Nixon Uniform's motion, and counsel thereafter failed to act, i.e., an act of nonfeasance was committed. The fact that Plaintiffs' prior counsel failed to respond cannot now save their action, as this Court finds that the more sensible conclusion is that "[s]tatutes that permit the bringing of a new action after the limitations period . . . should not be used to insulate a plaintiff from . . . laches, negligence, or other similar faults."
Nonfeasance is defined as "the failure to act when a duty to act existed." BLACK'S LAW DICTIONARY 1076 (7th ed. 1999).
24 AM. JUR. 2D Dismissal, Discontinuance, and Nonsuit § 62 (1998) (citations omitted).
51 AM. JUR. 2D Limitation of Actions § 274 (2000); cf. Higgins, 1993 WL 133181, at *2 n. 1.
Additionally, the facts of the Gaspero case can be distinguished from the facts of this case. The Gaspero Court, in construing only the "abatement" prong of the "savings" statute, determined that the statute applied where the plaintiff's counsel originally failed to perfect service upon the non-resident motorist defendant, but was subsequently able to do so, after the statute of limitations had run. The Court was "of the opinion that the equities . . . weigh[ed] in favor of the plaintiff[,]" and the Court limited its holding to "the circumstances [t]here" because the tortfeasor had notice of the claim through correspondence that plaintiff's counsel directed toward the tortfeasor's insurer shortly after the accident. Here, by contrast, Plaintiffs failed to substantively address a direction by the Court to respond to Nixon Uniform's Motion to Dismiss, which motion Nixon Uniform filed after having been properly served with process. Therefore, to the extent that the "savings" statute may countenance "attorney neglect," the type of "attorney neglect" contemplated by the statute has not been shown here.
Gaspero, 1981 WL 10228, at *2.
Id.
Id.
With regard to the second alternative prong of the statute, i.e. the "avoiding" or "defeating" of the action "for any matter of form," the Court likewise finds the statute inapplicable to the facts at hand. The Court concludes that this prong of the statute is directed toward instances such as lack of jurisdiction or filing in the wrong venue, and not a deliberate failure to respond to a motion to dismiss, such as happened in the instant case. With that said, and given that Delaware's "savings" statute does not otherwise apply to Plaintiff's action against Nixon Uniform, the statute of limitations on Plaintiff's original action continued to run on Plaintiff's claim against Nixon Uniform. As stated, the accident underlying Plaintiff's suit occurred on March 11, 1998. The statute of limitations on tort claims of the sort involved here is two years, so Plaintiffs' action against Nixon Uniform is now barred.
Indeed, when the statute is considered as a whole, and if "abatement" is construed to mean "the result . . . of defects which vitiate the propriety of [a] suit as brought," see note 26, infra, then it becomes clear that the entirety of the statute is directed toward procedural issues and not a substantive failure to respond to a Court direction, as is the case here.
See 51 AM. JUR. 2D Limitation of Actions § 273 (2000) (stating that "if a court dismisses an [original] action, the statute of limitations continues running . . . unless . . . a savings statute [applies] . . .").
See DEL. CODE ANN. tit. 10, § 8119 (1999).
Because the "savings" statute does not otherwise apply, Nixon Uniform's Motion to Dismiss is GRANTED, and the Court need not reach the respondeat superior arguments Nixon Uniform also advances.
This Court takes no pleasure in this ruling, which comes at the end of a convoluted litigation and has the effect of barring Plaintiffs from ever having had their day in Court.
IT IS SO ORDERED.