Opinion
C.A. No: 99C-06-057
Submitted: October 6, 2000
Decided: October 19, 2000
Upon Defendant's Motion to Dismiss. Granted.
Suzanne Macpherson-Johnson, Dover, Delaware, Attorney for the Plaintiffs.
Mark T. Hurford, Swartz, Campbell Detweiler, Wilmington, Delaware, Attorney for the Defendant.
ORDER
Before the Court is Defendant's Motion to Dismiss. This motion arises from a car accident which occurred on July 1, 1997 in which Plaintiff Sonya L. Odwin alleges that she received serious bodily injury and Plaintiff Kevin L. Odwin alleges a loss of consortium. Defendant Kimberly Hahn was the driver of the other car. On June 30, 1999, Plaintiffs filed their Complaint. On July 2, 1999, summons was sent to the Sheriffs office for service upon the Defendant. On July 12, 1999, the writ was returned non est as to the Defendant and the docket entry states the Defendant's new address. The two year statute of limitations lapsed on July 1, 1999 ( 10 Del. C. § 8119). On May 18, 2000, almost eleven months after the filing of the Complaint, Plaintiff's counsel attempted to file an Alias Summons; however, it appears that the appropriate fees were not included.
Standard
Superior Court Civil Rule 4(j) states, "if service of the summon 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." Good cause requires the plaintiff to "show good faith and excusable neglect, which is some reasonable basis for noncompliance within the time limit specified by the rule." Essentially, good faith and excusable neglect require the plaintiff to show diligence in attempting to comply with the Rule. The court in Anticaglia further stated that "a finding of good cause or excusable neglect certainly requires some attempt to perfect service after the first attempt at service failed." Superior Court Rule 6(b) as well as Rule 4(j) support the judicial policy of fairness and the promptness of resolution of legal claims on the merits.
Gum v. Millsboro Nursing and Rehabilitation Center, Inc., Del. Super., C.A. No. 95C-11-008 (Graves, J.) (June 10, 1997), opinion at 22.
Anticaglia v. Benge, Del. Super., C.A. No. 99C-04-341 WTQ (Quillen, J.)( Jan. 20, 2000). In Anticaglia, the Court granted the Motion to Dismiss because only one attempt was made by the plaintiff to comply with the Rule.
Discussion
In the case at bar, the initial service failed and the correct address was obtainable from the court docket. The only other attempt at service was an Alias Summons that was filed without the appropriate payment for the fees. The Plaintiffs have not responded to Defendant's Motion to Dismiss in writing, but do oppose the motion.
Apparently, Plaintiffs' counsel did not forward the necessary fees to allow the Sheriff to complete service despite being notified on May 19, 2000. The Plaintiffs state that the parties were actively engaged in discussing this case with a request made by the Defendant for future information on the medicals, including a request for a "demand package". The record seems to indicate that most of this review was conducted in May of 2000, well after the 120 days expired.
Although there was discussion about a granting of an extension for filing a response by the Defendant, there was no specific request nor an inquiry by the Plaintiffs concerning the service on the Defendant, nor any willingness by the Defendant to grant an extension. Indeed, the Plaintiffs sought to perfect service "to cover her bases" almost eleven months after the filing of the Complaint.
Conclusion
The Court cannot find that the "good cause" standard has been met under Sup. Ct. Civ. Rule 4(j) and therefore grants Defendant's Motion to Dismiss.