Opinion
C.A. No. 00C-08-104
Submitted: August 12, 2002
Decided: October 3, 2002
UPON REMAND FROM THE SUPREME COURT "TO RECONSTRUCT . . . THE MISSING TRANSCRIPT."
This 3rd day of October, 2002, pursuant to an Order remanding this case to this court as entered by the Supreme Court on August 6, 2002, it appears that:
Ricardo M. Paras v. Correctional Medical Services et al., Del. Supr., No. 370, 2001, Steele, J. (Aug. 6, 2002) (hereinafter "Paras, Aug. 6, 2002 Order").
1. Ricardo M. Paras ("Plaintiff") is an incarcerated individual. On August 1, 2000, he filed a pro se complaint alleging medical negligence against Dr. Jafri, Dr. Ivens, and Dr. Penserga, and Correctional Medical Services, Inc. (collectively "Defendants"). According to the sheriff's returns found at docket entry number four in that action, Plaintiff served Defendants on September 21, 2000 by serving "Gerda Street, Receptionist. . . ." On April 27, 2001, the Prothonotary sent Plaintiff a notice of dismissal pursuant to Superior Court Civil Rule 41(e) for his failure to prosecute his suit against Defendants.
Dkt. #4.
Dkt. #5.
In apparent response to the Rule 41(e) notice of dismissal, Plaintiff then filed a motion for default judgment on May 29, 2001. Plaintiff's stated ground for the requested entry of default judgment was that "Defendant's [sic] have had ample time to answer this complaint and have. . .chosen to. . .disregard. . .[it]."; Plaintiff averred that Defendants "were properly served via Sheriff on 9-21-2000." Plaintiff's stated reason for his position was that "if the Office of [t]he New Castle County Sherriff [sic] deemed Ms. Street to be a proper receiving agent to the. . .Defendants, then it must be believed that she was. . .an `officer, managing, or general agent'. . .[of Defendants]."
Dkt. #7.
Pl.'s Mot. for Default J. ¶ 4.
Id. ¶ 2.
Pl.'s Reply to Defs.' Resp. ¶ 3.
Counsel for Defendants entered his appearance on June 5, 2001. In response to Plaintiff's motion, Defendants argued that they were unable to respond in a timely manner because they "were never properly served. . .and received no notice of th[e] action prior to. . .receiving a copy of the. . .[m]otion. . .[for default judgment]."
Dkt. #8.
Defs.' Resp. to Pl.'s Mot. ¶ 8.
As part of their response to Plaintiff's motion, Defendants submitted the affidavit of Loren Corsberg, the Regional Manager of Correctional Medical Services, Inc. In her affidavit, Ms. Corsberg stated that "Gerda Street is not, nor has she ever been, an employee or agent of Correctional Medical Services, Inc." Defendants therefore argued that Ms. Street could not have properly accepted service of process on behalf of Defendants.
Corsberg Aff. ¶ 1.
Id. ¶ 3.
Additionally, Defendants filed a motion to dismiss Plaintiff's complaint for insufficiency of process and insufficiency of service of process. In that motion, Defendants again contended that they "were never properly served. . .and received no notice of. . .[Plaintiff's] action prior to. . .receiving a copy of the. . .[m]otion. . .[for default judgment]." Plaintiff responded that "[d]espite. . .[their] contentions," he had in fact properly served all of the Defendants.
See Super.Ct.Civ.R. 12(b)(4).
See Super.Ct.Civ.R. 12(b)(5).
Pl.'s Mot.to Dismiss ¶ 9.
Pl.'s Answer to Def.'s Mot. ¶ 4.
On July 30, 2001 this court denied Plaintiff's motion for default judgment and granted Defendants' motion to dismiss "for the reasons stated on the record." Because Plaintiff was incarcerated at that time, the hearing was recorded on a videotape (with Plaintiff participating from the Delaware Correctional Center). Plaintiff filed an appeal of this court's decisions on August 10, 2001.
Dkt. #17.
Dkt. #18.
Several months after Plaintiff filed his appeal, the Superior Court Prothonotary determined and reported to the Supreme Court that the videotape of the July 30, 2001 hearing could not be located. The Supreme Court then concluded that it would be unable to conduct a meaningful appellate review of this court's rulings without the videotape and remanded this case (with jurisdiction retained) "in order for the Superior Court to reconstruct at least that part of the missing transcript containing the rationale for its decision to dismiss. . .[Plaintiff]'s complaint." This is the court's reconstruction of its ruling granting Defendants' motion to dismiss Plaintiff's complaint and denying Plaintiff's motion for default judgment.
Paras, Aug. 6, 2002 Order at 2.
2. Superior Court Civil Rule 4(f)(1)(I) provides that service shall be made
[u]pon an individual other than an infant or an incompetent person by delivering a copy of the summons, complaint and affidavit, to that individual personally or by leaving copies thereof at that individual's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein, or by delivering copies thereof to an agent authorized by appointment or by law to receive service of process.
Super.Ct.Civ.R.4(f)(1)(I).
Superior Court Civil Rule 4(f)(1)(III) provides that service shall be made
[u]pon a domestic or foreign corporation or upon a partnership or unincorporated association which is subject to suit under common name by delivering copies of the summons, complaint and affidavit, if any, to an officer, a managing or general agent or to any other agent authorized by law to receive service of process and if the agent is one authorized by statute to receive service and the statute so requires, by also mailing a copy to the defendant.
Super.Ct.Civ.R. 4(f)(1)(III).
Superior Court Civil Rule 4(j) provides that:
[i]f 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.
Super.Ct.Civ.R.4(j).
3. Here, service upon the individual doctors is claimed to have been properly effected because Plaintiff served "Gerda Street, Receptionist. . . ." However, Plaintiff neither delivered a copy of the summons and complaint to the individual doctors personally nor left copies at the individual doctors' "dwelling house[s] or usual place[s] of abode with some person of suitable age and discretion then residing therein." There has been no showing that Ms. Street was appointed by the individual doctors as an agent to receive service of process for them. For these reasons, this court dismissed Plaintiff's complaint against Dr. Jafri, Dr. Ivens, and Dr. Penserga in their individual capacities in an oral ruling on July 30, 2001.
Dkt. #4.
See Super.Ct.Civ.R. 4(f)(1)(I).
Regarding service of the complaint upon defendant Correctional Medical Services, Inc., it has been held that the return of service upon a defendant corporation is prima facie evidence of the facts stated therein, and that strong and convincing proof is required to rebut the presumption of the veracity of the return. Here, however, the return of service indicates that service of Plaintiff's complaint against defendant Correctional MedicalServices, Inc. was made only upon "Gerda Street, Receptionist. . . ." The court's inquiry is therefore limited to whether Ms. Street had authority to accept service of process on behalf of the corporate defendant. As the affidavit submitted by Loren Corsberg, Regional Manager of Correctional Medical Services, Inc., indicates, "Gerda Street is not, nor has she ever been, an employee or agent of Correctional Medical Services, Inc." In the absence of actual authority to accept service of process on behalf of a corporation, the question is "whether or not. . .[an] individual had sufficient apparent authority to accept service of process on behalf of. . .[the company]."
Cohen v. Brandywine Raceway Ass'n, 238 A.2d 320, 324 (Del. 1968).
Dkt. #4.
Corsberg Aff. ¶ 3.
Rittenhouse Assocs., Inc. v. Potts, C.A. No. 6286, 1981 WL 15084, at *1 (Del.Ch. Apr. 21, 1981) (holding that the plaintiff had failed to make proper service of process where the record did not indicate that the defendant corporation had given any indication to the Sheriff that it had a registered agent in Delaware and no representation was made by the lessee of the defendant corporation who accepted service for the defendant corporation that he had authority to do so).
Apparent authority may be defined as "that authority which, though not actually granted, the principal knowingly or negligently permits the `agent' to exercise or which. . .[the principal] holds. . .[the `agent'] out as possessing." However, "apparent authority can never be derived from the acts of the [`]agent['] alone." The record is devoid of any indication that defendant Correctional Medical Services, Inc. knowingly or negligently permitted Ms. Street to exercise authority to accept service on its behalf; in fact, defendant, through the affidavit of Loren Corsberg, has indicated that Ms. Street did not have any authority at all. As such, Ms. Street's "authority" cannot be derived alone from her act of accepting service. For these reasons, this court dismissed Plaintiff's complaint against Correctional Medical Services, Inc.
Finnegan Constr. Co. v. Robin-Ladd Co., 354 A.2d 142, 144 (Del.Super.Ct. 1976) (holding that where defendant corporation had listed an address for a registered agent to accept service of process and Sheriff was informed upon entering that address that a person to accept service would be available soon, the person soon appearing and accepting service on behalf of defendant corporation was exercising "apparent authority.").
Id. (citations omitted).
Because the court granted Defendant's motion to dismiss as to both the individual and corporate defendants on July 30, 2001, Plaintiff's motion for default judgment was denied on the same date.
The fact that the videotape of the July 30, 2001 hearing could not subsequently be located is of course most regrettable; this Court understands that improved procedures are now in place to prevent any such future occurrences.