Opinion
C.A. No. 07C-03-034 WLW.
Submitted: May 9, 2008.
Decided: May 16, 2008.
Upon Plaintiff's Motion for Reargument, Reconsideration and/or Relief from Order. Granted.
James P. Hall, Esquire of Phillips Goldman Spence, P.A., Wilmington, Delaware; attorneys for the Plaintiff.
Michael I. Silverman, Esquire of Silverman McDonald Friedman, Wilmington, Delaware; attorneys for the Defendants.
Counsel for Plaintiff, Robert L. Snell, Jr. ("Snell" or "Plaintiff") appeared before the Court on Civil Motion Day, Friday, May 9, 2008, requesting that the Court hear a motion for Reargument, Reconsideration and/or Relief from Order which was mistakenly scheduled for June 20, 2008. Plaintiff asserts that Defendant Food Lion's service of its Motion to Dismiss did not include a hearing date and that Plaintiff assumed that a hearing had not yet been scheduled. However, a hearing was held on March 7, 2008. Plaintiff did not learn of it until March 13, 2008 and did not file his Rule 59 Motion for Reconsideration until March 17, 2008. Superior Court Civil Procedure Rule 59 gives only five (5) days to make a motion for reconsideration, so the Court cannot grant that motion.
However, the Court can consider Plaintiff's Motion for Relief from Judgment under Superior Court Civil Procedure Rule 60. The following standard has been used:
Superior Court Civil Procedure Rule 60(b) does not present a time limitation. It allows relief from judgment in instances where there have been, for example, mistake, inadvertence or excusable neglect, or "any other reason justifying relief from the operation of the judgment."
See Delmarva Power Light Co. v. First South Utility Const., Inc., C.A. No. 04C-03-286 PLA, 2007 WL 3105110, 1 (Del.Super.Ct., October 17, 2007).
Superior Court Civil Rule 60(b) permits the Court to "relieve a party or a party's legal representative from a final judgment, order, or proceeding for . . . [m]istake, inadvertence, surprise, or excusable neglect." Excusable neglect is "neglect which might have been the act of a reasonably prudent person under the circumstances." A mere showing of negligence or carelessness without a valid reason may be deemed insufficient." A party must also "act without unreasonable delay (after knowing that his action had been dismissed) in making his motion [for relief]."
Super. Ct. Civ. R. 60(b).
Hardy v. Harvell, 930 A.2d 928, at *2 (Del. Jul. 3, 2007) (Table).
Hardy (quoting Cohen v. Brandywine Raceway Ass'n, 238 A.2d 320, 325 (Del.Super. 1968)).
Hardy (quoting Schremp v. Marvel, 405 A.2d 119, 120 (Del. 1979)).
It is well established that a plaintiff or defendant may attack a judgment and in this case a decision to dismiss under this Rule without a time requirement specified. The motion is addressed to the sound discretion of the Court and if there is any doubt, it should be resolved in favor of the moving party because of the sound policy favoring determination on the merits.
Richard v. Harmon, 178 A.2d 140 (Del. 1962).
Cohen v. Brandywine Raceway Ass'n., 238 A.2d 320 (Del.Super.Ct. 1968).
I have examined the docket and I find that the record shows that this case was originally filed on March 21, 2007 with service on Defendant Food Lion made pursuant to 10 Del.C. § 3104 on April 12, 2007. Thereafter, on May 1, 2007, original counsel for Defendant Food Lion filed a general entry of appearance pursuant to Superior Court Civil Rule 5. An answer was later filed by present defense counsel for Food Lion raising issues with respect to Superior Court Civil Rule 12(4) or (5). Thereafter, a motion was filed and approved amending the complaint with the Commissioner ordering service of Plaintiff's First Amended Complaint to be perfected by service upon Defendant Food Lion's counsel within ten (10) days. Service was made on original counsel and then on present counsel who indicated that he was not authorized to accept service. Putting aside the fact that this was a court order and therefore present counsel for Defendant must accept for service of process, I find that substantial compliance has been met. Public policy favors that this matter should be heard on the merits.
Therefore, the Motion for Relief from Order is granted . IT IS SO ORDERED.