Opinion
C.A. No. 02C-04-015 JTV.
Submitted: July 11, 2003.
Decided: November 26, 2003.
Upon Consideration of Defendant Prison Health Services' Inc., Motion To Dismiss GRANTED.
Upon Consideration of State Defendant's and Robert I. George Motion for Judgment GRANTED.
Darlene Sturdevant, Pro Se.
Gregory E. Smith, Esq., Wilmington, Delaware. Attorney for State Defendants.
Robert K. Beste, III, Esq., Wilmington, Delaware. Attorney for Defendant Prison Health Services, Inc.
ORDER
Upon consideration of a motion to dismiss the complaint filed by defendant Prison Health Services, Inc. and a motion for judgment on the pleadings filed by defendants State of Delaware and Robert I. George, the plaintiff's opposition thereto, and the record of the case, it appears that:
1. On April 8, 2002, the plaintiff, Darlene K. Sturdevant, guardian of the property and person of Michael Tharp, filed this action pro se seeking damages on account of an assault on her son, Michael Tharp. The assault occurred at the Violation of Probation Housing Unit in Sussex County while Mr. Tharp was an inmate in the custody of the Department of Correction. The assailant was Anthony Gaines, another inmate. The assault caused severe injury to Mr. Tharp, leaving him in a vegetative state.
2. Named as defendants were State of Delaware, Robert I. George, who is Warden of the Violation of Probation Unit, Prison Health Services, Inc., Dr. Siobhan Irvin, and Mr. Gaines.
3. After the complaint was filed, no service of process, or attempt at service, was made; and on October 2, 2002 a Rule 41(e) notice was sent to the plaintiff.
A Rule 41(e) notice is a notice sent by the court to the plaintiff stating that no activity in the case has occurred during the last six months and that the case will be dismissed if action is not taken within 30 days.
4. On October 22, 2002 the plaintiff moved for enlargement of time within which to make service of process. Her motion was granted, allowing 120 additional days from October 25, 2002 to complete service of process upon the defendants.
5. Still, no attempt at service was made, however; and on March 17, 2003 another Rule 41(e) notice was sent to the plaintiff.
6. On March 24, 2003 the plaintiff filed an amended complaint. An amended praecipe was also filed directing that a summons be issued for each defendant.
7. On April 10, 2003, defendant Gaines filed an answer.
8. On April 17, 2003, defendants State of Delaware and Warden Robert I. George filed an answer.
9. On April 23, 2003, counsel entered an appearance on behalf of defendant Prison Health Services, Inc.
10. On April 28, 2003 defendant Prison Health Services, Inc. filed a motion to dismiss the complaint. On April 29, 2003, defendants State of Delaware and Robert I. George filed a motion for judgment on the pleadings.
11. In their answer or motion, defendants State of Delaware and Robert I. George assert defenses of sovereign immunity, immunity under the State Tort Claims Act, failure to state a claim upon which relief can be granted under Superior Court Civil Rule 12(b), failure to comply with the applicable statute of limitations, and failure to make service of process within 120 days of the filing of the complaint as required by Superior Court Civil Rule 4(j). In its motion to dismiss the complaint, defendant Prison Health Services, Inc., seeks dismissal of the action on the grounds that the plaintiff failed to effect service of process upon it within 120 days of the filing of the complaint, that the complaint fails to state a claim upon which relief can be granted, and that the complaint fails to allege negligence with particularity as required by Superior Court Civil Rule 9(b).
12. For the following reasons, I conclude that the action should be dismissed as to the moving defendants for failure of the plaintiff to make service of process upon the defendants within the period required by Superior Court Civil Rule 4(j). Rule 4(j) reads as follows:
Since I have decided that the action should be dismissed as to the moving defendants under Rule 4(j), I need not consider the other grounds for dismissal which the defendants have asserted.
If 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.
The extension of time which the Court granted on October 25, 2002 required that service be made within 120 days of that date. No further extension was requested or granted. The 120 day period expired on February 22, 2003. However, service was not made as to any defendant until early April 2003. Therefore, the defendants were not served within the period required under Superior Court Civil Rule 4(j).
13. Dismissal of the action can be avoided if the plaintiff can show good cause why service was not made within the required period. "Good cause" has been defined as excusable neglect which can be shown by a "demonstration of good faith on the part of the party seeking an enlargement and some reasonable basis for noncompliance within the time specified in the rules." It is "neglect which might have been the act of a reasonably prudent person under the circumstances." In this case, the action was filed the day prior to the expiration of the statute of limitations. A year passed before the plaintiff was able to advance the case to the point where the defendants were required to file a response. It appears that the plaintiff's difficulty in accomplishing service of process was caused by her inability to find counsel to represent her and her unfamiliarity with procedures of this Court, which can be difficult for a lay person to understand
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998) (quoting Dominic v. Hess Oil V.I. Corp. 841 F.2d 513, 517 (3rd Cir. 1988) (quoting 4A Wright and Miller Federal Practice and Procedure § 1165 (2d ed. 1987)).
Id, (quoting Cohen v. Brandywine Raceway Assoc., 238 A.2d 320, 325 (Del. 1968).
14. While I have sympathy for the plight of this pro se plaintiff, whose son was severely beaten while in the custody of the Department of Correction, I do not think that good cause exists for the failure to make service within the period required under the rule. None of the moving defendants posed any special problem regarding service. All were parties upon whom service of process could be accomplished at any time without undue difficulty. No adequate explanation has been offered for the failure to accomplish service for a period of almost a year.
15. Therefore, the defendants' motions will be granted. The action is dismissed as to defendants Prison Health Services, Inc., State of Delaware, and Robert I. George pursuant to Rule 4(j).
Under the rule, dismissal is without prejudice. The plaintiff is not free to re-file the action, however, because the statute of limitations has expired.