John Peach v. M & T Bank Corp., and Fannie Mae Corp. ( 2016 )

IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
JOHN PEACH, )
)
)
Plaintiff, )
)
v. ) C.A. No. CPU6-15-001185
)
M & T BANK CORP., )
)
Defendant, )
)
and )
)
FANNIE MAE CORP., )
)
Defendant.
Submitted January 7, 2016
Decided January 29, 2016
John Peach, pro se, for Plaintiff
Emily K. Devan, Esq., Attorney for Defendants
DECISION ON PLAINTIFF’S MOTION FOR RECONSIDERATION OF
COMMISSIONER’S ORDER AND APPEAL FROM COMMISSIONER’S FINDINGS
OF FACT AND RECOMMENDATIONS
On December 23, 2015, Plaintiff John Peach filed an appeal of the
Commissioner’s decisions to deny Plaintiff’s motion for default judgment and to grant
Defendants’ motion for the enlargement of time. For the reasons discussed below,
Plaintiff’s motion for reconsideration of the Commissioner’s order and appeal from the
Commissioner’s findings of fact and recommendations are DISMISSED.
Procedural History and Facts
Plaintiff initiated an action against M & T Bank Corp. (“M & T”) and Fannie Mae
Corp. (“Fannie Mae”) on September 16, 2015. Defendants did not file answers to
Plaintiff’s complaint within 20 days after service of process. Thereafter, on November
25, 2015, Plaintiff filed a motion for default judgment. On that same date, Defendants’
attorney filed, inter alia, an entry of appearance and a motion for enlargement of time to
respond to the Complaint. On December 7, 2015, the Commissioner recommended that
Plaintiff’s motion for default judgment be denied and Defendants’ motion for the
enlargement of time be granted. On December 23, 2015, Plaintiff appealed the
Commissioner’s recommendation.
Discussion
Court of Common Pleas Civil Rule 112(A)(4)(ii) allows a party to appeal “within 10
days after filing of a copy of a Commissioner’s proposed findings and
recommendations.” The 10-day time period begins running the day after the report is
filed and excludes weekends.1 If an appealing party does not comply with the
provisions of Rule 112 the appeal “may be subject to dismissal.”2 The Judge has
discretion to shorten or enlarge “the time periods specified” in Rule 112 “for good
cause.”3 Good cause requires a showing of excusable neglect.4 Neglect is excusable if it
1
Ct. Com. Pl. Civ. R. 6(a).
2
Ct. Com. Pl. Civ. R. 112(B).
3
Ct. Com. Pl. Civ. R. 112(C). See also Drysdale v. Noble, 2003 WL 21140048, at *3, (Del. Super May 12, 2003)
(interpreting Super. Ct. Civ. R. 132. The parts of that rule relevant to this case are identical to Ct. Com. Pl.
Civ. R. 112. ).
is “neglect which might have been the act of a reasonably prudent person under the
circumstances.”5
In this case, the Commissioner’s Report was filed on Monday, December 7. The ten
day appeal period commenced on December 8, 2015, and excluded weekends; thus the
last day to file the appeal was Monday, December 21. Plaintiff filed on December 23,
and has not shown good cause for his delay. Plaintiff’s January 19, 2016 pleading is
difficult to understand, but the Court will liberally interpret it as a proffered
explanation why Plaintiff filed his appeal late. Plaintiff seems to argue his documents
should be deemed filed the date they were written or mailed since the use of first class
mail, as opposed to electronic filing, results in filing delays. Here is the argument in
Plaintiff’s own words:
NOTES: (1) Defendant’s [sic] counsel files electronically to the court for instant
recognition. Plaintiff files by First Class Mail which results in different mailing and
filing delays. THUS, PLAINTIFF uses each documents [sic] “typing- date”6 as the
date shown above. Plaintiffs [sic] Docket dates and Defendants Docked [sic] dates
will never agree.7
According to Plaintiff’s timeline, his appeal of the Commissioner’s decision was
“filed” on December 22. Thus, even if the Court accepted that Plaintiff “filed” his
appeal on December 22, the appeal remains untimely. The ten-day window to appeal
closed on December 21. In any event, the appeal must be actually received by the last
4
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998) (citing Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d
Cir. 1988) (quoting 4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1165 (2d ed. 1987)).
5
Id.
6
The Court is broadly interpreting “typing-date” to mean either the date the document was written or the
date it was mailed.
7
Plaintiff’s Jan. 19, 2016 Opposition to Defendant’s Opposition for Reconsideration of Commissioner’s
Order, and Appeal from Commissioner’s Finding of Fact and Recommendations.
day to be timely filed. The date Plaintiff wrote or mailed his appeal to the Court is
immaterial.
More importantly, Plaintiff’s explanation still does not provide good cause for why
he chose to type and/or mail his appeal to the Court late. Without any additional
information, the Court does not believe Plaintiff acted in a way that a reasonably
prudent person might have given the circumstances.
Thus, dismissal of Plaintiff’s appeal is appropriate. Even if the Court were to
consider Plaintiff’s appeal on the merits, the Court would nonetheless adopt the
Commissioner’s recommendations to deny Plaintiff’s motion for default judgment and
to grant Defendants’ motion for the enlargement of time.
The Court has the discretion to grant a motion for enlargement of time “after the
expiration of the specified period…where failure to act was the result of excusable
neglect.”8 Moreover, the Court has discretion to grant or deny a motion for default
judgment.9 “[T]he preference of Delaware courts is to decide cases on their
merits. Therefore, public policy requires that any reasonable doubt be resolved in favor
of the party opposing the default judgment.”10
In this case, Defendants have demonstrated excusable neglect. Defendant Fannie
Mae could not hire counsel until indemnification issues were resolved.11 Defendant M &
T did not realize it had been served until November 20.12 Counsel undertook
8
Ct. Com. Pl. Civ. R. 6(b).
9
See generally Holmes v. The News Journal Co., 2015 WL 1893150, at *2 (Del. Super. Apr. 20, 2015).
10
Id.
11
Defendants’ November 25, 2015 Motion for Enlargement of Time.
12
Id.
representation of both Defendants on November 20.13 On or about November 21,
Defendants’ counsel sent a letter of representation to Plaintiff. Plaintiff moved for
default judgment on November 25. Counsel responded to Plaintiff’s motion for default
judgment and filed the motion for enlargement of time the same day. Thus any neglect
was excusable, and a de novo review of the record would convince the Court that the
Commissioner was correct to “liberally construe[] [the Court’s] rules in favor of its long-
standing preference, and this State’s public policy, that cases be determined on their
merits.”14
Conclusion
For the foregoing reasons, Plaintiff’s appeal of the Commissioner’s report is
DISMISSED, and the Commissioner’s Recommendation is ACCEPTED and entered as
the ORDER of the Court.
IT IS SO ORDERED this ____ day of January, 2016.
__________________________________
Kenneth S. Clark, Jr., Judge
13
Id.
14
Commissioner’s Dec. 7, 2015 Report and Recommendation on Plaintiff’s Motion for Default Judgment
and Defendants’ Motion for Extension of Time (citations omitted).