Progressive Direct Insurance Company v. Na'Sha Montoya ( 2021 )

IN THE COURT OF COMMON PLEAS FOR THE STATE OF
DELAWARE IN AND FOR NEW CASTLE COUNTY
Progressive Direct Insurance Company
Plaintiff,
Case No. CPU4-20-000069
V.
Na’Sha Montoya Clarice Landrum
& Richard L. Hall,
Nee ON a “SS a
Defendants.
Submitted: December 7, 2020
Decided: January 5, 2021
Geoffrey S. Lockyer, Esq. Na’Sha Landrum
2 Penns Plaza Suite 300 1414 Francis Lane
New Castle, DE 19720 Plainfield, NJ 07062
Attorney for Plaintiff Defendant Pro Se
MEMORANDUM OPINION DENYING DEFENDANTS MOTION TO
DISMISS
SMALLS, C.J.
FACTUAL AND PROCEDURAL HISTORY
This case is before the Court on Na’Sha Landrum’s (“Defendant Landrum”’)
motion to dismiss. On January 7, 2020, Progressive Direct Insurance Company,
(‘Plaintiff’), filed a Complaint against Na’sha Landrum and Richard Hall,
(“Defendants”), alleging Defendant Landrum negligently caused a collision while
operating Defendant Hall’s vehicle.
Following the filing of the Complaint, service was attempted numerous times
on Defendant Hall. On January 24, 2020, Defendant Hall refused service from the
sheriff and stated that prior to the accident that is the subject of this litigation, he
sold the vehicle with the tags intact and the new owners are the responsible parties.
During this time, service was attempted on Defendant Landrum several times
at Carrick Court in Middletown, Delaware, but was unsuccessful. Following this
attempt, service was attempted again on Defendant Landrum at an address in
Newark, Delaware on March 11, 2020 and March 13, 2020. These attempts were
also unsuccessful and an occupant of the address stated that Defendant Landrum no
longer lived there.
On May 21, 2020, Plaintiff filed a Motion for Enlargement of Time.! In the
motion, Plaintiff stated it made good faith efforts to effect service on Defendant
' This motion was filed 14 days after the expiration of the original 120 day time period for service as set forth in
Court of Common Pleas Civil Rule 4(j).
l
Landrum. Further, Plaintiff stated they retained a private investigator to located
Defendant Landrum and was informed that Defendant Landrum did in fact reside at
the Newark, Delaware location. On May 22, 2020, the Court granted Plaintiff's
motion.
On June 24, 2020, service was attempted again on Defendant Landrum at the
Newark, Delaware address. While attempting service, the deputy sheriff contacted
the landlord of the property who advised him that Defendant Landrum did in fact
reside at the location. The Summons and Complaint was left in the mailbox.
On September 10, 2020, default judgment was entered against Defendant
Landrum in the amount of $13,847.76 for failure to appear. However, on September
30, 2020, Defendant Landrum filed a Motion to Vacate. The Motion stated
Defendant did not receive service and did not learn of the lawsuit until September
14, 2020. On October 5, 2020 the Court granted Defendant Landrum’s Motion to
Vacate.
On November 9, 2020, Defendant Landrum filed an Answer denying the
allegations of the complaint and put forth affirmative defenses. Additionally,
Defendant Landrum filed a Motion to Dismiss, alleging failure to serve,
insufficiency of process, failure to join a party, lack of subject matter jurisdiction,
and failure to state a claim.
On December 7, 2020, a hearing was held on the motion. The Court reserved
decision on the issue of failure to comply with Court of Common Pleas Civil Rule
4(j), but denied all other arguments raised by Defendant Landrum.
PARTIES’ CONTENTIONS
Defendant Landrum avers that she has still not been properly served and seeks
dismissal pursuant to rule 4(j). She argues that Plaintiff did not act diligently in
prosecuting it’s case and lacked a sense of urgency in effecting service as evidence
by the lapse in the 120-day time required for service on May 7, 2020.
Plaintiff responds that because the Court granted its Motion for Enlargement
of Time to Perfect Service on May 21, 2020, albeit after the original expiration of
the time limit for service, the case should not be dismissed. Plaintiff further argues
that they have acted reasonably in attempting to effect service on Defendant and that
their delay was not due to willful behavior on their part.
LEGAL STANDARD
Court of Common Pleas Civil Rule 4(j) provides: “Ifa 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.” Further, Court of Common Pleas Civil Rule
6(b) provides that when the rules require an act to be done within a specified amount
of time, “the Court for cause shown may at any time in its discretion: (1) with or
without motion or notice order the period enlarged if request therefor is made before
the expiration of the period originally prescribed or as extended by a previous order;
or (2) upon motion made after the expiration of the specified period permit the act
to be done where the failure to act was the result of excusable neglect.”
DISCUSSION
Defendant moves the Court to dismiss the complaint pursuant to Court of
Common Pleas Civil Rule 4(j) for failure to effect service within the 120-day time
period allotted. Although a case may be dismissed for failure to timely effect service
of process, this rule is not absolute as it affords trial courts discretion in permitting
service beyond the 120 day limit upon a showing of good cause.’ By allowing this,
the rule seeks “to balance the need for speedy, just and efficient litigation with a
desire to provide litigants their right to a day in court.”
When reviewing a court’s decision to dismiss under rule 4(j), the Delaware
Supreme Court interpreted the good cause standard to “require a showing of
excusable neglect, by demonstration of good faith on part of the party seeking
*DERCOM PL CT CIV Rule 4.
3 DER COM PL CT CIV Rule 6(b).
* Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998).
5 Td.
enlargement and some reasonable basis for noncompliance within the time specified
by the rules.”® Excusable neglect is “neglect which might have been the act of a
reasonably prudent person under the circumstances.”
Defendant contends Plaintiff was negligent in not making sure she was
properly served as required by the rules. Defendant argues that Plaintiff's behavior
demonstrated a lack of urgency and due diligence by filing a Motion for Enlargement
of Time only after allowing the 120-day service period to expire. Further, Defendant
states that she had advised Plaintiff of her current address of 1414 Francis Lane
Plainfield NJ, but Plaintiff has still failed to effect service.
Plaintiff argues that the delay in properly serving the Defendant was not a
product of willful or negligent behavior on behalf of the Plaintiff. In Plaintiff's
original motion for enlargement, Plaintiff stated and the record shows that Plaintiff
had made numerous efforts to secure service on Defendant at her last known address,
even retaining a private investigator to locate Defendant.
Regarding Defendant’s contention that the case should be dismissed because
the 120 day period had expired prior to Plaintiff seeking a motion to enlarge, I find
this argument has merit but periods of enlargement was modified by the Delaware
Supreme Court. Pursuant to the Delaware Supreme Court Administrative Order No.
6 Id.7 Mennen v. Fiduciary Tr. Int'l of Delaware, 167 A.3d 507, 512 (Del. 2016)(quoting)(Dolan v. Williams, 707 A.2d
34, 36 (Del. 1998)).
5
5-7, due to the COVID pandemic, deadlines in court rules, such as the 120-day rule,
that expired between March 23, 2020 and June 30, 2020 were extended through July
1, 2020.8 Therefore, the deadline for Plaintiff to file a motion for enlargement or
effect service on Defendant Landrum was extended to July 1, 2020. As such,
Plaintiff's motion to enlarge was timely filed and notably granted by this Court.
Accordingly, dismissal on this ground must be denied.
As to Defendant’s contention that Plaintiff's non-service of the complaint
warrants dismissal, I find that Plaintiff has demonstrated good cause for why service
has not been perfected. Since the inception of this litigation, Plaintiff has made
multiple attempts to effect service on the Defendant, on multiple occasions, and
made multiple efforts to ascertain Defendant Landrum’s whereabouts. Therefore, I
find that Plaintiff has made a sufficient showing of good cause and the case shall
proceed in accordance with Delaware’s strong public policy to resolve disputes on
the merits and provide litigants their day in court.’
8 Delaware Supreme Court Administrative Order No. 5-7.
° Verizon Delaware, Inc. v. Baldwin Line Const. Co., 2004 WL 838610, at *1 (Del. Super. Ct.).
6
CONCLUSION
ACCORDINGLY, Defendant’s Motion to Dismiss is DENIED. Plaintiff is
order to effect service on Defendant.
IT IS SO ORDERED.
[ Alek J. Snialls,
Chief Judge