Mullins v. Gordon ( 2020 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
TYRONE MULLINS,
Plaintiff,
C.A. No. N19C-06-060 CLS
Vv.
GLORIANNE GORDON,
Defendant.
Date Submitted: March 23, 2020
Date Decided: June 5, 2020
Upon Plaintiff Tyrone Mullins ’s Motion for Reargument
Denied.
Gregory D. Stewart, Esquire, Law Office of Gregory D. Stewart, P.A., Middletown,
Delaware, Attorney for Plaintiff.
Robert A. Ranieri, Esquire, Allstate Insurance Company Staff Counsel, Newark,
Delaware, Attorney for Allstate Insurance.
SCOTT, J.
Before the Court is Plaintiff Tyrone Mullins’s Motion for Reargument. For
the following reasons, Plaintiff's motion is DENIED.
Background
Plaintiff Tyrone Mullins filed a claim for negligence against Glorianne
Gordon on June 7, 2019. On October 11, 2019, Plaintiff filed a Motion to Extend
Time for Service (“Plaintiff's First Motion”) because, despite several attempts,
Plaintiff had been unable to serve Ms. Gordon with process. The Court granted
Plaintiff's First Motion on October 21, 2019. After several more unsuccessful
attempts by Plaintiff to serve Ms. Gordon, the Court granted Plaintiff's Motion for
Service by Publication. Before Plaintiff could effectuate service by publication,
however, Plaintiff learned that Ms. Gordon had been dead since January 23, 2019.
Plaintiff then filed a second Motion to Extend Time for Service on January 29, 2020
(“Plaintiff's Second Motion”) so that Plaintiff could open an estate for Ms. Gordon
and serve the estate with process. The Court denied Plaintiff's Second Motion on
March 16, 2020.
Parties’ Assertions
Plaintiff argues that the Court misapprehended the facts and failed to apply
the correct standard for “good cause” when it denied Plaintiff's Second Motion.
Plaintiff contends that, after evaluating the four factors from Pioneer Investment
Services Company v. Brunswick Associates Limited Partnership,' the Court should
have found that any neglect attributable to Plaintiff's counsel when trying to serve
Ms. Gordon was excusable. Finally, Plaintiff argues that the Court should have ruled
on his Motion for Substitution because it was timely filed.
Counsel for Allstate Insurance filed a response, arguing that Plaintiffs motion
fails to meet the standard for reargument. Allstate asks this Court to deny Plaintiffs
motion. Allstate also asks this Court to vacate its prior ruling on Plaintiffs First
Motion because—according to Allstate—Plaintiff’s First Motion also failed to show
good cause.
Standard of Review
On a Motion for Reargument under Superior Court Rule of Civil Procedure
59(e), the only issue is whether the Court overlooked something that would have
changed the outcome of the underlying decision.” Thus, the motion will be granted
only if “the Court has overlooked a controlling precedent or legal principles, or the
Court has misapprehended the law or facts such as would have changed the outcome
1 Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380, 395
(1993).
2 Brenner v. Vill. Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000)
aff'd, 763 A.2d 90 (Del. 2000).
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of the underlying decision.”? A Motion for Reargument is not an opportunity for a
party to rehash the arguments already decided by the Court or to present new
arguments not previously raised.* A party seeking to have the Court reconsider the
earlier ruling must, “demonstrate newly discovered evidence, a change in the law,
or manifest injustice.”> “Delaware law places a heavy burden on a [party] seeking
relief pursuant to Rule 59.”°
Discussion
The Court did not misapprehend the facts. It is clear from Plaintiff's Second
Motion that Plaintiff attempted—on multiple occasions and by different means—to
serve process on Ms. Gordon. Plaintiff was ultimately unsuccessful in serving
process upon Ms. Gordon within the extended time period because Ms. Gordon had
died before Plaintiff filed the instant action.
The Court also did not misapply the law. In its decision denying Plaintiff's
Second Motion, the Court found that there was no “good cause”’ for Plaintiff's
3 BRP Hold Ox, LLC v. Chilian, 2018 WL 6432978, at *1 (Del. Super. Dec. 6,
2018) (quoting Kennedy v. Invacare, Inc., 2006 WL 488590, at *] (Del. Super.
Jan. 31, 2006)).
4 Kennedy, 2006 WL 488590, at *1.
> Brenner, 2000 WL 972649, at *1.
6 Newborn v. Christiana Psychiatric Serv., P.A., 2017 WL 394096, at *2 (Del.
Super. Jan. 25, 2017).
7 Super. Ct. Civ. R. 4(j) (requiring the party requesting an extension show “good
cause” for failing to serve an opposing party within the time period), Sidberry v.
GEICO Advantage Ins. Co., 2019 WL 6318176, at *2 (Del. Super. Nov. 20, 2019)
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failure to serve Ms. Gordon within the extended time period because Ms. Gordon
was deceased from the outset of this litigation. Even if Plaintiff had tried to serve
process on Ms. Gordon every day since the action was filed, it would not have been
possible: Ms. Gordon was deceased. Thus, despite Plaintiffs many efforts to
effectuate service of process, the Court found that Plaintiff had not shown good
cause for his failure to serve process on a deceased individual.
Finally, the Court did not misapply the law when it denied as moot Plaintiff's
motion to substitute a party. Under Delaware Superior Court Rule of Civil
Procedure 25, the Court may substitute a party with that party’s estate upon an
appropriate motion by any party or the representatives of the deceased party.” Here,
there was no party for whom the estate could be substituted. Ms. Gordon was
deceased before the lawsuit was filed; accordingly, Ms. Gordon was never a party
to this lawsuit.!° The Court properly decided not to substitute Ms. Gordon’s estate
for an individual who was never a party to the instant action.
(“Although Rule 4(j) does not define ‘good cause,’ Delaware courts interpret good
cause to require a showing of excusable neglect, meaning a showing of ‘good
faith’ and a ‘reasonable basis for noncompliance.’”).
8 Order, Mullins v. Gordon, No. 19C-06-060 CLS (Mar. 16, 2020) (denying
Plaintiffs Second Motion and denying as moot Plaintiff's Motion for Substitution
of Party and Allstate’s Motion to Dismiss).
® Super. Ct. Civ. R. 25(a).
10 Soe Giles v. Rodolico, 140 A.2d 263, 266 (Del. 1958) (“[J]urisdiction over
persons can be acquired by the courts of this state solely through service of
compulsive process.”); Castelline v. Goldfine Truck Rental Serv., 112 A.2d 840,
842 (Del. 1955) (“We think it a fundamental tenet of the law of Delaware, as it was
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As an aside, the Court notes that Plaintiff's First Motion was filed after the
initial 120-day time period for serving process.!! The Court agrees with Allstate that
Plaintiff's untimely filing means that Plaintiff failed to show excusable neglect even
in his First Motion. However, because the Court is denying Plaintiff's Motion for
Reargument, the Court will not open a new discussion about the untimely filing of
the First Motion.
Conclusion
For the forgoing reasons, Plaintiff's Motion for Reargument is DENIED.
IT IS SO ORDERED.
ieee)
The Honorabk& Calvin L. Scott, Jr.
of the common law, that in personam jurisdiction can be acquired by a court solely
by the proper service of process, either actual or constructive.”).
'! Plaintiff filed his Complaint on June 7, 2019. Plaintiff had until October 7, 2019
to serve Defendant with process. Plaintiff filed the First Motion on October 11,
2019, which is after the 120-day time period for service of process.
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