Ballard v. Takeda Pharmaceuticals America, Inc. ( 2017 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
ELISHA BALLARD,
Plaintiff,
v. NO. N16C-lO-177 JRJ
TAKEDA PHARMACEUTICALS
AMERICA, INC.; TAKEDA
PHARMACEUTICALS U.S.A., INC.,
f/k/a TAKEDA PHARMACEUTICALS
NORTH AMERICA, INC.; TAKEDA
PHARMACEUTICAL COMPANY
LIMITED; and ELI LILLY AND
COMPANY,
Defendants.
V\/\./\/V\./V\./\/\/\_/V\/\./\/\./
OPINION
Date Submitted: June 16, 2017
Date Decided: August 7, 2017
Upon Plaintiff’s Motionfor Order Extendz``ng, for Cause, the T ime Limitfor Service
of Process Una'er Rule 4(]) of the Superior Court Civil Rules: DENIED.
J ames D. Heisman, Esquire, Napoli Shkolnik, LLC, 919 North Market Street, Suite
1801 , Wilmington, Delaware, Attorney for Plaintiff.
Philip A. Rovner, Esquire, and Jonathan A. Choa, Esquire, Potter Anderson &
Corroon, LLP, Hercules Plaza, P.O. Box 951, Wilmington, Delaware, Attorneys for
Defendants.
Jurden, P.J.
I. INTRODUCTION
Plaintiff Elisha Ballard filed a Complaint in this Court against Defendants
Takeda Pharmaceuticals America, Inc., Takeda Pharrnaceuticals U.S.A., Inc., f/k/a
Takeda Pharmaceuticals North America, Inc., Takeda Pharmaceutical Company
Limited, and Eli Lilly and Company (collectively “Defendants”) on October 21,
2016 (the “Elisha Ballard Action”), alleging causes of action related to Plaintiff’ s
use of the prescription drug Actos®. Plaintist counsel failed to serve Defendants
within 120 days as required under Rule 4(j) of the Superior Court Civil Rules.
Almost two months after the 120-day time limit had run, Plaintiff’s counsel filed a
“Motion for Order Extending, for Cause, the Time Limit for Service of Process
Under Rule 4(j) of the Superior Court Civil Rules.” For the reasons set forth beloW,
Plaintiff’s Motion is DENIED.
II. BACKGROUND
The Elisha Ballard Action is one of a number of Actos cases filed in this Court
by Plaintiff’ s counsel. Elisha Ballard and plaintiffs in the other Actos cases allege
that the use of Actos caused the plaintiffs to develop bladder cancer.l The relevant
background is as folloWs. Plaintiff" s counsel is the managing partner of his firm’s
Delaware office and is responsible for office operations including the filing and
1 E.g., complaint (Trans. ID. 59731526).
service of complaints2 Plaintiff’s counsel delegated responsibility for the filing and
service of pharmaceutical complaints, including the Elisha Ballard Complaint, to a
paralegal acting under his direction.3
On August 30, 2016, the paralegal filed a complaint in this Court on behalf of
Jerry Ballard against Defendants, alleging personal injuries as a result of ingesting
Actos (the “Jerry Ballard Action”).4 Attached to the Jerry Ballard Complaint Were
praecipes requesting the issuance of process.5 The Prothonotary issued the requested
Writs, directing the Sheriff of New Castle County to serve two of the four
Defendants, Takeda Pharmaceuticals America, Inc. and Takeda Pharmaceuticals
U.S.A., Inc. (the “Delaware Defendants”), and directing Plaintist counsel to serve
the non-Delaware Defendants in accordance With 10 Del. C. § 3104, Delaware’s
long-arm statute, and in accordance With Article 5 of the Hague Convention When
appropriate6 On October 17, 2016, the Sheriff filed Sherist Returns attesting that
he had served the Delaware Defendants.7 It is not clear from the record Whether the
2 Affidavit of J ames D. Heisman (“Pl.’s Counsel Aff.”) 1111 1_2 (Trans. ID. 60744707).
3 Id. 11 3; Motion for Order Extending, for Cause, the Time Limit for Service of Process Under
Rule 4(j) of the Superior Court Civil Rules (“Pl.’s Mot.”), EX. B Affidavit of Elizabeth Bonfiglio
(“Paralegal Aff.”) 11 1 (Trans. ID. 60504882).
4 Paralegal Aff. 11 2; Jerry Ballard Action Complaint (Trans ID. 59493087). The Jerry Ballard
Action case number is N16C-08-253 JRJ.
5 Jerry Ballard Action New Castle County Praecipe, 10 Del. C. § 3104 Praecipe, and Hague
Convention Praecipe (Trans. ID. 59493087).
6 Id; Jerry Ballard Action Writs Issued (Trans. ID. 59634096).
7 Jerry Ballard Action Sheriff’ s Return (Trans. ID. 59705210); Jerry Ballard Action Sheriff’ s
Retum (Trans. ID. 59705209).
non-Delaware Defendants were properly served because Plaintiff’s counsel did not
file any proof of service under § 3104 for the non-Delaware Defendants.8
Nevertheless, on November 2, 2016, the Defendants filed an answer in the Jerry
Ballard Action.9
On October 21, 2016, the paralegal filed the Elisha Ballard Complaint,10 and
on November 28, 2016, the paralegal began the process of obtaining the writs
necessary for service of process in the Elisha Ballard Action by ordering checks
payable to the New Castle County Sheriff from the firm’s accounting department.ll
Having received the checks, on December 7, 2016, the paralegal confused the Elisha
Ballard Action with the Jerry Ballard Action and “mistakenly printed and delivered
the earlier filed [Jerry] Ballard case to the [P]rothonotary to obtain writs for
service.”12 On January 18, 2017_more than 120 days after Jerry Ballard Complaint
was filed-the Prothonotary issued the requested Jerry Ballard Action writs,
including writs directed to Plaintiff’ s counsel to complete long-arm and Hague
Convention service.13 Again, the Sheriff served the Delaware Defendants and filed
8 See Rule 4(h) (“In an action in which the plaintiff serves process pursuant to 10 Del. C. § 3104,
§ 3112 or § 3113, the defendant’s return receipt and the affidavit of the plaintiff or the plaintiffs
attorney of the defendant’ s nonresidence and the sending of a copy of the complaint with the notice
required by the statute shall be filed as an amendment to the complaint Within 10 days of the
receiving by the plaintiff or the plaintiffs attorney of the defendant’s return receipt . . . .”).
9 Jerry Ballard Action Defendants’ Answer (Trans. ID. 59779728).
10 Pl.’s Mot. 11 3; Paralegal Aff. 11 4.
11 Pl.’s Counsel Aff. 11 4; Paralegal Aff. 11 5.
12 Paralegal Aff. 11 6.
13 Jerry Ballard Action Writs Issued (Trans. ID. 60098688).
4
Sheriff’s Retums attesting to service,14 and again, the record is not clear regarding
service of the long ann writs. In her affidavit, the paralegal explains that the second
set of Jerry Ballard long arm writs were “intemally misfiled” due to an unspecified
clerical error.15 As a result, the long arm writs were not served until the clerical error
was discovered.16
On April 11, 2017, the Court held a scheduling conference to consolidate
seven of the Actos cases filed by Plaintiff’s counsel, not including the Elisha Ballard
Action, for pre-trial purposes.17 After this conference, Plaintiff’ s counsel asked the
paralegal to review his Actos cases to ensure that service on Takeda Pharmaceutical
Company Limited, a Japanese entity, Was consistent with the Case Management
Order.18 At this point, Plaintiff’s counsel learned of his failure to serve Defendants
in the Elisha Ballard Action.19
14 Jerry Ballard Action Sheriff’ s Return (Trans. ID. 60098688); Jerry Ballard Action Sheriff’ s
Retum (Trans. ID. 60133489).
15 Paralegal Aff. 11 7 (“Plaintiffs’ counsel received approximately 12 bankers’ boxes full of
summonses and complaints to be served in the month of J anuary, 2017, including the second issued
Jerry Ballard long arm writs. As a result of a clerical error, these Jerry Ballard long arm writs were
mistakenly attached to another complaint and internally misfiled. The long arm writs were
promptly mailed upon discovery of this clerical error.”).
16 Id.; Jerry Ballard Action Affidavits of Service (Trans. ID. 60448380). Neither the paralegal’s
affidavit nor the affidavit of Plaintist counsel explains how the clerical error was discovered, by
whom, or what events precipitated its discovery. In any event, another opportunity to discover
both the double service in the Jerry Ballard Action and the lack of service in the Elisha Ballard
Action Was lost.
17 Case Management Order filed in multiple cases (Trans. ID. 60457834).
18 May 24, 2017 Hearing Transcript (“Hr’g Tr.”) at 4:12-17 (Trans ID. 60652263); Paralegal Aff.
11 8.
19 Pl.’s Mot.11 8.
On April 21, 2017, Plaintiff’ s counsel filed the instant Motion seeking an
enlargement of time for service of process in the Elisha Ballard Action, In support
of the Motion, Plaintiff``s counsel included an affidavit from his paralegal in which
the paralegal acknowledges that she confused the Elisha Ballard Action with the
Jerry Ballard Action, leading to the initial failure to request issuance of service writs
in the Elisha Ballard Action.20 However, the paralegal does not explain in her
affidavit what, if any, oversight or support she received from attorneys at the firm in
connection with the filing and serving of the complaints.21
On May 24, 2017, the Court held oral argument and asked Plaintiff``s counsel
how something like this could have happened.22 Plaintist counsel stated, without
any further explanation, that a good faith effort was made to serve the Defendants
and that internal checks were in place to track service.23 In response, defense counsel
suggested that, in “putting the blame on this paralegal,” Plaintist counsel failed to
account for an apparent lack of institutional procedure that should have caught and
corrected the mistake within 120 days of the filing of the Elisha Ballard Complaint.24
20 Paralegal Aff. 11 6.
21 See Del. Lawyers’ R. Prof’l Conduct 5 .3 (“With respect to a nonlawyer employed or retained
by or associated with a lawyer: (a) a partner in a law firm . . . shall make reasonable efforts to
ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct
is compatible with the professional obligations of the lawyer; (b) a lawyer having direct
supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s
conduct is compatible with the professional obligations of the lawyer . . . .”)
22 Hr’g Tr. at 3:11-16.
23 Id. at 3:17-4:2.
241a at 6:11-7;15.
Conspicuously, Plaintiff’ s counsel’s only response to defense counsel’s allegation
of “a firm-wide institutional deficiency” was reasserting that “[i]t was an honest,
good faith mistake,” and “[w]e tried to make service.”25 When the Court specifically
pressed Plaintiff’ s counsel on his failure to realize that something had gone awry
despite multiple occasions upon which he should have been alerted either to the
double process in the Jerry Ballard Action or to the lack of process in the Elisha
Ballard Action, Plaintiff’s counsel agreed that there were opportunities to discover
the mistake, but offered no explanation of what efforts he, the attorney responsible
for service of process,v undertook to track service of process.26
Troubled by, and not satisfied with, Plaintiff’s counsel’s failure to account for
his own actions in this case, the Court ordered Plaintiff’s counsel to submit an
affidavit explaining what measures he took to ensure timely service of process.27 In
his affidavit, Plaintiff’ s counsel avers that “service events were tracked by [the
paralegal] to ensure timely service and reported to me” and that he had regular
meetings with the paralegal “to discuss service tracking issues.”28
251d. at 7:1, 12:7-18.
26 Id. at 16:13-23.
27 June 5, 2017 Letter from the Court to Plaintiff’s Counsel (Trans. ID. 60681937).
28 Pl.’s Counsel Aff. 1111 8-9.
III. PARTIES’ CONTENTIONS
Plaintiff argues that good cause exists to extend the Rule 4(j) 120 day window
to effect service because the error in service was “an honest mistake.”29 Plaintiff
further argues that none of the Defendants in the Elisha Ballard Action will be
prejudiced if the Court grants Plaintiff’ s Motion.30
Defendants counter that Plaintiff’s counsel has failed to show good cause as
required under Rule 4(_]``).31 Specifically, Defendants contend that, at a minimum,
Plaintist counsel should have noticed the error in service When the Sheriff did not
file returns of service in the Elisha Ballard Action for the Delaware Defendants and
when no Defendant answered the Complaint in the Elisha Ballard Action.32
Defendants further contend that Plaintiff’s counsel’s inaction and inattention
preclude a finding of good faith.33
IV. STANDARD OF REVIEW
Superior Court Civil Rule 4(j) allows service to be perfected after the 120-day
window has closed only if the requesting party shows “good cause” why service was
29 Hr’g Tr. at 11:16-20.
30 Pl.’s Mot.111l.
31 Defendants’ Opposition to Motion for Order Extending, for Cause, the Time Limit for Service
of Process Under Rule 4(j) of the Superior Court Civil Rules at 1-2 (Trans. ID. 60620205).
32 Id. at 2.
33 Ia'.; see Doe v. Catholic Diocese of Wilmington, Inc., 2010 WL 2106181, at *5 (Del. Super. May
26, 2010) (“If total inaction were to constitute a good faith effort, Rule 4 would be rendered
meaningless.”); Huelsenbeck v. Fermin-Jimenez, 2013 WL 2481533, at *l (Del. Super. June 7,
2013) (denying plaintiff’s Rule 4(j) motion where “[t]he record here shows an almost complete
lack of diligence by [p]laintiffs”).
not made within 120 days. Rule 4 does not define good cause, but Delaware courts
interpret good cause to require a showing of excusable neglect, meaning a showing
of “good fait ” and a “reasonable basis for noncompliance.”34 Stated differently,
excusable neglect is that “neglect which might have been the act of a reasonably
prudent person under the circumstances.”35 “In determining whether the moving
party’s neglect was ‘excusable,’ all surrounding circumstances may be
considered.”36 Delaware public policy favors allowing a litigant their day in court,
and “[R]ule [4(_]``)] seeks to balance the need for speedy, just and efficient litigation”
with this public policy.37
Dismissal of a claim is a severe penalty, and courts are reluctant to apply
dismissal except as a last resort.38 However, Rule 4(j) provides no option other than
dismissal when a plaintiff cannot show good cause, and the Court has denied motions
to enlarge time made after the 120-day time limit has run even when the denial would
preclude a cause of action against a defendant because the statute of limitations has
run.39 A plaintiff cannot rely on the prejudice they Will suffer if their claims are
34 Dolan v. Willz``ams, 707 A.2d 34, 36 (Del. 1998) (quoting Domim``c v. Hess Oil V.I. Corp., 841
F.2d 513, 517 (3d Cir. 1988)).
35 Id. (quoting Cohen v. Brandywine Raceway Assoc., 238 A.2d 320, 325 (Del. Super. 1968)).
36 DiSabatino v. DiSabatino, 922 A.2d 414, 2007 WL 812766, at *3 (Del. 2007) (TABLE) (citing
McDonald v. S & J Hotel Enters., 2002 WL 1978933 (Del. Super. Aug. 27, 2002)) (describing
excusable neglect determinations under Rule 60(b)).
37 Dolan, 707 A.2d at 36.
38 Drejka v. Hitchens Tire Serv., 15 A.3d 1221, 1224 (Del. 2010).
39 See Anticaglia v. Benge, 2000 WL 145822, at *1 (Del. Super. Jan. 20, 2000) (stating “the effect
of this Court not granting the [m]otion for an enlargement of time will be to preclude a subsequent
9
dismissed as a substitute for good cause,40 nor can a plaintiff rely on lack of prejudice
to a defendant.41
V. DISCUSSION
ln this case, it is clear there was neglect, The question is whether that neglect
is excusable. In general, “[d]iligent efforts to comply with the Rule demonstrates
excusable neglect, whereas delays resulting from half-hearted efforts by counsel to
perfect service do not.”42 Delays resulting from “mistake or inadvertence of
counsel” do not establish excusable neglect,43 and mere negligence without a valid
reason does not constitute excusable neglect.44
Plaintiff cites to Jackson v. Minner45 in support of her argument that counsel’s
conduct constitutes excusable neglect.46 ln Jackson, Richard Jackson, an inmate in
cause of action against [defendant] by [plaintiff]”). See also Ellis v. Davis, 1997 WL 527941, at
*5 (Del. Super. July 22, 1997) (holding good cause for an extension of service after the 120 days
did not exist and dismissing the complaint af°cer the statute of limitations had run).
40 Catholic Diocese, 2010 WL 2106181, at *5 (“Stated another way, a plaintiff who did nothing at
all to accomplish service could avoid the effects of the Rule merely by alleging prejudice, which
would always arise from the dismissal of a defendant. Not only does the law in Delaware not
allow prejudice to be the single guiding factor, but our decisional law does not excuse any non-
compliance with the jurisdictional requirements on that basis alone, as to do so would effectively
emasculate the Rule.”); see Doe v. Colonial School Dist., 2011 WL 7063682, at *2 (Del. Super.
Sept. 30, 2011) (“‘good cause,’ not mere ‘prejudice’ is required.”).
41 DeSantz's v. Chilkotowsky, 877 A.2d 52, 2005 WL 1653640, at *2 (Del. June 27, 2005) (TABLE)
(“There is nothing in [Rule 4(j)] that excuses noncompliance when it is alleged that a defendant is
not prejudiced by the failure of service.”).
42 Anticaglia, 2000 WL 145822, at *2 (citing Ellis, 1997 WL 527941, at *2).
43 Wass v. Calloway, 1996 WL 190020, at *3 (Del. Super. Feb. 21, 1996) (citing Braxton v. Unz``tea’
States, 817 F.2d 238, 242 (3d Cir. 1987)).
44 Dishmon v. Fucci, 32 A.3d 338, 346 (Del. 2011).
45 2011 WL 947069 (Del. Super. Mar. 17, 2011).
46 Pl.’s Mot.1110.
10
the Sussex Correctional Institute in Sussex County, was being transported to a Board
of Parole hearing at, what was then, the Delaware Correctional Center in Kent
County.47 Upon entering a transport van at the Delaware Correctional Center,
Jackson fell to the ground and was injured.48 Jackson brought negligence claims and
attempted to serve the defendants, Department of Correction employees, at what he
believed was their Sussex County office.49 However, the defendants worked in Kent
County, and the Sheriff of Sussex County was unable to serve them within 120
days.50 The Court gave Jackson an additional 120 days to effect service.51
Although Jackson is similar to this case in that the plaintiff mistakenly
believed that service was made, there are a few key differences Plaintiff’s counsel
is an experienced attorney in a law firm with the resources and ability to verify that
each stage of service of process has occurred in accordance with the Superior Court
Civil Rules, and if an error or delay in service occurs, Plaintiff’ s counsel has the
resources and ability to discover the error or delay within 120 days after the filing of
the complaint and to immediately request an enlargement of time under Rule 6(b)
“for cause shown.” Jackson was a pro se prison inmate, not at liberty to research his
47 Jackson, 2011 WL 947069, at *1.
48 Id.49 Ia'. at *4.
50 Id.51 Id.11
defendants in order to properly direct service and unable to verify whether the
Sherriff had successfully served the defendants.
Plaintiff also relies on Fluharty v. Richeson.52 In Fluharly, the plaintiff filed
a complaint against “Earl” Richeson, rather than “Karl” Richeson.53 The Sheriff was
unable to serve “Earl” Richeson at the address provided and returned the writ “non
est.”54 The plaintiff then filed an amended complaint correcting “Earl” to “Karl”
less than two months after the complaint Was filed, but service was not perfected
until 127 days after the filing, in part because there was roughly a six-week delay
within the Sheriff’s office.55 The Court found that good cause existed specifically
citing “the reasonable lapse of time in which the [p]laintiff acted to correct these
errors and the [Sheriff’ s] delay in service.”56
As with Jackson, there are several key differences between Fluharty and this
case. Counsel in Fluharty noticed that an error was made when the Sheriff filed a
Sheriff’s return “non est,” and counsel attempted to correct the error, all within 120
days after the complaint was filed. In this case, Plaintiff’ s counsel did not notice the
error in service despite multiple events which should have alerted him to the lack of
service in the Elisha Ballard Action,
52 1998 WL 283467 (Del. Super. Apr. 20, 1998).
53 Ia'. at *1.
54 Ia'.
55 Ia'. at *1-2. (noting that the delay in service may have been a result of the holidays since the
second praecipe was filed on December 3, 1997, but was not served until January 16, 1998).
56 Id. at *2.
12
F or sixth months, the only entry in the Elisha Ballard Action docket was the
Complaint. The Prothonotary did not docket the issuance of any writs; the Sheriff
did not file any Sheriff’s Returns; Plaintiff’s counsel did not file any proof of service
on the non-Delaware Defendants; the Defendants did not file an answer or a motion
to dismiss; and the Elisha Ballard Action was not noticed for the April scheduling
conference, Even assuming Plaintiff’s counsel reasonably mistook the repeat
service in the Jerry Ballard Action for service in the Elisha Ballard Action, Plaintiff’ s
counsel should have expected and anticipated that Defendants would respond to the
Elisha Ballard Complaint in mid-February.57 But, it was not until April 16, 2017_
almost two months after the 120-day window for service had closed_that Plaintiff’ s
counsel directed the paralegal to verify service on Takeda Pharmaceutical Company
Limited in his Actos cases.58
Meanwhile, in the Jerry Ballard Action, service events were being docketed
even though more than 120 days had passed since the filing of the Jerry Ballard
Action and despite the fact that Defendants had already filed an answer.59
To find excusable neglect, the Court must find “neglect which might have
been the act of a reasonably prudent person under the circumstances.” In this case,
57 See Super. Ct. Civ. R. 12(a) (“A defendant shall serve an answer within 20 days after service of
process, complaint, and affidavit, if any, upon that defendant . . . .”).
53 Hr’g Tr. at 4:12-17.
59 See Super. Ct. Civ. R. 12(h)(1) (“A defense of . . . insufficiency of service of`` process is
waived . . . if it is neither made by motion under this Rule nor included in a responsive pleading
or an amendment thereof permitted by Rule 15(a) to be made as a matter of course.”).
13
the paralegal made a mistake when she confused the Jerry Ballard Action with the
Elisha Ballard Action and requested writs for a second time in the Jerry Ballard
Action. However, as the Court stated during oral argument, what is troubling in this
case is not that a mistake occurred, but that there were multiple opportunities where
counsel should have figured out that something had gone awry.60
At oral argument, Plaintiff’s counsel expanded on his argument that his
neglect is excusable by highlighting the fact that the Elisha Ballard and the Jerry
Ballard Actions have “identical defendants, identical injuries, . . . identical spelling
names and pronunciation . . . identical defense counsel.”61 This argument is
unavailing The similarity between the cases was known or should have been known
to Plaintiff"s counsel at the time he filed the Elisha Ballard Action.62 A reasonably
prudent attorney should and would have been sensitive to the possibility of confusion
given the number of Actos cases and the fact that there were two Actos plaintiffs
with the same last name.63
60 Id.
61Id. at 4:3-8.
62 See Del. Lawyers’ R. Prof’l Conduct 1.1 (“A lawyer shall provide competent representation to
a client. Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”); Del. Lawyers’ R. Pro’l Conduct 1.3
(“A lawyer shall act with reasonable diligence and promptness in representing a client.”); Del.
Lawyers’ R. Prof’l Conduct 1.3 cmt. 2 (“A lawyer’s workload must be controlled so that each
matter can be handled competently.”).
63 See Del. Lawyers’ R. Pro’l Conduct 5.3 (“With respect to a nonlawyer employed or retained by
or associated with a lawyer: (a) a partner in a law firm . . . shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that the person’s conduct is
compatible With the professional obligations of the lawyer; [and] (b) a lawyer having direct
14
In light of the foregoing, the question becomes whether Plaintiff’s counsel’s
failure to timely discover that service had not occurred precludes a finding of good
cause. This question was answered in Desantis v. Chilkotowsky.64 In Desantis, the
plaintiff filed a complaint on December 20, 2002.65 On December 30, 2002, the
plaintiff attempted to serve a “David Chilkotowsky” through the New Jersey
Secretary of State.66 However, the defendant David Chilkotowsky was a resident of
Delaware, and the attempt at service failed.67 No further action was taken by plaintiff
until June 10, 2003, when the Prothonotary mailed a letter advising plaintiff that
service must be made within 120 days of filing the complaint.68 The plaintiff
requested an enlargement of time, and the Court denied that request stating
“although [p]laintiff had attempted to serve the incorrect [defendant] . . . through the
Long-Arm Statute, no return receipt or affidavit were filed as an amendment to the
complaint.”69 Thus, “it appears [p]laintiff should have been aware that service was
not properly perfected.”70 In this case, as in Desantis, Plaintiff’s counsel should
supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s
conduct is compatible with the professional obligations of the lawyer . . . .”).
64 2004 WL 1790113 (Del. Super. July 27, 2004), ajj"a', 877 A.2d 52 (Del. 2005).
65 Ia'. at *1.
66 Id.67 Ia'.
63 Ia'.
69 Id.70 Ia'. at *1.
15
have been aware that service was not perfected_at a minimum_when no service
returns were filed.
As to Plaintiff``s counsel’s argument that Delaware public policy “favors
permitting a litigant a right to a day in court” and Defendants will not be prejudiced
if this Court enlarges the 120 day window,71 the Court does not find that these
considerations change the outcome under Rule 4(j). Public policy should not tip the
balance unless there were sufficient diligent efforts on the part of Plaintiff’ s counsel
to comply with the rule. This comports with the Court’s statement in Desantis that
“Rule 4(j) must be strictly construed unless plaintiff can establish good cause for its
failure to comply.”72
As to Plaintist prejudice argument, the Delaware Supreme Court has
explained that “there is nothing in [Rule 4(j)] that excuses noncompliance when it is
alleged that a defendant is not prejudiced by the failure of service.”73
The record before the Court demonstrates that Plaintiff’s counsel failed to act
as a reasonably prudent attorney should and would have acted under the
71 Pl.’s Mot. 1111 9, 11 (quoting Dolan, 707 A.2d at 360).
72 Desantis, 2004 WL 1790113, at *2. y construed unless plaintiff can establish good cause for its
failure to comply.” Similarly, when evaluating the Federal Rules of Civil Procedure, the Third
Circuit has consistently held that the 120 day time limit of Rule 4(j) must be “strictly applied.”
Catholic Diocese, 2010 WL 2106181, at *5 (quoting Lovelace v. Acme Markets, Inc., 820 F.2d 81,
84 (3d. Cir. 1987)).
73 Desantis, 2005 WL 1653640, at *2; see Miller v. State, Dep’t of Public Safety, 2009 WL
1900394, at *5 (Del. Super. June 16, 2009) (stating “the fact that a defendant Would not be
prejudiced by plaintiff’ s failure to serve is equally irrelevant in service of process issues or
excusable neglect” (citing Anticaglia, 2000 WL 145 822, at *2)).
16
circumstances Therefore, Plaintiff’s counsel has failed to show good cause, and the
Elisha Ballard Action must be and is dismissed without prejudice.74
VI. CONCLUSION
For the foregoing reasons, Plaintiff’s Motion for Order Extending, for Cause,
the Time Limit for Service of Process Under Rule 4(j) of the Superior Court Civil
Rules is DENIED.
IT IS SO ORDERED.
Msidenmge_"~
74 Ellis, 1997 WL 527941, at *5 (“What happened here is unfortunate. One of the unhappy aspects
of this job is rendering an opinion that neglect of counsel was not excusable, especially since we
all commit errors. The Court should and does seek to decide cases on their merits. But a policy
in favor of deciding cases on their merits does not permit either the parties or the Court to disregard
the law of civil procedure and professional responsibility without colorable excuse. Plaintiffs bear
the burden of showing that their failure to comply with the procedural requirements is excusable,
and they have not met that burden here.”).
17