Submitted: June 23, 2017
L. Medinilla Judge.
TO WIT, this 14th day of July, 2017, upon
consideration of Defendant Wawa, Inc.
("Wawa")'s Motion to Dismiss, Plaintiffs Motion
to Withdraw as Counsel, and the record in this case, IT IS
HEREBY ORDERED that Plaintiffs Motion to Withdraw as Counsel
is GRANTED and Wawa's Motion to Dismiss is GRANTED for
the following reasons:
and Procedural Background
August 17, 2016, Plaintiff Nancy Griffith ("Ms.
Griffith") filed a Complaint alleging Wawa was negligent
in maintaining its New Castle, Delaware store in an
unreasonably dangerous condition. On or about August 18, 2014,
Ms. Griffith, while at Wawa's store, allegedly slipped
and fell on a "greasy/slippery spot . . . causing her
serious bodily injury. It also caused her to incur medical
expenses and/or loss of income." The Complaint states three
counts: (1) negligence; (2) vicarious liability; and (3)
January 6, 2017, Wawa's counsel entered his appearance
and filed a Motion to Dismiss for Failure to Prosecute under
Rule 41(e). Wawa argued that the Complaint should be
dismissed because, "[o]n December 15, 2016, Plaintiffs
120 day deadline to serve the Complaint
January 12, 2017, a Sheriffs Return was docketed noting that
Wawa's registered agent was served with process on
January 11, 2017.
then filed this Motion to Dismiss on January 25, 2017,
seeking dismissal of the Complaint for failure to comply with
Delaware Superior Court Civil Rule 4(j). A briefing
schedule was issued on February 2, 2017. Wawa's opening
brief was timely filed on February 22, 2017. Ms.
Griffith's response brief, which was due on March 15,
2017, was never filed. Wawa wrote to the Court on March 28,
2017 asking this Court to rule on the papers in light of Ms.
Griffith's counsel's failure to respond to the
Motion. Before this Court issued a decision on Wawa's
Motion, the parties agreed to settle this matter and the
Motion was rendered moot.
Despite the putative settlement, the docket reflects a period
of inactivity from March 28, 2017 to June 19, 2017. On the
latter date, Wawa re-noticed its Motion to
Additionally, after Wawa's Motion was re-noticed,
Plaintiffs counsel filed the pending Motion to Withdraw as
Counsel. Plaintiffs counsel explains in his Motion
that his relationship with Ms. Griffith and the firm he
describes as "lead counsel" in this matter has run
into a quagmire. Hence, in light of this "material
breakdown, " Plaintiffs counsel requests this Court
grant his Motion to Withdraw as Counsel. Wawa takes no
position on this Motion.
is the Court's decision on Wawa's Motion to Dismiss
and Plaintiffs Motion to Withdraw as Counsel.
of the Parties
Wawa's Motion to Dismiss argues that Ms. Griffith never
issued service of process on Wawa within 120 days of filing
the Complaint as required by Rule 4(j). Further, Wawa
contends that Ms. Griffith cannot show "good cause and
excusable neglect" for her failure to effectuate service
on Wawa within the requisite time period. Wawa's counsel
states that he twice prompted Ms. Griffith's counsel
regarding service of process within the 120-day period, only
for these prompts to fall on deaf ears. Moreover, Ms.
Griffith never moved for an extension to effectuate service
as she could have done during the 120-day
4 governs the procedure in this Court for service of
process. Rule 4(j) requires the plaintiff serve
the defendant with a summons and complaint "within 120
days after the filing of the complaint." However, if
the plaintiff cannot effect service of process in that time
period, Rule 4(j) permits the plaintiff to show "good
cause" for "why such service was not made within
that period. . ., " If the plaintiff cannot show
"good cause, " the Court "shall" dismiss
the case without prejudice as to that
"Good cause" under Rule 4(j) is synonymous with a
showing of "good faith and excusable
neglect." "Good faith and excusable
neglect" equates to a showing that there is "some
reasonable basis for noncompliance within the time specified
in" Rule 4(j). Excusable neglect is "neglect which
might have been the act of a reasonably prudent person under
the circumstances." Public policy in Delaware
"favors permitting a litigant a right to a day in court,
" and this policy is embedded in the discretionary
authority Rule 4(j) vests the Court to grant an extension to
the 120-day deadline upon a showing of "good
cause." However, the absence of prejudice to the
defendant is inapposite in this respect because
"[p]roper service of process is a jurisdictional
requirement." If the ...