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Griffith v. Wawa, Inc.

Superior Court of Delaware

July 14, 2017

NANCY GRIFFITH, Plaintiff,
v.
WAWA, INC., Defendant.

          Submitted: June 23, 2017

          ORDER

          Vivian L. Medinilla Judge.

         AND NOW 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:

         Factual and Procedural Background

         1. On 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.[1] 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."[2] The Complaint states three counts: (1) negligence; (2) vicarious liability; and (3) premises liability.

         2. On January 6, 2017, Wawa's counsel entered his appearance and filed a Motion to Dismiss for Failure to Prosecute under Rule 41(e).[3] Wawa argued that the Complaint should be dismissed because, "[o]n December 15, 2016, Plaintiffs 120 day deadline to serve the Complaint expired."[4]

         3. On January 12, 2017, a Sheriffs Return was docketed noting that Wawa's registered agent was served with process on January 11, 2017.

         4. Wawa 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).[5] A briefing schedule was issued on February 2, 2017. Wawa's opening brief was timely filed on February 22, 2017.[6] 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.

         5. 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 Dismiss.[7]

         6. Additionally, after Wawa's Motion was re-noticed, Plaintiffs counsel filed the pending Motion to Withdraw as Counsel.[8] 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.[9] Hence, in light of this "material breakdown, " Plaintiffs counsel requests this Court grant his Motion to Withdraw as Counsel.[10] Wawa takes no position on this Motion.

         7. This is the Court's decision on Wawa's Motion to Dismiss and Plaintiffs Motion to Withdraw as Counsel.

         Contentions of the Parties

         8. 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.[11] Moreover, Ms. Griffith never moved for an extension to effectuate service as she could have done during the 120-day period.[12]

         Standard of Review

         9. Rule 4 governs the procedure in this Court for service of process.[13] Rule 4(j) requires the plaintiff serve the defendant with a summons and complaint "within 120 days after the filing of the complaint."[14] 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. . ., "[15] If the plaintiff cannot show "good cause, " the Court "shall" dismiss the case without prejudice as to that defendant.[16]

         10. "Good cause" under Rule 4(j) is synonymous with a showing of "good faith and excusable neglect."[17] "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).[18] Excusable neglect is "neglect which might have been the act of a reasonably prudent person under the circumstances."[19] 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."[20] However, the absence of prejudice to the defendant is inapposite in this respect because "[p]roper service of process is a jurisdictional requirement."[21] If the ...


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