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Ballard v. Takeda Pharmaceuticals America, Inc.

Superior Court of Delaware

August 7, 2017


          Date Submitted: June 16, 2017

         Upon Plaintiff's Motion for Order Extending, for Cause, the Time Limit for Service of Process Under Rule 4(f) of the Superior Court Civil Rules: DENIED.

          James D. Heisman, Esquire, Napoli Shkolnik, LLC, Wilmington, Delaware, Attorney for Plaintiff.

          Philip A. Rovner, Esquire, and Jonathan A. Choa, Esquire, Potter Anderson & Corroon, LLP, Hercules Plaza, Wilmington, Delaware, Attorneys for Defendants.




         Plaintiff Elisha Ballard filed a Complaint in this Court against Defendants 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 (collectively "Defendants") on October 21, 2016 (the "Elisha Ballard Action"), alleging causes of action related to Plaintiffs use of the prescription drug Actos®. Plaintiffs 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, Plaintiffs 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, Plaintiffs Motion is DENIED.


         The Elisha Ballard Action is one of a number of Actos cases filed in this Court by Plaintiffs counsel. Elisha Ballard and plaintiffs in the other Actos cases allege that the use of Actos caused the plaintiffs to develop bladder cancer.[1] The relevant background is as follows. Plaintiffs counsel is the managing partner of his firm's Delaware office and is responsible for office operations including the filing and service of complaints.[2] Plaintiffs 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 Plaintiffs 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 appropriate.[6] On October 17, 2016, the Sheriff filed Sheriffs Returns attesting that he had served the Delaware Defendants.[7] It is not clear from the record whether the non-Delaware Defendants were properly served because Plaintiffs 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.[11]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 Plaintiffs counsel to complete long-arm and Hague Convention service.[13] Again, the Sheriff served the Delaware Defendants and filed Sheriffs Returns attesting to service, [14] and again, the record is not clear regarding service of the long arm writs. In her affidavit, the paralegal explains that the second set of Jerry Ballard long arm writs were "internally 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 Plaintiffs counsel, not including the Elisha Ballard Action, for pre-trial purposes.[17] After this conference, Plaintiffs 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, Plaintiffs counsel learned of his failure to serve Defendants in the Elisha Ballard Action.[19]

         On April 21, 2017, Plaintiffs counsel filed the instant Motion seeking an enlargement of time for service of process in the Elisha Ballard Action. In support of the Motion, Plaintiffs 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 Plaintiffs counsel how something like this could have happened.[22] Plaintiffs 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, " Plaintiffs 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] Conspicuously, Plaintiffs 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 Plaintiffs 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, Plaintiffs 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, undertook to track service of process.[26]

         Troubled by, and not satisfied with, Plaintiffs counsel's failure to account for his own actions in this case, the Court ordered Plaintiffs counsel to submit an affidavit explaining what measures he took to ensure timely service of process.[27] In his affidavit, Plaintiffs 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]


         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 Plaintiffs Motion.[30]

         Defendants counter that Plaintiffs counsel has failed to show good cause as required under Rule 4(j).[31] Specifically, Defendants contend that, at a minimum, Plaintiffs 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 Plaintiffs counsel's inaction and inattention preclude a finding of good faith.[33]


         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 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 faith" 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(j)] 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 dismissed as a substitute for good cause, [40] nor can a plaintiff rely on lack of prejudice to a defendant.[41]

         V. DISCUSSION

         In 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. Minner[45] in support of her argument that counsel's conduct constitutes excusable neglect.[46] In Jackson, Richard Jackson, an inmate in 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. Plaintiffs 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, Plaintiffs 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 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 Fluharty, 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 Sheriffs 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 [Sheriffs] 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 Sheriffs return "non est, " and counsel attempted to correct the error, all within 120 days after the complaint was filed. In this case, Plaintiffs 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.

         For 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 Sheriffs Returns; Plaintiffs 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 Plaintiffs counsel reasonably mistook the repeat service in the Jerry Ballard Action for service in the Elisha Ballard Action, Plaintiffs 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 Plaintiffs 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, 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, Plaintiffs 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 Plaintiffs 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]

         In light of the foregoing, the question becomes whether Plaintiffs 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, Plaintiffs counsel should have been aware that service was not perfected-at a minimum-when no service returns were filed.

         As to Plaintiffs 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 Plaintiffs 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 ...

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