IMO Last Will and Testament of Rachel D. Harley, deceased; Shirley Harley Brown
Mary M. Harley, et al.
Submitted: July 11, 2017
Ms. Brown and Ms. Smithers:
sisters have been embroiled in litigation over control of
family property since 1999, in the context of guardianship
proceedings and foreclosure proceedings. Now that their
mother has passed away, the sisters' distrust manifests
in a probate dispute. The allegations are wide-ranging, but I
write today on the discrete issue of service. In short, the
petitioner has failed to serve both defendants. I recommend
the Court dismiss this action against one sister and give the
petitioner one final opportunity to serve the other.
Harley Brown began this action on May 20, 2015, when she
filed a Verified Petition for the Production of the Last Will
and Testament of Mrs. Rachel D. Harley
("Petition"). The Petition was accompanied by a
certificate of service indicating Shirley delivered the
Petition by first class mail to respondents Sandra Smithers
and Mary Harley at each of their Delaware
residences. Shirley took no further action, so I
requested a status update on April 24, 2017.
11, 2017, Shirley filed a motion for summary judgment
("Motion"). Shirley supplemented the exhibits to
her Motion on May 24, 2017. The certificates of service for
Shirley's Motion and supplement do not indicate any
service to Sandra or Mary. Instead, they indicate service to
"Vivian Houghton, Attorney for Sandra Smithers, "
and "Brian T. Murray, P.A., Attorney of record for Mary
Harley." Neither Ms. Houghton nor Mr. Murray have
entered their appearance in this matter.
proceeding pro se, responded to Shirley's Motion
on June 23, 2017. Sandra asserts she never received a copy of
the Petition, and that Shirley had sent documents to
Sandra's bankruptcy attorney, Ms. Houghton, who as a
courtesy forwarded them to Sandra. In reply, Shirley claims
she served Sandra and Mary by delivering "notice of
service for the action" to attorneys who had previously
represented the defendants in different
2017, Mr. Murray wrote Shirley and the Court to indicate he
did not represent any party to the action and could not
accept the Motion on behalf of any party. The Court wrote
Shirley on July 10, 2017, indicating Shirley had not
effectively served Mary with the Petition or Motion, and
requesting Shirley do so and file proof of service within
thirty (30) days to move the matter forward. On July 20,
2017, Shirley filed a "Proof of Service" stating
she had mailed her "Motion for the Production of the
Complete Last Will and Testament of Mrs. Rachel D.
Harley" and her "Motion for Summary Judgment"
to Mary's Delaware residence via certified mail on July
18, 2017. Shirley's filing contained copies of
unsigned certified mail receipts.
interpret Sandra's pro se assertion that she was
not properly served as a motion to dismiss for insufficiency
of service of process pursuant to Court of Chancery Rule
12(b)(5). "It is fundamental that the Court only may
exercise personal jurisdiction over a defendant when service
is properly effected, regardless of whether or not actual
notice is achieved." "Personal jurisdiction must be
effected through proper service of process, and actual notice
by a defendant does not satisfy this constitutional
requirement." The plaintiff bears the burden of
demonstrating that service of process was
individual Delaware resident with a known address, who has
not demonstrated any attempt to avoid service, Court of
Chancery Rule 4(d)(1) requires service of a summons and
complaint by personal delivery or by leaving copies thereof
with an appropriate person at the individual's residence.
Mary and Sandra are both individuals residing in Delaware;
Shirley knows their addresses; and Shirley has not indicated
either defendant has attempted to evade service. There is no
evidence that Shirley has sought a summons or attempted
personal service, and she states she mailed materials to
attorneys who represented each defendant in different
lawsuits. Shirley has failed to adequately serve
Mary and Sandra. I recommend the Court grant Sandra's
motion to dismiss pursuant to Rule 12(b)(5).
has not appeared in this action. Shirley's complaint has
been pending for over two years. This is an untenable
situation without an obvious denouement, given Shirley's
failure to serve Mary when directed to do so by the Court.
The rules of this Court prescribe no definite time limit for
effecting service of process.Other courts have instituted a
120-day limit for service of process, and use a good cause
standard to determine if the court should allow an extension
of time.Without the benefit of a fixed time
period, this Court looks to the actions of both parties in
order to determine if service of process has been made in a
timely manner. "In particular, the court will
consider whether the failure to make service is the result of
dilatory conduct on the part of the person obliged to make
service, whether the party to be served received actual
notice of the suit and whether the failure to make timely
service has resulted in prejudice." "That
person needs to use at the very least some showing of
case, I conclude the deficient service is attributable
entirely to Shirley's dilatory conduct. I do not view the
Petition's certificate of service via first class mail as
conclusory evidence that Mary received actual notice of the
suit, given that Mary did not receive the subsequent
certified mailings. There is no evidence Mary has evaded
personal service in any way. In this estate matter, I presume
prejudice from the two years this action has been pending,
because Delaware courts are mindful of a special public
policy in favor of prompt settlement of decedents'
estates. The Court wrote to Shirley requesting
that she serve Mary, and Shirley responded by sending
insufficient certified mailings that Mary did not receive.
conclude that Shirley's service of Mary is long overdue.
The issue is what can be done about it. Court of Chancery
Rule 41 permits dismissal for failure to prosecute only upon
a defendant's motion (which Mary has not made), or after
a one-year period of inactivity (which was restarted upon
Shirley's May 2017 motion for summary judgment). Further,
because Shirley is proceeding pro se, this Court is
particularly keen on reaching the merits of the
case. I therefore extend Shirley one final
thirty-day extension within which to properly serve Mary and
file proof of service pursuant to Court of Chancery Rule 4.
If Shirley fails to serve Mary, I will enter an order
dismissing the case.
a final report pursuant to Court ...