Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Julsaint v. Ramos

Superior Court of Delaware

October 4, 2017

JUSLENE JULSAINT, JUSTINVIL JULSAINT, individually and as Guardian Ad Litem of Eddie JulSaint, and EDDIE JULSAINT, a minor, Plaintiffs,
v.
LUIS FELIPE TAPIA RAMOS and LUZ Y ROMERO-ESCALERA, Defendants.

          Submitted: July 3, 2017

         Upon Defendants' Motion to Dismiss for Failure to Perfect Timely Service. Granted.

          Nicholas H. Rodriguez, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Plaintiffs.

          Nicholas E. Skiles, Esquire of Swartz Campbell LLC, Wilmington, Delaware; attorney for Defendants.

          ORDER

          William L. Witham, Jr., Resident Judge

         FACTS AND PROCEDURAL HISTORY

         Before the Court is Defendant Luis Felipe Tapia Ramos and Luz Y Romera-Escalera's (hereinafter the "Defendants") motion to dismiss for failure to perfect timely service. Defendants move the Court to dismiss a complaint brought by Juslene, Justinvil, and Eddie Julsaint (hereinafter the "Plaintiffs") seeking to recover for damages resulting from a vehicular collision.

         Plaintiffs filed their complaint in this matter on May 18, 2016. A summons was issued to the sheriff for service on May 26 and on June 1, 2016, Plaintiffs' writs were returned bearing "non est" service at 7 Front Street, Frederica, Delaware, believed to be Defendants' last known residence. The sheriff reported the residence had been demolished. On July 15, 2016, Defense counsel entered his appearance in this matter on behalf of Defendants. Plaintiffs made a motion to have a special process server appointed on July 18, 2016, but withdrew the motion the next day, upon noting the entrance of Defense counsel's appearance. On October 3, 2016, Defendants responded to the complaint arguing, inter alia, that the Court lacked jurisdiction over the Defendants due to insufficiency of process and service of process. Defense counsel went on to participate in a Court-requested teleconference with Plaintiffs' counsel. On January 5, 2017, Defendants served Plaintiffs with certain discovery requests, including interrogatories and requests for production of documents.

         THE PARTIES' CONTENTIONS

         In their motion, the Defendants contend that the attempts at service were ineffective, as they did not comply with the methods of proper service prescribed by Delaware law. Defendants go on to argue that because service of process is a jurisdictional requirement, dismissal is warranted.

         Plaintiffs response does not deny that their efforts to serve Defendants were insufficient, and such is deemed admitted. Plaintiffs further admit that they abandoned efforts to serve the Defendants, withdrawing their motion to appoint a special process server, and taking no further efforts to serve Defendants, or file a motion to extend time to effectuate service. The Plaintiffs allege that Defense counsel's entrance of appearance, participation in a telephone conference, and service of discovery requests upon Plaintiffs, created the impression that improper service was waived and that Plaintiffs "reasonably believed that service was admitted." Therefore, Plaintiffs argue, the failure to serve process on Defendants was a result of excusable neglect, and dismissal is improper. Finally, Plaintiffs contend that the motion presents matters outside the pleadings and require the Court to convert the motion to dismiss into a motion for summary judgment.

         STANDARD OF REVIEW

         As an initial matter, the Court has discretion either to exclude the matters outside the pleading or convert the motion to a motion for summary judgment. The Court declines to consider the motion as a motion for summary judgment. Accordingly, the Court will not consider any factual allegations in the motion which are outside the pleadings or that contradict the complaint.

         When considering a motion to dismiss filed on grounds of insufficient service of process, this Court's standard of review is narrow. Delaware Superior Court Civil Rule 4 governs procedure regarding 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." Public policy "favors permitting a litigant a right to a day in court, " and to that end, the Court is vested with discretion to grant an extension to the 120-day deadline if the plaintiff can make a showing of "good cause, " as to why service was not effectuated in a timely ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.