JUSLENE JULSAINT, JUSTINVIL JULSAINT, individually and as Guardian Ad Litem of Eddie JulSaint, and EDDIE JULSAINT, a minor, Plaintiffs,
LUIS FELIPE TAPIA RAMOS and LUZ Y ROMERO-ESCALERA, Defendants.
Submitted: July 3, 2017
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.
William L. Witham, Jr., Resident Judge
AND PROCEDURAL HISTORY
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.
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.
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.
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.
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
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 ...