IMO John P. Arot Estate;
Report: April 10, 2019
Submitted: February 15, 2019
J. Reidenberg, Esquire Tybout, Redfearn & Pell.
Jacqueline A. Lardani James A. Lardani.
Counsel and Litigants:
successor administrator of an estate filed a complaint
against two non-resident defendants, the former administrator
and her husband, seeking repayment of a mortgage. Pending
before me is the successor administrator's motion to deem
service on both defendants perfected. The defendants oppose,
arguing they were never properly served. I recommend that the
Court grant the motion as to the former administrator and
deny the motion as to her husband, without prejudice. I
further recommend that the Court order jurisdictional
discovery to determine whether the former administrator's
husband is amenable to long-arm service of process under 10
Del. C. § 3104. This is a final report.
Arot ("Decedent"), a Delaware resident, died
testate on December 17, 2013. Defendant James A.
Lardani, who previously practiced law in Philadelphia, was a
longtime friend of Decedent and drafted Decedent's
will. In that will, Mr. Lardani's wife,
Defendant Jacqueline A. Lardani, was named as the executrix
of Decedent's estate. After Decedent's death, on
February 25, 2014, Mrs. Lardani petitioned for, and on May
21, 2014 the Register of Wills for New Castle County issued,
letters testamentary identifying Mrs. Lardani as the
executrix. Plaintiff Marc N. Arot has since
replaced Mrs. Lardani as successor
Arot filed this action on November 17, 2016, seeking to
recover an approximately $70, 000 debt that Mrs. Lardani
supposedly owes to Decedent's estate. Mr. Arot first
obtained several summonses and tried to serve them. Noting he
had "been unsuccessful in serving the Complaint on the
Defendants," Mr. Arot requested a summons on April 5,
2017, to serve on the Register of Wills under 12 Del. C.
§ 1506. Mr. Arot served the summons and
complaint on the Register of Wills on May 23,
2017. Two days later, the Register of Wills
sent a letter to Mrs. Lardani at an outdated address in
Philadelphia, not her subsequent Fort Lauderdale
address. As for Mr. Lardani, Mr. Arot argued
that he was served by certified mail on June 2, 2017, under
10 Del. C. § 3104. There is no record showing either
defendant signed for any of these mailings.
service had been accomplished and seeing no response filed by
either defendant, Mr. Arot filed a motion for default
judgment on December 6, 2017. Vice Chancellor Zurn
denied the motion on October 29, 2018 finding that Mr. Arot
did not effectively serve either defendant. Mr. Arot
was given one year to effect service or face dismissal under
Court of Chancery Rule 41(e).
receiving the Court's opinion, Mr. Arot requested a First
Pluries Summons for service both on Mrs. Lardani by serving
the Register of Wills and under 10 Del. C. § 3104 by
certified mail, return receipt requested, at her personal
residence in Fort Lauderdale and on Mr. Lardani under 10 Del.
C. § 3104 at the same Fort Lauderdale
January 8, 2019, Mr. Arot filed the instant Motion to Deem
Service Perfected arguing that service should be deemed
perfected because (1) certified mailings were sent to the
address provided by defendants to this Court in connection
with the motion for default judgment, (2) first-class mail
copies of the complaint and summons have not been returned,
and (3) the defendants' failure (or refusal) to retrieve
the certified mailings is active evasion of service, allowing
relaxation of the Court's service
requirements. The defendants filed an opposition,
contending service was still incomplete and Mr. Arot
submitted a reply, completing briefing on the Motion, on
February 15, 2019. This is my final report.
plaintiff "has the burden to show that service of
process was effective." Mr. Arot attempts to
meet his burden under 12 Del. C. § 1506 for Mrs. Lardani
and under 10 Del. C. § 3104 for both defendants. Under
12 Del. C. § 1506, administrators of Delaware estates
file "an irrevocable power of attorney designating that
Register and the Register's successors in office as the
person upon whom all notices and process issued by any court
in this State may be served, with like effect as personal
service in relation to any suit, matter, cause or thing
affecting or pertinent to the estate in which the letters are
issued." To effectuate service under 12 Del. C. §
1506, the Register has to "forward forthwith, by
certified mail, return receipt requested, to the address of
such executor … any notices or process served upon the
10 Del. C. § 3104, "[w]hen the law of this State
authorizes service of process outside the State, the service,
when reasonably calculated to give actual notice, may be
made: … (3) By any form of mail addressed to the
person to be served and requiring a signed
receipt." "When service is made by mail,
proof of service shall include a receipt signed by the
addressee or other evidence of personal delivery to the
addressee satisfactory to the court."
that service of process on Mrs. Lardani has been perfected
under both 12 Del. C. § 1506 and 10 Del. C. § 3104.
Because she is a former executrix of a Delaware estate being
sued in connection with the estate, Mrs. Lardani is subject
to service of process under 12 Del. C. § 1506. In
accordance with Section 1506, Mr. Arot provided the summons
and complaint to the Register and the Register sent it to
Mrs. Lardani's Fort Lauderdale address via certified
mail. Under the plain language of Section
1506, the Register's certified mailing ends my inquiry,
regardless of whether the certified mail was claimed by Mrs.
Lardani. I, therefore, recommend that service of process on
Mrs. Lardani be deemed perfected under 15 Del. C. §
Del. C. § 3104, Mr. Arot has shown a prima
facie case that service on Mrs. Lardani is authorized
under 10 Del. C. § 3104(c) due to Mrs.
Lardani's actions in Delaware personally and in her
capacity as a former executrix of a Delaware estate. Under 10
Del. C. § 3104(d)(3), Mr. Arot sent the complaint and
summons by certified mail to Mrs. Lardani's Fort
Lauderdale address but it was not claimed.Mr. Arot
then re-sent the summons and complaint via first-class
mail. Not only has the first-class mail
not been returned as undeliverable but Mrs. Lardani admits
that she received it. Thus, under 10 Del. C. §
3104(e), I find that Mrs. Lardani's receipt of the
first-class mailing is other evidence of personal delivery
satisfactory to deem service of process perfected,
notwithstanding the unclaimed certified mail.
same cannot be said for service of process on Mr. Lardani.
Mr. Arot attempted to serve Mr. Lardani under 10 Del. C.
§ 3104(d). As quoted above, 10 Del. C. § 3104(d)
begins: "When the law of this State authorizes service
of process outside the State[.]" This introductory
phrase is not meaningless and requires a prima facie
showing of an out-of-state defendant's amenability to
service of process under 10 Del. C. §
3104(c). It is this first hurdle that Mr.
Arot has not surpassed.
current record, it is difficult to see Mr. Lardani's
connection to the State of Delaware. The record to date,
taken in a light most favorable to Mr. Arot, tells of a
scheme by which Mrs. Lardani:
(1) received a loan from the Decedent, a Delaware resident,
which was backed by a promissory note and mortgage tied to a
(2) failed to pay the loan back either before or after
Decedent's death, including while she was serving as
executrix to Decedent's Delaware estate, despite promises
to do so;
(3) transferred the Pennsylvania property to her husband, Mr.
Lardani, on the same day as ...