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Arot v. Lardani

Court of Chancery of Delaware

April 25, 2019

IMO John P. Arot Estate;
v.
Lardani Arot

          Draft Report: April 10, 2019

          Date Submitted: February 15, 2019

          Seth J. Reidenberg, Esquire Tybout, Redfearn & Pell.

          Jacqueline A. Lardani James A. Lardani.

         Dear Counsel and Litigants:

         The 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.

         I. Background

         John P. Arot ("Decedent"), a Delaware resident, died testate on December 17, 2013.[1] Defendant James A. Lardani, who previously practiced law in Philadelphia, was a longtime friend of Decedent and drafted Decedent's will.[2] In that will, Mr. Lardani's wife, Defendant Jacqueline A. Lardani, was named as the executrix of Decedent's estate.[3] 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.[4] Plaintiff Marc N. Arot has since replaced Mrs. Lardani as successor administrator.[5]

         Mr. 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.[6] 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.[7] Mr. Arot served the summons and complaint on the Register of Wills on May 23, 2017.[8] 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 Lardani at an outdated address in Philadelphia, not her subsequent Fort Lauderdale address.[9] As for Mr. Lardani, Mr. Arot argued that he was served by certified mail on June 2, 2017, under 10 Del. C. § 3104.[10] There is no record showing either defendant signed for any of these mailings.

         Believing service had been accomplished and seeing no response filed by either defendant, Mr. Arot filed a motion for default judgment on December 6, 2017.[11] Vice Chancellor Zurn denied the motion on October 29, 2018 finding that Mr. Arot did not effectively serve either defendant.[12] Mr. Arot was given one year to effect service or face dismissal under Court of Chancery Rule 41(e).[13]

         After 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 address.[14]

          On 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.[15] 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.

         II. Analysis

         The plaintiff "has the burden to show that service of process was effective."[16] 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 Register."[17]

         Under 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."[18] "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."[19]

         I find 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.[20] 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. § 1506.

         For 10 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.[21]Mr. Arot then re-sent the summons and complaint via first-class mail.[22] Not only has the first-class mail not been returned as undeliverable but Mrs. Lardani admits that she received it.[23] 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.[24]

         The 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).[25] It is this first hurdle that Mr. Arot has not surpassed.

         On the 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 Pennsylvania property;
(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 ...

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