Rose v. Nichols - Case Law

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

HOPE ROSE, )
)
)
Plaintiff, )
) C.A. No. N18C-09-265 VLM
Vv. )
)
ASHLEY NICHOLS, )
)
)
Defendant. )
ORDER

AND NOW TO WIT, this 29" day of January 2020, upon consideration of
Plaintiff's Motion for Leave of Court to Serve Summons by Publication, oral

argument, and supplemental submissions, it appears to the Court that:

1. On September 28, 2018, Plaintiff Hope Rose (“Plaintiff’) filed a
Complaint against Defendant Ashley Nichols (“Defendant”) for personal injuries
allegedly sustained following a motor vehicle accident. On October 29, 2018,
Plaintiff filed Summons and Complaint to the Sheriff of New Castle County to effect
service upon Defendant. On November 8, 2018, Deputy Sheriff filed a Non Est
Return.

2. On January 31, 2019, Plaintiff filed a Motion for Enlargement of Time;

granted by the Court on February 3, 2019. On May 16, 2019, the Court granted

1
another Motion for Enlargement of Time so that Plaintiff could retain O’Rourke
Investigative Services (“O’Rourke”) to locate Defendant. On June 5, 2019, this
Court also granted Plaintiff’s Motion for Special Process Server, appointing DLS
Discovery (“DLS”) to serve process upon Defendant. Finally, after failed attempts
at service, on September 6, 2019, Plaintiff filed a Motion for Leave of Court to Serve
Summons by Publication.

3. On September 24, 2019, after hearing oral arguments, the Court took
Plaintiff's Motion under advisement and asked Plaintiff to supplement the record
with additional information not fully set out in the initial pleadings, specifically what
efforts were made to serve Defendant, and the legal authority upon which Plaintiff
relied that would allow service by publication. On October 22, 2019, Plaintiff
supplemented the record as requested and alternatively asked this Court to deem
service perfected under 10 Del. C. § 3103.

4. In supplementing the record, Plaintiff highlights that O’Rourke had
retained and provided an address for Defendant, and that the Delaware Division of
Motor Vehicle confirmed that it is the address on file for Defendant.! O’Rourke also
confirmed that “investigations beyond Delaware’s borders revealed no information

concerning [Defendant].”* Finally, the DLS special process server made contact at

' Plaintiff's Motion for Leave of Court to Serve Summons by Publication at qf] 4-5.
* Plaintiffs Supplemental Letter.
Defendant’s last known address, and was greeted by a person named “Erin,” who
held herself out at Defendant’s “twin sister.” Plaintiff directed DLS to leave process
with a confirmed adult at the residence listed. Thereafter, DLS was unable to make
contact with any resident at the listed address.

5. Under 10 Del. C. § 3103(a) “service on Delaware residents can be
perfected under Superior Court Civil Rule 4(f), ‘by stating the substance of [the
summons] to the defendant personally, or by leaving a copy . . . at the defendant’s
usual place of abode, in the presence of some adult person.’”? To satisfy the

requirements of Due Process, Plaintiff must provide “‘notice reasonably calculated,
under all circumstances, to apprise interested parties . . . of the action and afford
them an opportunity’ to respond.” “It is settled that ‘a face to face encounter and
an in hand delivery of the papers is not always essential.’”? The Third Circuit has

emphasized that when a “defendant attempts to evade service or refuses to accept

delivery after being informed by the process server of the nature of the papers, it

3 Wang v. B’Nai B’Rith Senior Citizen Hous., Inc., No. CIV.A. 09C-02-183FSS, 2010 WL
8250793, at *1 (Del. Super. Ct. July 20, 2010) (citing 10 Del. C. § 1303(a)); see also DEL.
SUPER. CT. Civ. R. 4(F)(1)() (“Upon an individual other than an infant or an incompetent person
by delivering a copy of the summons, complaint and affidavit, to that individual personally or by
leaving copies thereof at that individual's dwelling house or usual place of abode with some
person of suitable age and discretion then residing therein, or by delivering copies thereof to an
agent authorized by appointment or by law to receive service of process.”).

4 Wang, 2010 WL 8250793, at *1 (quoting Mullane v. Central Hanover Bank & Trust Co., 339
U.S. 306, 314 (1950)).

> Gambone v. Lite-Rock Drywall Corp., 124 F. App’x 78, 79 (3d Cir. 2005) (quoting 4A
CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1095 (3d
ed. 2002)).
usually is sufficient for the process server . . . simply to leave them in the defendant’s
physical proximity[.]”© That is also what occurred when DLS made contact at
Defendant’s last known address, and left the summons and Complaint with a
confirmed adult, presumably Defendant’s sister.

6. Here, Plaintiff made diligent efforts to accomplish service within the
time specified by Rule 4() through the Sheriff, the retention of O’Rourke
Investigative Services, and the use of Special Process Server. All efforts failed.
Under Superior Court Civil Rule 4(j),’ “except upon a showing of good cause, an
action against a defendant shall be dismissed without prejudice if service of the
summons and complaint is not made within 120 days after the filing of the
complaint.”® The Superior Court has highlighted that “Congress [has] provided only
one example of a ‘good cause’ exception to the 120-day rule-when failure to timely
serve is caused by the defendant's intentional evasion of service of process.”? This

is also the case here.

° Id.

7 DEL. SUPER. CT. Civ. R. 4(J).

8 Doe v. Catholic Diocese of Wilmington, Inc., No. CIVA09C-06-251PLA, 2010 WL 2106181, at
*5 (Del. Super. Ct. May 26, 2010) (granting defendant’s Motion to Dismiss where plaintiff made
no effort to accomplish service until the 119" day after filing, indicating that plaintiff failed to
make a good faith effort in effectuating service).

? Id. (emphasis added).
7. Plaintiff need not seek a remedy through publication where inferences
exist that Defendant is intentionally evading service of process, and relief is
available under 10 Dei. C. § 3103.'° In assessing the attempted service demonstrated
here, the Court focuses on whether it is reasonably likely that the basic facts from
Plaintiffs action were represented to Defendant, verbally or in writing, such that she
would know litigation is proceeding against her.!!

8. The DLS process server had a face-to-face interaction with a woman
who held herself out to be Defendant’s twin sister. If there is a twin, it is reasonable
to assume that her sister would have advised her of the process server’s attempts to
provide her with information regarding this lawsuit. If there is no twin, Defendant
lied about her identity and she was served. Under either scenario, the requirements
under Rule 4 and 10 Del. C. § 3103(a) have been satisfied where either Defendant
was personally served or a copy left at her usual place of abode, in the presence of
some adult person (i.e., her sister).

WHEREFORE, this Court is satisfied that Plaintiff has effected service upon

Defendant. Plaintiff's Motion for Leave of Court to Serve Summons by Publication

10 See 10 Del. C. § 3103(a). (“A writ of summons may be served on the defendant in the manner
prescribed by any rule of court, or by stating the substance of it to the defendant personally, or by
leaving a copy of it at the defendant’s usual place of abode, in the presence of some adult person,
6 days before the return thereof.”).

'! Wang, 2010 WL 8250793, at *1 (citing 44 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1095 (3d ed.2010) (asserting that when defendant evades
or refuses service, relaxed standards are sufficient if the “objective of giving notice to the party
to be served” is met)).
is DISMISSED as moot, and Plaintiff's alternative request to deem service perfected
is GRANTED.

IT IS SO ORDERED.

/ Vivian L. Medinilla
Judge

oc: Prothonotary
cc: All Counsel on Record (via e-filing)
Ashley Nichols, Defendant