      IN THE COURT OF COMMON PLEAS OF THE STATE OF DELAWARE
                     IN AND FOR SUSSEX COUNTY



JOHN PEACH,                               )
                                          )
                                          )
       Plaintiff,                         )
                                          )
       v.                                 )     C.A. No. CPU6-15-001185
                                          )
M & T BANK CORP.,                         )
                                          )
       Defendant,                         )
                                          )
       and                                )
                                          )
FANNIE MAE CORP.,                         )
                                          )
       Defendant.

                                Submitted January 7, 2016
                                Decided January 29, 2016

John Peach, pro se, for Plaintiff
Emily K. Devan, Esq., Attorney for Defendants

   DECISION ON PLAINTIFF’S MOTION FOR RECONSIDERATION OF
COMMISSIONER’S ORDER AND APPEAL FROM COMMISSIONER’S FINDINGS
                OF FACT AND RECOMMENDATIONS

       On December 23, 2015, Plaintiff John Peach filed an appeal of the

Commissioner’s decisions to deny Plaintiff’s motion for default judgment and to grant

Defendants’ motion for the enlargement of time. For the reasons discussed below,

Plaintiff’s motion for reconsideration of the Commissioner’s order and appeal from the

Commissioner’s findings of fact and recommendations are DISMISSED.
                                     Procedural History and Facts

    Plaintiff initiated an action against M & T Bank Corp. (“M & T”) and Fannie Mae

Corp. (“Fannie Mae”) on September 16, 2015.                      Defendants did not file answers to

Plaintiff’s complaint within 20 days after service of process. Thereafter, on November

25, 2015, Plaintiff filed a motion for default judgment. On that same date, Defendants’

attorney filed, inter alia, an entry of appearance and a motion for enlargement of time to

respond to the Complaint. On December 7, 2015, the Commissioner recommended that

Plaintiff’s motion for default judgment be denied and Defendants’ motion for the

enlargement of time be granted. On December 23, 2015, Plaintiff appealed the

Commissioner’s recommendation.

                                                 Discussion

    Court of Common Pleas Civil Rule 112(A)(4)(ii) allows a party to appeal “within 10

days after filing of a copy of a Commissioner’s proposed findings and

recommendations.” The 10-day time period begins running the day after the report is

filed and excludes weekends.1 If an appealing party does not comply with the

provisions of Rule 112 the appeal “may be subject to dismissal.”2 The Judge has

discretion to shorten or enlarge “the time periods specified” in Rule 112 “for good

cause.”3 Good cause requires a showing of excusable neglect.4 Neglect is excusable if it




1
  Ct. Com. Pl. Civ. R. 6(a).
2
  Ct. Com. Pl. Civ. R. 112(B).
3
  Ct. Com. Pl. Civ. R. 112(C). See also Drysdale v. Noble, 2003 WL 21140048, at *3, (Del. Super May 12, 2003)
(interpreting Super. Ct. Civ. R. 132. The parts of that rule relevant to this case are identical to Ct. Com. Pl.
Civ. R. 112. ).
is “neglect which might have been the act of a reasonably prudent person under the

circumstances.”5

    In this case, the Commissioner’s Report was filed on Monday, December 7. The ten

day appeal period commenced on December 8, 2015, and excluded weekends; thus the

last day to file the appeal was Monday, December 21. Plaintiff filed on December 23,

and has not shown good cause for his delay. Plaintiff’s January 19, 2016 pleading is

difficult to understand, but the Court will liberally interpret it as a proffered

explanation why Plaintiff filed his appeal late. Plaintiff seems to argue his documents

should be deemed filed the date they were written or mailed since the use of first class

mail, as opposed to electronic filing, results in filing delays. Here is the argument in

Plaintiff’s own words:

    NOTES: (1) Defendant’s [sic] counsel files electronically to the court for instant
    recognition. Plaintiff files by First Class Mail which results in different mailing and
    filing delays. THUS, PLAINTIFF uses each documents [sic] “typing- date”6 as the
    date shown above. Plaintiffs [sic] Docket dates and Defendants Docked [sic] dates
    will never agree.7

    According to Plaintiff’s timeline, his appeal of the Commissioner’s decision was

“filed” on December 22. Thus, even if the Court accepted that Plaintiff “filed” his

appeal on December 22, the appeal remains untimely. The ten-day window to appeal

closed on December 21.           In any event, the appeal must be actually received by the last

4
 Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998) (citing Dominic v. Hess Oil V.I. Corp., 841 F.2d 513, 517 (3d
Cir. 1988) (quoting 4A CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE §
1165 (2d ed. 1987)).
5
  Id.
6
  The Court is broadly interpreting “typing-date” to mean either the date the document was written or the
date it was mailed.
7
  Plaintiff’s Jan. 19, 2016 Opposition to Defendant’s Opposition for Reconsideration of Commissioner’s
Order, and Appeal from Commissioner’s Finding of Fact and Recommendations.
day to be timely filed. The date Plaintiff wrote or mailed his appeal to the Court is

immaterial.

    More importantly, Plaintiff’s explanation still does not provide good cause for why

he chose to type and/or mail his appeal to the Court late. Without any additional

information, the Court does not believe Plaintiff acted in a way that a reasonably

prudent person might have given the circumstances.

    Thus, dismissal of Plaintiff’s appeal is appropriate. Even if the Court were to

consider Plaintiff’s appeal on the merits, the Court would nonetheless adopt the

Commissioner’s recommendations to deny Plaintiff’s motion for default judgment and

to grant Defendants’ motion for the enlargement of time.

    The Court has the discretion to grant a motion for enlargement of time “after the

expiration of the specified period…where failure to act was the result of excusable

neglect.”8 Moreover, the Court has discretion to grant or deny a motion for default

judgment.9 “[T]he preference of Delaware courts is to decide cases on their

merits. Therefore, public policy requires that any reasonable doubt be resolved in favor

of the party opposing the default judgment.”10

    In this case, Defendants have demonstrated excusable neglect. Defendant Fannie

Mae could not hire counsel until indemnification issues were resolved.11 Defendant M &

T did not realize it had been served until November 20.12 Counsel undertook


8
  Ct. Com. Pl. Civ. R. 6(b).
9
  See generally Holmes v. The News Journal Co., 2015 WL 1893150, at *2 (Del. Super. Apr. 20, 2015).
10
   Id.
11
   Defendants’ November 25, 2015 Motion for Enlargement of Time.
12
   Id.
representation of both Defendants on November 20.13 On or about November 21,

Defendants’ counsel sent a letter of representation to Plaintiff. Plaintiff moved for

default judgment on November 25. Counsel responded to Plaintiff’s motion for default

judgment and filed the motion for enlargement of time the same day. Thus any neglect

was excusable, and a de novo review of the record would convince the Court that the

Commissioner was correct to “liberally construe[] [the Court’s] rules in favor of its long-

standing preference, and this State’s public policy, that cases be determined on their

merits.”14

                                           Conclusion

     For the foregoing reasons, Plaintiff’s appeal of the Commissioner’s report is

DISMISSED, and the Commissioner’s Recommendation is ACCEPTED and entered as

the ORDER of the Court.

                    IT IS SO ORDERED this ____ day of January, 2016.



                                                        __________________________________
                                                         Kenneth S. Clark, Jr., Judge




13
  Id.
14
  Commissioner’s Dec. 7, 2015 Report and Recommendation on Plaintiff’s Motion for Default Judgment
and Defendants’ Motion for Extension of Time (citations omitted).
