IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
NANCY GRIFFITH,
Plaintiff,

V. C.A. No. Nl6C-08-l43 VLM

WAWA, INC.,

Defendant.

Subrnitted: June 23, 2017
Decided: July 14, 2017

ORDER

AND NOW TO WIT, this 14th day of July, 2017, upon consideration of
Defendant Wawa, Inc. (“Wawa”)’s Motion to Dismiss, Plaintiff’ s Motion to
Withdraw as Counsel, and the record in this case, IT IS HEREBY ORDERED
that Plaintiff’ s Motion to Withdraw as Counsel is GRANTED and WaWa’S Motion
to Dismiss is GRANTED for the following reasons:

Factual and Procedural Background

l. On August l7, 2016, Plaintiff Nancy Griffith (“Ms. Griffith”) filed a
Complaint alleging Wawa Was negligent in maintaining its NeW Castle, Delaware
store in an unreasonably dangerous condition.l On or about August 18, 2014, Ms.

Griffith, While at Wawa’s store, allegedly slipped and fell on a “greasy/slippery

 

l See generally Complaint, Grijj?th v. Wawa, lnc., C.A. No. Nl6C-08-l43 VLM, D.I. #l (Del.
Super. Aug. 17, 2016).

spot . . . causing her serious bodily injury. lt also caused her to incur medical
expenses and/or loss of income.”2 The Complaint states three counts:
(1) negligence; (2) vicarious liability; and (3) premises liability.

2. On January 6, 2017, Wawa’s counsel entered his appearance and filed
a Motion to Dismiss for Failure to Prosecute under Rule 4l(e).3 Wawa argued that
the Complaint should be dismissed because, “[o]n December 15, 2016, Plaintiffs
120 day deadline to serve the Complaint expired.”4

3. On January 12, 2017, a Sheriff’s Return Was docketed noting that
Wawa’s registered agent Was served With process on January 11, 2017.

4. WaWa then filed this Motion to Dismiss on January 25, 2017, seeking
dismissal of the Complaint for failure to comply With Delaware Superior Court
Civil Rule 4(]`).5 A briefing schedule Was issued on February 2, 2017. Wawa’s
opening brief Was timely filed on February 22, 2017.6 Ms. Griffith’s response
brief, Which Was due on March 15, 2017, Was never filed. WaWa Wrote to the

Court on March 28, 2017 asking this Court to rule on the papers in light of Ms.

 

2 ld. at 11 3.
3 D.i. #3 (Jan. 6, 2017).
4

Id. at¢nz.

5 Defendant’s Motion to Dismiss Pursuant to Rule 4(]'), D.I. #6 (Jan. 25, 2017) [hereinafter
Wawa’s Motion].

6 Defendant’s Opening Brief in Support of its Motion to Dismiss, D.I. #8 (Feb. 22, 2017)
[hereinafter Opening Brief].

Griffith’s counsel’s failure to respond to the Motion. Before this Court issued a
decision on Wawa’s Motion, the parties agreed to settle this matter and the Motion
Was rendered moot.

5 . Despite the putative settlement, the docket reflects a period of
inactivity from March 28, 2017 to June 19, 2017. On the latter date, Wawa re-
noticed its Motion to Dismiss.7

6. Additionally, after Wawa’s Motion Was re-noticed, Plaintiffs counsel
filed the pending Motion to Withdravv as Counsel.8 Plaintiff s counsel explains in
his Motion that his relationship With Ms. Griffith and the firm he describes as “lead
counsel” in this matter has run into a quagmire.9 Hence, in light of this “material
breakdown,” Plaintiff’s counsel requests this Court grant his Motion to Withdraw
as Counsel.10 WaWa takes no position on this Motion.

7. This is the Court’s decision on Wawa’s Motion to Dismiss and

Plaintiffs Motion to Withdraw as Counsel.

 

75@€1)1.#11(Junei9,2017)

8 Plaintiff’ s Motion to Withdraw as Counsel, D.I. #12 (June 23, 2017) [hereinafter Motion to
Withdraw].

9 See id. at 111 2-3. Despite Plaintiffs counsel’s mention of a “lead counsel” in this matter, no
other attorney of record, Whether a licensed Delaware attorney or an attorney admitted pro hac
vice, is reflected on the docket.

lwaqu

Contentions of the Parties
8. Wawa’s Motion to Dismiss argues that Ms. Griffith never issued
service of process on Wawa Within 120 days of filing the Complaint as required by
Rule 4(j). Further, Wawa contends that Ms. Griffith cannot show “good cause and
excusable neglect” for her failure to effectuate service on WaWa Within the
requisite time period. Wawa’s counsel states that he twice prompted Ms. Griffith’s
counsel regarding service of process Within the 120-day period, only for these
prompts to fall on deaf ears.ll Moreover, Ms. Griffith never moved for an
extension to effectuate service as she could have done during the 120~day period.12
Standard of Review
9. Rule 4 governs the procedure in this Court for service of process.13

Rule 4(]') requires the plaintiff serve the defendant With a summons and complaint

”14

“Within 120 days after the filing of the complaint However, if the plaintiff

cannot effect service of process in that time period, Rule 40) permits the plaintiff

to show “good cause” for “Why such Service Was not made Within that period. . .

 

11 opening Brief at 2 & Ex. A.
12 See id. at 6.
13 See generally DEL. SUPER. CT. CIV. R. 4.

14 Rule 4(]').

.”15 lf the plaintiff cannot show “good cause,” the Court “Shall” dismiss the case
without prejudice as to that defendant.16

10. “Good cause” under Rule 4(]`) is synonymous with a showing of
“good faith and excusable neglect.”17 “Good faith and excusable neglect” equates
to a showing that there is “some reasonable basis for noncompliance within the
time specified in” Rule 4(j).18 Excusable neglect is “neglect which might have
been the act of a reasonably prudent person under the circumstances.”19 Public
policy in Delaware “favors permitting a litigant a right to a day in court,” and this
policy is embedded in the discretionary authority Rule 40) vests the Court to grant
an extension to the 120-day deadline upon a showing of “good cause.”20 However,

the absence of prejudice to the defendant is inapposite in this respect because

 

15 Id.

16 Id.

17 See DeSantis v. Chilkotowsky, 877 A.2d 52, 2005 WL 1652640, at *l (Del. 2005) (TABLE);
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998); Larimore v. Stella, 2003 WL 22064107, at *2
(Del. Super. Aug. 29, 2003).

18 Dolan, 707 A.2d at 36 (quoting Dominic v. Hess oil V.1_ Corp., 841 F.2d 513, 517 (3d cir.
1988)). See also Larimore, 2003 WL 22064107, at *2 (quoting Franklin v. Millsboro Nursing &
Rehab. Ctr., Inc., 1997 WL 363950, at *7 (Del. Super. June 10, 1997)).

19 Dolan, 707 A.2d at 36 (quoting Cohen v. Brandywine Raceway Assoc., 238 A.2d 320, 325
(Del. Super. 1968)).

20 Id. (citations omitted).

“[p]roper service of process is a jurisdictional requirement.”21 lf the plaintiff fails
to show “good faith and excusable neglect,” Rule 4(]`) permits one singular result:
dismissal without prejudice22

Discassion

ll. This Court finds that Ms. Griffith did not serve Wawa with service of
process until after the 120-day period expired. The Complaint was filed on August
17, 2016. According to Rule 6(a), the 120-day period began to run on August 18,
2016.23 This period ended on December 15, 2016. Plaintiff served Wawa on
January 11, 2017, nearly one month after the deadline.

12. Because Ms. Griffith failed to comply with Rule 4(]`), she must show
“good cause” for why she did not serve Wawa within the requisite time period.
Ms. Griffith has failed to respond to Wawa’s Motion to Dismiss. Therefore, Ms.
Griffith has not shown entitlement to relief from Rule 4(]`)’$ 120-day period and the
Motion must be granted.

13. Even if Ms. Griffith argued “good faith and excusable neglect,” this

showing would be insufficient Wawa’s counsel emailed Ms. Griffith’s counsel on

 

21 Desamis, 2005 wL 1652640, at *2.

22 See Dolan, 707 A.2d at 36; Huelsenb@ck v_ Fermin_Jimenez, 2013 wL 2481533, at *2 (Del.
Super. June 7, 2013) (“the court has no option but to dismiss the case” where plaintiffs counsel
failed to show “good faith and excusable neglect” for failure to effect service of process).

23 See DEL. SUPER. CT. CIV. R. 6(a) (computational method for Superior Court Civil Rules).
l6

two separate occasions during the 120-day period.24 On November 4, 2016,
Wawa’s counsel alerted Ms. Griffith’s counsel of her failure to serve Wawa. Ms.
Griffith’s counsel did not respond. On December 5, 2016, Wawa’s counsel again
prompted Ms. Griffith’s counsel regarding the failure to serve Wawa. Ms.
Griffith’s counsel did not respond. Moreover, Ms. Griffith has never moved to
extend the time for service of process_whether before or after the 120-day
deadline. As such, even had Ms. Griffith argued “good faith and excusable
neglect,” this argument would be considerably wanting.

14. The Court next considers Plaintiff s Motion to Withdraw as Counsel.
Rule l.l6(b) of the Delaware Lawyers’ Rules of Professional Conduct governs the
optional withdraw of counsel.25 lmplicitly, Plaintiff’ s counsel posits his withdraw
under Rule 1.16(b)(6) & (7); i.e., that his relationship with Ms. Griffith and “lead
counsel” has rendered his continued representation “unreasonably difficult,” and
Plaintiff and/or lead counsel have unjustifiably failed or refused to communicate
with Plaintiffs counsel.26

15. After a review of the record and Motion, and in light of the fact that

Wawa does not oppose this Motion, the Court finds that “good cause” exists to

 

24 See Wawa’s Motion at 11 2 & Ex. A.
25 See DEL. LAWYERS’ R. PROF’L CONDUCT 1.16(b) (“Declining or terminating representation”).

26 See Rule 1.16(b)(6) (“[withdraw is permitted if] the representation will result in an
unreasonable financial burden on the lawyer or has been rendered unreasonably difficult by the
client;”); Rule 1.16(b)(7) (“other good cause for withdrawal exists.”).

7.

grant Plaintiff’S counsel’s Motion to Withdraw as Counsel. Accordingly,
Plaintiff’s Motion is GRANTED.
Conclasion

16. Wawa’s Motion to Dismiss for Ms. Griffith’s failure to comply with
Rule 4(j) is GRANTED. The Complaint was served after the 120-day period as
mandated in Rule 4(j). Ms. Griffith has failed to defend this Motion. Even had
Ms. Griffith filed a brief in opposition to the Motion, the record reveals no “good
cause” for why service of process was not completed within the 120-day period.

17. Plaintiffs Motion to Withdraw is GRANTED for the reasons stated
above.

IT IS SO ORDERED.

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oc: Prothonotary
cc: All Counsel of Record (via e-filing)

