             IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                       IN AND FOR NEW CASTLE COUNTY

RONALD L. RITTLER                           )
                                            )
              Plaintiff,                    )
                                            )
        v.                                  )      C.A. No. 07C-09-142 MJB
                                            )
MICHAEL W. BARLOW                           )
                                            )
                                            )
              Defendant.                    )

                                  Submitted: May 14, 2014
                                  Decided: August 29, 2014

              Upon Defendant’s Motion Seeking Relief from Inquisition Hearing,
                                        DENIED




Steven F. Mones, Esq., The Freibott Law Firm P.A., Attorney for Plaintiff

Michael W. Barlow, pro se, 3907 Pine Street, Wilmington, Delaware, 19808




Brady, J.
                                               I. Introduction

        On June 24, 2010, John Rittler (“Plaintiff”) was awarded a judgment in the amount of

$25,000 from Michael Barlow (“Defendant”). Almost three and a half years later, on December

2, 2013, Defendant filed a Motion for Review seeking relief from that judgment because he

never received notice of the inquisition hearing where the amount of the judgment was decided.

A hearing was held on May 8, 2014 on the Motion, and decision was reserved. For the reasons

discussed below, the Defendant’s motion is DENIED.



                                                   II. Facts

        On September 17, 2007, Plaintiff filed a Complaint in this Court seeking damages from

Defendant. 1 Although Defendant was properly served with the Complaint, he did not file a

responsive pleading nor enter an appearance in the case. 2 Plaintiff moved for default judgment,

and Defendant was properly noticed of the Motion. 3 Defendant did not respond. A default

judgment was entered against Defendant on March 27, 2008. 4                    An inquisition hearing was

scheduled for June 14, 2010, to determine the amount of the default judgment. 5 However,

because of a clerical error by Court personnel, Defendant did not receive proper notice of the

hearing to determine the amount of the default judgment. 6 As a result, Defendant failed to




1
  Compl. at 1.
2
  Special Process Server Return of Jan. 18, 2008 (showing Defendant was personally served with the Plaintiff’s
Complaint on Jan. 15, 2008, at 4:25 p.m.).
3
  Not. of Service of Feb. 11, 2008.
4
  Order of Mar. 27, 2008 at 1 (ordering a default judgment against Defendant on Mar. 27, 2008).
5
  Tr. of Inquisition Hearing, filed Jan. 30, 2014 at 1.
6
  The notice was sent to 203 Michelle Court, Newark DE 19711. The notice was returned to the Court as “not
deliverable as addressed/unable to forward.” Letter to Michael Barlow, returned May 29, 2010, filed June 2, 2010.
Barlow had previously been successfully served at 2 Bent Tree Circle, Hockessin DE 19707. Special Process Server
Return of Jan. 18, 2008. Barlow maintains that the Hockessin address is correct. Def’s Motion for Review, filed
Dec. 2, 2013.

                                                       1
appear at the inquisition hearing. 7           Following the inquisition hearing, on June 24, 2010, a

judgment in the amount of $25,000 plus costs and interest was entered. 8 On October 8, 2010,

less than four months after the inquisition hearing, Defendant attended a deposition in aid of

execution. At the deposition, Defendant was aware of the judgment and the amount. 9 Defendant

stated that he never received notice of the inquisition hearing, but continued with the

deposition. 10

         Almost three and a half years after the $25,000 judgment was entered, on December 2,

2013, Defendant filed the subject motion with the Court, seeking to have the judgment set aside,

because he did not receive proper notice of the inquisition hearing. 11                       Plaintiff argues that

Defendant’s motion should be denied, because Defendant did not raise the issue in a timely

manner despite having actual knowledge of the judgment against him and the amount of the

judgment. 12



                                               III. Legal Standard

         Under Rule 60(a), “the Court may relieve a party . . . from a final judgment, order, or

proceeding for . . . [m]istake, inadvertence, surprise, or excusable neglect.” 13 “Delaware courts

afford Rule 60(b) ‘liberal construction;”’ however, to grant relief, the court must find there was:

                  (1) excusable neglect in the conduct that allowed the default
                  judgment to be taken; (2) a meritorious defense to the action that
                  would allow a different outcome to the litigation if the matter was


7
  Tr. of Inquisition Hearing at 6 (“You’ll notice Mr. Barlow is not here today. He hasn’t participated at all, other
than showing up for a deposition over a year ago.”).
8
  Order of June 24, 2020 at 1 (entering judgment in favor of Plaintiff in the amount of $25,000 plus costs and
interest).
9
  Barlow Depo. at 5:5-10; 29:16-13.
10
   Barlow Depo. at 5:5-10; 29:16-13.
11
   Def’s. Mot. to Vacate J at 1, Rittler v. Barlow, (C.A. No. 07C-09-142).
12
   Pl’s. Letter in Resp. to Def’s. Mot. to Vacate J.
13
   Supr. Ct. Civil Rule 60(b)(1)

                                                           2
                 heard on its merits; and (3) a showing that substantial prejudice
                 will not be suffered by the plaintiff if the motion is granted. 14

The Court will only consider the second two elements of the three-pronged test “if a satisfactory

explanation has been established for failing to answer, e.g. excusable neglect or inadvertence.” 15

Excusable neglect has been defined as “neglect which might have been the act of a reasonably

prudent person under the circumstances.” 16 “A mere showing of negligence or carelessness

without a valid reason may be deemed insufficient.” 17 “[A] defendant cannot have a judgment

vacated where it has ‘simply ignored the process.’” 18 Further, it is well established in Delaware

that procedural requirements are not relaxed for pro se litigants. 19 Therefore, this Court must

first determine whether Defendant's failure to act, and any explanation therefore, for three and a

half years, after having actual knowledge of the judgment, amounts to excusable neglect.



                                               IV. Discussion

        A party to litigation must act as a reasonably prudent person to protect his interests.20

Failure to do so may disqualify the party from certain forms of relief. 21 Unreasonable and

unnecessary delay in the filing of a motion is not acting as a reasonably prudent person. 22

Unreasonable delay, absent some other explanation, does not constitute “excusable neglect.” 23




14
   Verizon Delaware, Inc. v. Baldwin Line Constr. Co., 2004 WL 838610 at *2 (Del.Super. Ct. April 13, 2004)
15
   Apt. Cmtys. Corp. v. Martinelli, 859 A.2d 67, 72 (Del. 2004)
16
   Battaglia v. Wilmington Sav. Fund Soc'y, 379 A.2d 1132, 1135 (Del. 1977)
17
   Cohen v. Brandywine Raceway Ass’n, 238 A.2d 320, 325 (Del. Super. Ct. 1968).
18
   Perry v. Wilson, 2009 WL 1964787, at *1 (Del. Super. Ct. July 17, 2012) (quoting Mahoney v. Avantix
Laboratories, Inc., 2007 WL 789440, at *2 (Del. Super. Ct. Mar. 13, 2007)).
19
   Alston v. State, 2002 WL 184247, at *1 (Del. Super. Ct. Jan. 28, 2002); Maddox v. CitiMortgage, Inc., 2014 WL
1155312, at *2 (Del. Super. Ct. Feb. 28, 2014).
20
   Concors Supply Co., Inc. v. Berger, 1988 WL 130437, at *1 (Del. Super. Ct. Nov. 9, 1988).
21
   Lewes Dairy, Inc. v. Walpole, 1996 WL 111130, at *2 (Del. Super. Ct. Jan. 5, 1996).
22
   Id.
23
   Id.

                                                        3
        When an error prevents a party from receiving notice of a court proceeding, this may

occasion relief from a judgment that is issued as result. 24 However, where the party seeking

relief had actual knowledge of the judgment, and where that party failed to act within a

reasonable time, the court may deny relief. 25 Moreover, the fact that the original error was due

to Court personnel does not excuse the party from his obligation to act as a reasonably prudent

person. 26

        In Lewes Dairy, the defendants were not provided with notice of the motion for default

judgment. 27 A default judgment was entered on May 26, 1993. 28 A subsequent letter dated

October 19, 1993 from one defendant’s attorney in a related matter indicated awareness of the

default judgment. 29 Despite the attorney’s October 19, 1993 letter, the defendants claimed that

they had no knowledge of the default judgment until July 1994. 30 The defendants filed a motion

to vacate the default judgment on March 20, 1995, claiming excusable error as grounds under

Superior Court Civil Rule 60. 31

        The court in Lewes Dairy found no excusable neglect. 32                      The court found that the

attorney’s October 19, 1993 letter was good evidence that the defendant’s were aware of the

default judgment at that time. 33 However, even giving the defendants the benefit of the doubt

and accepting their contention that they did not know about the judgment until July 1994, the

court found that the nine months’ delay (between July 1994 and March 20, 1995) in filing the



24
   Super. Ct. Civ. R. 60(a); Lewes Dairy, 1996 WL 111130, at *1.
25
   Id. at *3.
26
   Solow v. Aspect Resources, LLC, 2011 WL 3720844, at *1 (Del. Ch. Aug. 11, 2011)
27
   Lewes Dairy, 1996 WL 111130, at *1.
28
   Id.
29
   A second letter from the same attorney similarly indicated awareness of default judgment. Id.
30
   Id.
31
   Id.
32
   Id. at *3.
33
   Id.

                                                         4
motion was unreasonable. 34 Because the delay was unreasonable, it did not constitute excusable

neglect. 35

        In the instant case, like in Lewes Dairy, the defendant did not receive notice of a court

proceeding related to a default judgment. 36 However, in both cases, subsequent interaction

between the defendant and the plaintiff revealed that the defendant did become aware of the

judgment and the amount of the judgment a significant time before the defendant filed for relief.

In Lewes Dairy, the delay was roughly nine months, and the court found it to be unreasonable.

Similarly, in Concors Supply Co., the court found that a delay of at least six months from the

time a defendant learned of the default judgment and when he filed his motion to vacate was

unreasonable. 37

        The instant case is more extreme than either Lewes Dairy or Concors. In the instant case,

there was a delay of over three years between the October 8, 2010 deposition at which time it

was clear that Defendant knew of the default judgment and Defendant’s December 2, 2013

motion. Since Defendant has not pointed to any extenuating circumstances that justify such a

protracted delay, the Court finds no excusable neglect. Further, in Lewes Dairy, the defendants

did not receive notice of the Motion for Default Judgment itself. In the instant case, Defendant

Barlow did receive notice of the Motion for Default Judgment; it was only the subsequent

inquisition hearing to determine the amount of the judgment of which Defendant was not

properly noticed. Thus, even had his challenge been timely, which the Court finds it was not,

Defendant Barlow could have only challenged the amount of the default judgment and not the

default judgment itself.

34
   Id.
35
   Id.
36
   Here the Court notes an important from Lewes Dairy in that the Defendants in Lewes Dairy did not receive notice
of the Motion for Default Judgment itself.
37
   Concors Supply Co., 1988 WL 130437, at *1.

                                                        5
                                    IV. Conclusion

       Defendant unreasonably delayed in filing any motion to vacate the judgment against him,

or affect the amount of the judgment. He waited over three years after he had actual knowledge

of the judgment amount before challenging the action. Defendant’s Motion is DENIED.



IT IS SO ORDERED.

                                           _______________________________
                                           M. Jane Brady
                                           Superior Court Judge




                                              6
