       IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                    IN AND FOR NEW CASTLE COUNTY

THOMAS A. LYNAM, III and        )
ANTOINETTE M. LYNAM, as Parents )
and Natural Guardians of        )
THOMAS A. LYNAM, IV, a minor,   )
                                )
                    Plaintiffs, )
       v.                       )                 C.A. No. N14C-11-121 RRC
                                )
BLUE DIAMOND LLC                )
MOTORCROSS d/b/a BLUE           )
DIAMOND MX, BLUE DIAMOND MX     )
PARK, BLUE DIAMOND PARK,        )
BLUE DIAMOND LLC d/b/a          )
BLUE DIAMOND MX, BLUE DIAMOND )
MX PARK, BLUE DIAMOND PARK,     )
HOUGHTON’S AMUSEMENT PARK, LLC, )
PARKWAY GRAVEL, INC. and        )
RICHARD WITHINGTON              )
                    Defendants. )


                            Submitted: July 20, 2015
                           Decided: October 12, 2015

 Motion to Dismiss of Blue Diamond LLC Motorcross d/b/a Blue Diamond MX, Blue
Diamond MX Park, Blue Diamond Park, Blue Diamond LLC d/b/a Blue Diamond MX,
      Blue Diamond MX Park, Blue Diamond Park, and Parkway Gravel, Inc.
                                   DENIED.

 On Plaintiffs’ “Countermotion for Enlargement of Time for Service Under Superior
                   Court Rules of Civil Procedure 4(j) and 6(b).”
                                   GRANTED.
                           MEMORANDUM OPINION
Tabatha L. Castro, Esquire, The Castro Firm, Inc., Wilmington, Delaware, Attorney for
Plaintiffs; Leonard G. Villari, Esquire, Villari, Lentz, & Lynam, LLC, Philadelphia,
Pennsylvania, pro hac vice, Attorney for Plaintiffs.

Marc S. Casarino, Esquire and Dana Spring Monzo, Esquire, White and Williams LLP,
Wilmington, Delaware, Attorneys for Defendants Blue Diamond LLC Motocross d/b/a
Blue Diamond MX, Blue Diamond MX Park, Blue Diamond Park, Blue Diamond LLC
d/b/a Blue Diamond MX, Blue Diamond MX Park, Blue Diamond Park, and Parkway
Gravel, Inc.


COOCH, R. J.

                               I.        INTRODUCTION

         On November 14, 2014, Thomas A. Lynam, III, and Antoinette M. Lynam,
  the parents and natural guardians of minor Thomas A. Lynam, IV, (together
  “Plaintiffs”), filed a Complaint against Blue Diamond LLC Motorcross 1 d/b/a Blue
  Diamond MX, Blue Diamond MX Park, Blue Diamond Park, Blue Diamond LLC
  d/b/a Blue Diamond MX, Blue Diamond MX Park, Blue Diamond Park,
  Houghton’s Amusement Park, LLC, Parkway Gravel, Inc., and Richard
  Withington 2 for personal injury sustained by minor Plaintiff resulting from a
  motorcycle accident at Blue Diamond Defendants’ motorcross track on January 6,
  2013. Plaintiffs served process on Blue Diamond Defendants on March 20, 2015.
  On April 6, 2015, Blue Diamond Defendants filed a Motion to Dismiss, citing
  Plaintiff’s failure to serve process within 120 days as required by Superior Court
  Civil Rule 4(j), and/or Plaintiffs’ failure to have timely moved for enlargement of
  time for service of process. Upon consideration of the arguments asserted in the

  1
    Although the word “motorcross” is used in the Complaint by Plaintiffs, the Court understands
  that the correct spelling is likely “Motocross.” See
  http://americanmotorcyclist.com/Racing/Motocross.aspx; http://www.merriam-
  webster.com/dictionary/motocross.
  2
    The Motion at issue was filed on behalf of all Defendants except Houghton’s Amusement Park,
  LLC and Richard Withington. As of the date of this Opinion, the Court has not received any
  filings from either of these Defendants. There are six separate Blue Diamond entities, plus
  Parkway Gravel, Inc. represented in this Motion. Collectively, the seven entities will be referred
  to as “Blue Diamond Defendants.”
                                                  2
parties’ briefs and during oral argument, Defendants’ Motion to Dismiss is
DENIED and Plaintiffs’ “Countermotion for Enlargement of Time for Service
Under Superior Court Rues of Civil Procedure 4(j) and 6(b)” is GRANTED.

        II.    FACTUAL AND PROCEDURAL BACKGROUND

       The Complaint alleges that on January 6, 2013, minor Plaintiff Thomas A.
Lynam, IV, was riding his 80cc dirtbike at Blue Diamond Defendants’ track near
New Castle, Delaware. 3 His father, Thomas A. Lyman, III, was watching from the
spectators area. Defendants’ track has three different courses depending on the
riders’ level of experience: a “pee-wee” track for beginning riders; an “open track”
for novice riders; and an American Motorcyclist Association sanctioned track for
expert and professional riders.4

       After spending most of his day on the pee-wee track, minor Plaintiff Lynam
went to the open track to continue riding.5 The open track was comprised of nine
separate turns that a rider must navigate.6 While approaching the eighth turn,
minor Plaintiff Lynam ran over a jump that caused him and his dirtbike to become
airborne.7 Minor Plaintiff Lynam landed harder than expected which caused him
to unintentionally accelerate and lose control of his dirtbike.8 He was unable to
navigate the turn and crashed into a steel shipping container. The container was
placed at the edge of the track to separate it from an abandoned amusement park.9
As a result of his impact with the shipping container, he sustained serious physical
injuries.

       Plaintiffs filed a Complaint and Praecipe naming Blue Diamond Defendants
on November 14, 2014. On November 24, 2014, defense counsel entered their
appearances, explicitly without waiver of any affirmative defenses. 10 On February
6, 2015, the New Castle County Sheriff returned the Summons and Complaint non
est inventus for each of the Blue Diamond Defendants. 11 On February 20, 2015,
Plaintiffs filed Alias Praecipes to serve Blue Diamond Defendants’ registered

3
  Pls.’ Compl. at ¶¶ 37, 38.
4
  Id. at 26.
5
  Id. at 39.
6
  Id. at 33.
7
  Pls.’ Compl. at 44.
8
  Id.
9
  Id. at 41, 46.
10
   Entry of Appearance, D.I. # 2.
11
   D.I. ## 9 – 13.
                                         3
agents instead of Blue Diamond Defendants’ places of business. Blue Diamond
Defendants’ registered agents were served on March 20, 2015.

      Blue Diamond Defendants filed a Motion to Dismiss (“Motion”) on April 6,
2015. The Motion asserts that Plaintiffs’ failure to serve process on Blue Diamond
Defendants within 120 days of filing the Complaint and Plaintiffs’ failure to have
timely moved to enlarge time for service warrant dismissal.12

                         III.    PARTIES’ CONTENTIONS

                    i.    Blue Diamond Defendants’ Contentions.

       Blue Diamond Defendants argue that Plaintiffs’ Complaint should be
dismissed because Blue Diamond Defendants were not served within 120 days as
is required by Superior Court Civil Rule 4(j). Also, Blue Diamond Defendants
assert that Plaintiffs did not request an extension to the time allowed for service
prior to the 120-day statutory deadline. Therefore, Blue Diamond Defendants
argue Plaintiffs’ service after the expiration of the deadline was improper. Blue
Diamond Defendants allege that Plaintiffs are unable to show “good cause” that
would excuse Plaintiffs’ failure to comply with the 120-day rule.

                                ii.   Plaintiffs’ Contentions

      Plaintiffs assert that they did make reasonable and diligent efforts to serve
process on Defendants and those efforts show “good cause” for this Court to
excuse the late service. Therefore, Blue Diamond Defendants’ Motion to Dismiss
should be denied and the Plaintiffs’ “Countermotion for Enlargement of Time For
Service Under Superior Court Rules of Civil Procedure 4(j) and 6(b)” should be
granted.13




12
   Defs.’ Mot. to Dismiss, D.I. # 19.
13
  In Plaintiffs’ Response to Motion to Dismiss and Countermotion For Enlargement of Time For
Service Under Superior Court Rules of Civil Procedure 4(j) and 6(b) [hereinafter “Plaintiffs’
Response”], Plaintiffs argue that when counsel for the Defendants entered their appearances they
waived their right to challenge the sufficiency of service of process. In light of the disposition of
this Motion, the Court need not reach this issue.
                                                  4
                        IV.     STANDARD OF REVIEW

      When deciding a motion to dismiss, the Court must examine the complaint
and accept all well-pleaded allegations as true.14 If the facts alleged in the
complaint are sufficient to support a claim for relief, the motion should be
denied.15 “The test for sufficiency is a broad one, that is, whether a plaintiff may
recover under any reasonably conceivable set of circumstances susceptible of proof
under the complaint.”16 “An allegation, though vague or lacking in detail, is
nevertheless ‘well-pleaded’ if it puts the opposing party on notice of the claim
being brought against it.”17

       However, when a motion to dismiss is filed on grounds of insufficient
service of process, the standard of review becomes narrower. Pursuant to Superior
Court Civil Rule 4(j), “[i]f a service of the summons and complaint is not made
upon a defendant within 120 days after the filing of the complaint . . . the action
shall be dismissed as to that defendant without prejudice.” 18 However, the Court
may “be flexible if a plaintiff shows good cause for failure to serve.” 19 Good cause
requires the at-fault party to show good faith and excusable neglect.20 “Excusable
neglect has been described as that neglect which might have been the act of a
reasonably prudent person under the circumstances.”21 “Dismissal is ‘within the
Court’s sound discretion.’” 22 However, ‘“the sanction of dismissal is severe and
the courts are and have been reluctant to apply it except as a last resort.”’ 23




14
   See Spence v. Funk, 396 A.2d 967, 968 (Del. 1978) (internal citation omitted).
15
   See id.
16
   Id. (citing Klein v. Sunbeam Corp., 94 A.2d 385 (Del. 1952).
17
   Precision Air, Inc. v. Standard Chlorine of Delaware, Inc., 654 A.2d 403, 406 (Del. 1995)
(citing Diamond State Tel. Co. v. University of Del., 269 A.2d 52, 58 (Del. 1970)).
18
   Super. Ct. Civil R. 4(j).
19
   Doe v. Colonial School Dist., 2011 WL 7063682 at* 1 (Del. Super. Dec. 27, 2011) (citing
Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998) (quoting Braxton v. U.S., 817 F.2d 238, 241 (3d
Cir. 1987).
20
   Anticaglia v. Benge, 2000 WL 145822 at* 2 (Del. Super. Jan. 20, 2000).
21
   Cohen v. Brandywine Raceway Ass'n, 238 A.2d 320, 325 (Del. Super. 1968) (citing
Tradesmens Nat’l Bank & Trust Co. v. Cummings, 38 N.J.Super. 1, 118 A.2d 80 (1955).
22
   Doe v. Colonial School Dist., 2011 WL 7063682 at* 1 (Del. Super. Dec. 27, 2011) (quoting
Gebhart v. Ernest DiSabatino & Sons, Inc., 264 A.2d 157, 159 (Del. 1970).
23
   Drejka v. Hitchens Tire Serv., Inc., 15 A.3d 1221, 1224 (Del. 2010) (quoting Hoag v. Amex
Assurance Co., 953 A.2d 713, 717 (Del. 2008).
                                               5
                                   V.     DISCUSSION

      Plaintiffs Have Shown Good Cause To Excuse The Late Service of Process.

       Plaintiffs filed the Complaint on November 14, 2014. According to Rule
4(j), Blue Diamond Defendants had to be served by March 16, 2015. After several
attempts by the Sheriff to serve Blue Diamond Defendants at their places of
business, the Summons and Complaints were returned non est inventus on
February 6, 2015. Plaintiffs filed an Alias Praecipe and Summons on February 20,
2015. Blue Diamond Defendants’ registered agents were served on March 20,
2015, four days late. Blue Diamond Defendants claim that “there is no good cause
or excusable neglect for failure to comply with Rule 4(j)’s 120 day service
requirement.” 24 However, upon review of the record, the Court finds that
Plaintiffs, under the particular circumstances of this case, have shown good cause.
The late service will be excused.

      First, Plaintiffs made reasonable efforts on several occasions to serve Blue
Diamond Defendants at their places of business prior to the expiration of the 120-
day time period. However, because of the nature of Blue Diamond Defendants’
businesses, outdoor entertainment, these locations were closed for several weeks
during the colder months when service was attempted. Blue Diamond Defendants’
businesses were closed during the entire month of January, for 25 days in
February, and for 21 days in March. 25 Though Plaintiffs attempted in apparent
good faith to serve Defendants, that task was impossible to achieve with the
method that Plaintiffs originally decided to use.

       Blue Diamond Defendants assert that no plaintiff cannot show excusable
neglect when he fails to serve process on a Delaware corporate entity, because the
registered agent’s information is available from the Secretary of State. 26 However,


24
   Defs.’ Mot. to Dismiss.
25
   Plaintiffs’ Response at 6.
26
   Defendants rely on Chipman v. Marina Motel Ventures, LLC, 2005 WL 1950897 at* 2 (Del.
Super. 2005) (stating that the plaintiffs were unable to show excusable neglect, because during
all relevant times to the litigation, the defendant’s registered agent’s information was available
from the Secretary of State for service of process). However, the Court finds this case
distinguishable. The plaintiffs in Chapman never attempted to serve the defendant in person.
Rather the plaintiff directed the sheriff to serve an accountant with another company that had an
ownership interest or management interest with the defendant; the plaintiffs were warned several
times by the Sussex County Prothonotary through written notices that service of process was still
                                                6
simply because a corporate entity has a registered agent does not mean that is the
only way in which it may be served process. Service of process of a corporation
can be made: (1) “to any officer or director of the corporation in this State”; or (2)
to “the registered agent of the corporation in this State”; or (3) at the registered
office or other place of business of the corporation in this State.” 27 Counsel is not
beholden to only one method of service. Therefore, simply choosing to serve
process on someone other than the registered agent does not show a per se lack of
excusable neglect.

       Good cause in this case is further shown through several uncommon delays
Plaintiffs experienced. Plaintiffs’ counsel contacted the Court on January 5, 2015,
to check on the status of service and discovered that although this action was filed
by minor Plaintiff Lynam’s parents, no writs of service would be issued by the
Prothonotary until a “next friend” was appointed for him. No “Petition for
Appointment of Next Friend” was filed contemporaneously with the Complaint,
which is the usual procedure when a minor is a plaintiff. Referral of a complaint
and a petition for appointment of next friend to the assigned judge is apparently the
practice of the New Castle County Prothonotary, although not otherwise required
by Court rules or statute.28 Plaintiffs promptly filed a “Motion for Appointment of
Next Friend” on January 8, and that Motion was granted on January 12. 29

       Further adding to the delay in service of process was an apparent clerical
error in the Prothonotary’s Office that overlooked Plaintiffs’ February 20, 2015
Alias Praecipes filings. 30 These Alias Praecipes were timely filed by Plaintiffs after
the Sheriff returned the Summons and Complaints non est inventus. 31 On March 6
Plaintiffs were inadvertently informed by the Prothonotary that no Alias Praecipes
had been filed.32 Once Plaintiffs realized that the Court was not aware of the Alias
Praecipes, Plaintiff promptly re-filed them on March 9.33 Defendants’ registered
agents were served on March 20, 2015.34 Therefore, if not for some delays caused



incomplete; and plaintiffs filed an amended complaint against the same defendant and served
process on February 9, 2005, almost a year after the original filing.
27
   8 Del. C. § 321(a).
28
   Pls.’ Resp. at 5.
29
   Id.
30
   Id. at 6.
31
   Id.
32
   Pls.’ Resp. at 6.
33
   Id.
34
   Id. at 7.
                                               7
by the Court to which Plaintiffs reacted in a timely and diligent manner,
Defendants would likely have been served within the proper time.

       This series of events shows essentially diligent efforts to comply with the
Rules and not “half-hearted efforts” perfect service.35 Plaintiffs have demonstrated
that despite the late service of process, they operated in good faith and with
excusable neglect. Therefore, in light of Plaintiffs’ efforts and the small amount of
time that the parties were actually served process beyond the 120-day requirement,
the Court finds that there is good cause shown to excuse the late service of process
pursuant to Rules 4(j) and 6(b).

                                VI.     CONCLUSION

      The Court finds that Plaintiffs are able to show good cause why their late
service of process should be excused. Therefore, Blue Diamond Defendant’s
Motion to Dismiss is DENIED. Furthermore, in light of the circumstances
discussed above, Plaintiffs’ “Countermotion for Enlargement of Time for
Service”36 is GRANTED.

      A scheduling conference will be held when the remaining two defendants,
Houghton’s Amusement Park, LLC and Richard Withington have responded to the
Complaint, have had default judgments taken against them, or have been dismissed
from the case.




                                                           ______________________
                                                               Richard R. Cooch, R.J.

oc:    Prothonotary



35
   Anticaglia v. Benge, 2000 WL 145822 at *2 (Del. Super. Jan. 20, 2000) (holding plaintiff were
unable to show good casue to allow for an extension made a “half-hearted effort by counsel” to
serve defendants when the complaint was filed in April, service of process was attempted once in
May and then not again until October).
36
   Pls.’ Resp. at 1.
                                               8
