IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
JUSLENE JULSAINT, :
JUSTINVIL IULSAINT, : C.A. No. K16C-05-022 WLW
individually and as Guardian Ad
Litem of Eddie JulSaint, and
EDDIE JULSAINT, a minor,
Plaintiffs,

V.

LUIS FELIPE TAPIA RAMOS and
LUZ Y ROMERO-ESCALERA,

Defendants.

Submitted: July 3, 2017
Decided: October 4, 2017

ORDER
Upon Defendants’ Motion to Dismiss for
Failure to Perfect Timely Service.

Granted.

Nicholas H. Rodriguez, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware;
attorney for Plaintiffs.

Nicholas E. Skiles, Esquire of Swartz Campbell LLC, Wilmington, Delaware; attorney
for Defendants.

WITHAM, R.J.

Juslene JulSaint, et al. v. Luis Ramos, et al.
C.A. No. K16C-05-022 WLW
October 4, 2017

FACTS AND PROCEDURAL HISTORY

Before the Court is Defendant Luis Felipe Tapia Ramos and Luz Y
Romera-Escalera's (hereinafter the "Defendants") motion to dismiss for failure to
perfect timely service. Defendants move the Court to dismiss a complaint brought by
Juslene, Justinvil, and Eddie Julsaint (hereinafter the "Plaintiffs") seeking to recover
for damages resulting from a vehicular collision.

Plaintiffs filed their complaint in this matter on May 18, 2016. A summons Was
issued to the sheriff for service on May 26 and on June 1, 2016, Plaintiffs' Writs Were
returned bearing "non est" service at 7 Front Street, Frederica, Delaware, believed to
be Defendants' last known residence. The sheriff reported the residence had been
demolished. On July 15, 2016, Defense counsel entered his appearance in this matter
on behalf of Defendants. Plaintiffs made a motion to have a special process server
appointed on July 18, 2016, but Withdrew the motion the next day, upon noting the
entrance of Defense counsel's appearance. On October 3, 2016, Defendants responded
to the complaint arguing, inter alia, that the Court lacked jurisdiction over the
Defendants due to insufficiency of process and service of process. Defense counsel
Went on to participate in a Court-requested teleconference With Plaintiffs' counsel. On
January 5, 2017 , Defendants served Plaintiffs With certain discovery requests,
including interrogatories and requests for production of documents

THE PARTIES' CONTENTIONS
In their motion, the Defendants contend that the attempts at service Were

ineffective, as they did not comply With the methods of proper service prescribed by

Juslene JulSaint, et al. v. Luis Ramos, et al.
C.A. NO. Kl6C-05-022 WLW
October 4, 2017

Delaware law. Defendants go on to argue that because service of process is a
jurisdictional requirement, dismissal is Warranted.

Plaintiffs response does not deny that their efforts to serve Defendants Were
insufficient, and such is deemed admitted Plaintiffs further admit that they abandoned
efforts to serve the Defendants, Withdrawing their motion to appoint a special process
server, and taking no further efforts to serve Defendants, or file a motion to extend
time to effectuate service. The Plaintiffs allege that Defense counsel's entrance of
appearance, participation in a telephone conference, and service of discovery requests
upon Plaintiffs, created the impression that improper service Was Waived and that
Plaintiffs "reasonably believed that service Was admitted." Therefore, Plaintiffs argue,
the failure to serve process on Defendants Was a result of excusable neglect, and
dismissal is improper. Finally, Plaintiffs contend that the motion presents matters
outside the pleadings and require the Court to convert the motion to dismiss into a
motion for summary judgment.

STANDARD OF REVIEW

As an initial matter, the Court has discretion either to exclude the matters
outside the pleading or convert the motion to a motion for summary judgment The
Court declines to consider the motion as a motion for summary judgment
Accordingly, the Court Will not consider any factual allegations in the motion Which
are outside the pleadings or that contradict the complaint

When considering a motion to dismiss filed on grounds of insufficient service

of process, this Court's standard of review is narroW. Delaware Superior Court Civil

Juslene JulSaint, et al. v. Luis Ramos, et al.
C.A. No. Kl 6C-05-022 WLW
October 4, 2017

Rule 4 governs procedure regarding service of process. Rule 4(j) requires the plaintiff
serve the defendant with a summons and complaint "within 120 days after the filing
of the complaint." Public policy "favors permitting a litigant a right to a day in court,"
and to that end, the Court is vested with discretion to grant an extension to the
120-day deadline if the plaintiff can make a showing of "good cause," as to why
service was not effectuated in a timely fashion. Proper service of process is a
jurisdictional requirement, and thus a failure to demonstrate good cause requires
dismissal without prejudice.

To demonstrate good cause, the plaintiff must make a showing of "excusable
neglect," i.e., that there was "some reasonable basis for noncompliance within the"
120-day deadline. Put another way, excusable neglect is "neglect which might have
been the act of a reasonably prudent person under the circumstances." Whether a
party's refusal to act constitutes excusable neglect is a matter of judicial discretion.

DISCUSSION

In Plaintiffs' response to the motion to dismiss, Plaintiffs assert "[a]t all times
relevant to the matter, Plaintiffs operated under a good faith assumption that any claim

for improper service was waived, as Defendants did not pursue it." This assumption,
Plaintiffs claim, was based on (1) the entrance of Defense counsel's appearance, (2)
his participation in a teleconference, and (3) his service of discovery requests on
Plaintiffs.

Upon the Court's review of Plaintiffs' response, it is not clear whether Plaintiffs
are alleging that Defendants waived service or merely that Plaintiffs reasonably

believed that Defendants had done so. Plaintiffs carry the burden of demonstrating

4

Juslene JulSaint, et al. v. Luis Ramos, et al.
C.A. No. Kl6C-05-022 WLW
October 4, 2017

service of process or waiver of that requirement No case law has been presented
tending to establish that, on these facts, Defendants have waived the service
requirement Because Plaintiffs have not carried their burden, the Court does not find
that Defendants waived the service requirement The Court's review is then solely on
the issue of whether Plaintiffs' failure to effectuate timely service requires dismissal.

The Court finds Plaintiffs did not make diligent efforts to serve Defendants.
Plaintiffs withdrew their motion to appoint special process server, and apparently
abandoned attempts to serve Defendants on July 19, 2016, with approximately 60 days
remaining before the deadline ran. There was ample opportunity to serve Defendants
within that time, but Plaintiffs elected not to do so.

The remaining, and critical, inquiry is whether a reasonably prudent person
might have abandoned attempts to serve Defendants given defense counsel's actions.
First, the Court finds that defense counsel's mere entry of appearance does not give
rise to the reasonable conclusion that Defendants were waiving the defense of
insufficient service of process. Additionally, defense counsel's participation in a
teleconference requested by the Court to handle scheduling issues does not indicate
a waiver of service. By responding to the Court's requests, defense counsel was acting
appropriately, and in no way "abandoned a solely defensive posture and become an
actor in the cause."

While Defense counsel participated actively in the discovery process, such did
not occur until January of 2017 , long after 120 days passed since the complaint was

filed in May of 2016. Defendants' discovery requests served in January of 2017 offer

Juslene JulSal`nt, et al. v. Luis Ramos, et al.
C.A. No. Kl6C-05-022 WLW
October 4, 2017

no explanation as to why process was not served before the 120-day deadline passed
on September 15, 2016. Further, as indicated above, Plaintiffs have presented no legal
authorities suggesting that the filing of discovery requests would reasonably lead one
to believe service of process was waived.

A reasonably prudent person would not have abandoned efforts to comply with
this Court's jurisdictional requirements absent some more tangible indicator that
service was admitted. This Court's determination might be different if the Plaintiffs
had alleged, for example, that defense counsel took steps to mislead Plaintiffs as to
whether Defendants would pursue the defense of improper service. However, such is
not the case here. Here, the Plaintiffs candidly admit that they assumed the defense of
improper service was waived, and apparently have no basis in case law or other
binding authority justifying this assumption

The Court exercises its judicial discretion to determine that Plaintiffs did not
act with excusable neglect and had no good cause for their failure to serve process on
Defendants.

WHEREFORE, Defendants' Motion to Dismiss is GRANTED. IT IS SO
ORDERED.

/s/ William L. Witham Jr.
Resident Judge

WLW/dmh

