The opinion
IN TI'IE SUPERIOR COURT OF THE STATE OF DELAWARE
EARLENE RICKETTS,
Plaintiff,
C.A. No. N16C-06-218 CEB
V.
LONYA K. BROWN,
Defendant.
Date Submitted: September 28, 2017
Date Decided: December 20, 2017
Upon Defendant’s Motion to Dismiss and
Defendant’s Motion to Quash Service of Complaint.
DENIED.
QRI;E_R
Before the Court is Defendant’s Motion to Dismiss and Defendant’s Motion
to Quash Service of Complaint, For the reasons set forth below, Defendant’s
Motions are DENIED.
l. Plaintiff Earlene Ricketts claims that on August l, 2013, Defendant
Lonya Brown_or at least someone driving Lonya Brown’s car-struck PlaintifPs
car, injured Plaintiff, and fled the scene. Plaintiff filed suit for personal injuries on
June 27, 2016.
2. Along With her Complaint, Plaintiff filed a Praecipe, identifying
Defendant’s last known address as 260 Christiana Road, New Castle, DelaWare.
Four days later, Plaintiff filed a motion to appoint O’Rourke lnvestigative Associates
as special process server. That motion identified Defendant Brown’s last known
address as 518 Bayard Avenue, Apt. 2, Wilmington, Delaware, but further stated
that the property was vacant and thus a special process server was needed. That
motion was granted by the Court on July 19, 2016.
3. C)n September 26, 2016, Plaintiff filed a request for an enlargement of
time in which to serve the Complaint. This request recited that service on the
Defendant had been unsuccessful at both 260 Christiana Road and 518 Bayard
Avenue. On October 11, 2016, the Court granted Plaintiff an additional 120 days to
serve Defendant.
4. On November 18, 2016, Plaintiff filed an “Affidavit of Process Server”
dated October 28, 2016, in which the process server swore that he had served “Aniya
Wright” with the papers on October 28, 2016 at 7:30 a.m. at 87 Westside Court,
Salem, New Jersey. The Affidavit stated that the recipient of the service was an
eighteen-year-old female, five feet, seven inches tall, weighing 120 pounds with
black hair and no glasses. The Affidavit stated that Aniya Wright is a
“cotenant/niece” of Defendant.
5. Thereafter, there was a lull in the action, until March of 2017, when
Defendant moved to dismiss the Complaint. But in this pleading, Defendant reveals
a wholly different action, filed in April, 2015l over the same car accident. Defendant
says the complaint from that action was not served within the time allotted for
service and leave was granted to extend the time. Apparently that complaint was
never served_or even alleged to have been served_and according to the
Defendant, it was “dismissed as a matter of law.”
6. The Court takes notice that there was indeed an action filed by Plaintiff
against Defendant as well as Plaintiff’ s own insurance carrier for uninsured motorist
coverage. That matter was defended by Plaintiffs insurance carrier, which sought
to be dismissed on the grounds that there could be no uninsured motorist coverage
unless and until it was established that Ms. Brown did not have coverage. Since
Brown had not been served with the complaint, the insurer argued, the case should
be dismissed. Judge Parkins dismissed Plaintiffs claims against Defendant Brown,
saying “I find that the plaintiff has made no efforts to locate her [(Ms. Brown)]. The
writ was returned, non est, in May of 2015, and it was not until after the defendant
filed a Motion to Dismiss, a year later, that there were any efforts to relocate her.”2
That dismissal was without prejudice.
7. This brings us back to the action at bar, which, it turns out, was filed
about one month after Judge Parkins dismissed the claims against Defendant Brown
1 Ricketts v. Brown, C.A. No. N15C-04-202.
2 Tr. 5:21-6:2, D.I. 27, Ricketts v. Brown, C.A. No. N15C-04-202 (June 2, 2016).
3
in the original action, and about one year after the statute of limitations had expired,
This gave rise to Defendant’s Motion to Dismiss due to the expiration of the statute
of limitations, which gave rise to Plaintiff’s argument that the statute of limitations
does not apply because 10 Del. C. § 8118 acts to “save” her Complaint despite the
expiration of the statute of limitations This means, in effect, that this action is barred
unless the savings provision of section 8118 saves it.
8. The Court might have greater sympathy for Defendant’s argument were
it not a matter settled several years ago. Kaufman v. Nisky3 is a case whose facts are
strikingly similar. ln Kazgfman, the Court had previously dismissed a complaint filed
by plaintiff because she had not served it in the time contemplated by the rules. A
few weeks later, and after the statute of limitations had expired, she refiled the
com_plaint, this time effecting service of process. The defense moved to dismiss the
later action on statute of limitations grounds and the plaintiff relied upon section
81 18 to “save” her new complaint. In that case, the Court held that plaintiff’ s failure
to serve process on defendant was “a technical albeit careless mistake” and “[a]
complaint dismissed without prejudice is not usually decided on its merits and, when
based on a technical deficiency, the Savings Statute applies.4 According to the
Court, since a dismissal under Delaware Superior Court Civil Rule 40) is “without
3 2011 WL 7062500 (Del. Super. Dec. 20, 2011).
4 Id. at *3.
prej udice,” it is not a dismissal “on the merits” and therefore it was a technical defect
and could be remedied by the savings provision of section 81 18.
9. Plaintiff here raised this argument and cited Kaufman v. Nisky in its
Response to Defendant’s Motion to Dismiss. The Court granted Defendant leave to
file a reply brief, which she did, which did not cite or discuss the holding in Kau man.
As the issue is controlled by a prior holding of this Couit, and the Court is not here
asked to reconsider or overrule a prior holding of this Court, the Court will not do
so of its own accord. Therefore, Defendant’s Motion to Dismiss on grounds of the
statute of limitations is DENIED.
10. We turn then to the question of whether the service made upon Aniya
Wright on October 28, 2016 was effective within the meaning of Rule 4. As we
understand what happened, Plaintiff hired O’Rourke Investigative Associates as a
private process server, which conducted extensive research and surveillance in an
attempt to serve Ms. Brown.5
11. The efforts to locate Defendant brought the process server to a location
in New Jersey. Finally, after staking out a residence at 87 Westside Court, Salem,
New Jersey, the process server saw the woman described above and served her with
the Complaint. At oral argument, defense counsel asserted that Defendant was not
5 A chronicle of those efforts may be found at Pl.’s Resp. in Opp’n to Def.’s Mot. to Dismiss, D.l.
20, Ex. G.
in fact residing at that location and had been there for a few months recuperating
from surgery, but it was not her “usual place of abode” on the date of service.
12. Rule 4(f)(1)(l) provides that service may be made by “leaving copies
thereof at that individual’s dwelling house or usual place of abode with some person
of suitable age and discretion then residing therein . . . .” Thus, the question
presented is whether this service upon the Defendant’s niece at a house in New
Jersey at which Defendant may or may not have been currently residing is effective
service under Rule 4.
13. When the issue was presented for oral argument, the Court noted that it
had sworn affidavits from the owner of the process serving company and the
Defendant herself (swearing that she did not live at the New Jersey location on the
date of service), but no affidavit from the recipient of the service itself or the actual
process server. In order to clarify the record, the Court requested affidavits from the
actual parties to the service. The process server complied; the niece has not. The
Court therefore accepts the process server’s affidavit as uncontested
14. According to the process server’s affidavit, he approached Aniya
Wright outside a residence in New Jersey. Ms. Wright identified herself as
Defendant’s niece. She confirmed that her aunt lived at the address and that she
(Ms. Wright) was over 18 years of age. The process server gave her copies of the
Summons and Complaint and asked Ms. Wright to “make sure she gets these” to
which Ms. Wright responded “Okay.”6
15. As stated, Ms. Wright has not submitted a contrary affidavit. Defendant
Brown has, however, filed an affidavit in March, 2017, declaring that the residence
in New Jersey “is not her residence nor her address” and that the service attempted
by the process server “was improper as Ms. Wright is a minor.”
16. The Court credits the affidavit of the process server that Ms. Wright
identified herself as being over 18 years of age (regardless of her actual age) and
appeared to be such. The Court has no basis upon which to discredit the process
server’s affidavit that on the date service was attempted, Defendant was residing at
the address in New Jersey and her niece correctly identified it as Defendant’s
residence on that date. The fact that it may not have been her residence 6 months
later when she signed an affidavit is of no moment.
17. The Court therefore finds that service was effective as to the Defendant
on October 28, 2016.
18. The only other matter raised by Defendant is an argument that she was
not properly served under the Delaware Long Arm Statute, 10 Del. C. § 3104. But
section 3104(d)(1) authorizes service outside this State “[b]y personal delivery in
the manner prescribed for service within this State.” Service at the “dwelling house
6 Hefner Aff., D.I. 32.
or usual place of abode” upon someone “of suitable age and discretion then residing
therein” is sufficient service under Rule 4(f)(1)(l). The Court finds that Aniya
Wright was of suitable age and discretion and that her averment that Defendant
resided at the residence where service was effected is sufficient evidence of same.
Having found that Defendant was properly served in October, 2016,
Defendant’s Motion to Quash Service of Complaint is DENIED, and Defendant
shall answer the Complaint within 20 days of this Order.
IT IS SO ORI)ERED.
Judge Charles E. L|®