Progressive Direct Insurance Co. v. Landrum, 010521 DECA, CPU4-20-000069
| Opinion Judge | Alex J. Smalls Chief Judge |
| Party Name | Progressive Direct Insurance Company Plaintiff, v. Na'Sha Montoya Clarice Landrum & Richard L. Hall, Defendants. |
| Attorney | Geoffrey S. Lockyer, Esq. Attorney for Plaintiff Na'Sha Landrum Defendant Pro Se |
| Case Date | January 05, 2021 |
| Court | Delaware Court of Common Pleas |
Submitted: December 7, 2020
Geoffrey S. Lockyer, Esq. Attorney for Plaintiff
Na'Sha Landrum Defendant Pro Se
MEMORANDUM OPINION DENYING DEFENDANTS MOTION TO DISMISS
Alex J. Smalls Chief Judge
FACTUAL AND PROCEDURAL HISTORY
This case is before the Court on Na'Sha Landrum's ("Defendant Landrum") motion to dismiss. On January 7, 2020, Progressive Direct Insurance Company, ("Plaintiff''), filed a Complaint against Na'sha Landrum and Richard Hall, ("Defendants"), alleging Defendant Landrum negligently caused a collision while operating Defendant Hall's vehicle.
Following the filing of the Complaint, service was attempted numerous times on Defendant Hall. On January 24, 2020, Defendant Hall refused service from the sheriff and stated that prior to the accident that is the subject of this litigation, he sold the vehicle with the tags intact and the new owners are the responsible parties.
During this time, service was attempted on Defendant Landrum several times at Carrick Court in Middletown, Delaware, but was unsuccessful. Following this attempt, service was attempted again on Defendant Landrum at an address in Newark, Delaware on March 11, 2020 and March 13, 2020. These attempts were also unsuccessful and an occupant of the address stated that Defendant Landrum no longer lived there.
On May 21, 2020, Plaintiff filed a Motion for Enlargement of Time.1 In the motion, Plaintiff stated it made good faith efforts to effect service on Defendant Landrum. Further, Plaintiff stated they retained a private investigator to located Defendant Landrum and was informed that Defendant Landrum did in fact reside at the Newark, Delaware location. On May 22, 2020, the Court granted Plaintiffs motion.
On June 24, 2020, service was attempted again on Defendant Landrum at the Newark, Delaware address. While attempting service, the deputy sheriff contacted the landlord of the property who advised him that Defendant Landrum did in fact reside at the location. The Summons and Complaint was left in the mailbox.
On September 10, 2020, default judgment was entered against Defendant Landrum in the amount of $13, 847.76 for failure to appear. However, on September 30, 2020, Defendant Landrum filed a Motion to Vacate. The Motion stated Defendant did not receive service and did not learn of the lawsuit until September 14, 2020. On October 5, 2020 the Court granted Defendant Landrum's Motion to Vacate.
On November 9, 2020, Defendant Landrum filed an Answer denying the allegations of the complaint and put forth affirmative defenses. Additionally, Defendant Landrum filed a Motion to Dismiss, alleging failure to serve, insufficiency of process, failure to join a party, lack of subject matter jurisdiction, and failure to state a claim.
On December 7, 2020, a hearing was held on the motion. The Court reserved decision on the issue of failure to comply with Court of Common Pleas Civil Rule 4(j), but denied all other arguments raised by Defendant Landrum.
PARTIES' CONTENTIONS
Defendant Landrum avers that she has still not been properly served and seeks dismissal pursuant to rule 4(j). She argues that Plaintiff did not act diligently in prosecuting it's case and lacked a sense of urgency in effecting service as evidence by the lapse in the 120-day time required for service on May 7, 2020.
Plaintiff responds that because the Court granted its Motion for Enlargement of Time to Perfect Service on May 21, 2020, albeit after the original expiration of the time limit for service, the case should not be dismissed. Plaintiff further argues that they have acted reasonably in attempting to effect service on Defendant and that their delay was not due to willful behavior on their part.
LEGAL STANDARD
Court of Common Pleas Civil Rule 4(j) provides: "If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf...
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