Quinn v. Keinicke

• Decision Date: 19 September 1996
• Docket Number: No. 95C-10-095-WTQ,95C-10-095-WTQ
• Citation: 700 A.2d 147
• Parties: Marilyn S. QUINN and Alan R. Quinn, Plaintiffs, v. Lise Edelmann KEINICKE, Defendant. C.A. . Argued:
• Court: Delaware Superior Court

Page 147

700 A.2d 147

Marilyn S. QUINN and Alan R. Quinn, Plaintiffs, v. Lise Edelmann KEINICKE, Defendant.

C.A. No. 95C-10-095-WTQ.

Superior Court of Delaware New Castle County.

Argued: Sept. 19, 1996.

Last Written Submission Received: Nov. 4, 1996.

Decided: Dec. 3, 1996.

Defendant's Motion to Dismiss Plaintiffs' Complaint for Insufficient Service of Process-DENIED.

John M. Bader, Tomar, Simonoff, Adourian & O'Brien, Wilmington, for Plaintiffs.

Kenneth M. Doss, Casarino, Christman & Shalk, Wilmington, for Defendant.

QUILLEN, Judge.

The case comes before the Court on defendant's Motion to Dismiss for failure to effect service within 120 days of filing the complaint, as required by Superior Court Civil Rule 4(j). Interwoven with this Motion are two additional issues. The first is whether the defendant's attempted special appearance, a practice long-discarded in Delaware, constituted a general appearance. The second, an issue of first impression in this State, concerns the relationship between Delaware's statute for service of process on nonresident operators of motor vehicles, 10 Del.C. § 3112 ("motor vehicle long-arm statute"), and the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T. 361, T.I.A.S. No. 6638, 658 U.N.T.S. 163, reprinted in 28 U.S.C.A. Rule 4 at 210 (West 1992) ("Hague Service Convention"). An outline of the factual and procedural history of this litigation may help clarify the legal issues.

I.

An automobile driven by plaintiff Marilyn Quinn ("Quinn") collided with an automobile driven by defendant Lise Edelmann Keinicke ("Keinicke") on October 18, 1993 in New Castle County, Delaware. On October 11, 1995, one week prior to the expiration of the statute of limitations for bringing this personal injury action, Quinn filed a complaint in arbitration against Keinicke for personal injuries she alleges she sustained as a result of the collision. Quinn's husband, Alan Quinn, also asserted a claim for loss of consortium. The complaint indicated that the case was a compulsory arbitration case under Superior Court Civil Rule 16.1 (damages $100,000 or less).

Keinicke is a resident of the Kingdom of Denmark. At the time of service of the summons and complaint, Keinicke apparently had returned to her country of residence. Quinn attempted to serve Keinicke pursuant to Delaware's statute for service of process on nonresident operators of motor vehicles, 10 Del.C. § 3112. Service was made upon Delaware's Secretary of State by the Sheriff of Kent County. ¹ Pursuant to Section (b) of the motor vehicle long-arm statute, Quinn sent a copy of the service and pleadings via registered mail to Keinicke at her permanent address in Denmark. ²

On November 2, 1995, 22 days after the filing of the complaint, Keinicke's counsel filed an entry of appearance. The entry of appearance reserved "all right to raise jurisdictional, or service, or statute of limitations defects which may be available," and particularly said that the entry "shall not be considered to be a waiver of any jurisdictional defects in service upon the Defendant." Two weeks later, on November 14, 1995, 34 days after the filing, defendant's counsel sent a letter to plaintiff's counsel in which he indicated that he would not be filing an answer until such time as plaintiff properly served defendant. Counsel did not at that time disclose the specific reason why he believed service was improper. On December 27, 1995, 78 days after the filing of the complaint, counsel for defendant sent another letter to plaintiff's counsel, this time specifying that he did not consider service to be valid because it was not made in conformity with the Hague Service Convention.

Plaintiff's counsel did not expressly dispute the applicability of the Hague Service Convention. Instead, counsel for plaintiff submitted interrogatories to defendant's counsel on January 11, 1996, 93 days after the filing of the complaint. The interrogatories requested the disclosure of the reasons why defendant's counsel believed, and the case law upon which defendant's counsel asserted, that valid service of process must take place through the Hague Service Convention. In a letter dated January 23, 1996, counsel for Keinicke refused to answer the interrogatories on the grounds that (1) they requested work product protected under the attorney-client privilege, (2) interrogatories may not be sought before a defendant has been served, and (3) discovery prior to arbitration is limited to determining the identity of an unknown defendant.

No further action was taken by plaintiff's counsel until he submitted a Motion for Default Judgment on March 22, 1996, in which Quinn stated that more than 20 days had elapsed since service of the complaint upon Keinicke. ³ (Docket No. 8). In opposing plaintiff's motion, Keinicke filed a Motion to Dismiss on the ground that service upon defendant had not been made within the 120 days required by Superior Court Civil Rule 4(j). (Docket No. 10). On April 15, 1996, the Court heard both motions, denying the Motion for Default Judgment without prejudice, and reserving decision on the Motion to Dismiss. The Court expressly requested and received further briefing from both sides on the applicability of the Hague Service Convention, thus effectively expanding the scope of the Motion to Dismiss to cover insufficient service of process. Oral argument was held on September 19, 1996 and letter memoranda were received thereafter.

II.

The first of the parties' contentions concerns whether Keinicke consented to the personal jurisdiction of the Superior Court by the filing of the entry of appearance of Keinicke's counsel on November 2, 1995. Superior Court Civil Rule 5(aa)(1) provides that "a defendant may appear although a summons has not been served upon the defendant." Rule 12(b) requires generally that defenses to a claim must be asserted in the responsive pleading, assuming one is required. It does, however, provide that any one of seven enumerated defenses may also be made by motion. Quinn argues that this entry of appearance, insofar as it is neither a motion to dismiss nor an answer raising a Rule 12(b) defense, constitutes a general appearance for purposes of conferring personal jurisdiction upon the Court. Quinn points out that defendant's counsel's entry of appearance states that the right to raise any jurisdictional defects is not waived. In plaintiff's mind, such language is essentially the same as attempting a "special appearance," designed to restrict the consequences of defendant's counsel's appearance in order to raise jurisdictional defects.

Prior to 1948, a defendant could enter one of two kinds of appearances, general or special. A general appearance constituted voluntary submission to the jurisdiction of the court. Canaday v. Superior Ct., Del.Supr., 119 A.2d 347, 351 (1956). A special appearance, on the other hand, was used to attack sufficiency of process and constituted a challenge to jurisdiction over person or property. Id. A defendant seeking to challenge the exercise of jurisdiction by the court had to seek the court's leave to make a special appearance. Victor B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware, §§ 227-228 (1906). Were that challenge successful, the action could be dismissed without the defendant ever having submitted to the court's jurisdiction. Id.

In 1948, however, the Civil Rules of the Superior Court underwent substantial modification along the lines of the Federal Rules of Civil Procedure. See Daniel L. Herrmann, The New Rules of Procedure in Delaware, 18 F.R.D. 327 (1955). One of the consequences of that modification was the creation of Rule 5(aa)(1) and Rule 12(b), the texts of which are substantially the same a half-century later. Put together, these rules had the effect of abolishing the distinction between general and special appearances, "thus dispensing with the necessity of raising some defenses by special appearance." Canaday, 119 A.2d at 353. One question, however, was left unanswered: whether a defendant remained able to raise jurisdictional questions without having to submit completely to the jurisdiction of the court. Eight years after the adoption of the new rules, the Delaware Supreme Court answered that question in the affirmative.

In Canaday v. Superior Court, Del.Supr., 119 A.2d 347 (1956), a defendant directed an entry of general appearance and filed an answer to a complaint. The answer addressed the merits of the complaint but also asserted two affirmative defenses attacking the sufficiency of the process of foreign attachment. The Court, noting that due process of law required the right to raise jurisdictional questions without requiring complete submission to jurisdiction, held that Rule 12(b) specifically preserved that right:

[I]t seems apparent that the result of Rule 12(b) is to consolidate in one procedural step the raising of questions which theretofore would have been raised at different stages of the proceeding by a variety of devices known to common law pleaders. This conclusion harmonizes with the theory of Rule 12(b) which is that quick presentation of all defenses and objections should be encouraged, and successive procedural steps tending to do nothing but delay should be curtailed ... The modern motion to dismiss ... is no more a submission to personal jurisdiction than was the former special appearance.

Id. at 353-54.

The Canaday decision leaves no doubt that the special appearance no longer exists in Delaware. Today, the proper method for raising defects in jurisdiction is either to file a motion or to include the affirmative defense in the answer. On its face, defense counsel's entry of appearance looks suspiciously like an attempt at a special appearance, filed without leave of the Court. The Court is presented with two alternatives as to how to...