Shipley v. First Federal S & L Ass'n of Delaware

• Decision Date: 30 December 1988
• Docket Number: Civ. A. No. 84-521 JRR.
• Citation: 703 F. Supp. 1122
• Parties: John S. SHIPLEY and Rochelle D. Shipley, his wife, Plaintiffs, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF DELAWARE, et al., Defendants.
• Court: U.S. District Court — District of Delaware

703 F. Supp. 1122

John S. SHIPLEY and Rochelle D. Shipley, his wife, Plaintiffs, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF DELAWARE, et al., Defendants.

Civ. A. No. 84-521 JRR.

United States District Court, D. Delaware.

December 30, 1988.

Raymond M. Radulski, Wilmington, Del., Robert T. Vance, Jr., Brown & Vance, Philadelphia, Pa., for plaintiffs.

Frank J. Miller, Wilmington, Del., for defendant First Fed. Sav. & Loan Ass'n of Delaware.

John A. Elzufon and Lawrence S. Drexler, Elzufon & Associates, P.A., Wilmington, Del., for defendant Joseph B. Green.

OPINION

ROTH, District Judge:

With this opinion, we attempt to terminate the tempestuous history of this case which has its genesis in the efforts of the defendants, First Federal Savings and Loan Association ("First Federal" or the "Bank") and its attorney, Joseph B. Green, to foreclose on a mortgage held on property owned by the plaintiffs, John S. and Rochelle D. Shipley. The plaintiffs have charged that the defendants violated their civil rights; they seek damages and injunctive relief. Previously, in Shipley v. First Federal Savings and Loan Association of Delaware, 619 F.Supp. 421 (D.Del.1985) ("Shipley I"), this Court granted motions for summary judgment made by two of the original defendants, Michael Walsh, the Sheriff of New Castle County, and Margo Ewing Bane, the Prothonotary of New Castle County. Id. at 440-41. Presently before the Court are motions for summary judgment by the two remaining defendants: First Federal and Joseph B. Green, Esquire.

I FACTS

The parties have incorporated by reference Judge Wright's description of the background facts in Shipley I, 619 F.Supp. at 425-27. To ensure that the arguments made by the defendants in this motion are viewed in the appropriate light, however, the Court will recount, as briefly as possible, the factual record without citation.

On July 19, 1978, the plaintiffs took out a mortgage with First Federal named as the mortgagee in order to purchase their home at 609 Wildel Avenue, Minquadel, New Castle, Delaware. First Federal first attempted to foreclose on the plaintiff's property on January 21, 1981, when its attorney, Green, commenced an action in Superior Court. Shortly thereafter, the Bank instructed Green to discontinue the foreclosure proceedings. On August 12, 1982, Green instructed the Prothonotary of New Castle County to dismiss the action.

Green filed a second action for foreclosure, at the request of First Federal, on February 23, 1983. Within a short time, the Bank instructed Green to abandon the proceedings, and Green so notified the Prothonotary.

On May 4, 1983, Green commenced the third foreclosure action against the Shipleys' property in Superior Court on a complaint of scire facias. First Federal attempted to accomplish service by having the Sheriff serve a scire facias sur mortgage writ, summons, and complaint on the Shipleys. The Sheriff's attempts to serve the plaintiffs personally on May 9, 10, 11, 18, and 20, 1983, were unsuccessful. The scire facias writ was returned to the Prothonotary on May 26, 1983, stating, "Nonsunt Inventi to John S. Shipley and Rochelle D. Shipley, his wife, on the 26th day of May, A.D., 1983."

An alias scire facias sur mortgage writ was delivered to the Sheriff's office on June 6, 1983. The Sheriff's attempts to serve the Shipleys personally with the writ, summons, and complaint on June 8, 13, 14, 16, and 17, 1983, were once again unsuccessful. On June 28, 1983, the writ was returned to the Prothonotary stating, "Non-sunt Inventi to John S. Shipley and Rochelle D. Shipley, his wife, on the 26th day of June, A.D., 1983."

On July 3, 1983, First Federal requested by praecipe the issuance of an execution writ levari facias for the Sheriff to sell the plaintiffs' property. The Sheriff received the writ on July 8, 1983. The basis for issuing this writ was that the Shipleys had been constructively served pursuant to Delaware Superior Court Civil Rule 4(f)(4). This rule provided that "in actions begun by scire facias, 2 returns of service of 2 consecutive writs shall constitute legal and sufficient service."¹ The Prothonotary entered a default judgment in the scire facias proceeding, pursuant to Delaware Superior Court Rule 55(b)(1), based on this constructive service. Although the house was advertised for sale on September 13, 1983, the sale was stayed and the house was not sold. This writ of levari facias was returned to the Prothonotary on September 19, 1983.

Next, the Prothonotary issued an alias writ of levari facias on September 21, 1983, directing the sale of the plaintiffs' property. As before, the sale was advertised, stayed, and the writ was returned to the Prothonotary on November 16, 1983.

On January 18, 1984, a first pluries levari facias writ was issued, and the familiar events ensued: The sale was first advertised, then stayed, and finally the writ was returned to the Prothonotary on March 1, 1984.

In the meantime, on January 24, 1984, the plaintiffs petitioned the Delaware Superior Court to set aside the default judgment that was entered against them in July, 1983. They also sought to stay any further threatened sale of their property. On March 17, 1984, after Judge Bifferato had recused himself from the case, Judge Martin vacated and voided the default judgment against the Shipleys. The Shipleys appealed this decision in their favor to the Delaware Supreme Court. The appeal was subsequently dismissed.

On April 17, 1984, First Federal again sought to obtain a default judgment against the plaintiffs. The Shipleys did not respond by the motion's return date, and the Bank's motion was granted on May 4, 1984. On June 22, the plaintiffs moved in Superior Court to vacate the default judgment. First Federal agreed to vacate the judgment on June 26, 1984, and gave the plaintiffs twenty days to respond to the new complaint. The Shipleys responded to the complaint in a timely manner. Apparently proceedings in the state courts are presently inactive.

On September 21, 1984, the plaintiffs, represented by an attorney, filed their present action in this Court. On November 2, 1984, the Shipleys discharged their attorney and proceeded pro se until June 12, 1986, when the plaintiffs' present attorney appeared on their behalf and obtained permission to conduct additional discovery in order to prepare the plaintiffs' response to the present motions.

II ISSUES PRESENTED

The issues that are relevant to the Court's determination of these motions for summary judgment are as follows: the plaintiffs have charged that the defendants acted under color of state law and violated their due process rights established by the fourteenth amendment and enforced by 42 U.S.C. section 1983, by using the state court rule providing for constructive service of process in mortgage foreclosure actions: Rule 4(f)(4).² Assuming that we will find that the defendants' actions were taken under color of state law, the plaintiffs urge us not to grant either defendant a qualified immunity from damages based on a good faith reliance on the constructive service rule's validity. The plaintiffs have also advanced claims against the defendants under 42 U.S.C. sections 1982, 1985(3), and 1986 based on rights guaranteed by the thirteenth and fourteenth amendments.

Although the defendants have moved separately for summary judgment, each raises similar arguments to persuade the Court to grant their motions. First Federal and Green both argue that summary judgment is appropriate because: (1) they did not act under color of state law and therefore could not violate the Shipleys' due process rights as established by the fourteenth amendment and enforced by section 1983; (2) even if they did act under color of state law, they are entitled to a qualified immunity because of their good faith reliance on the validity of the state constructive service rules; (3) there is no proof of either racial discrimination or a racially discriminatory motive for the alleged violations under the various sections of the civil rights statute in title 42 of the United States Code; and (4) there is no proper allegation or proof of the conspiracy as charged by the plaintiffs.

A. The Standard for Summary Judgment. Rule 56 provides that a party is entitled to summary judgment where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ. P. 56(c). In accordance with this rule, it is not within the province of the district court to decide issues of fact. The court is limited to determining "whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).

The burden of proving that no genuine issues of material fact exist rests on the moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir.1985). Likewise, to fend off a motion for summary judgment, the nonmoving party must produce specific evidence showing that there is a genuine issue for trial. See Celotex, 477 U.S. at 323, 106 S.Ct. at 2553; Jersey Central Power & Light Co. v. Township of Lacey, 772 F.2d 1103, 1109-10 (3d Cir.1985). "Factual disputes that are irrelevant or unnecessary will not be counted." Anderson, 477 U.S. at 248, 106 S.Ct. at 2510. Furthermore, reliance on nothing more than mere assertions in the pleadings is not permissible. Id. There must be enough evidence to enable a reasonable jury to find for the nonmoving party on the issue for which summary judgment is sought. Id. at 249, 106 S.Ct. at 2510.

Summary judgment may be granted if there is "evidence that is merely colorable ... or that is not significantly probative." Id. at 249-50, 106 S.Ct. at 2511 (citations...