Webb v. Layton and Associates

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

WILLIAM J. WEBB, JR., ) ) Plaintiff, ) C.A. No. N19C-12-099 MAA ) v. ) ) LAYTON AND ASSOCIATES, and ) JONATHON LAYTON, ) ) Defendants. ) )

ORDER REGARDING PLAINTIFF’S MOTION FOR EXTENSION OF TIME ON PROCESS OF SERVING COMPLAINT AND MOTION TO COMPEL PROTHONTARY’S OFFICE TO PLACE AN ADVERTISEMENT OF THESE PLEADINS IN THE DELAWARE NEWS JOURNAL AND USA TODAY, AS AN OFFICIAL NOTICE

1. On September 29, 2020, Plaintiff filed two Motions with the Court: (1) Motion for Extension of Time on Process of Serving Complaint (“Motion for Extension”); and (2) Motion to Compel Prothonotary’s Office to Place an Advertisement of these Pleadings in the Delaware News Journal and USA Today as an Official Notice (“Motion to Compel”).

2. The Complaint in this action was docketed on December 13, 2019. The Court issued two writs in this action on January 8, 2020 and January 14, 2020. *2 (Transaction IDs 64603557 and 64630290).1 On January 30, the New Castle County Sheriff attempted to serve Defendant but was unsuccessful. (Transaction ID 64676797).

3. Plaintiff did little to prosecute his case after the unsuccessful service attempt until the Court issued a “stall” letter to Plaintiff on June 15, 2020. The stall letter requested a status update on or by August 14, 2020. (Transaction ID 65700013). Plaintiff then filed a Motion for Default Judgment on July 28, 2020. (Transaction ID 65804706).

4. On September 22, 2020, the Court held a status conference with

Plaintiff. During the status conference, the Court ordered Plaintiff to file a Motion for Extension of Time for 120 days to complete service. The Court also informed Plaintiff it would not hear his Motion for Default Judgment because the Defendant had not been served.2

5. Given Plaintiff’s self-represented status and the difficulties associated with the COVID-19 pandemic, the Court finds good cause exists pursuant to Superior Court Civil Rule 4(f) to extend the time for service upon Defendant. The

1 The writs are identical and contain the same address for the Defendant. The fact that two writs were issued appears to be a clerical error. 2 Although Plaintiff states in his Motion for Extension that “[t]he Clerk has already entered a default judgment,” this is not correct. (Motion for Extension at 1).

Court will therefore grant Plaintiff’s Motion for Extension. Plaintiff will have an additional 120 days from the date of this order to perfect service upon Defendant.

6. The Court will treat Plaintiff’s Motion to Compel as a Motion for Service by Publication. This Court has previously granted a motion for service by publication when a plaintiff has attempted service multiple times on a defendant and after attempting to find a defendant by investigative services. See, e.g., Mullins v. Gordon, 2020 WL 3030506, at *1 (Del. Super. June 5, 2020) (plaintiff attempted to serve out of state defendant multiple times by service by mail pursuant to 10 Del. C. § 3104); Laster v. Young, C.A. No. N17C-08-033 (February 26, 2019) (ORDER) (granting motion to effectuate service by publication when plaintiff made multiple attempts at service, including through a private investigator) (Exhibit. A hereto).

7. Here, although the Court issued two writs, only one service attempt was made on Defendant. Based on this fact, it does not appear that Plaintiff has made similar diligent attempts to find an alternative address for Defendant for service of process pursuant to Superior Court Civil Rule 4 and Delaware’s long-arm statute, 10 Del. C. § 3104(d) (if Defendant resides outside the State of Delaware). Therefore, the Court will deny the Motion to Compel without prejudice. Any further motion for service by alternative means, including by publication, should include the appropriate authority and demonstrate why service could not be made by traditional means and why any such alternative service of process would satisfy due process *4 requirements. See Taylor v. Griggs, C.A. No. N19C-08-198 (March 1, 2020) (ORDER) (Ex. B hereto).

IT IS SO ORDERED.

Dated: December 10, 2020

EXHIBIT A

EFiled: Feb 06 2019 09:11AM EST Transaction ID 62934783 Case No. N17C-08-033 JAP IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LAKEYSHA LASTER and : SHAMAR LASTER : : Plaintiffs, : C.A. No.: N17C-08-033 JAP : v. : : SHAWN DEVON YOUNG : TRIAL BY JURY : OF TWELVE DEMANDED Defendant. :

MOTION TO EFFECTUATE SERVICE BY PUBLICATION

COMES NOW, the Plaintiff, Lakeysha Laster, by and through undersigned counsel, Brian E. Lutness, Esquire, who moves this Honorable Court for an Order permitting service of process upon the Defendant, Shawn Devon Young by publication. In support of said Motion the Plaintiff states as follows:

1. This case involves a motor vehicle collision that occurred on

September 07, 2016 in which Plaintiff alleges Defendant was negligent and caused her physical injuries.

2. On August 30, 2017, the initial writ was returned Non-Est as to

Defendant. (Exhibit A)

3. Counsel obtained an alternate address for Defendant at 3502

Christiana Meadows, Bear, Delaware, 19701.

4. On September 13, 2017 Plaintiff’s filed an Alias Praecipe and Alias Summons.

5. On October 5, 2017, the writ was returned Non-Est as to

Defendant. (Exhibit B)

6. Plaintiff’s counsel conducted additional research and obtained an alternate address for Defendant at 104 Duke Street, Cary, North Carolina, 27511.

7. On March 13, 2018 Plaintiff’s filed a First Pluries Praecipe and First Pluries Summons.

8. Plaintiff attempted to effectuate service via long arm on March 15, 2018 by sending the complaint and service documents through certified mail and first class mail. (Exhibit C)

9. The complaint documents sent via long arm service were returned on March 26, 2018 stating “not deliverable as addressed.” (Exhibit D)

10. Long arm service via Certified and Non-Certified mail was attempted again on April 9, 2018. (Exhibit E)

11. The Complaint documents sent via Certified Mail was returned on

June 11, 2018 stating “insufficient address.” (Exhibit F)

12. On August 27, 2018, Your Honor sent a letter requesting a status update on the matter. (Exhibit G).

13. The case for Shamar Laster settled. For some reason due to an

adminstrative mix up our office closed both files on this case. This caused the reminder to respond to your Honor’s status letter not to appear on my calendar. For this reason the status letter was not filed.

14. In an effort to locate the Defendant, Plaintiff has retained the services of private investigators. Unfortunately the investigators were unable to confirm the address of the Defendant.

15. Upon information and belief, the address the defendant provided to

the Delaware Division of Motor Vehicles is an address that we have attempted to effectuate service at previously and has been determined to be his ex-girlfriends residence located at 812 E. 27th Street, Wilmington, DE 19802.

16. The Defendant is required to keep his address current since he was

involved in a motor vehicle accident. It is well established in Delaware that a

person involved in an accident must furnish the authorities a proper address due

to the apparent possibility of future litigation. 1

17. At this juncture, service by publication is the most efficient and cost effective way to complete service on the Defendant.

18. 10 Del. C. § 3104 (i) confirms that a party is not limited in its method of service. It is believed, based on the current information that the Defendant currently resides in Delaware.

19. Plaintiff proposes, subject to Court approval, filing the attached 1 Allen v. Reddish, 2006 Del. Super. LEXIS 255 (Citing Swift, v. Leasure, 285 A.2d 428 (Del. Super. 1971). Unreported Decision Attached hereto as Exhibit A).

Notice by publication in the The News Journal, in Wilmington, Delaware, the location believed to be the residence of the Defendant.

20. Plaintiff proposes to undertake the publication of the proposed Notice on a weekly basis, for three consecutive weeks in the Legal Notices Section of The News Journal.

21. Plaintiff further proposes that subsequent to the completion of the publication that an affidavit confirming same be filed with the Court.

WHEREFORE, Plaintiffs respectfully requests that this Court grant authority to effectuate service on Defendant, Shawn Devon Young, by publication.

SILVERMAN McDONALD & FRIEDMAN

/s/ Brian E. Lutness, Esquire BRIAN E. LUTNESS, ESQ. DE Bar ID No.: 3572 1010 North Bancroft Parkway Suite 22 Wilmington, DE 19899 (302) 888-2900 Attorney for Plaintiff

Dated: February 6, 2019

EFiled: Feb 27 2019 11:09AM EST Transaction ID 63007004 Case No. N17C-08-033 JAP

EXHIBIT B

EFiled: Feb 14 2020 03:41PM EST Transaction ID 64729283 Case No. N19C-08-198 EMD

Granted with Amendments EFiled: Mar 01 2020 11:56AM EST /s/ Davis, Eric M Mar 01, 2020 Transaction ID 64775759 Case No. N19C-08-198 EMD IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

TEZENIA TAYLOR, ) ) Plaintiff, ) C.A. No.: N19C-08-198 EMD ) v. ) ) EDDIE GRIGGS and, ) IRENE GRIGGS ) JURY TRIAL DEMANDED Defendants. )

ORDER

The foregoing having come before this Court upon the Plaintiff's Motion for Enlargement of Time for Service and Motion for Authority to Effectuate Service by Publication, or, in the alternative, By Certified Mail and Posting and the same having been considered, Plaintiff’s Motion is hereby GRANTED. Plaintiff shall have an additional ninety (90) days or until June 19, 2020 to effectuate service on Defendants.

IT IS SO ORDERED this day of , 2020.

JUDGE ERIC M. DAVIS

Court Authorizer Comments:

The Court will provide the Plaintiff with an additional ninety (90) days or until June 19, 2020 to effectuate service. The Court will not allow service by publication of service in a local newspaper as there is no factual grounds to demonstrate that this would satisfy due process requirements. The Court WILL allow service of process on Defendants by certified mail return receipt requested, regular U.S. Mail with a certificate of service and a posting a copy of the Complaint and Summons on Defendants' last known addresses of (i) 503 Sherman Street, Wilmington, DE 19801 and (ii) 527 West 7th Street, Wilmington, DE 19801. The Court finds that cause exists to use alternative service of process as the Motion indicates numerous good faith efforts by Plaintiff to serve process and evidence of evasion of service by Defendants.