IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY

Transcription

1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY LINDA MURZYN and DAVID MURZYN C.A. No. 02C RRC Plaintiffs, GEORGE LOCKE Defendant, Submitted: February 20, 2006 Decided: March 13, 2006 On Defendant s Application Pursuant to Rule 60(b to Vacate Order Dated December 22, DENIED. ORDER This 13 th day of March, 2006, upon consideration of Defendant s application pursuant to Superior Court Civil Rule 60(b to vacate this Court s order dated December 22, 2003, it appears to the Court that: 1. This motion arises out of a personal injury case where Plaintiff Linda Murzyn ( Ms. Murzyn suffered severe and paralyzing injuries after the vehicle, in which she a passenger, driven by her husband, Plaintiff David Murzyn, was

2 struck head-on by the vehicle driven by Defendant. 1 The complaint alleging Ms. Murzyn s injuries, as well as a loss of consortium claim on behalf of David Murzyn, was filed on June 20, Although service of the complaint was made upon Defendant s wife on November 8, , Defendant did not file an answer or any other pleadings in this case. 4 Thereafter, on February 6, 2003, this Court entered a Default Judgment against Defendant. Then, after an inquisition hearing on December 15, 2003, in light of Ms. Murzyn s testimony and other evidence, Commissioner Vavala awarded Plaintiffs $1,000,000 ($980,000 to Ms. Murzyn for her injuries, medical bills and pain and suffering; $20,000 to David Murzyn for his loss of consortium claim. Although Defendant was not present at the inquisition hearing, it is that award that Defendant requests be reopen[ed] Defendant argues that he was in custody at Sussex Correctional Institute from November 25, 2003 until December 31, 2004 and as such was unable to 1 Murzyn v. Locke, Del. Super., C.A. No. 02C , Vavala, Comm r (Dec. 22, 2003 (ORDER. 2 Compl., D.I Butler Aff., D.I. 8. Jeffrey Butler was designated as a special process server pursuant to an October 21, 2002, order, of this Court, D.I. 6, that granted Plaintiffs Motion for a Special Process Server. Butler submitted a notarized affidavit that represented that he served a copy of the complaint and summons [b]y leaving copies at the dwelling house or usual place of abode of the person being served, with a member of the household 18 or older and explaining the general nature of the papers, namely Brenda Locke for her husband, defendant George Locke. Service was made upon Brenda Locke at her address, 2 Natalie Lane, Newark, Delaware. That is the same address used by Defendant. 4 Letter to the Court from Jennifer-Kate Aaronson, Esq., at 2 (Feb. 20, Letter to the Court from Defendant George Locke, at 2 (Dec. 28,

3 attend the inquisition hearing on December 15, Defendant offers that he certainly would have been present had [he] known there was a lawsuit pending against [him] Plaintiffs respond that Defendant s conduct in this litigation has been manifestly unreasonable. 8 Plaintiffs point out that the Defendant did not file any pleadings in the case nor file an opposition against the Plaintiffs Motion for Default Judgment. 9 Plaintiffs contend that Defendant had notice of the motion because both the notice and motion were mailed to the address at which his wife had accepted service on behalf of Defendant yet Defendant failed to appear at the hearing. 10 The crux of Plaintiffs argument appears to be that Defendant is not entitled to relief pursuant to Rule 60(b because (1 Defendant acted unreasonably by not filing any pleadings and by not appearing at any of the hearings, (2 Defendant lacks any meritorious defense, and (3 Plaintiffs would be prejudiced by granting the Motion to Vacate Id. at 1. 7 Id. at 2. 8 Letter to the Court from Jennifer-Kate Aaronson, Esq., at 2 (Feb. 20, Id. 10 Id. 11 Id. 3

4 4. Superior Court Civil Rule 60(b provides, in pertinent part, that [o]n motion and upon such terms as are just, the Court may relieve a party or a party s legal representative from a final judgment, order, or proceeding for the following reasons: (1 Mistake, inadvertence, surprise, or excusable neglect or (6 any other reason justifying relief from the operation of the judgment Where a movant alleges mistake or inadvertence as grounds to vacate an order of the court, [i]n exercising its discretion, the Court, with deference to the policy favoring disposition of cases on their merits, generally favors such motions upon almost any reasonable excuse. However, the Court must examine the considerations of each case, in order to determine whether the conduct of the moving party was the conduct of a reasonably prudent person. Only where the conduct can be so characterized, and the moving party also establishes 1 the possibility of a meritorious defense, and 2 no substantial prejudice to the non-moving party, will the Court grant the motion to vacate pursuant to 60(b(1. 13 Moreover, a Rule 60(b motion to vacate predicated on subsection (6 requires a showing of extraordinary circumstances Here, Defendant did not act reasonably when he did not seek legal representation upon service of the Complaint. Keith is on point when it says that 12 Super. Ct. Civ. R. 60(b. 13 Keith v. Melvin L. Joseph Constr. Co., 451 A.2d 842, 846 (Del. Super. Ct (denying defendant s Rule 60(b motion to vacate the Court s order granting a default judgment in favor of plaintiffs where defendant was properly served when the complaint and summons was given to his secretary yet defendant did not file an answer or any other pleading (citations omitted. 14 Id. at 847 (citing Jewell v. Div. of Social Services, 401 A.2d 88 (Del (adopting the federal standard of extraordinary circumstances for Rule 60(b(6, which would include actions by the adverse party that frustrated or vitiated the underlying basis of a recently stipulated settlement or other court order (citations omitted. 4

5 [u]pon service of process, a reasonably prudent would have, at least, consulted with an attorney to ascertain his legal rights and obligations. 15 The Defendant did not act reasonably by failing to consult with an attorney upon service of the Complaint, by failing to file any pleadings and by failing to appear at the hearing on Plaintiffs Motion for Default Judgment, which was noticed on January 17, The fact that Defendant was incarcerated from November 25, 2003 until December 31, 2004 is irrelevant here and provides Defendant with no refuge from his failure to appear prior to his incarceration. Additionally, Defendant has not demonstrated that any extraordinary circumstances exist which may provide Defendant the relief he seeks. Finally, Defendant never appealed from Commissioner Vavala s December 22, 2003, decision pursuant to Superior Court Civil Rule 132(a(4(ii. 7. For the foregoing reasons, Defendant s Application Pursuant to Rule 60(b to Vacate Order Dated December 22, 2003 is DENIED. IT IS SO ORDERED. oc: cc: Prothonotary Jennifer-Kate Aaronson, Esquire George Locke 15 Id. at