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Fagan v. Beaston2/25/2005
Submitted: November 11, 2004
MEMORANDUM OPINION AND ORDER
Upon Defendant's Motion to Dismiss -- DENIED
The question in this personal injury case is whether Plaintiffs made service under Delaware's "long arm" statute. Defendant, Carla Beaston, has moved to dismiss, raising two arguable defects in service. First, Plaintiffs did not give Beaston notice. Instead, they relied on a cryptic, return-receipt notice from the postal service. Second, Plaintiffs filed their affidavits of service a few days late.
To decide this case, therefore, the court must consider whether, taking everything into account, Plaintiffs' attempts to notify Defendant were satisfactory. If they were, the court must further consider whether Plaintiffs' filing their affidavits late makes a difference.
I.
According to their complaint, Plaintiffs were seriously injured in a car crash on May 24, 2002, near Glasgow, Delaware. Based on the complaint and the police report attached to it, Beaston allegedly caused the collision when she failed to yield while attempting an illegal left turn, into Plaintiffs' path. The police report estimated the damage to Fagan's Corvette as $2,000. The estimated damage to the Saturn driven by Beaston was $1,500. In other words, the impact probably was not great. But the drivers moved their cars to the side of the road and waited until the police arrived. Eventually, the police cited Beaston. The record does not show what Beaston did about the traffic ticket.
On March 12, 2004, approximately two months before the statute of limitations expired, Plaintiffs filed suit. Plaintiffs not only sued Beaston as the other driver, they sued her employer, Glasgow Auto Body, Inc., and the owner of the car Beaston was driving, Jeffrey M. Raser. Plaintiffs easily made personal service on Glasgow Auto Body and Raser. (Raser has since been dismissed.)
Plaintiffs, however, had trouble serving Beaston. She had presented the police with a Maryland driver's license showing an address in Elkton. Accordingly, Plaintiffs attempted service under Delaware's "Non-resident Motor Vehicle Statute." Plaintiffs sent the required paperwork by registered mail, return-receipt requested, to Beaston at the address shown on the driver's license she presented to the police at the scene of the collision. According to the Domestic Return Receipt, now of record, someone at the postal service checked the boxes for "Unclaimed" and "Refused."
Plaintiffs' attempt to serve Beaston by registered mail happened in mid-April 2004. For reasons unknown, Plaintiffs waited until June 18, 2004 to file the statutorily required affidavit of service. Under Superior Court Civil Rule 4(h), the affidavit is filed as an amendment to the complaint. It is due within ten days after plaintiff receives the return receipt.
In any event, Plaintiffs attempted to serve Beaston a second time by registered mail on June 17, 2004. Eventually, they received notice from the postal service that their second notice was "NOT DELIVERABLE AS ADDRESSED UNABLE TO FORWARD." It is unclear precisely when Plaintiffs received the second return receipt from the postal service, but it probably was shortly after July 9, 2004. Eventually, on July 26, 2004, Plaintiffs filed a second affidavit, which they properly denominated as a "Second Amendment To Complaint."
Beaston has now appeared through counsel to challenge service. Otherwise, however, she has not cooperated with Plaintiffs' attempt to make a record about what actually happened to Plaintiffs' first registered letter and how she found out about this case. Her counsel takes the position that in August 2004, Beast
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