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Karman v. Board of Adjustment of Sussex County4/26/2005
f from a dismissal when the only factor in common between that case and Nanticoke Mem'l Hosp., was the gross negligence on the part of the Plaintiff's attorney.
In sum, pursuant to Delaware law, the actions of the attorney are generally imputed to the client; however, under Rule 60, when the actions of the attorney are grossly negligent and there are other extenuating circumstances (i.e., factors similar to those listed in Nanticoke Mem'l Hosp.), there may be relief from judgment. Time would be one factor to consider, along with prejudice.
Here, Karman knew that the case had been dismissed and discovered soon after that it was due to a mistake made by her attorney. The motion to reopen was not filed, however, until over two years later. Furthermore, Cozen O'Connor did not request to withdraw as her attorneys until August of 2004. During that two year span of time, she relied on them to pursue the case in Chancery and there is no evidence that she insisted they try to remedy the dismissal in Superior Court. It seems that what happened here was more of a tactical decision than gross negligence.
Cf. Trans World Airlines, Inc. v. Summa Corp., 394 A.2d 241, 246 (Del. Ch. 1978) (finding that attorney made tactical decision rather than mistake within the meaning of Chancery Court Rule 60(b), so that reopening the case was not warranted).
As long as the Chancery case was going forward, Karman's lawyer did not seem concerned about reopening the Superior Court case. Solsnes points out that it was not until he filed the Motion for Summary Judgment in the Chancery Court that Karman's new lawyer filed a motion to reopen the Superior Court case. While Karman's first lawyer may have acted negligently when he failed to solicit the Board to file the transcript and when he subsequently did not try to reopen the case, it cannot be said his act arises to the level of gross negligence sufficient to warrant a finding of "extraordinary circumstances." Cf. Cooke v. Cobbs, 2003 WL 22535080, at *2 (Del. Super. Ct.) (finding defendant was unable to show "extraordinary circumstances" when all he could show was that the insurance company's claims' office failed to process the claim when he sent them the complaint). In Christina Bd. of Educ., at *7, the Court, in finding the attorneys for Chrysler had acted only after unreasonable delay, stated, " Rule 60(b)(6) motion, although designed to protect against injustice, cannot be used to 'relieve a party from the duty to take legal steps to protect his interests.'"
Moreover, there is some prejudice to the defendant because this case involves a structure that has been built and has presumably been used as a living space for the past two years. The prejudice is somewhat alleviated since the Chancery case involving the same issue has been ongoing before the suit was brought in Superior Court, and up until the present. At the same time, interests of justice often support the opening of a default judgment with the idea that a defendant should be given the chance to argue the case on the merits. This case, however, involves a plaintiff who did not prosecute. The interests of justice inherent in dropping a case for failure to prosecute should be considered as a factor here. In other words, there is always some prejudice to a defendant when a plaintiff pursues a case against him, but fails to prosecute it in a timely manner. See Gebhart, 264 A.2d at160 (noting that the rights of the defendant should not be overlooked and are also entitled to protection by the Courts, when upholding Superior Court's decision to dismiss Plaintiff's case with prejudice for failure to prosecute). Here, Solsnes believed the Superior Court case to be over and done with
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