John Doe No. 3 v. Colonial School District, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JOHN DOE 3,
Plaintiff,
)
)
)
v.
)
)
COLONIAL SCHOOL DISTRICT,
)
THE BOARD OF EDUCATION OF
)
THE COLONIAL SCHOOL
)
DISTRICT, DEFENDANTS DOES
)
1-20, all individually and in their official
)
capacities as members of the Board of the )
School District at the time of the abuse;
)
DR. GEORGE H. MENEY, in his official )
capacity as Superintendent of the Colonial )
School District; KENNETH STEWART, )
individually,
)
Defendants.
)
C.A. No.: 09C-07-067 FSS
(E-FILED)
Submitted: January 6, 2012
Decided: January 20, 2012
ORDER
Upon Plaintiff’s Rule 59(e) Motion for Reargument - DENIED.
1.
On December 27, 2011, the court granted some Defendants’
Motion to Dismiss because Plaintiff failed to timely serve them under Superior Court
Civil Rule 4(j). On January 4, 2012, Doe filed a Motion for Reargument,1 alleging the
court misapprehended facts. Defendants timely responded on January 6, 2012.
1
Super. Ct. Civ. R. 59(e).
2.
A motion for reargument will be granted if the court has
“overlooked a controlling precedent or legal principles, or misapprehended the law
or facts such as would have changed the outcome of the underlying decision.” 2
Movants should not “bring up new arguments [they] could have previously
addressed.”3
3.
Now, Doe’s original attorney, Thomas Conaty, IV, Esquire, has
submitted an affidavit to support Doe’s motion.
Conaty’s affidavit avers he
responded to the court’s “tweaking” on October 30, 2009 and that he had phone
message receipts from defense counsel agreeing to accept service on July 13, 2009.
4.
Doe argues the court misapprehended facts because Conaty’s
affidavit refutes the finding that “Doe’s lapse appears partly intentional” and “even
after the court tweaked him, Doe did not move . . . and . . . disregard[ed] the court’s
rules and its warnings.”
5.
Doe’s reargument fails. Even assuming Doe’s allegation that the
receipts show defense counsel would have accepted substitute service, which counsel
actually denies, Doe did not make service after the court’s written warning. More
importantly, he failed to present these new facts before dismissal. Yet again, Doe
2
Radius Services, LLC v. Jack Corrozi Const., Inc., 2010 WL 703051, at *1 (Del. Super.
Feb. 26, 2010) (Vaughn, P.J.).
3
Id.
2
waited until the worst happened, then he reacted.
6.
Doe had approximately two and a half years after filing his
complaint to marshal whatever phone messages or other evidence he had. Doe’s
waiting to make his record until after dismissal is inexcusable, and it underscores the
reasons expressed for the court’s exercising its discretion the way it did.
7.
Second, Doe argues that the court did not ask him to respond to
Defendants’ claim that Doe failed to timely serve. This argument also fails. Doe
knew on January 6, 2010 that Defendants had moved to dismiss. Without prompting,
Doe should have produced his evidence. It bears mention, again, that this is not the
first dismissal of this sort of claim for lack of service. Doe v. Catholic Diocese of
Wilmington, Inc.,4 cited in the original decision, was decided nineteen months before
this case was dismissed.
8.
Third, Doe argues dismissal here is unwarranted because the court
granted default judgment against his attacker, Kenneth Stewart, whom Doe also
admittedly served after the 120 day deadline. This argument fails because Stewart
never responded to the complaint, so he deserved entry of judgment by default. In
contrast, the other defendants moved to dismiss and, unlike Stewart, they have reason
to be free of this litigation. The original decision explains that.
4
2010 WL 2106181 (Del. Super. May 26, 2010) (Ableman, J.).
3
9.
Last, Doe argues the Child Victim’s Act is a special law, and he
should have his day in court because Defendants were not prejudiced by his failure
to timely serve. This merely re-presents a point considered originally. As mentioned
in the dismissal, good cause, not prejudice, is the standard under Rule 4(j).5 Doe has
not shown good cause for his failure to timely serve. As the original decision reflects,
the court is sensitive to the nature of the claim. But, as to the prevailing defendants,
the claim is at best marginal and problematic. Besides, Doe did not act in a way that
supports his demand for a “day in court.”
For the foregoing reasons, Doe’s motion for reargument is DENIED.
IT IS SO ORDERED.
/s/ Fred S. Silverman
Judge
cc: Prothonotary (Civil)
pc: Thomas P. Conaty, IV, Esquire
Raeann Warner, Esquire
David H. Williams, Esquire
James H. McMackin, III, Esquire
5
Super Ct. Civ. R. 4(j). See also Dolan v. Williams, 707 A.2d 34, 36 (Del. 1998)
(quoting Dominic v. Hess Oil V.I. Corp, 841 F.2d 513, 517 (3d Cir. 1988)) (“Good cause is a
showing of excusable neglect by ‘a demonstration of good faith on the part of the party seeking
an enlargement and some reasonable basis for noncompliance within the time specified in the
rules.’”).
4
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