Anderson v. Hibachi Grill & Supreme Sushi Buffet Inc., aka Hibachi Grill International Buffet

• Court: Supreme Court of Delaware
• Decided: March 31, 2025
• Docket: 90, 2025
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

ALICIA ANDERSON, § § No. 90, 2025 Plaintiff Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § C.A. No. N24C-10-461 HIBACHI GRILL & SUPREME § SUSHI BUFFET a/k/a HIBACHI § GRILL INTERNATIONAL BUFFET, § § Defendant Below, Appellee. §

Submitted: March 14, 2025 Decided: March 31, 2025

Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.

ORDER

(1) On October 28, 2024, the appellant, Alicia Anderson, filed a complaint

in the Superior Court alleging that the defendant-appellee was in violation of various

food-safety and commercial regulations and criminal statutes when Anderson

entered the defendant-appellee’s restaurant on October 24, 2022. Anderson sought

damages of $75,000 and requested that the court cause the restaurant to close until

it fully complied with the law. The complaint was accompanied by a motion to

proceed in forma pauperis. The Superior Court dismissed the complaint upon initial review,1 concluding that it plainly appeared from the face of the complaint that

Anderson was not entitled to relief. The Superior Court’s order dismissing the

complaint was docketed on December 10, 2024.

(2) On January 2, 2025, Anderson filed a motion for reconsideration. The

Superior Court denied the motion on January 30, 2025, and Anderson appealed to

this Court. The Senior Court Clerk issued a notice to show cause why the appeal

should not be dismissed because (i) Anderson did not serve the appellee before filing

the appeal, as required by Supreme Court Rule 10; and (ii) permitting service now

would be futile because the notice of appeal was filed more than thirty days after the

Superior Court’s order dismissing the complaint was docketed, and Anderson’s

motion for reconsideration was untimely.

(3) In response to the notice to show cause, Anderson asserts that she

received the dismissal order on December 18, 2024, and mailed the motion for

reconsideration on December 28, 2024. She also argues that the Superior Court did

1 See 10 Del. C. § 8803(b) (“Upon establishing the amount of fees and costs to be paid, the court shall review the complaint. Upon such review, the complaint shall be dismissed if the court finds the action is factually frivolous, malicious or, upon a court’s finding that the action is legally frivolous and that even a pro se litigant, acting with due diligence, should have found well settled law disposing of the issue(s) raised. Any order of dismissal shall specifically identify whether the complaint was factually frivolous, legally frivolous and/or malicious. Service of process shall not issue unless and until the court grants leave following its review.”). 2 not provide her with notice and an opportunity to respond, as provided in Superior

Court Rule of Civil Procedure 41(e), before dismissing the complaint.2

(4) A timely filed motion for reargument is the appropriate device for

seeking reconsideration of a trial court’s decision,3 including on the grounds that the

decision was procedurally improper. In the Superior Court, a litigant must file such

a motion within five days of when the challenged order is filed.4 Intermediate

Saturdays, Sundays, and legal holidays are excluded in the computation of that

deadline.5 Thus, Anderson’s motion seeking reconsideration of the Superior Court’s

order dismissing her complaint was due December 17, 2024. Even if the deadline

were calculated from December 18, 2024, the date that Anderson states that she

received the order—which is not the rule—the motion would have been due

December 26, 2024. Anderson’s motion was untimely, and it therefore did not toll

the time for filing an appeal from the Superior Court’s dismissal of her complaint. 6

2 But cf. id. (providing for dismissal of complaint upon initial review under certain circumstances); Del. Super. Ct. R. Civ. Proc. 41(f) (authorizing dismissal without notice when a complaint “manifestly fails on its face to invoke the jurisdiction of the Court and where the Court concludes, in the exercise of its discretion, that the giving of notice would serve no meaningful purpose and that any response would be of no avail”). 3 Samuel v. State, 3 A.3d 1098, 2010 WL 3245109, at *1 (TABLE) (Del. Aug. 17, 2010). 4 Id.; see Del. Super. Ct. R. Civ. Proc. 59(e) (“A motion for reargument shall be served and filed within 5 days after the filing of the Court’s opinion or decision.”). 5 Del. Super. Ct. R. Civ. Proc. 6(a). 6 See McDaniel v. DaimlerChrysler Corp., 860 A.2d 321, 323 (Del. 2004) (stating that “a motion for reargument will delay the finality of a judgment only if it is filed in a timely manner” and rejecting contention that the five-day period established in Superior Court Civil Rule 59(e) is enlarged when the court mails the decision to the parties). We note that the Superior Court’s dismissal of Anderson’s complaint appears to have been without prejudice, and she therefore could 3 Accordingly, the Superior Court’s order dismissing Anderson’s complaint was final

more than thirty days before she filed this appeal, and it would be futile to permit

Anderson to serve the appellee now in this appeal from the Superior Court’s order

denying the motion for reconsideration. The appeal is therefore dismissed.

NOW, THEREFORE, IT IS ORDERED, under Supreme Court Rule 29(b),

that the appeal is DISMISSED.

BY THE COURT:

/s/ Abigail M. LeGrow Justice

have simply filed a new complaint alleging the factual basis for her claims. Instead, she elected to file an untimely motion for reconsideration. 4