VanGorder, Scott v. Aaron VanGorder and Pamela Bailey

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

SCOTT VANGORDER, § § No. 390, 2025 Plaintiff Below, § Appellant, § Court Below—Superior Court § of the State of Delaware v. § § C.A. No. S25C-03-013 AARON S. VANGORDER and § PAMELA S. BAILEY, § § Defendants Below, § Appellees. §

Submitted: April 10, 2026 Decided: June 17, 2026

Before SEITZ, Chief Justice; TRAYNOR and LEGROW, Justices.

ORDER

(1) Appellant Scott VanGorder, 1 acting without a lawyer’s assistance, filed

a complaint seeking to recover vehicles and other property that appellees Aaron

VanGorder and Aaron’s mother, Pamela Bailey, allegedly misappropriated from

Scott while he was incarcerated. The Superior Court dismissed the complaint, with

prejudice, on the grounds that Scott (i) had not shown that either defendant had been

served and (ii) did not appear for the hearing on the defendants’ motion to dismiss.

1 Appellant Scott VanGorder is appellee Aaron VanGorder’s father. For clarity, we use first names to refer to the VanGorders. No disrespect or familiarity is intended. After the Superior Court denied Scott’s motion for reargument, Scott appealed to

this Court. For the reasons discussed below, we reverse.

(2) Scott and Aaron were both incarcerated—Scott in New Jersey and

Aaron in Maryland—for the duration of the Superior Court case. The action in

Superior Court was initiated on March 12, 2025, by the filing of a letter from Scott

to the court describing his claims. Scott’s letter was accompanied by a letter to the

prothonotary from Scott’s mother, Valerie Mont, stating that she was acting as

Scott’s power of attorney and requesting that proceedings be conducted by Zoom

teleconference because Scott and Aaron were incarcerated. On March 13, 2025, the

Superior Court entered an order providing that Mont could not act on Scott’s behalf

in the litigation and court staff would not communicate with her; directing Scott to

file an amended complaint that complied with the court’s rules by April 25; and

instructing Scott that he would need to obtain long-arm jurisdiction over Aaron

because Aaron was located out of state.2 The court further ordered: “[P]roceedings

will not take place by Zoom. This Court will not undertake to arrange Zoom

proceedings with prison facilities that are out of state. Plaintiff must appear in person

for any Court proceedings. Failure to attend those proceedings in person will result

in a dismissal for failure to prosecute.”

2 Bailey was also located out of state, in New Jersey. 2 (3) Scott filed an amended complaint on April 10, 2025. On April 28, 2025,

the prothonotary issued summonses for long-arm service on the defendants. On June

11, 2025, Scott filed an affidavit of service stating that he had served both defendants

by “mail via regular and certified” on April 29. The affidavit stated that Aaron “was

in receipt” on May 1 and enclosed a copy of the certified mail receipt, which was

signed by Carol Oney as “agent” of the addressee, with a date of delivery of May 1,

2025, and showed that the certified mail was addressed to Aaron at his correctional

facility in Maryland. As to Bailey, Scott’s affidavit stated that the postal service had

attempted delivery several times but that a “return to sender notice was made” on

May 24. Scott requested default judgment. Court staff responded with a letter

instructing Scott that he was required to file a motion for default judgment in person

or through an attorney.

(4) On July 8, 2025, the defendants filed a motion to dismiss. The bulk of

the twenty-four-paragraph motion responded to the substance of Scott’s complaint,

but the final paragraph asserted that they had not been properly served. A cover letter

from Bailey requested that the court provide her and Aaron’s case manager at the

Maryland correctional facility with “a document requesting [Aaron’s] presence for

any upcoming hearings regarding this case with dates and times along with Zoom

Link information. [The Maryland correctional facility] will only accept documents

from the court requesting an inmate to appear for a Zoom Meeting.” The motion was

3 accompanied by a notice that the motion would be heard at the Sussex County

Superior Court on Friday August 15, 2025, at noon.

(5) Scott filed a motion for default judgment on July 14, 2025, and

responded to the defendants’ motion to dismiss on July 17. Among other things, the

response asserted that the defendants’ motion to dismiss was late because it was filed

more than thirty days after the defendants were served as described in the affidavit

of service. The response inquired whether Scott should request a continuance of the

August 15 hearing in order to prepare a rebuttal to the defendants’ claims or whether

the court would grant his motion for default judgment.

(6) On August 4, 2025, the defendants filed a response to Scott’s motion

for default judgment. The defendants asserted that Scott failed to properly serve

them because they received only the summons, not the complaint. They stated that

they did not know the nature of the case until “Bailey was advised by a third party

to contact the court.” Bailey contacted the court on June 12, 2025, and the court

provided her with a copy of the complaint. The defendants also stated that Scott did

not serve them with the motion for default judgment and only became aware of the

motion when Bailey again contacted the court.

(7) On August 11, 2025, Scott filed a request for a continuance of the

August 15 hearing so that he could further respond to the motion to dismiss. Scott

4 also requested that the court send Zoom information to the correctional facility

where he was housed so that he could attend the hearing.

(8) On August 15, 2025, the court convened the hearing on the motion to

dismiss. Bailey attended by Zoom; Scott and Aaron were not present. The court ruled

from the bench that the complaint would be dismissed with prejudice for lack of

service. 3 The court reasoned that Scott’s certificate of service indicated that the mail

to Bailey had been returned and that, although the mail to Aaron had been delivered

to the correctional facility, there was no evidence that Aaron personally received it.4

The court also stated that it had informed Scott on March 13 that he would be

required to appear in person for proceedings and that it was “not the responsibility

of the Court to arrange Zoom proceedings with prison facilities that are not in

Delaware.”5 Following the hearing, the court entered an order consistent with the

bench ruling.

(9) Scott moved for reargument. He stated that the correctional facility

would permit him to attend court proceedings by Zoom and questioned why the court

would not permit him to participate by Zoom. He asserted that none of the mail had

been returned except the certified mail to Bailey; Bailey had acknowledged actual

receipt of the complaint from the court; and the defendants therefore had been

3 Appendix to Opening Brief at A55. 4 Id. 5 Id. at A55-56. 5 properly served. He pointed out that he had requested a continuance of the August

15 hearing and asked “to have this case re-heard, to be able to properly prepare and

to be able to attend any proceedings.” The court denied the motion for reargument,

concluding that Scott had not presented any new information demonstrating that

service was perfected on either defendant or that he would be able to prosecute the

complaint in person as ordered.

(10) Now aided by counsel on appeal, Scott argues that the Superior Court

erred by implicitly denying Scott’s motion to continue the motion to dismiss hearing

and by denying Scott’s request to participate by teleconference. Scott further

contends that the court erred in its determination as to service and by not giving Scott

the opportunity to demonstrate good cause for extending the time to effect service.

Finally, he argues that, to the extent dismissal was appropriate, the dismissal should

have been without prejudice.

(11) After careful consideration, we conclude that the Superior Court erred

by dismissing the action because Scott did not appear for the motion to dismiss

hearing. Although a plaintiff’s incarceration imposes significant practical limitations

on the ability to pursue litigation,6 an incarcerated person maintains a right to seek

6 See generally Poole v. Lambert, 819 F.2d 1025, 1028 (11th Cir. 1987) (“[L]awful incarceration necessarily limits an inmate's right to plead and manage his own case personally.”). 6 redress in the courts through civil litigation. 7 The Superior Court has discretion as

to the “method by which [an incarcerated plaintiff] will be permitted to pursue his”

claims,8 and the court need not adopt unduly burdensome procedures to

accommodate an incarcerated litigant. But the trial courts frequently permit parties

to participate by teleconference, particularly for non-evidentiary hearings. Here, in

an order entered one day after Scott commenced the action, the court prospectively

barred his participation by teleconference and required his personal appearance for

any proceeding. The court declined to provide teleconference information to Scott

for the motion to dismiss hearing, even though Scott informed the court that the

correctional facility would permit him to appear by Zoom; there is no indication in

the record that providing teleconference credentials to Scott would have imposed a

greater burden on court staff than applies for any other litigant. The court then

dismissed the action with prejudice at a hearing at which the unincarcerated

defendant, Bailey, was permitted to appear by Zoom and the incarcerated defendant

7 See Chesapeake Utilities Corp. v. Hopkins, 340 A.2d 154, 155-56 (Del. 1975) (“By virtue of [Article 1, Section 9 of the Delaware Constitution], the common law doctrine of civil death, including its concomitant rule denying a sentenced felon the right to bring any legal or equitable action, is not the law of Delaware. A chose in action, such as Hopkins’ claim for personal injuries, is a property right. Hopkins may not be deprived of that property right without ‘remedy by the due course of law’ guaranteed to him by the Delaware Constitution.”). 8 Id. Cf. also McLeod v. McLeod, 2014 WL 7474337, at *11 (Del. Super. Ct. Dec. 20, 2014) (denying personal-injury plaintiff’s motion for an order requiring his transport from a Florida prison to Delaware for trial, and stating: “While it is true that the case will likely turn on the credibility of Plaintiff, if Plaintiff is unable to arrange his attendance, there are sufficient alternatives available to in-person testimony. Technology would allow, and the Court would permit, participation by videoconference, if Plaintiff were to secure approval from the Florida correctional facility.”). 7 did not appear. Under these circumstances, the dismissal was not the result of an

appropriate exercise of judicial discretion but of a categorical bar on Scott’s ability

to pursue his case. 9

(12) We further conclude that the Superior Court erred by implicitly denying

Scott’s request for a continuance of the motion to dismiss hearing and dismissing

with prejudice for lack of service. Rule 4(j) of the Superior Court Rules of Civil

Procedure provides that if service is not completed within 120 days of the filing of

the complaint “and the party on whose behalf such service was required cannot show

good cause why such service was not made within that period, the action shall be

dismissed as to that defendant without prejudice.”10 In his “affidavit of service,”

Scott stated that both defendants were “sent mail via regular and certified” on April

29, 2025; Aaron’s certified mail was delivered and signed for on May 1; and Bailey’s

certified mail was returned. As discussed above, Scott was not permitted to appear

for the motion to dismiss hearing, at which the court determined that service was not

perfected because (i) the mail to Bailey had been returned and (ii) although the mail

to Aaron had been delivered to the correctional facility, there was no evidence that

Aaron personally received it. In his motion for reargument, Scott stated it was “most

9 Cf. Holt v. Pitts, 619 F.2d 558, 562-63 (6th Cir. 1980) (holding that district court properly exercised its discretion when it denied incarcerated plaintiff’s request for an order requiring his transport from one federal penitentiary to another for a motion hearing, but abused its discretion by dismissing the plaintiff’s action for failure to prosecute when he did not appear for the hearing). 10 DEL. SUPER. CT. R. CIV. PROC. 4(j) (emphasis added). 8 likely not possible” for him to prove that Aaron personally received the mail, and he

argued that service by regular mail was sufficient and that “no U.S. mail was

returned except the certified mail sent to Pamela S. Bailey.”

(13) Title 10, Section 3104(d) of the Delaware Code provides:

(d) When the law of this State authorizes service of process outside the State, the service, when reasonably calculated to give actual notice, may be made: (1) By personal delivery in the manner prescribed for service within this State. (2) In the manner provided or prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction. (3) By any form of mail addressed to the person to be served and requiring a signed receipt. (4) As directed by a court.11

Service by regular mail on a defendant located in Delaware generally is not

sufficient. But the defendants in this case were not located in Delaware. Bailey was

located in New Jersey and Aaron was incarcerated in Maryland, and the Superior

Court did not consider, under Section 3104(d)(2), whether those states’ laws

permitted service by regular mail. Moreover, under Section 3104(d)(3), the

defendants were subject to service “[b]y any form of mail addressed to the person to

be served and requiring a signed receipt.” Despite Scott’s representation that the

11 10 Del. C. § 3104(d); see also DEL. SUPER. CT. R. CIV. PROC. 4(f)(1)(VI) (“Whenever a statute, rule of court or an order of court provides for service of summons or of a notice or of an order in lieu of summons upon a party not an inhabitant of or found within the State, service shall be made under the circumstances and in the manner prescribed by the statute, rule or order.”). 9 certified mail to Aaron was not returned, the Superior Court determined that service

was not perfected because Scott did not show that Aaron personally received the

mail. We find no basis for the court’s determination that such proof was required.

Moreover, Scott’s pro se filings made clear that he was diligently attempting to do

what was required and that he sought additional time to cure any deficiencies. For

these reasons, we conclude that the Superior Court erroneously dismissed the action

based on lack of service.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court be REVERSED. The matter is remanded for further proceedings consistent

with this order.

BY THE COURT:

/s/ Gary F. Traynor Justice