IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILFRIEDA VLEUGELS, ) ) Plaintiff, ) ) V. ) C.A. NO. N17C-10-322 CEB ) SHAWN L. SAMUELS, CHARLES ) T. ARMBRUSTER, AS ) ADMINISTRATOR OF THE ) ESTATE OF DUANE ) SWARTZENTRUBER, AND ) PROGRESSIVE NORTHERN ) INSURANCE COMPANY, ) ) Defendants. )
Submitted: October 8, 2020 Decided December 4, 2020
MEMORANDUM OPINION
Defendant’s Motion to Dismiss. DENIED.
Emily P. Laursen, Esquire, KIMMEL CARTER ROMAN PELTZ & O’NEILL, P.A., Newark, Delaware. Attorney for Plaintiff.
Susan L. Hauske, Esquire, TYBOUT REDFEARN & PELL, Wilmington, Delaware. Attorney for Defendant Charles T. Armbruster, as Administrator of the Estate of Duane Swartzentruber.
BUTLER, R.J. FACTS AND PROCEDURAL HISTORY This case involves a suit for damages over a car wreck that had its own mishap
on the way into the courthouse.
Plaintiff claims injury as a result of a multiple car, chain-reaction accident on
Route 1 in Sussex County. She alleges negligence by drivers Shawn Samuels,
Duane Swartzentruber, and a “phantom driver” from whom she seeks compensation
from her uninsured motorist coverage with Progressive Northern Insurance
Company (“Progressive”).1
Two weeks after suit was filed in October 2017, Attorney Susan List Hauske
entered her appearance on behalf of Defendant Duane Swartzentruber.2 That very
day, the Sheriff returned the writ for service on Mr. Swartzentruber advising that he
had been deceased for several months.3
In February 2018, Plaintiff sought, and was granted, an additional 120 days
pursuant to Rule 4(j) in order to determine if the estate could be served or if the estate
would have to be reopened.4 That period began on March 2, 2018. Shortly thereafter,
through Attorney Hauske, Defendant Swartzentruber stipulated to the appointment
1 Compl., D.I. 1. 2 D.I. 3. 3 D.I. 4. 4 D.I. 7, 8. 1 of Calvin D. Swartzentruber as Administrator for the estate of the deceased Duane
Swartzentruber.5
In late June 2018, Plaintiff learned that although an Administrator now
existed, the estate had been closed and would need to be reopened before Calvin
could be served in his capacity as Administrator of the Estate. Plaintiff filed her
second motion to extend time for service on Swartzentruber.6 Ironically, Attorney
Hauske, representing Duane Swartzentruber, asked to be excused from attending the
hearing to extend the time to serve the Estate of Duane Swartzentruber.7 The motion
was granted, effective July 17, 2018.
In October 2018, Attorney Charles Armbruster entered the picture as the new
Administrator, substituting for Calvin Swartzentruber, with Attorney Hauske
signing off on the stipulation, still representing the interests of Defendant
Swartzentruber.8
In January 2019, the Court sent a “status request” to the parties, noting that it
did not have a return of service on Defendant Swartzentruber. Plaintiff’s counsel
responded that “On October 29, 2018, counsel for Defendant Swartzentruber agreed
5 D.I. 10. 6 D.I. 23. 7 D.I. 28. 8 D.I. 34. 2 to accept service on behalf of her client. Plaintiff’s counsel filed an Alias Praecipe
and Summons for service of Defendant Swartzentruber’s via his counsel.”9
One might think that this would end the problem. Alas, despite four trips to
make service on Attorney Hauske, the sheriff returned the writ, explaining that the
receptionist in the law office of Attorney Hauske would not accept service. But even
as counsel’s receptionist would not accept service, Attorney Hauske 1) noticed the
Plaintiff’s deposition, 2) noticed the deposition of the other driver Mr. Samuels, and
3) subpoenaed records from Plaintiff’s medical provider.10
The docket in this matter then went silent for over 6 months until March 2020,
when the prothonotary sent another “stall later” due to inactivity. A day later
Defendant Swartzentruber, through Attorney Hauske, filed this motion to dismiss
for failure to serve the complaint on the Defendant.
DISCUSSION
It appears that neither side clothed themselves in glory in this matter. Plaintiff
got defense counsel to agree to accept service on behalf of the Defendant and then
did not follow through and ensure that the service was effected. Defense counsel
entered her appearance and participated in the litigation but urges that the Court
should dismiss the lawsuit over service on her client.
9 D.I. 38. 10 D.I. 40, 42-43. 3 So we have a couple of problems. First there is Plaintiff’s failure of service
on the defendant. Second, there is the problem with defense counsel’s agreement to
accept service on behalf of the defendant, then refusing service at her law office, and
undertaking discovery in a case in which her client has not yet been served.
It seems to the Court that while extensions under Rule 4 were not requested
with diligence by the Plaintiff, they would have been granted as there was
considerable confusion in the state of the estate of Mr. Swartzentruber. Defense
counsel’s actions suggest she also may have been confused about the state of service
of process—the motion to dismiss was not filed until March 2020, some 18 months
after defense counsel agreed to accept service on behalf of her client. The Court
understands the Plaintiff’s diligence was lacking. But the Plaintiff was not alone.
Indeed, the Court is less troubled by Plaintiff’s undiligence than it is by Defendant’s
choice to ignore the service issue for months, participate in the litigation, only to pop
up later and complain of Plaintiff’s shortcomings.
In Tuckman v. Aerosonic Corp.,11 the Court dealt with the question whether a
party that engages in discovery may nonetheless subsequently challenge personal
jurisdiction over the defendant. A Tuckman defendant sought dismissal in the wake
of Shaffner v. Heitner,12 which ruled that Delaware could not assert personal
11 394 A.2d 226 (Del. Ch. 1978). 12 433 U.S. 186 (1977). 4 jurisdiction over a foreign defendant on the basis of stock ownership in a Delaware
corporation. The Plaintiff argued that the Defendant had waived personal
jurisdiction by answering discovery. The Tuckman Court said “The decisive fact to
be determined, therefore, is whether the moving party initiated any discovery prior
to the motion to dismiss and not, as plaintiff insists, whether non-moving defendants
rather than plaintiff took the initiative.”13 Here, counsel for Defendant filed the
present motion to dismiss and also initiated depositions of the Plaintiff, the other
driver and the Plaintiff’s medical records. Defendant thus brings herself into the rule
in Tuckman, which held that such acts waive personal jurisdiction defenses.
Tuckman further articulates that the timeliness of a motion to dismiss for
insufficiency of service of process is subject to its own due diligence requirement.14
The motion to dismiss in Tuckman ultimately failed because it was filed 82 days
after Shaffer v. Heitner was decided. Here, Defendant knew that Plaintiff’s time for
service under the Rule 4 extension had expired some 18 months before filing her
13 394 A.2d at 232. 14 Id. at 233; Accord Florida R & D Fund Investors, LLC v. Florida BOCA/Deerfield R & D Investors, LLC, 2013 WL 4734834, at *6 n. 61 (Del. Ch. Aug.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
WILFRIEDA VLEUGELS, ) ) Plaintiff, ) ) V. ) C.A. NO. N17C-10-322 CEB ) SHAWN L. SAMUELS, CHARLES ) T. ARMBRUSTER, AS ) ADMINISTRATOR OF THE ) ESTATE OF DUANE ) SWARTZENTRUBER, AND ) PROGRESSIVE NORTHERN ) INSURANCE COMPANY, ) ) Defendants. )
Submitted: October 8, 2020 Decided December 4, 2020
MEMORANDUM OPINION
Defendant’s Motion to Dismiss. DENIED.
Emily P. Laursen, Esquire, KIMMEL CARTER ROMAN PELTZ & O’NEILL, P.A., Newark, Delaware. Attorney for Plaintiff.
Susan L. Hauske, Esquire, TYBOUT REDFEARN & PELL, Wilmington, Delaware. Attorney for Defendant Charles T. Armbruster, as Administrator of the Estate of Duane Swartzentruber.
BUTLER, R.J. FACTS AND PROCEDURAL HISTORY This case involves a suit for damages over a car wreck that had its own mishap
on the way into the courthouse.
Plaintiff claims injury as a result of a multiple car, chain-reaction accident on
Route 1 in Sussex County. She alleges negligence by drivers Shawn Samuels,
Duane Swartzentruber, and a “phantom driver” from whom she seeks compensation
from her uninsured motorist coverage with Progressive Northern Insurance
Company (“Progressive”).1
Two weeks after suit was filed in October 2017, Attorney Susan List Hauske
entered her appearance on behalf of Defendant Duane Swartzentruber.2 That very
day, the Sheriff returned the writ for service on Mr. Swartzentruber advising that he
had been deceased for several months.3
In February 2018, Plaintiff sought, and was granted, an additional 120 days
pursuant to Rule 4(j) in order to determine if the estate could be served or if the estate
would have to be reopened.4 That period began on March 2, 2018. Shortly thereafter,
through Attorney Hauske, Defendant Swartzentruber stipulated to the appointment
1 Compl., D.I. 1. 2 D.I. 3. 3 D.I. 4. 4 D.I. 7, 8. 1 of Calvin D. Swartzentruber as Administrator for the estate of the deceased Duane
Swartzentruber.5
In late June 2018, Plaintiff learned that although an Administrator now
existed, the estate had been closed and would need to be reopened before Calvin
could be served in his capacity as Administrator of the Estate. Plaintiff filed her
second motion to extend time for service on Swartzentruber.6 Ironically, Attorney
Hauske, representing Duane Swartzentruber, asked to be excused from attending the
hearing to extend the time to serve the Estate of Duane Swartzentruber.7 The motion
was granted, effective July 17, 2018.
In October 2018, Attorney Charles Armbruster entered the picture as the new
Administrator, substituting for Calvin Swartzentruber, with Attorney Hauske
signing off on the stipulation, still representing the interests of Defendant
Swartzentruber.8
In January 2019, the Court sent a “status request” to the parties, noting that it
did not have a return of service on Defendant Swartzentruber. Plaintiff’s counsel
responded that “On October 29, 2018, counsel for Defendant Swartzentruber agreed
5 D.I. 10. 6 D.I. 23. 7 D.I. 28. 8 D.I. 34. 2 to accept service on behalf of her client. Plaintiff’s counsel filed an Alias Praecipe
and Summons for service of Defendant Swartzentruber’s via his counsel.”9
One might think that this would end the problem. Alas, despite four trips to
make service on Attorney Hauske, the sheriff returned the writ, explaining that the
receptionist in the law office of Attorney Hauske would not accept service. But even
as counsel’s receptionist would not accept service, Attorney Hauske 1) noticed the
Plaintiff’s deposition, 2) noticed the deposition of the other driver Mr. Samuels, and
3) subpoenaed records from Plaintiff’s medical provider.10
The docket in this matter then went silent for over 6 months until March 2020,
when the prothonotary sent another “stall later” due to inactivity. A day later
Defendant Swartzentruber, through Attorney Hauske, filed this motion to dismiss
for failure to serve the complaint on the Defendant.
DISCUSSION
It appears that neither side clothed themselves in glory in this matter. Plaintiff
got defense counsel to agree to accept service on behalf of the Defendant and then
did not follow through and ensure that the service was effected. Defense counsel
entered her appearance and participated in the litigation but urges that the Court
should dismiss the lawsuit over service on her client.
9 D.I. 38. 10 D.I. 40, 42-43. 3 So we have a couple of problems. First there is Plaintiff’s failure of service
on the defendant. Second, there is the problem with defense counsel’s agreement to
accept service on behalf of the defendant, then refusing service at her law office, and
undertaking discovery in a case in which her client has not yet been served.
It seems to the Court that while extensions under Rule 4 were not requested
with diligence by the Plaintiff, they would have been granted as there was
considerable confusion in the state of the estate of Mr. Swartzentruber. Defense
counsel’s actions suggest she also may have been confused about the state of service
of process—the motion to dismiss was not filed until March 2020, some 18 months
after defense counsel agreed to accept service on behalf of her client. The Court
understands the Plaintiff’s diligence was lacking. But the Plaintiff was not alone.
Indeed, the Court is less troubled by Plaintiff’s undiligence than it is by Defendant’s
choice to ignore the service issue for months, participate in the litigation, only to pop
up later and complain of Plaintiff’s shortcomings.
In Tuckman v. Aerosonic Corp.,11 the Court dealt with the question whether a
party that engages in discovery may nonetheless subsequently challenge personal
jurisdiction over the defendant. A Tuckman defendant sought dismissal in the wake
of Shaffner v. Heitner,12 which ruled that Delaware could not assert personal
11 394 A.2d 226 (Del. Ch. 1978). 12 433 U.S. 186 (1977). 4 jurisdiction over a foreign defendant on the basis of stock ownership in a Delaware
corporation. The Plaintiff argued that the Defendant had waived personal
jurisdiction by answering discovery. The Tuckman Court said “The decisive fact to
be determined, therefore, is whether the moving party initiated any discovery prior
to the motion to dismiss and not, as plaintiff insists, whether non-moving defendants
rather than plaintiff took the initiative.”13 Here, counsel for Defendant filed the
present motion to dismiss and also initiated depositions of the Plaintiff, the other
driver and the Plaintiff’s medical records. Defendant thus brings herself into the rule
in Tuckman, which held that such acts waive personal jurisdiction defenses.
Tuckman further articulates that the timeliness of a motion to dismiss for
insufficiency of service of process is subject to its own due diligence requirement.14
The motion to dismiss in Tuckman ultimately failed because it was filed 82 days
after Shaffer v. Heitner was decided. Here, Defendant knew that Plaintiff’s time for
service under the Rule 4 extension had expired some 18 months before filing her
13 394 A.2d at 232. 14 Id. at 233; Accord Florida R & D Fund Investors, LLC v. Florida BOCA/Deerfield R & D Investors, LLC, 2013 WL 4734834, at *6 n. 61 (Del. Ch. Aug. 30, 2013) (“With that knowledge, their failure to raise the sufficiency of service of process defense in their opening papers constitutes a waiver.”); See also Hornberger Mgmt. Co. v. Haws & Tingle Gen. Contractors, Inc., 768 A.2d 983, 987 (Del. Super. 2000) (“Rule 12(b) requires that a defendant raise certain defenses, including lack of personal jurisdiction, in either a responsive pleading or by motion. The purpose of Rule 12(b) is to expedite litigation and encourage the resolution of disputes on their merits.”). 5 motion to dismiss. Thus, the motion to dismiss fails under both rationales of
Tuckman.
In ruling consistent with Tuckman that Defendant waived her complaint of
ineffective service of process, the Court is mindful of the policy stated in our rules
that “They shall be construed, administered, and employed by the Court and the
parties, to secure the just, speedy and inexpensive determination of every
proceeding.”15 A dismissal of Plaintiff’s complaint over service of process on a
deceased defendant who has had counsel representing him or his estate since the
filing of the complaint is inconsistent with the mandate of Rule 1.
Defendant’s Motion to Dismiss for failure of service of process is DENIED.16
IT IS SO ORDERED.
Resident Judge Charles E. Butler
15 Super. Ct. Civ. R. 1. In light of the Court’s ruling that Defendant has waived service, Plaintiff’s 16
motion in the alternative to deem service perfected is denied as moot. 6