• Superior Court Denied Plaintiff’s Motion to Deem Service Complete Finding Further Action Necessary Despite Plaintiff’s Four Attempts by In-Person and Mail Service.
  • March 27, 2015
  • Law Firm: Semmes Bowen Semmes A Professional Corporation - Baltimore Office
  • Fiorelli v. Bai, C.A. No. N14C- 03-110 (Del. Super. Ct., January 12, 2015)

    In Fiorelli v. Bai., the Superior Court of the State of Delaware for New Castle County denied Plaintiff’s motion to deem service complete. The lawsuit, initiated by Anthony Fiorelli (“Plaintiff”) in February 2013, arose from a car accident allegedly involving Yunmei Bai (“Defendant”). While Plaintiff made several attempts to serve the Defendant, ultimately, the Plaintiff did not succeed. The court, however, believed that the Plaintiff failed to exhaust all reasonable steps to serve the Defendant and, thus, denied Plaintiff’s motion to deem service complete.

    Plaintiff first attempted to serve Defendant at her last known address in Delaware, but the sheriff was unable to serve her and noted that she had moved to Baltimore. Pursuant to Delaware’s long arm statute, 10 Del. C.§ 3104, Plaintiff attempted to serve Defendant at her Baltimore address via regular and certified mail. The certified mail, however, returned as “unclaimed.” Next, Plaintiff filed, and the court granted, both a motion for enlargement of time to serve Defendant along with a motion to appoint a special process server. Nevertheless, Plaintiff’s special process server was unable to serve Defendant at the Baltimore address. Finally, Plaintiff’s special process server executed a skip trace on Defendant only to learn that the she had moved to China. At this juncture, Plaintiff filed the pending motion to deem service complete.

    The court noted that in order to satisfy service of process, a party must employ a method of service that is “reasonably calculated to give the defendant actual notice.” It enumerated several accepted methods to include: (1) [b]y personal delivery in the manner prescribed for service within this State; (2) [i]n the manner provided or prescribed by the law of the place which the service is made for service in that place in an action in any of its courts of general jurisdiction; (3) [b]y any form of mail addressed to the person to be served and requiring a signed receipt; and (4) [a]s directed by the Court. Specifically, the court noted that with in-person service and service by mail, a party must present receipt of service or “other evidence of personal delivery.” It explained that “other evidence of personal delivery” must demonstrate that the served party actually received the process, not just that he has knowledge of the pending lawsuit.

    As a matter of policy, the court reasoned that service of process was fundamental to due process, and that as part of due process, the Defendant has a right to be put on notice of his involvement in litigation such that he is afforded an opportunity to present objections.

    Here, Plaintiff attempted service by personal service and mail; yet, the court concluded that he failed to satisfy the above requirements. While Plaintiff contended that Defendant was fully aware of the lawsuit, he provided no evidence. Additionally, Plaintiff located Defendant via social media, but still did not contact her to provide actual notice of the pending lawsuit.

    Although Plaintiff made multiple attempts to effect service of process, the court held that he fell short of satisfying the service requirements where he failed to show proof of service by a signed receipt or any other evidence. The court concluded that it is a Plaintiff’s responsibility to take “additional steps” to ensure proper service when mail and in-person service do not work. In other words, there was more that reasonably could have been done.