Keith v. Melvin L. Joseph Const. Co., 451 A.2d 842 (1982)
`
`KeyCite Yellow Flag - Negative Treatment
`Distinguished by
` TecSyn PMP, Inc. v. Aerometals, Inc., Del.Super.,
`March 15, 1994
`
`
`
`451 A.2d 842
`Superior Court of Delaware,
`New Castle County.
`
`Richard KEITH, Sr., Margaret Keith
`and Richard Keith, Jr., Plaintiffs,
`v.
`MELVIN L. JOSEPH CONSTRUCTION CO.,
`a Delaware corporation, et al., Defendants.
`
`Submitted: June 23, 1982.
`| Decided: July 28, 1982.
`
`Plaintiff brought action for injuries caused by swimming
`accident by serving process upon corporation which
`was its own corporate registered agent. No answer or
`entry of appearance was filed within 20 days, and,
`consequently, plaintiff obtained default judgment against
`defendant corporation. Defendant subsequently filed notice
`of appearance and moved to set aside or revise default
`judgment entered against it. The Superior Court, New Castle
`County, O'Hara, J., held that: (1) since corporation was its
`own registered agent, service could be made by any method
`authorized for service on either agent or corporation; (2)
`alleged defects in sheriff's return did not render judgment
`void; (3) defendant's conduct in simply ignoring process
`was not reasonable or prudent; and (4) defendant's conduct
`being intentional and willful, extraordinary circumstances
`justifying vacation of default judgment did not exist.
`
`Motion denied.
`
`*844 Upon defendant's (Melvin L. Joseph Construction
`Co.) motion for revision or vacation of the default judgment.
`Denied.
`
`Attorneys and Law Firms
`
`Opinion
`
`O'HARA, Judge.
`
`On August 8, 1980, the plaintiff, Richard Keith, Jr., was
`injured in an accident while swimming in a dirt or borrow pit.
`On September 11, 1981, he and his parents filed a complaint
`for personal injuries naming, as one of several defendants,
`the Melvin L. Joseph Construction Company. The praecipe
`directed that service of process be made upon “Defendant
`Melvin L. Joseph Construction Co., a Delaware Corporation,
`by serving its registered agent Melvin L. Joseph Construction
`Co. at Route 1, Box 218, Georgetown, Delaware 19947.” On
`September 23, 1981, a male Deputy Sheriff for Sussex County
`left the complaint and summons with a clerical secretary
`of the defendant corporation at the address specified. The
`complaint and summons were brought to the attention of
`Melvin L. Joseph, President of the defendant corporation,
`but no answer or entry of appearance was filed within the
`20 days prescribed by law and stipulated on the summons.
`Consequently, on October 30, 1981, the plaintiffs obtained a
`default judgment against the defendant. In November, 1981,
`upon learning of the default judgment, Mr. Joseph contacted
`the corporation's attorney, who subsequently filed a notice
`of appearance on November 23, 1981. Seven days later,
`on November 30, 1981, the defendant moved, pursuant to
`Superior Court Civil Rules 60(b) and 54(b), to set aside or
`revise the default judgment entered against it on October 30,
`1981. It is this motion, which the Court now considers.
`
`[1]
` The defendant corporation has moved to set aside
`the judgment under Rules 60(b) and 54(b). The latter rule
`provides that, in multiple claim actions, judgments rendered
`upon fewer that all the claims can be revised before entry of
`judgment on all the claims, unless a determination that there
`is no reason for delay has been made and entry of judgment
`has been directed. It does not provide an independent basis
`for setting aside a default judgment. In determining whether
`to revise a default judgment pursuant to Rule 54(b) reference
`must be had to the standards of Rule 60(b). Therefore, the
`Court's findings with respect to the Rule 60(b) motion will be
`dispositive of the Rule 54(b) motion.
`
`Arthur Inden and Richard A. Zappa of Young, Conaway,
`Stargatt & Taylor, Wilmington, for plaintiffs.
`
`The defendant corporation's Rule 60(b) motion is predicated
`on three separate assertions.
`
`Richard K. Herrmann of Bayard, Brill & Handelman,
`Wilmington, for defendants, Melvin L. Joseph Const. Co.
`
`I. JUDGMENT IS VOID
`
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`AstraZeneca Exhibit 2030
`Lannett v. AstraZeneca
`IPR2015-01629
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`

`
`Keith v. Melvin L. Joseph Const. Co., 451 A.2d 842 (1982)
`
`The defendant maintains that the default judgment should be
`vacated pursuant to Rule 60(b)(4) since the judgment is void
`due to defective service of process and/or return. Specifically,
`the defendant contends that the plaintiffs elected to serve
`process upon its registered agent and that the actual method
`of service did not comport with the statutory requirements for
`such service. The defendant also alleges the following defects
`in the Sheriff's return: 1) it indicated service upon Melvin L.
`Joseph rather than Melvin L. Joseph Construction Co.; 2) it
`was made or signed by someone other than the person who
`served process; and 3) it did not state the time of service.
`The plaintiffs respond that service complied with the statutory
`requirements for service on a Delaware corporation which
`acts as its own registered agent. Furthermore, the plaintiffs
`maintain that the alleged defects in the Sheriff's return are
`non-existent or are insufficient to render the judgment void.
`
`*845 Service of process was made pursuant to 8 Del.C. §
`321 which provides:
`
`(a) Service of legal process upon any
`corporation of this State shall be made
`by delivering a copy personally to any
`officer or director of the corporation
`in this State, or the registered agent
`of the corporation in this State, or by
`leaving it at the dwelling house or
`usual place of abode in this State of any
`officer, director or registered agent (if
`the registered agent be an individual),
`or at the registered office or other
`place of business of the corporation in
`this State. If the registered agent be a
`corporation, service of process upon it
`as such agent may be made by serving,
`in this State, a copy thereof on the
`president, vice-president, secretary,
`assistant secretary, or any director of
`the corporate registered agent. Service
`by copy left at the dwelling house or
`usual place of abode of any officer,
`director or registered agent, or at the
`registered office or other place of
`business of the corporation in this
`State, to be effective must be delivered
`thereat at least 6 days before the return
`date of the process, and in the presence
`of an adult person, and the officer
`serving the process shall distinctly
`state the manner of service in his return
`
`thereto. Process returnable forthwith
`must be delivered personally to the
`officer, director or registered agent.
`
`In its praecipe the plaintiffs directed that service of process
`be made upon the corporate registered agent of the defendant
`corporation. The defendant corporation and its corporate
`registered agent were, in fact, the same entity. Service was
`actually made by leaving a copy of process at the place of
`business of the corporate defendant in the presence of an
`adult person. Section 321 authorizes this mode of service on
`a corporation but does not expressly authorize this method of
`service for corporate registered agents. The issue, therefore,
`become whether service upon a corporate registered agent,
`which is the corporation itself, may be effected by the
`methods of service designated for a corporation pursuant to
`§ 321.
`
`[2]
` Two considerations persuade this Court that the statute
`allows additional methods of service upon a corporate
`registered agent which is also the corporation. First, the
`language of § 321 implies that service upon a corporate
`registered agent is not limited to that expressly authorized
`for it in the statute. Use of the word “may” in the sentence
`relating to service on a corporate registered agent contrasts
`with the use of “shall” and “must” in other clauses of the
`statute. When different terms are used in various parts of a
`statute, it is reasonable to assume that a distinction between
`the terms was intended. C & T Associates v. Government of
`New Castle, Del.Ch., 408 A.2d 27 (1979). Here, “may” infers
`additional manners of service.
`
`[3]
` Secondly, the general intent of a statute relating to
`service of process is to give that notice which will in the
`nature of things bring the attention of the corporation to the
`commencement of proceedings against it. 19 Am.Jur.2d §
`1462. This purpose is not adversely affected by a construction
`of § 321 which allows for additional methods of service on the
`corporate registered agent under the instant circumstances.
`In fact, such a construction gives a sensible, practical, and
`reasonable meaning to the statute, that may be applied in
`future cases without difficulty. Thomas v. Veltre, Del.Super.,
`381 A.2d 245 (1977), Application of Penny Hill Corporation,
`Del.Supr., 154 A.2d 888 (1959).
`
`[4]
` The Court, therefore, holds that, where a corporate
`registered agent is the corporation sought to be noticed,
`service of process may be made by any method authorized by
`§ 321 for service on a corporate registered agent or upon a
`
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`
`Keith v. Melvin L. Joseph Const. Co., 451 A.2d 842 (1982)
`
`corporation. The default judgment is, therefore, not void for
`defective service.
`
` [6]
`[5]
` The Court also holds that the alleged defects in
`the Sheriff's return do not render the judgment void. A return
`showing proper service upon the defendant is a necessary
`prerequisite to the granting of a default judgment. Richards
`v. Hamon, Del.Supr., 4 Storey 322, 178 A.2d 140 (1962). A
`*846 return complete and regular on its face is prima facie
`evidence of the facts stated thereon and strong and convincing
`proof is required to rebut the presumption of its verity. Cohen
`v. Brandywine Raceway Association, Del.Super., 238 A.2d
`320 (1968).
`
` [8]
`[7]
` The Sheriff's return shows service pursuant to §
`321. The use of an abbreviated form of the defendant's name
`does not constitute an irregularity on the face of the return
`where the summons clearly indicates the full name of the
`defendant at several locations. Likewise the failure to state
`the precise time of day that service was affected is not an
`irregularity on the face of the return. Section 321 does not
`require that the return so state, it simply requires that the
`officer serving process shall distinctly state the manner of
`service in his return thereto.
`
`[9]
` The defendant also alleges that the return was not
`signed by the person who served process. This allegation
`does not constitute strong and convincing proof sufficient to
`overcome the presumption of the verity of the Sheriff's return,
`Cohen v. Brandywine Raceway Association, supra, Cohen v.
`Krigstein, Del.Super., 49 Del. 256, 114 A.2d 225 (1955), Bros
`v. Wilkins, Del.Super., 11 Terry 475, 134 A.2d 636 (1957),
`buttressed as it is by the Sheriff's affidavit to the effect that he
`did personally make service upon the defendant.
`
`For the reasons above the motion to vacate the default
`judgment cannot be granted pursuant to Rule 60(b)(4).
`
`II. MISTAKE INADVERTENCE, SURPRISE,
`EXCUSABLE NEGLECT
`The defendant also seeks relief pursuant to Rule 60(b)(1),
`which provides for relief where the judgment was ordered
`as a consequence of “mistake, inadvertence, surprise or
`excusable neglect.” Specifically, the defendant maintains that
`Mr. Joseph's mistaken conviction that the defendant was not
`liable, coupled with his limited formal education, establishes
`mistake or excusable neglect. In response, the plaintiffs
`characterize the conduct as intentional or, at the very least,
`inexcusably negligent.
`
`[10]
` In exercising its discretion under Rule 60(b)(1), the
`Court, with deference to the policy favoring disposition
`of cases on their merits, generally favors such motions
`upon almost any reasonable excuse. Vechery v. McCabe,
`Del.Super., 9 Terry 195, 100 A.2d 460 (1953). However,
`the Court must examine the considerations of each case,
`Model Finance Company v. Barton, Del.Super., 5 Storey
`530, 188 A.2d 233 (1963), in order to determine whether the
`conduct of the moving party was the conduct of a reasonably
`prudent person. Cohen v. Brandywine Raceway Association,
`supra. Only where the conduct can be so characterized, and
`the moving party also establishes 1) the possibility of a
`meritorious defense, and 2) no substantial prejudice to the
`non-moving party, will the Court grant the motion to vacate
`pursuant to Rule 60(b)(1). Battaglia v. Wilmington Sav. Fund
`Soc., Del.Supr., 379 A.2d 1132 (1977).
`
`[11]
` This Court's analysis of the instant circumstances
`results in the conclusion that the conduct of Mr. Joseph and
`the defendant corporation was not that of a reasonably prudent
`person. Upon service of process, a reasonably prudent person
`would have, at least, consulted with an attorney to ascertain
`his legal rights and obligations. Such a course of action would
`have been particularly appropriate under the circumstances of
`this case since the defendant had attorneys on retainer.
`
`The conduct not being reasonable or prudent, this Court
`cannot grant defendant's motion pursuant to Rule 60(b)(1).
`
`III. ANY OTHER REASON JUSTIFYING RELIEF
`[12]
` The defendant contends that in the event Mr. Joseph's
`conduct does not fall within the scope of Rule 60(b)(1),
`there are a number of other reasons justifying relief pursuant
`to Rule 60(b)(6). The defendant proceeds to enumerate the
`following reasons: 1) the defendant's conduct has not caused
`delay in discovery nor crossclaims; 2) the claim against
`the defendant is for substantial sums, including punitive
`damages; 3) the defendant is subject to crossclaims *847
`of other defendants; 4) the defendant could avail himself of
`his liability coverage if the default judgment were vacated;
`5) proof or service before entry of default was inadequate;
`and 6) defendant did not receive notice of the motion for
`default judgment. The plaintiffs, although responding to each
`reason specified, essentially maintains that these reasons do
`not constitute the “extraordinary circumstances” required to
`extend relief under Rule 60(b)(6).
`
`The Delaware Supreme Court has noted:
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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`
`Keith v. Melvin L. Joseph Const. Co., 451 A.2d 842 (1982)
`
`Delaware law interpreting 60(b)(6) is
`limited but pertinent and demonstrates
`that (6) is an independent ground
`for relief, with a different standard
`to be applied than under its other
`subdivisions ... Jewell v. Division of
`Social Services, Del.Supr., 401 A.2d
`88 (1979).
`
`In so doing, the Court adopted the Federal Rule 60(b)
`(6) standard which requires a showing of extraordinary
`circumstances. Jewell v. Division of Social Services,
`Del.Supr., 401 A.2d 88 (1979). Extraordinary circumstances
`do not exist, under the federal standard, where the conduct
`of the moving party has been intentional or wilful. Bridoux
`v. Eastern Airlines, D.C.Cir., 214 F.2d 207 (1954). Thus, the
`United States District Court for Delaware has declared that:
`
`The provision cannot be used,
`however, to relieve a party from the
`duty to take legal steps to protect
`his interests. If a party makes a free
`and conscious choice regarding the
`conduct of the litigation, he cannot
`be granted relief under Rule 60(b)
`(6) from the consequences of that
`decision. Bell Tel. Laboratories, Inc.
`v. Hughes Aircraft Co., 73 F.R.D. 16
`(1976). See also, In re Master Key
`Antitrust Litigation, 76 F.R.D. 460
`(1977).
`
`[13]
` This Court finds that, even resolving all doubts in
`favor of the defendant, Mr. Joseph's conduct cannot be
`characterized as other than deliberate, wilful or intentional.
`By his own admission he saw what the process was and “just
`ignored it.” In an analogous case, the United States District
`Court (Eastern District, Pa.) commented:
`
`To permit a defendant to ignore service
`of the Court's process is a belief that
`the process is invalid and then ask
`relief when that belief turns out to
`be mistaken would be intolerable. A
`defendant who chooses to ignore a
`purported service of process does so
`at his own risk. Paramount Packaging
`Corp. v. H.B. Fuller Co. of New Jersey,
`E.D.Pa., 190 F.Supp. 178 (1960).
`
`Given the intentional and conscious nature of his conduct, the
`defendant is precluded from relief under Rule 60(b)(6).
`
`For the foregoing reasons, defendant's motion to vacate the
`October 30, 1981 default judgment against it must be denied.
`
`IT IS SO ORDERED.
`
`All Citations
`
`451 A.2d 842
`
`End of Document
`
`© 2015 Thomson Reuters. No claim to original U.S. Government Works.
`
` © 2015 Thomson Reuters. No claim to original U.S. Government Works.
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