Ballard v. Takeda Pharmaceuticals America, Inc.
N16C-10-177 JRJ
| Del. Super. Ct. | Aug 7, 2017Background
- Plaintiff Elisha Ballard sued Takeda and Eli Lilly alleging Actos caused bladder cancer; complaint filed Oct 21, 2016.
- Superior Court Rule 4(j) requires service within 120 days; Ballard’s counsel failed to effect or prove service within that period.
- A paralegal handling multiple related Actos filings mistakenly re-processed writs for a different but factually similar Jerry Ballard case, causing duplicative service activity and leaving Elisha Ballard’s case unserved.
- Multiple docket indicators (no writs issued, no sheriff returns, no defendant answer) should have alerted counsel that service had not occurred, but counsel did not discover the error until April 2017.
- Ballard moved for an extension of the 120-day period under Rule 4(j), arguing the lapse was an honest mistake and defendants would not be prejudiced.
- The Court denied the motion, concluding counsel’s neglect was not excusable and good cause was not shown; the action was dismissed without prejudice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether good cause exists to extend Rule 4(j)’s 120‑day service period | Ballard: counsel made an honest mistake and acted in good faith; no prejudice to defendants | Defendants: counsel was negligent and had multiple opportunities to discover non‑service; lack of diligence precludes good cause | Denied — no good cause; extension rejected |
| Whether counsel’s mistake constitutes excusable neglect | Ballard: inadvertent error by paralegal and counsel had tracking procedures | Defendants: firm resources and docket entries meant counsel should have known and acted sooner; mistake not excusable | Denied — neglect not excusable under Delaware standard |
| Whether absence of defendant prejudice or public‑policy favoring a day in court requires extension | Ballard: lack of prejudice and public policy support allowing day in court | Defendants: lack of prejudice is irrelevant; Rule 4(j) requires good cause regardless | Court: public policy/absence of prejudice insufficient without diligence |
| Whether firm supervision/controls mitigate responsibility for paralegal error | Ballard: paralegal handled service under counsel’s direction | Defendants: counsel responsible for oversight; failed to show what supervision occurred | Court: counsel failed to demonstrate reasonable supervisory measures; responsibility imputed to counsel |
Key Cases Cited
- Dolan v. Williams, 707 A.2d 34 (Del. 1998) (defines excusable neglect as good faith plus reasonable basis for noncompliance)
- Dishmon v. Fucci, 32 A.3d 338 (Del. 2011) (mere negligence without valid reason does not constitute excusable neglect)
- Drejka v. Hitchens Tire Serv., 15 A.3d 1221 (Del. 2010) (dismissal is a severe sanction; courts reluctant but Rule 4(j) requires dismissal absent good cause)
- Dominic v. Hess Oil V.I. Corp., 841 F.2d 513 (3d Cir. 1988) (federal interpretation cited for excusable neglect standard)