Griffith v. Wawa, Inc.
N16C-08-143 VLM
Del. Super. Ct.Jul 14, 2017Background
- Nancy Griffith filed a negligence/premises-liability complaint against Wawa on Aug. 17, 2016, alleging she slipped on a greasy spot in a Wawa store and was injured.
- Delaware Superior Court Rule 4(j) requires service within 120 days of filing; Griffith’s 120-day period ran from Aug. 18, 2016 to Dec. 15, 2016.
- Wawa moved to dismiss for failure to prosecute/for lack of timely service after Griffith did not serve within 120 days; sheriff’s return shows service occurred on Jan. 11, 2017 (after the deadline).
- Wawa’s counsel emailed Griffith’s counsel twice during the 120-day period warning of non‑service; Griffith never moved for an extension and did not respond to Wawa’s dismissal brief.
- The parties briefly agreed to settle (rendering the first motion moot), but inactivity continued; Wawa re‑noticed its motion and Griffith’s counsel concurrently moved to withdraw, citing a breakdown with the client/lead counsel.
- The court granted counsel’s motion to withdraw (unopposed by Wawa) and granted Wawa’s Rule 4(j) motion, dismissing the complaint without prejudice for failure to show good cause/good faith and excusable neglect for late service.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether service was timely under Rule 4(j) | Griffith did not contest; no response filed | Service occurred after 120 days; dismissal required | Service was not timely; dismissal required |
| Whether Griffith showed good cause / excusable neglect to extend service time | No showing or briefing by Griffith | No good cause; counsel warned Griffith during the 120-day period | No good cause shown; Rule 4(j) mandates dismissal without prejudice |
| Whether prejudice to defendant matters for Rule 4(j) dismissal | (not argued) | Proper service is jurisdictional; prejudice irrelevant | Court held proper service is jurisdictional; absence of prejudice is inapposite |
| Whether counsel may withdraw | Counsel: breakdown with client/lead counsel made representation untenable | Wawa: no opposition | Court found good cause and allowed withdrawal |
Key Cases Cited
- DeSantis v. Chilkotowsky, 877 A.2d 52 (Del. 2005) (equates Rule 4(j) good cause with good faith and excusable neglect)
- Dolan v. Williams, 707 A.2d 34 (Del. 1998) (explains excusable neglect standard and 120-day service consequences)
- Dominic v. Hess Oil V.I. Corp., 841 F.2d 513 (3d Cir. 1988) (reasonableness standard for noncompliance with a service deadline)
- Cohen v. Brandywine Raceway Assoc., 238 A.2d 320 (Del. Super. 1968) (definition of excusable neglect)