SAVAGE v. HIMES, 09C-09-249 JAP (Del.Super. 5-18-2010)

C.A. No. 09C-09-249 JAP.Superior Court of Delaware, New Castle County.
May 18, 2010.

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Martin J. Siegel, Esquire, Law Office of Martin J. Siegel, New Castle, Delaware.

Eric Scott Thompson, Esquire, Marshall Dennehey Warner Coleman Goggin, Wilmington, Delaware.

JOHN A. PARKINS, JR., Judge

Dear Counsel:

On June 16, 2005, Plaintiff filed a complaint in this Court (C.A. No. 05C-06-198) as a result of a motor vehicle accident which occurred on June 17, 2003. On September 17, 2008, the Court sent counsel a letter stating that in accordance with Superior Court Civil Rule 41(e), “if no proceedings are taken within the next thirty (30) days, this action will be dismissed by the Court for want of prosecution.” The parties took no action, and the Court dismissed the case under Superior Court Civil Rule 41(e) on October 31,

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2008.[1] Plaintiff filed a motion seeking to reinstate the complaint, which the Court denied. Plaintiff did not appeal that dismissal. Instead, on September 29, 2009, after the statute of limitations on her claims expired, Plaintiff filed a second complaint. Not surprisingly, Defendant has moved to dismiss the second complaint because it is untimely. In response Plaintiff argues that under the “savings” statute, the refiled complaint is “appropriately and timely filed.”[2]

Much of the Plaintiff’s argument seems to be a challenge to the first judge’s decision to dismiss her case for failure to prosecute. If Plaintiff believed that the previous judge erred, her remedy was an appeal to the Supreme Court. She did not avail herself of that remedy and this Court will not now entertain a collateral attack on the earlier dismissal. The Court has therefore disregarded Plaintiff’s assertions that her first suit should not have been dismissed.

There are two reasons why the savings statute provides no refuge to Plaintiff. First, by its terms the statute does not apply to dismissals for failure to prosecute. Second, this Court’s dismissal of Plaintiff’s first case

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was with prejudice, meaning that the second suit, even if timely filed, is barred by res judicata.

In general, a “savings” statute is designed “to permit the bringing of a new action within a specified time after [a] former action has failed, even if the statute of limitations has expired.”[3] Delaware’s savings statute provides that:

If in any action duly commenced within the time limited therefor in this chapter, the writ fails of a sufficient service or return by any unavoidable accident, or by any default or neglect of the officer to whom it is committed; or if the writ is abated, or the action otherwise avoided or defeated by the death of any party thereto, or for any matter of form; or if after a verdict for the plaintiff, the judgment shall not be given for the plaintiff because of some error appearing on the face of the record which vitiates the proceedings; or if a judgment for the plaintiff is reversed on appeal or a writ of error; a new action may be commenced, for the same cause of action, at any time within one year after the abatement or other determination of the original action, or after the reversal of the judgment therein.[4]

At oral argument Plaintiff conceded that the only language arguably applicable to the instant case is the phrase “if the writ is abated, or the action otherwise avoid or defeated . . . for any matter of form.”[5] The issue, therefore, is whether a dismissal for failure to prosecute is a “matter of form.”

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Tracing the genealogy of this section and the historical context in which it arose provides considerable insight into the meaning and purpose of the language in question. . The Delaware savings statute first appeared in 1829, [6] and contained a savings clause similar to the current savings clause:

Provided also, That if in any action, judgment shall be rendered for the plaintiff, and the said judgment be afterward reversed, or verdict be given for the plaintiff, and judgment be arrested, or judgment be given against the plaintiff on a plea in abatement, or the plaintiff or defendant die, after writ sued and before the defendants appearance, a new action may be brought upon the same cause of action at any time within a year after said reversal, arrest, abatement or death.

The 1852 Code contained a savings provision nearly identical to the present day version.[7]

The historical content of these old statutes explains their purpose.[8] At the time the savings statute was enacted civil proceedings were conducted using common law procedures. Lawyers well into the nineteenth century on both sides of the Atlantic viewed the “common law’ procedural system as comprising the writ or form of action, the jury, and the technical pleading requirements that pleading rules, a party could easily lose on technical

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grounds.[9] This system was a labyrinth of writs and causes of action which could entrap even a diligent lawyer.

Original common law procedure consisted of many causes of action, each rigidly defined as to requirements of proof, appropriate defenses, available remedies, and specific form of pleading. Some had jury trial available, others did not. Choice of the wrong form of action would defeat even the most meritorious claim, and pleading became an art form among a few skilled professionals, both in England and in many American colonies. While “single issue” pleading could provide defendants with better notice and focus trials, it also could reward technical skill rather than promote justice.[10]

Because “[a]t common law suits frequently abated for a matter of form,” states frequently enacted statutes which “allowed a reasonable time within which to sue out a new writ.[11]

It is against this backdrop that the General Assembly enacted savings statute. The phrase “the action otherwise avoided or defeated . . . for any matter of form” in the savings statute can be understood, therefore, as referring to a technical flaw in a complaint or writ or a jurisdictional defect resulting in the dismissal of the case. The notion embodied in the statute that a plaintiff should not be prejudiced because of a technical mistake has carried forward to more recent jurisprudence. The Delaware Supreme Court noted that the savings statute was designed “to mitigate against the harshness

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of the defense of the statute of limitations raised against a plaintiff who, through no fault of his own, finds his cause technically barred by the lapse of time.”[12] The Court of Chancery observed that “Delaware courts have long held that an action’s failure for lack of subject matter jurisdiction constitutes failure for a matter of form.”[13] This Court has previously stated that “avoiding or defeating” the action for a “matter of form” is “directed toward instances such as lack of jurisdiction or filing in the wrong venue.”[14]

Turning to the instant matter, Plaintiff’s case was not dismissed because of some defect in her pleadings or writs, nor was it dismissed for lack of subject matter jurisdiction. In fact the dismissal had nothing at all to do with pleadings but arose instead from her failure to prosecute. Accordingly it does not come with the rubric of “defeated . . . for a matter of form.”

Plaintiff argues that this Court should liberally interpret the savings statute so as to preserve her claim. It is true that the Delaware courts have liberally interpreted section 8118 so as to protect plaintiffs from the harsh effects of the statute of limitations.[15] But the policy of liberal interpretation

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is not without bounds and does not permit this Court on its own to add new provisions to the statute. There is simply no way that the words “matter of form” in this statute can be stretched to encompass dismissals caused by the Plaintiff’s inactivity. Moreover the policy of liberal interpretation is less compelling in situations such as that at bar. Plaintiff already had an opportunity to have her day in court, but she forfeited it, not because of some technical error but because of her own failure to prosecute her case.

The Court therefore finds that the terms of the savings statute, even when broadly construed, apply here. Accordingly that statute does not apply and the second action must be dismissed because it is barred by the statute of limitations.

There is another reason why the instant case must be dismissed: it is barred by the doctrine of res judicata. “The savings statute only applies when the dismissal is `without prejudice.’ A dismissal `with prejudice’ is adjudication `on the merits’ and res judicata forecloses a losing party from asserting an adjudicated claim against the same party.”[16] This Court has consistently held that a dismissal for failure to prosecute is “with prejudice”

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unless the dismissal expressly states otherwise.[17] It is undisputed that the order dismissing Plaintiff’s first case did not contain the phrase “without prejudice.” Therefore, the first dismissal is res judicata to her second suit.

For the foregoing reasons, the defendant’s motion to dismiss isGRANTED.

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