In Will Dispute Involving Pro Se Parties, Master Finds Service Inadequate

IMO Last Will and Testament of Rachel D. Harley, deceased; Shirley Harley Brown v. Mary M. Harley, et. al. C.A. #110437-MZ (September 18, 2017)

       Three sisters have been embroiled in litigation over control of family property since 1999. After their mother passed away, the sisters’ distrust resulted in a probate dispute. This opinion, however, focused on the discrete issue of service. The Master found that the pro se Petitioner failed to serve the defendants (who are the Petitioner’s two sisters). The Master recommended that the court dismiss this action against one sister and give the petitioner one final opportunity to serve the other sister.

         The two defendants are Delaware residents, but the Petitioner maintained only that she delivered the petition to them by first class mail. For an individual Delaware resident with a known address, who has not demonstrated any attempt to avoid service, Court of Chancery Rule 4(d)(1) requires service of a summons and complaint by personal delivery or by leaving copies thereof with an appropriate person at the individual’s residence.

          Further, when Petitioner filed her motion for summary judgment, she submitted a certificate of service listing only service on two Delaware attorneys, but neither of those two attorneys has appeared in this matter and both made clear that they do not represent the defendants in this case. As such, the two sisters were operating pro se in this matter.

         Sandra, one of the sisters/defendants, replied to the court and stated that she was not properly served. The Master interpreted Sandra’s pro se assertion that she was not properly served as a motion to dismiss for insufficiency of service of process pursuant to Court of Chancery Rule 12(b)(5). The Master noted that “[i]t is fundamental that the Court only may exercise personal jurisdiction over a defendant when service is properly effected, regardless of whether or not actual notice is achieved”, that “[p]ersonal jurisdiction must be effected through proper service of process, and actual notice by a defendant does not satisfy this constitutional requirement” and that “the plaintiff bears the burden of demonstrating that service of process was effective.” (citations omitted). The Master recommended that Sandra’s motion to dismiss pursuant to Court of Chancery Rule 12 (b)(5) be granted.

         The other sister/defendant, Mary, did not appear. Yet, the Master still analyzed her situation. The Master concluded that in this case “the deficient service is attributable entirely to the [Petitioner’s] dilatory conduct.” The Master found that there was no evidence that Mary, in any way, evaded service. Given all that, the Master gave the Petitioner one final thirty-day extension within which to properly serve Mary and file proof of service pursuant to Court of Chancery Rule 4. The Master wrote that she will dismiss the case if that is not properly done in that time frame.

         One final note. It is worth mentioning that the Master took “judicial notice of the fact, provided by the public tracking website of the United States Postal Service, that the July 18, 2017, certified mailings to Mary were not delivered by the date of this report. Del. R. Evid. 201(b)(2); see Henderson v. Blalock, 2017 WL 3304451, at *2 n.5 (Tex. Ct. App. Aug 3, 2017) (taking similar judicial notice and collecting cases).”


William M. Kelleher, Director
Gordon, Fournaris & Mammarella, P.A.