IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RONALD L. LANGSTON, ) ) Plaintiff, ) )

v. ) C.A. No. N19C

- 09

- 060 JRJ ) EXTERIOR PRO SOLUTIONS, ) INC. d/b/a DRY TECH ) WATERPROOFING SOLUTIONS, ) ) Defendant

. )

MEMORANDUM OPINION

Date Submitted: December 31, 2019 Date Decided: April 22 , 2020

Upon Defendant Exterior Pro Solutions, Inc. d/b/a Dry Tech Waterproofing Solutions’s Motion for Relief from Judgment : DENIED

.
Thomas E. Hanson, Jr., Esquire, Barnes & Thornburg LLP, 1000 N. West Street, Suite 1500, Wilmington, Delaware 19801 , Attorney for Plaintiff.

Victoria K. Petrone, Esquire and Brian V. DeMott, Esquire, Baird Mandalas Brockstedt LLC, 2711 Centerville Road, Suite 401, Wilmington, Delaware 19808, Attorneys for Defendant.

Jurden, P.J.2 I. INTRODUCTION

Plaintiff Ronald Langston filed suit against Defendant Exterior Pro Solutions,

Inc. d/b/a Dry Tech Waterproofing Solutions (“Dry Tech”) alleging fraud, breach of
express warranties, negligent misrepresentation, and professional malpractice in

connection with waterproofing installation services Dry Tech performed at
Langston’s home

. When Dry Tech failed to respond to Langston’s Complaint,

Langston obtained a default judgment pursuant to Superior Court Civil Rule

55(b)(1)

. Dry Tech has now filed a Motion for Relief from Judgment (“Motion”)
pursuant to Superior Court Civil Rule s 55 and 60(b). 1 For the reasons explained

below, Dry Tech’s Motion is DENIED

.

II. BACKGROUND
On May 1, 2018, Langston contracted with Dry Tech for Dry Tech ’s
waterproofing installation services to resolve basement flooding in Langston’s

home. 2 According to Langston, a fter Dry Tech performed its services, the flooding

issues were not cured , and Langston was required to hire a second water proofing

company to address the flooding issues and repair the dama ge caused by Dry Tech

in its failed attempt to resolve the flooding

. 3

1 Defendant’s Motion for Relief from Judgment (“Def. Mot.”), (Trans. ID. 64454441).
2 Compl., Ex. A (Trans. ID. 64175293).
3 Id. ¶ 20.3

Langston’s Attempts to Resolve the Dispute

In November 2018, Langston initially tried to engage Dry Tech through the

Consumer Protection Unit of the Delaware Department of Justice in an effort to

resolve his claims

. 4 After his efforts proved unsuccessful, he retained legal counsel. 5

On May 13, 201 9, Langston’s counsel sent a detailed letter (the “Demand
Letter”) to Dry Tech ’s representative, Matthew Kropp, demanding that Dry Tech
reimburse Langston for : (1) the initial payment of $14,100.00 he made to Dry Tech ;

and (2) the payment of $6,709.03 he made to the second waterproofing company for
the repairs necessitated from Dry Tech ’s unnecessary replacement of the sump pump

and French drain

. 6 In the Demand Letter, Langston ’s counsel expressly stated, “[i]f

payment [was] no t made within thirty (30) days from receipt of this correspondence,
Mr. Langston [would] have no choice but to file suit and pursue all available legal
remedies against Dry Tech.” 7

On June 4, 2019, a fter three weeks of silence from Dry Tech
, Langston’s

cou nsel sent a follow

- up email to Kropp

. 8 Again, Dry Tech did not respond. 9 O n

4 Plaintiff’s Response in Opposition to Defendant’s Motion for Relief from Judgment (“Pl. Resp.”) ¶ 3 (Trans. ID. 64492346). 5 Id. ¶ 4.
6 Pl. Resp. ¶ 4 , Ex. 1 (the “Demand Letter”); see Affidavit of Matthew Kropp (“Kropp Aff.”), (Trans. ID. 64568056)

. Dry Tech has multiple offices in Pennsylvania. Langston’s counsel emailed the Demand L etter to Kropp and mailed a copy to Dry Tech’s office in Phoenixville, Pennsylvania.
7 Demand Letter. 8 Pl. Resp. ¶ 4

. 9 Id.4

June 26, 2019, Langston’s counsel sent a lett er to Kropp and Dry Tech ’s President
,
Steve Lombardi

. 10 In that letter, Langston’s counsel advised he was resending the

Demand Letter to Dry Tech because he had not receiv ed a response from Dry Tech
and the return receipt was returned unsigned. 11 Langston’s counsel expressly stated

that if he did not rece ive a response from Dry Tech within ten days
, Langston would
proceed with filing suit

. 12 Dry Tech did not respond to this letter either

. 13

Langston Files Suit Against Dry Tech
After receiving no response to his multiple communications, Langston gave

up his attempts to reach a settlement with Dry Tech and filed suit on September 6,

2019

. 14 Dry Tech was served with the Complaint in accordance with 10 Del. C. §

3104(f) on September 16, 2019, and its response was due by October 7, 2019. 15

When Dry Tech failed to respond by the deadline, Langston directed the
Prothonotary to enter default jud gment on November 5, 2019

. 16

10 Pl. Resp., Ex. 2; Compl. ¶ 5. Paragraph 5 of Plaintiff’s Response incorrectly states that the letter is dated July 26, 2019, not June 26, 2019. However, Exhibit 2 of Plaintiff’s Response indicates that the referenced letter is dated June 26, 2019, and La ngston’s counsel mailed the June 26, 2019 letter with a copy of the Demand Letter to Dry Tech’s offices in Norristown and Schwenksville, Pennsylvania.
11 Pl. Resp., Ex. 2.
12 Id. 13 Pl. Resp. ¶ 5.
14 See Compl. 15 See Super. Ct. Civ. R. 12(a) (“A defendant shall serve an answer within 20 days after service of process, complaint and affidavit . . . .”). Neither party disputes that service of process of the Complaint upon Dry Tech was proper and timely.
16 See Direction t o Enter Default Judgment (Trans. ID. 64388490); Super. Ct. Civ. R . 55(b)(1).5

On November 21 , 2019, the law firm of Baird Mandalas Brockstedt, LLC
(“Delaware Counsel”) entered its appearance on behalf of Dry Tech 17 and filed the

instant Motion . Dry Tech asserts there was a “ miscommunication ” between Dry

Tech, its Pennsylvania c ounsel , and Delaware Counsel
, and that its failure t o timely
respond to the Complaint was the product of excusable neglect. 18 Dry Tech further

asserts it has meritorious defenses to Langs ton’s claims 19 and Langston will not
suffer substantial prejudice if the Court vacates the judgment. 20

At the hearing on the Motion, the Court asked Delaware Counsel to explain
why the alleged mi scommunication justified Dry Tech’s failure to respond to the
Complaint. Delaware Counsel ex plained that a Pennsylvania attorney
(“Pennsylvania Counsel”) contacted him , and asked if he would represent Dry Tech

in this lawsuit. 21 Based on this conv ersation , Delaware Counsel understood that
Pennsylvania Counsel would confer with Dry Tech and instruct Dry Tech to contact
Delaware Counsel. When weeks passed with no word from Pennsylvania Counsel
or Dry Tech, Delaware Counsel contacted Dry Tech in early No vember 2019
inquiring whether Dry Tech still ne eded Delaware Counsel’s representation in th is

17 Entry of A ppearance (Trans. ID. 64388490). 18 Def. Mot. ¶ 6. 19 Id. ¶¶ 7

– 14. 20 Id. ¶ 15.
21 At the hearing, Delaware Counsel did not say when this contact occurred. According to the Kropp Affidavit submitted after the hearing
, this contact occurred on October 14, 2019

. Kropp Aff. ¶ 6.6

matter. Dry Tech, under the impression that Pennsylvania Counsel had already
retained Delaware Counsel to represent Dry Tech, immediately retained Delaware

Counsel, and Delaware Counsel enter ed its appearance and file d this Motion.

At the conclusion of the hearing on this Motion, the Court instructed Dry Tech

to supplement the record with an affidavit from a person more knowledgeable about

the events set forth in the Motion

. 22 In response, o n December 31, 2019, Dry Tech

submitted the a ffidavit of Matthew Kropp (the “ Kropp Affidavit”)

.
The Kropp Affidavit
According to the Kropp Affidavit, “[i] n early October of 2019,” Dry Tech

contacted Pennsylvania Counsel , who had represented Dry Tech in Pennsylvania
legal matters in the past , and provided him with a copy of the Complaint

. 23

Pennsylvania Counsel told Dry T ech he needed to locate a Delaware

- barred attorney
to represent Dry Tech in this action. 24 On October 14, 2019, Pennsylvania Cou nsel

contacted Delaware Counsel and asked whether Delaware Counse l would represent
Dry Tech in this lawsuit

. 25 This is where things went awry. According to Dry Tech
, there was a miscommunication as to who would retain Delaware Counsel for Dry

22 Judicial Action Form (Trans. ID. 64515828).
23 Kropp Aff. ¶¶ 4

– 5

. 24 Id. ¶ 5.
25 Id. ¶ 6.7

Tech. 26 Dry Tech believed that Pennsylvania Counsel retained Delaware Counsel
to represent it in the lawsuit. 27 Pennsylvania Counsel believed that Dry T ech would
contact and retain Delaware Counsel after Pennsylvania Counsel confirmed with

Delaware Counsel that it w ould assist Dry Tech in the law suit. 28 Due to the

miscommunication with Pennsylvania Counsel , Dry Tech did not retain Delaware

Counsel until after Langston obtained the default judgment

. 29

Langston’s Opposition to the Motion
In opposition to the Motion, Langston asserts he provided Dry Tech with
opportunities to address and resolve this dispute prior to commencement of his
lawsuit, and points to the multiple letters and emails he sent to Dry Tech o ver the

course of several months

–– all of which went unanswered by Dry Tech. 30 Langston

argues that if Dry Tech intended to dispute his claims, it should have responded to
Langston’s correspondence or, at the very least, should have responded to the
Complaint in a timely manner. 31

26 See i d. ¶ 7. [Dry Tech] and [Pennsylvania Counsel] miscommunicated with one another in that [Dry Tech] believed that [Pennsylvania Counsel] retained [Delaware Counsel] to represent [Dry Tech] in the law suit and [Pennsylvania Counsel] believed [Dry Tech] would contact and retain [Delaware Counsel] after [P ennsylvania Counsel] called and confirmed that [Delaware Counsel] could assist [Dry Tech] in the law suit.
27 Id. 28 Id. 29 Id. ¶¶ 8

– 9. 30 Pl. Resp. ¶¶ 3

– 6

. 31 Id. ¶ 6.8

Langston further argues that Dry Tech has failed to establish excus able
neglect for its failure to timely respond to the Complaint. 32 Specifically, Langston
argues that Dry Tech’s miscommunication and failure to follow up to ensure

Delaware C ounsel had been retained on its behalf do not rise to the level of excusable
neglect

. 33 Finally, Langston argues that Dry Tech’s various defenses to his claims

lack merit 34 and he will suffer substantial prejudice if the Court grant s Dry Tech’s

Motion. 35

III

. DISCUSSION

A. Standard of Review

Pursuant to Superior Court Civil Rule 60(b) , the Court may relieve a
defendant of a default judgment for reasons including “ [m]istake, inadvertence,
surprise, or excusable neglect

. ” “Delaware courts favor Rule 60(b) motions, as they
‘promote Delaware’s strong judicial policy of dec iding cases on the merits and
giving parties to litigation their day in court.’” 36 In support of this policy, the Court

32 Pl. Resp. ¶ 9. 33 Id. ¶ 9. 34 Id. ¶¶ 10

– 13. 35 Id. ¶ 14. Upon entry of default judgment, Langston, under the belief that Dry Tech did not intend to defend the lawsuit, sold the house in which Dry Tech performed the installation services at issue

. 36 Watson v. Simmons , 2009 WL 1231145, at *2 (Del. Super. C t. Apr. 30, 2009) (quoting Verizon Del. , Inc. v. Baldwin Line Constr. Co, Inc. , 2004 WL 838610
, at *1 (Del. Super. Ct. Apr. 13, 2004)).9

liberally construes R ule 60(b) and any doubts are resolved in favor of the

defendant

. 37

For the Court to grant relief from a default ju dgment, the defendant must
satisfy three elements :
(1) excusable neglect in the c onduct that allowed the default judgment to be taken; (2) a meritorious defense to the action that would allow a different outcome to the litigation if the matter was heard on its merits; and (3) a showing that substantial prejudice will not be suffered by the plai ntiff if the motion is granted. 38

The Court should consider either the possibility of a meritorious defense or po s s i ble
prejudice to the plaintiff, “ only if a satisfactory explanation has been established for
failing to answer the complaint, e.g. exc usable neglect or inadvertence.” 39 E xcusable
neglect is neglec t that “might have been the act of a reasonably prudent person under

the circumstances.” 40 Carelessness and negligence are not necessarily “excusable
neglect” for purposes of setting aside a default judgment and not generally

37 Verizon Del. , Inc. , 2004 WL 838610
, at *1. 38 Emory Hill & Co. v. Mrfruz LLC , 2013 WL 5347519, at *3 (Del. Super. Ct. S ept. 24, 2013) (citations omitted). 39 W atson , 2009 WL 1231145, a t *2 (internal quotations omitted) (quoting Apartment Cmtys. Corp. v. Martinelli , 859 A.2d 67, 72 (Del. 2004)). 40 Battaglia v. Wilmington Sav. Fund Soc’y , 379 A.2d 1132, 1135 n. 4 (Del. 1977); Keith v. Melvin L. Joseph Constr. Co. , 451 A.2d 842, 846 (Del. 1982). This Court and the Delaware Supreme Court have relied upon federal case law when analyzing whether a party’s conduct constitutes excusable negle ct

. See e.g.
, Baez v. S.S. Kresge Co. , 518 F.2d 349, 350 (5th Cir. 1975), cert. denied , 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976); Gibbs v. Air Canada , 810 F.2d 1529, 1537

– 38 (11th Cir. 1987)

.10

cognizable under Rule 60(b)(1). 41 “[L]itigants and their counsel may not be allowed
with impunity to disregard the process of the Court.” 42

B. Pennsylvania Counsel’s Conduct

In Standard Linen Service v. Sezna
, 43 the Court determined that the

defendants’ counsel’s action s were reasonable and prompt
, and th erefore, rose to the
level of excusable neglect

. 44 There, the d efendants were personally served on

December 4, 1979
, h owever , due to “ensuing discussion” between the defendants as
to who should be appointed counsel for them
, couns el was not appointed until after
the twenty

- day period to respond to the complaint

. 45 On December 24, 1979, the

defendants’ counsel contacted the plaintiff’s counsel, apprised him of the situation,

and advised that “in all likelihood [he] would enter an appearance for [the]

defenda nts. ” 46 Despite this , the plaintiff moved for entry of default judgment three
days later. 47 The Court found that the plaintiff’s counsel

–– aware of the defendants’
predicament

–– acted with “extreme haste” in obtaining a default judgment, and the

41 See Cohen v. Brandywine Raceway Ass'n , 238 A.2d 320, 325 (Del. Super. Ct. Jan. 26, 1968) (“A mere showing of negligence or carelessness without a valid reaso n may be deemed insufficient.”); see also Cline v. Hoogland , 518 F.2d 776, 777 (8th Cir. 1975) (“Ignorance or carelessness of an attorney is not general ly cognizable under Rule 60(b)(1).”)

. 42 Emory Hill & Co. , 2013 WL 5347519, at *3 (internal citations omitted).
43 1980 WL 317950 (Del. Super. Ct. Nov. 21, 1980).
44 Id . at *2. 45 Id. at *1. 46 Standard Linen Serv. , 1980 WL 317950, at *1.
47 Id.1 1

defendants’ counsel’s actions were reasonable under the circumstances. 48

According to the Court:

There [was] no question that defendants’ counsel acted reasonably under the circumstances. His prompt effort to notify plaintiff’s counsel of the problems of defendants on December 24, 1979, his prompt notice to plaintiff’s counsel of his appointment as defendants’ counsel, and his prompt filing of the pre sent motion on January 8, 1980 , all po int to his attempt to reasonably represent t he interests of the defendants. 49

Here, in contrast to the defendants’ counsel’s conduct in Standard Linen

Service
, Pennsylvania Counsel did not advise Langston’s counsel that Dry Tech

intended to defend the law suit
, or that he was attempting to retain Delaware Counsel
for Dry Tech. In fact, Pennsylvania Counsel never contacted Langston’s counsel at

all. Moreover , Pennsylvania Counsel did not promptly contact Delaware Counsel

to secure a Delaware

- barred attorney to represent Dry Tech in the lawsuit

. Rather,
Pennsylvania Counsel waited approximately two weeks to contact Delaware

Counsel regarding Dry Tech’s legal representation, and did not fo llow up to ensure
that Dry Tech contacted Delaware Counsel or that Delaware Counsel filed a
response before the twenty

- day period lapsed. 50 The Court finds that Pennsylvania

Counsel’s conduct was not reasonable under the circumstances, and therefore, doe s
not rise to excusable neglect.

48 Id. at *2. 49 Id.
50 Kropp Aff. ¶ 6

.12

C. Dry Tech’s Conduct
The Court will not necessarily impute the negligence of a defendant’s attorney

to the defendant where the defendant has acted reasonably throughout the course of

the proceedings and the default is solely attributable to the negligence of its

attorney

. 51 Thus, t he Court must determine whether Dry Tech ’s actions were

reasonable and the default is solely attr ibutable to Pennsylvania Counsel ’s
negligence

.

In Williams v. Delcollo Electric , Inc.
, the Court vacated a default judgment
against a defendant corporation where the default was the sole result of its insurer’s
neglect and the defendant corporation acted reasonably throughout the course of the
proceedings. 52 There, the defendant forwarded a copy of the summons and
Complaint to its insurer. 53 T he defendant’s insurer forwarded a copy of the
summons and Complaint via certified mail, return receipt requested, to its law firm,
requesting its lawyer enter his appearance on behalf of the defendant. 54 The insurer’s

letter with the enclosure, however, never arrived at the law firm because the address

51 See Williams , 576 A.2d at 686 (“Generally, where a defendant’s default is due solely to the neglect of the defendant’s insurer, that neglect will not be attributed to the defendant, and the default will be vacated on motion.”); but see Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396, 113 S.Ct. 1489, 123 L.Ed. 2d 74 (1993) (“[W]e have held that clients must be held accountable for the acts and omissions of their attorneys.”).
52 576 A.2d 683 (Del. Super. Ct. 1989). 53 Id. at 684. 54 Id.13

on the envelope was incorrect. 55 T he twenty

- day per iod to respond to the complaint
lapsed
, and neither the defendant corporation nor its insurer knew that a response

had not been filed

. 56 T he Co urt held that where a defendant acts reasonably and
promptly in reporting the matter to its representative
, and the default is solely
attributable to the neglect of the latter, the neglect will not be imputed to the

defendant. 57 In Williams , t he Court determined that the defendant had every reason
to believe that the matter would be prudently handled by its insurer, noting the

defendant’s prom

pt turnover of the plaintiff’s demand letters, summons, and
complaint to the insurer

. 58 T he Court held that because the defendant’s conduct was

reasonable throughout the proceedings and its default was solely the result of the

insurer’s neglect, the insurer’s neglect would be not be attributed to the defendant

. 59

I n Apartment Communities Corp. v. Martinelli
, 60 the Delaware Supreme

Court, affirming the Superior Court, held that a defendant corporation did not act
reasonably
, and thu s, its conduct did not rise to excusable neglect
, where its
employee accepted service on its behalf and took no action because she did not

55 Id.
56 Williams , 576 A.2d at 684. 57 Id. at 686 (citing 6 J. Moore, W. Taggart & J. Wicker, Moore’s Federal Practice , ¶ 55.10[2], at 55

– 60 (1988)); see also West v. Wood , Del. Super. Ct., C.A. No. 40, 1961, Carey, Judge (May 25, 1961). 58 Id. 59 Id.
60 859 A.2d 67 (Del. 2004).14

recognize the significance of the summons and complaint. 61 R elying on the Eleventh
Circuit’s holding in Gibbs v. Air Canada 62 and the Fifth Circuit’s holding in Rogers
v. Hartford Life & Accident Ins. Co.
, 63 the Delaware Supreme Court held that it is
the responsibility of the defendant corporation to ensure that its employees who

accept service of process know when and to whom the complaint should be

forwarded , and once a defendant corporation is served, it is “responsible for dealing
with the complaint in a timely manner.” 64

I n Pelican Production Corp. v. Marino
, 65 the Tenth Circuit held that a plaintiff
failed to proffer any showing that its former counsel’s failure to respond to the

defendant’s motion to dismiss constituted excusable neglect. 66 T he court found the
plaintiff’s argument that there was a “communication gap” between it and its former
counsel unpersuasive
, and noted:
The failure of [the plainti ff] to produce any affidavit from its former attorney, either voluntarily given or compelled by subpoena, as to the

61 Id. at 72.
62 810 F.2d 1529, 1537 (11th Cir. 1987)

. In Gibbs v. Air Canada , the Eleventh Circuit held that the defendant’s failure to follow up and confirm in

- house counsel’s receipt of the complaint, coupled with its mail clerk’s ca relessness, did not constitute excusable neglect. The court noted that a defendant cannot simply forward a complaint to its legal counsel and do nothing

–– there need to be some “minimum procedural safeguards” related to “c hecking up on process that it has in fact reached its destination and that action is being taken” on the defendant’s behalf.
63 167 F.3d 933
, 938

- 39 (5th Cir. 1999) In Rogers
, the Fifth Circuit held there was no excusable neglect where a commercial carrier lost the complaint while attempting to deliver it to the defendant’s claims office and the defendant corporation failed to ensure that action was being taken in the lawsuit.
64 Apartment Cmtys. Corp. , 859 A.2d at 71. 65 893 F.2d 1143 (10th Cir. 1990)

. 66 Id. at 1146.15

attorney’s explanation for the failure to answer the motion to dismiss, cannot be ignored. . . . We believe a most obvious void exists where a party claims that its counsel’s activities were not its own, but fails to demonstrate to the court any effort to produce explanation from its former counsel for his conduct. 67

Here, Dry Te ch fails to demonstrate that it acted reasonably throughout the

co urse of this proceeding

. First, Dry Tech was aware that Langston intended to file
suit. It is undisputed that Dry Tech received multiple letters and emails in May and

June 2019 warning that Langston would file a complaint against Dry Tech if it did
not respond to his demands

. Based on the record before the Court
, Dry Tech’s
response to these communications was to do nothing

. Then, when served with

p rocess on September 16, 2019, Dry Tech waited until “early October of 2019 ”
before sending th e Complaint to Pennsylvania Counsel

– leaving, at best, six days
before the twenty

- day period expired

. 68 Dry Tech offers no explanation why it did
not promptly contact Pennsylvania Counsel about the lawsuit, especially when
Pennsylvania Counsel had represented Dry Tech in legal matters in the past

. Upon
service of process, a reasonably prudent person would have, at least, promptly

consulted with an attorney to ascertain his rights and obligations

. 69 And , it was Dry

67 Id. at 1146

– 47 (citing Gomes v. Williams , 420 F.2d 1364, 1366 (10th Cir. 1970)).
68 Kropp Aff. ¶ 4

. 69 Capitol Cleaners & Launde rers Inc. v. Twinning Rest. Assoc. Inc.
, 2018 WL 1005309, at *2 (Del. Super. Ct. Feb. 20, 2018) (quotations omitted); see also Williams v. Delcollo Elec. Inc. , 576 A.2d 683, 686 (Del. Super. Ct. 1989) (Upon service of process, a defendant that prudently and immediately turns the summons and complaint over to its insurer is conduct of a reasonably prudent person); Watson v . Simmons , 2009 WL 1231145, at *2 (Del. Super. Ct. Apr. 30, 2009) (“[I]t is unreasonable not to seek legal counsel upon receiving notice of a complaint.” ).16

Tech’s responsibility to ensure th at the Complaint would be handled in timely

manner. 70

Although Dry Tech believed that Delaware Counsel had been retained, Dry
Tech never followed up with Pennsylvania Counsel or Delaware Counsel to ensure

that that had in fact occurred. Dry Tech never fo llowed up to ensure that the
Complaint would be handled in a timely manner, i.e., that a response would be filed
before the twenty days expired. Dry Tech’s only explanation for what occurred is

that :
Pennsylvania [C]ounsel recommended Dry Tech retain [Del aware Counsel]. However, due to a miscommunication and Dry Tech’s misunderstanding about which counsel would respond to the Complaint, Dry Tech did not reach out to discuss th e case with [Delaware Counsel]. 71

Even after a month had passed and Dry Tech never heard from Delaware Counsel
or Pennsylvania Counsel, the record shows Dry Tech did nothing. The only reason
Dry Tech found out that Delaware Counsel had not been retained and a response to
the Complaint had not been filed was because Delaware Counse l called Dry Tech in

November 2019 to ask if Dry Tech still needed rep resentation

. 72

70 See Apartment Cmtys. Corp. , 859 A.2d at 71. 71 Def. Mot. ¶ 6.
72 Id. At the hearing, Delaware Counsel stated that when he contacted Dry Tech asking whether Dry Tech still needed his services in this matter
, Dry Tech was under the impression that Pennsylvania Counsel had already retained his services on Dry Tech’s behalf

.17

Delaware courts and the federal circuit courts have consistently held that
simply forwarding the complaint to legal counsel is not enough to establish
excusable neglect; the defendant must ensure that action is being taken on its behalf
and its interests are being protected. 73 Dry Tech blames its failure to respond to the
Complaint on the alleged miscommunication between itself and Pennsylvania

Counsel , yet fails to substa ntiate such miscommunication and confusion

. 74 The
Kropp Affidavit provides no explanation or support for Dry Tech’s belief that
Pennsylvania Counsel would retain Delaw are Counsel on its behalf. Nor does it
provide a factual basis for Pennsylvania Counsel ’s belief that Dry Tech would

contact Delaware Counsel.

The record demonstrates that after Dry Tech placed the Complaint in
Pennsylvania Counsel’s hands, it made no effort to follow up and confirm that

73 See Apartment Cmtys. Corp

. , 859 A.2d at 71 (“Where the sheriff has properly served process upon a defendant corporation, that corporation is thereby responsible for dealing with the complaint in a timely manner.”); Lee v. Charter Commc’ns VI, LLC , 2008 WL 73720, at *2 (Del. Super. Ct. Jan. 7, 2008) (“[A]t a minimum, [a defendant] should have questioned whether its interests were being properly protected by [the entity the defendant believed was representing him].”); Gibbs , 810 F.2d at 1537 (noting that there needs to be some “minim um procedural safeguards” related to checking up on process that it has in fact reached its destination and that action is being taken on the movant’s behalf) ; 7 Moore's Federal Practice ¶ 60 .22[2], at 60

– 184 (2d ed. 1987) (“Parties desiring relief [under Rule 60(b)] must particularize, and generally do not acquit themselves of responsibility by showing merely that they placed the case in the hands of an attorney.” ). 74 The Court gave Dry Tech the opportunity to submit an affidavit setting forth the facts ex plaining why the miscommunication constitutes excusable neglect, and Dry Tech failed to submit an affidavit from Pennsylvania Counsel. See Pelican Prod. Corp. , 893 F.2d at 1144 (“We believe a most obvious void exists where a party claims that its counsel’ s activities were not its own, but fails to demonstrate to the court any effort to produce explanation from its former counsel for his conduct.”).18

Delaware Counsel had been retained and action was bei ng taken on its behalf. Dry
Tech cannot rely upon a miscommunication between itself and Pennsylvania

Counsel to establish e xcusable neglect where it failed to demonstrate it took

reasonable and prompt measures to ensure that its interests were being prote cted

. 75

In sum
, Dry Tech cannot escape responsibility for Pennsylvania Counsel’s conduct
when Dry Tech itself failed to act reasonably

. 76

IV. CONCLUSION

Based on well

- established case law, the Court finds Dry Tech has failed to
establish excusable neglect under Rule 60(b)(1)

. 77 For the reasons explained above,

Defendant Exterior Pro Solutions, Inc. d/b/a Dry Tech Waterproofing Solutions’s
Motion for Relief from Judgment is D ENIED.

IT IS SO ORDERED. 

# Jan R. Jurden

Jan R. Jurden, President Judge
cc: Prothonotary

75 See Pretzel & Stouffer, Chartered v. Imperial Adjusters, Inc. , 28 F.3d 42, 45 (7th Cir. 1994) (“Mere lack o f communication” between an attorney and client “does not excuse compliance with the rules, or from the penalties for failing to do so.”).
76 See Williams , 576 A.2d at 686.
77 Because Dry Tech has failed to satisfy the first prong of Rule 60(b), the Court need not consider Dry Tech’s alleged meritorious defenses or the prejudice to Langston. See Verizon Del., Inc. , 2004 WL 838610, at *1.