IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PATRICIA O’ROURKE
, ) ) Plaintiff, ) )

v. ) C.A. No. N20C

- 08

- 064 JRJ ) PNC BANK, MATCH GROUP, ) INC., LEAF OF LIFE COVENANT ) MINISTRY INCORPORATED, ) LEAF OF LIFE COVENANT ) MINISTRY INC., HAJIA LAMP O
, ) LAWANDA WILLIAMS, ) EUROSTAR LUXURY MOTORS, ) ALVANNDY VENTURES, AND ) JOHN DOE, ) ) Defendant s

. )

Date Submitted: May 2 8 , 2021 Date Decided: August 9
, 2021

ORDER

U pon consideration of Defendant PNC Bank’s Motion to Vacate Default

Judgment Pursuant to Rule 60(b)
, 1 IT APPEARS THAT :

1. On March 16, 2021, Plaintiff Patricia O’Rourke (“O’Rourke”) filed a

Motion Pursuant to Rule 55(b)(2) for Entry of Default Judgment (“Motion for

Default Judgment”) because Defendant PNC Bank (“P NC”) had failed to timely

1 Defendant PNC Bank’s Motion to V acate D efault J udgment P ursuant to S uperior C ourt R ule 60(b) (“Motion to Vacate Default Judgment”) ( Trans. ID. 66452921 )

.2

respond to her Complaint

. 2 On March 23, 2021, t he Court entered default judgment

against PNC

. 3

2. The next day, PNC filed the instant Motion to Vacate Default Judgment

Pursuant to Superior Court Rule 60(b) (the “Motion”). 4 In its Motion, PNC asks the

Court to vacate default judgment on the ground of excusable neglect

. 5 With its

Motion , PNC filed a declaration made by Ariel N. Forbes (“Forbes”)

, Senior
Counsel in PNC’s Legal Department

, describing the circumstances surrounding

PNC’s failure to respond to the Complaint

. 6 Forbes explained that after the

Complaint had been served in Delaware , it was forwarded t o PNC’s main office in

Pittsburgh, Pennsylvania

. 7 Upon its arrival in Pittsburgh , the Complaint

— like all

legal mail

— was supposed to be processed by PNC’s Legal Department Operations

Team (the “Operations Team”)

. 8 But due to COVID

- 19, the Operations Team had

been working under modified protocols, which limited the number of members who

2 Motion Pursuant to Rule 55(b)(2) for Entry of Default Judgment ( Trans. ID. 66385842 )

. 3 Order Granting Plaintiff's Motion for Entry of Default Judgment ( Trans. ID. 66443162 )

. As the Court noted in its Order, O’Rourke’s Complaint was served on PNC in D elaware on September 30, 2020, so PNC’s response was due by October 20, 2020. Id. ¶ ¶ 2

– 3 (citation s omitted).
4 Motion to Vacate Default Judgment

. 5 See id. at ¶ 9 (quoting Wynnwood Condo., Assoc. v. Cekine , 2021 WL 287834, at * 2 (Del. Super. Ct. Jan. 27, 2021)) (“ First , the Court must look to whether the party’s failure to appear was the result of ‘ neglect which might have been the act of a reasonable person under the circumstances. ’” ).
6 See generally Unsworn Declaration P ursuant to 10 Del. C. § 3927 in S upport of M otion to V acate D efault Ju dgment P ursuant to S uperior C ourt R ule 60(b) ( Trans

. ID

. 66452921 ).
7 Id. at ¶ ¶ 5

– 6. 8 Id. at ¶ ¶ 6, 9.3

could be on site at one time

. 9 This limitation

— and “an unknown event ”

— caused

“ the Complaint to be misplaced from other legal materials awaiting processing

. ” 10

Forbes states that PNC first received notice of O’Rourke’s suit on March 18, 2021,

when Forbes received a copy of O’Rourke ’s Motion for Default Judgment

. 11 Soon

after, Forbes requested a copy of the Complaint fro m O’Rourke’s counsel and then

retained Delaware counsel. 12

3. On April 19, 202 1, O’Rourke filed a response arguing that PNC’s

explanation failed to demonstrate excusable neglect. 13

4. On May 12, 2021, the Court held oral argument on PNC’s Motion. 14

After hearing from both parties , the Court asked PNC to submit a supplemental

declaration explaining the way that it processed legal mail before COVID

- 19 in

contrast to its modified procedures. The Court also asked PNC for any additional

details about what might have happened to the Complaint and what PNC did to

locate the Complaint.

5. On May 21, 2021, PNC submitted a supplemental declaration made by

Forbes elaborating on PNC’s procedures for pr ocessing legal mail

— both before and

9 Id.
10 Id. at ¶ 11

. 11 Id. at ¶ 14.
12 Id. at ¶ ¶ 15

– 16

. 13 See generally Plaintiff’s Response to Defendant’s Motion to Vacate Default Judgment (Trans. ID. 66526525).
14 See Judicial Action Form for Motion to Vacate Judgment (Trans. ID. 66593601).4

during COVID

- 19

. 15 Forbes explained that in the early stages of COVID

- 19, PNC

divided its Pittsburgh employees into two groups
, “Orange” and “Blue

, ” to minimize

the number of employees who were on site at one time

. 16 The Orange and Blue

groups were each assigned a member of the Operations Team so that legal mail could

be processed regardless of which group was on site on a particular day

. 17 For a

while , the COVID

- 19 procedures operated smoothly ; an in

- house attorney could

receive a piece of legal mail from Delaware within one or two days after it arrived

in Pittsburgh. 18 But that change d on September 28, 2020, when PNC instituted a

reorgan ization of the Orange and Blue groups. 19 Under the reorganization
, the

Orange group was inadvertently left without a member of the Operations Team to
process legal mail

. 20 And then O’Rourke’s Complaint arrived:

A ccording to delivery records, the mail package from the Delaware Offices containing the Complaint was received in the mailroom at the Pittsburgh Office on Thursday
, October 1, 2020. A mail clerk then placed the mail package on Mr. Fishman’s desk and infor med the Delaware Office that the package had been received. 21

15 Supplemental Unsworn Declaration Pursuant t o 10 Del. C. § 3927 i n Support of Motion t o Vacate Default Judgment Pursuant t o Superior Court Rule 60(b) (“Supplemental Declaration”) (Trans. ID. 66623184).
16 Id. at ¶¶ 6

– 7, 28

– 29

. 17 Id. at ¶ 32

. 18 Id. at ¶ 40

. 19 Id. at ¶ ¶ 45

– 46.
20 See i d. at ¶ 47.
21 Id. at ¶ 49. Mr. Fishman is a member of the Operations Team. Id. at ¶ 7.5

The Orange group was on sit e when the package containing the Complaint arrived,

so there was no one to process it

. 22 By the time that PNC resolved its reorganization

issue

— around October 8, 2020

— 494 pieces of unprocessed legal mail had

accumulated. 23 “Absent from the 494 pieces of mail process was [ O’Rourke’s ]

Complaint. ” 24

6. On May 28, 2021 , O’Rourke responded to PNC’s supplemental

declaration

. 25 She argued that PNC had again failed to demonstrate excusable

neglect

. 26 In O’Rourke’s view, PNC ’ s “explanation is that the Complaint was

‘absent’ from the documents that were processed by its Operations team,” which

“does little to enlighten the Court as to what actually occurred.” 27 O’Rourke further

contends that “[i]f neglect is to be excused, PNC at the least should have investigated

what happened and provided the Court with the results of that investigation.” 28

7. Under Superior Court Civil Rule 60(b) (1)
, “ [ o]n motion and upon such

terms as are just, the Court may relieve a party or a party's legal representative from

a final judgment, order, or proceeding for

. . . excusable neglec t . . . .” 29 To be

22 Id. at ¶ 50

. 23 Id. at ¶¶ 51

– 52.
24 Id. at ¶ 5 3

. 25 Plaintiff’s Response to Defendant’s Supplemental Affidavit (Trans. ID. 66643388).
26 See generally id.
27 Id. at ¶ 5.
28 Id. at ¶ 8.
29 Super. Ct. Civ. R. 60(b) (1)

.6

relieved of default judgment because of excusable neglect , a defendant must show

the following:

(1) excusable neglect in the conduct 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) that substantial prejudice will not be suffered by the plaintiff if the motion is granted. 30

“T he defendant must first establish excusable neglect before the Superior Court will

consider whether a meritorious defense or prejudice to the plaintiff exi sts .” 31

“Excusable neglect is defined as ‘ neglect which might have been the act of a

reasonable prudent person under the circumstances.’” 32 “A mere showing of

negligence or carelessness without a valid reason may be deemed insufficient.” 33

8. Here, the Court finds that PNC has not met its burden of showing

excusable neglect. PNC concedes that on October 1, 2020, it received a package

containing the Complaint and that it placed that package on the desk of a member of

the Operations Team. But P NC did not act on the Complaint until March 18, 2021

—

after O’Rourke had filed her Motion for Default Judgment

. At issue , then, is whether

30 Christiana Mall, LLC v. Emory Hill and Co. , 90 A.3d 1087, 1091 (Del. 2014) (brackets and internal quotation marks omitted) (quoting Verizon Delaware, Inc. v. Baldwin Line Const. Co., Inc. , 2004 WL 838610, at *1 (Del. Super. Ct. Apr. 13, 2004)).
31 Id. (citations omitted).
32 Id. (quoting Watson v. S immons , 2009 WL 1231145, at *2 (Del. Super. Ct. Apr. 30, 2009)).
33 Dalton v. Pacific Rim Capital, Inc. , 2020 WL 6158115, at *3 (Del. Super. Ct. Oct. 20, 2020) (internal quotation marks omitted) (quoting Watson v. Simmons , 2009 WL 1231145, at *2 (Del. Super. Apr. 30, 2009) ).7

PNC acted reasonably in the period of over five months in which it had possession

of the Complaint but failed to respond to it. 34

9. Weighing against a finding of reasonableness is PNC’s failure to

investigate what happened to the Complaint. After the reorganization issue was

resolved, the Operations Team identified a backlog of 494 pieces of unprocessed

legal mai l. But the Complaint was absent from the backlog , s o PNC had reason to

know that it was missing. Yet PNC has not explained what it did to investigate

where the Complaint might have gone. This failure to investigate is unreasonable,

especially in light of PNC’s sophistication. 35 Accordingly, the Court finds that PNC

has not provided a sufficient factual basis to establish that its failure to respond t o
the Complaint constitutes excusable neglect under Rule 60(b)(1). “ Because [PNC ]

cannot establish excusable neglect, the Court need not address the meritorious

defense and substantial prejudice prongs

. . . . ” 36

34 PNC argues that it acted diligently after learning of the suit, immediately contacting O’Rourke’s counsel and retaining Delaware counsel, who then promptly entered her appearance. Motion to Vacate Default Judgment, at ¶ 9. In PN C’s view, t his post

- notice conduct “ weigh [ s ] in favor of vacating the default judgment.” Id. (citing Shah v. Coupe , 2014 WL 5712823, at *2 (Del. Super. Ct. Nov. 3, 2014 ) ). In support of its view, PNC relies on this Court’s decision in Shah v. Coupe

. B ut in Shah , it was the State’s “proffered explanation,” not the State’s post

- notice conduct, that the Court found to “constitute [] excusable neglect.” Shah , 2014 WL 5712823, at *2.
35 Cf. Christiana Mall, LLC , 90 A.3d at 1091 (Del. 2014) ( “ Christiana is owned by Fortune 500 trust company, General Growth Property

. . . , that has an office of general counsel and a legal department headed by Francone. An entity with this level of sophistication and resources sho uld not have engaged in what it admitted was ‘ foolish behavior. ’” ).
36 Dalton , 2020 WL 6158115, at * 5 (citing Apartment Communities Corp. v. Martinelli , 859 A.2d 67, 72 (Del. 2004)).8

10. Even though PNC has not establish ed excusable neglect, the Court may

nonetheless vacate default judgment under Rule 60(b)(6) for “any other reason

justifying relief from the operation of the judgment.” 37 The Court did just that in

Dalton v. Pacific Rim Capital , Inc. 38 The Court in that case found that the moving

defendant did not demonstrate excusable neglect. 39 But the Court ultimately vacated

default judgment under Rule 60(b)(6)

— in part because the moving defendant “ acted

reasonably upon receiving notice ” of the suit in which it was named a defendant. 40

And it did so in the midst of the COVID

- 19 pandemic , “ an unprecedented time that

included national and local states of emergencies .” 41

11. Here, there is no dispute that PNC acted diligently after learning of

O’Rourk e ’s suit

. PNC immediately contacted O’Rourke’s counsel to ask for a copy

of the Complaint and then retained Delaware counsel to represent it in this case

. Although PNC’s post

- notice conduct does not factor into the Court’s Rule 60(b)(1)

analysis
, the Court finds

— in line with Dalton

— that it weighs in favor of vacating

default judgment under Rule 60(b)(6). In addition, all of the procedural events in

this case have occurred in the midst of COVID

- 19
, as did many of the procedural

37 Super. Ct. Civ. R. 60(b)(6).
38 Dalton , 2020 WL 6158115, at *6 (granting the moving defendant’s motion to vacate default judgment under Rule 60(b)(6) despite finding that the defendant failed to meet “its burden under Superior Court Rule 60(b)(1) to show [that] its failure to respond was the product of excusable negl ect”).
39 Id. at * 5

. 40 Id. at *6.
41 Id.9

events in Dalton

. COVID

- 19 has wreaked havoc on businesses, requiring them to

respond to ever

- changing regulations and public

- health guidance. The Court ’s Rule

60(b)(6) analy sis takes this into account

. Finally, the Supreme Court of Delaware

has stated that “ Courts should apply rules with ‘ liberal construction because of the

underlying public policy that favors a trial on the merits, as distinguished from a

judgment based on a default. ’” 42 For these reas ons, the Court exercises its discretion

under Rule 60(b)(6) to vacate the default judgment against PNC.

NOW, THEREFORE, IT IS HEREBY ORDERED that Defendant PNC
Bank’s Motion to Vacate Default Judgment Pursuant to Rule 60(b) is GRANTED

.

IT IS SO ORDERED. 

# Jan R. Jurden

Jan R. Jurden, President Judge

cc: Prothonotary

42 Dishmon v. Fucci , 32 A.3d 338, 346 (quoting Beckett v. Beebe Medical Center , 897 A.2d 753, 757

– 57 (Del. 2006))

.