It had been more than three years since plaintiff had filed the complaint with the court. The defendant had actual, as well as constructive, knowledge of the suit; she had appeared, filed an answer, propounded and answered written discovery. Shortly before the defendant’s deposition, the defendant advised her attorney she had never been served with the complaint or summons! [The failure to confirm that detail was a major “oops” on the attorney’s part].
Notwithstanding the plaintiff’s attorney’s several more or less compelling excuses for the delay to prosecute the case, i.e serve the defendant with the complaint and bring the case to trial within three years, including having to replace the office computers and case management system to make it Y2K compliant, and even though the defendant had not been “prejudiced” (the court disregarded the cost and time incurred in defending the action), the defendant’s motion for a dismissal for failure to timely serve the complaint and to diligently prosecute the case was granted!