Fish v. Palmer

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
HARRY FISH, )
Plaintiff, )
)
v. ) C.A. No.: N16C-08-065 ALR
)
MORENZO CONRAD MATTHEW )
PALMER, )
Defendant. )
Submitted: October 9, 2018
Decided: November 20, 2018
Upon Defendant’s Motion to Dismiss
GRANTED
ORDER
Upon consideration of the motion to dismiss filed by Defendant Morenzo
Conrad Matthew Palmer (“Defendant”); the facts, arguments and legal authorities
set forth by Defendant; statutory and decisional law; and the entire record in this
case, the Court finds as follows:
1. On August 8, 2016, Plaintiff Harry Fish (“Plaintiff”) brought this action
against Defendant alleging that Plaintiff suffered personal injuries as a result of an
automobile accident caused by Defendant.
2. On November 2, 2017, Defendant filed Interrogatories and a Request
for Production Directed to Plaintiff. No response was received.
3. By Order dated June 26, 2018, the Court granted the motion to
withdraw as counsel filed by Plaintiff’s counsel.
4. On August 9, 2018, Defendant sent a letter to Plaintiff as a self-
represented litigant, resending Defendant’s Interrogatories and Request for
Production and advising that responses to discovery were overdue and that responses
must be received within twenty (20) days. No response was received.
5. On September 19, 2018, Defendant moved to dismiss this action
pursuant to Superior Court Rule of Civil Procedure 41(b) (“Rule 41(b)”) for failure
to prosecute the action.
6. By Letter dated September 24, 2018, the Court set a deadline of October
8, 2018, for Plaintiff’s response to the Motion to Dismiss and advised Plaintiff that
the Court would consider the Motion to Dismiss unopposed if Plaintiff failed to file
a response.
7. Plaintiff has not responded to Defendant’s Motion to Dismiss or
otherwise communicated with the Court or Defendant.
8. Pursuant to Superior Court Rule of Civil Procedure 16, “parties must
adhere to the trial judge’s scheduling order and conduct discovery ‘in an orderly
fashion.’”1 If a party fails to obey the Court’s scheduling orders, the Court may
impose sanctions, which may include the sanction of dismissal.2 To that end, Rule
1
Abdullah v. Rago, 2016 WL 6246891, at *3 (Del. Super. Oct. 24, 2016) (citing
Dillulio v. Reece, 2014 WL 1760318, at *3 (Del. Super. Apr. 23, 2014)).
2
Id.
2
41(b) allows a defendant to move for dismissal of an action for “failure of the
plaintiff to prosecute or to comply with these rules, or any order of Court.”3
9. However, because the sanction of dismissal is severe, dismissal is
appropriate only if a lesser sanction cannot cure the offending conduct.4 The Court
considers six factors when determining whether dismissal is appropriate:
(1) the extent of the party’s personal responsibility;
(2) the prejudice to the adversary caused by the failure to meet
scheduling orders and respond to discovery;
(3) a history of dilatoriness;
(4) whether the conduct of the party or the attorney was willful or in
bad faith;
(5) the effectiveness of sanctions other than dismissal, which entails
an analysis of alternative sanctions; and
(6) the meritoriousness of the claim or defense.5
10. Upon consideration of these factors, the Court finds that dismissal is
appropriate in this case. Plaintiff has not participated in this action since filing his
Complaint, despite the efforts of the Court and Defendant, who is prejudiced by
Plaintiff’s failure to comply with the Court’s Orders and to provide discovery
responses. The Court has been generous in giving Plaintiff opportunities to respond,
and Plaintiff has failed to do so. In addition, because Plaintiff has been completely
absent in this action, the Court finds that a lesser sanction would not cure Plaintiff’s
conduct.
3
Super. Ct. Civ. R. 41(b).
4
See, e.g. Drejka v. Hitchens Tire Serv., Inc., 15 A.3d 1221, 1222 (Del. 2010).
5
Id. at 1224.
3
11. The Court recognizes that self-represented litigants may be held to a
less stringent standard in presenting their cases under certain circumstances. 6
However “[l]itigants, whether represented by counsel or appearing pro se, must
diligently prepare their cases for trial or risk dismissal for failure to prosecute.” 7
Indeed, “[t]here is no different set of rules for pro se plaintiffs, and the trial court
should not sacrifice the orderly and efficient administration of justice to
accommodate the unrepresented plaintiff.”8
12. Therefore, the Court finds that this action must be dismissed with
prejudice for Plaintiff’s failure to cooperate with discovery and failure to participate
in the litigation or respond to the motion to dismiss.
NOW, THEREFORE, this 20th day of November, 2018, Defendant’s
Motion to Dismiss is hereby GRANTED. Plaintiff’s Complaint is hereby
DISMISSED WITH PREJUDICE.
IT IS SO ORDERED.
Andrea L. Rocanelli
________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____
The Honorable Andrea L. Rocanelli
6
Hayward v. King, 2015 WL 6941599, at *4 (Del. Nov. 9, 2015); Anderson v.
Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011); Buck v. Cassidy
Painting, Inc., 2011 WL 1226403, at *2 (Del. Super. Mar. 28, 2011).
7
Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001).
8
Id.
4