IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

LEROY COOK, JR.

, and )

KIMBERLY A. COOK ) )

Plaintiffs

, ) )

v. ) C.A. No. N17C

- 03

- 208 JRJ ) J AND V TRUCKING COMPANY, ) INC., and J & V TRUCKING, INC., ) Jointly and Severally, ) )

Defendants

. )

Date Submitted: March 10 , 2021

Date Decided: March 1 7 , 2021

ORDER

1. On July 6, 2020, the Court approved the Second Amended Trial

Scheduling Order

. 1 That scheduling order established a discovery cutoff of

November 20, 2020 and a dispositive motion deadline of November 30, 2020. 2

2. On November 30, 2020, Defendant J and V Trucking Company, Inc.

filed a Motion for Summary Judgment, which is now pending before the Court. 3 On

the same day, the Court issued a briefing schedule, which r equired Plaintiffs to file

1 Trans. ID. 65745992.

2 Id.

3 Trans. ID. 66145588. Although J and V Trucking Company, Inc.

, and J & V Trucking , Inc. have been named as separate corporate entities, only Defendant J & V Trucking Company, Inc. is represented in this matter

. See Trans. ID 60729787; Trans. ID 60902793. The Court assumes that both corporate entities have identical interests and will therefore treat both entities as one.2

their Response by December 30, 2020. 4 On January 11, 2021, the parties filed a

stipulation to extend Plaintiffs ’ deadline to January 25, 2021. 5 The Court approved

that stipulation on January 12, 2021. 6

3. In accordance with the stipulation, Plaintiffs filed their Response on

January 25, 2021. 7 They included three exhibits: Exhibits “A,” “B,” and “C.” 8

Relevant here, Exhibit C comprises a number of Pennsylvania and Delaware

criminal dockets that purport to show Cruz Garcia’s criminal history

. 9 Timestamps

on the docket show that the dockets were obtained on January 22, 2021. 10

4. On February 8, 2021, Defendant filed its Reply. 11 It noted that the

criminal dockets “were never produced during the discovery period.” 12 For this

reason, Defendant argued that the criminal dockets “ are not in the record to be

considered by this Court in determining the motion for summary judgment .” 13

Seeking additional information about this matter, the Court asked Pl aintiffs to

4 Trans. ID. 66146187.

5 Trans. ID. 66242680.

6 Trans. ID. 66246255.

7 Trans. ID

. 66280763.

8 Id.

9 Id.

10 Id. The Delaware criminal dockets contain the notation “as of 1/22/2021. ” T he Pennsylvania

criminal dockets contain the notation “ Printed: 01/22/2021. ” Id.

11 Trans. ID. 66318828

. 12 Id. at 2, ¶ 2.

13 Id.3

identify when the y requested the criminal dockets and to state whether they

immediately produced the dockets to Defendant. 14

5. On March 10, 2021, Plaintiffs filed their response

. 15 They explain ed

that they conducted a search of Garcia’s Delaware criminal history around the time

that they filed the ir original Complaint: March 20, 2017. 16 Plaintiffs took

handwritten notes o f the information that they discovered

, but they did not disclose

the information to Defendant ; they reasoned that the information was a matter of

public record and , therefore, was readily available to Defendant. 17 On January 15,

2021

, Plaintiffs commissioned O ’ Rourke Investigative Associates

. 18 Plaintiffs

“engaged O’Rourke

. . . to acquire Cruz’s criminal dockets from Delaware,

Maryland [,] and Pennsylvania. ” 19 O’Rourke returned the dockets to Plaintiffs on

January 22, 20 21

. 20 Finally, on January 25, 2021, Plaintiff s filed their Response,

atta ching the dockets that they deemed relevant. 21

6. It is undisputed that the criminal dockets were produced after the

discovery cutoff

. Nonetheless, the Court will consider the dockets in resolving the

pending Motion for Summary Judgment. Because the trial is not until June 14, 2021

,

14 Trans. ID. 66385397.

15 Trans. ID. 66407173.

16 Id.

17 Id.

18 Id.

19 Id.

20 Id.

21 Id.4

Plaintiffs’ untimely production of the criminal dockets should not prejudice

Defendant in preparing for trial. 22

7. Still

, the Court recognizes that Plaintiffs’ untimely production of

discovery affected the Moti on for Summary Judgment and cost Defendant time and

money

. Defendant moved for summary judgment reasonabl y believing

, based on

the Court’s order

, that the discovery period had closed

. And Plaintiffs could have

,

but did not , timely move to extend the discovery period before the dispositive motion

deadline passed

. Given the particular circumstances, the Court finds that Plaintiffs

should reimburse Defendant for the reasonable attorney’s fees and costs incurred by

Defendant in preparation and presentation of its pending Motion for Summary

Judgment. 23

WHEREFORE, IT IS HEREBY ORDERED that Defendant shall file an

affidavit with the Court attesting to the reasonable fees and costs incurred in

connection with the preparation and presentation of its Motion for Summary

22 The trial date is June 14, 2021

. Trans. ID. 65745992.

23 Consol ’ d Beyond Bldg., Inc. v. Fiss , 2019 WL 5078898, at *1 (Del. Super. Ct. Oct. 8, 2019) (citation omitted) (noting that the Court “ has the authority to address a party ’ s failure to comply

with its [Trial Schedulin g Order] or its failure to participate in good faith via motion or sua sponte

, under Rule 16 ”) ; see also Del. Super. Ct. Civ. R. 1 6 (f) (“ If a party or party's attorney fails to obey a scheduling or pretrial order,

. . . the judge, upon motion or the judge ’ s own initiative, may make such orders with regard thereto as are just, and among others any of the orders provided in Rule 37(b)(2)(B), (C), (D). In lieu of or in addition to any other sanction, the judge shall require the party or the attorney represent ing the party, or both, to pay the reasonable expenses incurred because of any noncompliance with this Rule, including attorneys ’ fees, unless the judge finds that the noncompliance was substantially justified or that other circumstances make an award of

e xpenses unjust. ”).5

Judgment , and Plaintiffs shall have ten days thereafter to file a response to that

affidavit.

IT IS SO ORDERED.



# Jan R. Jurden

______________________________ Jan. R. Jurden, President Judge