1 IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR NEW CASTLE COUNTY

STEVEN MCLEOD )

)

Plaintiff, )

)

v. ) C.A. No. N11C

- 03

- 111 MJB

)

HUGHEY F. MCLEOD )

)

)

Defendant. )

Submitted: March 17, 2015

Decided: March 31, 2015

Upon Plaintiff’s Second Motion for Sanctions

, DENIED

.

OPINION

Steven A. McLeod, pro se , 1050 Big Joe Road, Monticello, Florida 32344

.

Cynthia H. Pruitt, Esq., Doroshow, Pasquale

, Krawitz & Bhaya, 1208 Kirkwood Highway,

Wilmington, Delaware 10805, Attorney for Defendant.

Brady, J.2 I. I NTRODUCTION

This is a personal injury case. Plaintiff Steven A. McLeod (“Plaintiff”) alleges that he

was sexually abused by his father Defendant H ughey F. McLeod (“Defendant”) from

approximately December 1967 through January 1972. Both parties were domiciled in Delaware

at the time of the alleged abuse, but both now reside in Florida. Plaintiff is incarcerated in

Florida serving a life sentence . On Ap ril 29, 2011, Plaintiff filed the instant action under 10 Del.

C . § 8145.

On March 17, 2015, the Prothonotary received Plaintiff’s Second Motion for Sanctions. 1

In the instant Motion, Plaintiff asks the Court to impose sanctions on Defendant for failing t o

comply with the trial scheduling order by failing to timely provide proposed jury instructions for

Defendant’s counterclaims and/or failing to provide objections to Plaintiff’s proposed jury

instructions. 2 For the following reasons, Plaintiff’s Motion i s DENIED

.

II. P ROCEDURAL H ISTORY

The Pre trial Scheduling Order of Jan uary 24, 2013 required the parties to submit a pre

trial stipulation, which was to include proposed verdict forms and proposed jury instructions

and/or objections thereto. 3 The Scheduling Order provides that Plaintiff submit a draft of the

stipulation at least 15 days prior to the pretrial conference and that, within 5 days of receipt of

Plaintiff’s draft, Defendant shall provide Plaintiff with the information that Defendant proposes

1 Motion, Item 213, at 1.

2 Motion, Item 213, at 1.

3 Scheduling Order, Exhibit 1, Item 214.3 to include in the stipulation. 4 The topics to be covered in the stipulation include all those set

forth in Form 46 (pretrial stipulations) of the Delaware Superior Court Rules of Civil Procedure.

Plaintiff sent several letters inquiring about the jury instructions and requesting

Defendant’s proposed jury instructions ( on March 13, 2013 , August 29, 2013, February 7, 2014,

and December 18, 2014). 5 Plaintiff sent a draft of his proposed pre trial stipulation to Defendant

on December 24, 2014, accompanied by a letter directing Defendant to send Defendant’s

proposed jury instructions to Plaintiff by January 13, 2015. 6 Plaintiff provided jury instructions

on December 30, 2014, with typing corre ctions on January 7, 2015. 7 In a letter dated January 5,

2015, defense counsel acknowledged receipt of Plaintiff’s draft pretrial stipulation, proposed

verdict form, preliminary jury instructions, and final jury instructions. 8 Defendant told Plaintiff

th at defense counsel would attempt to get Defendant’s portion of the pre trial stipulation to

Plaintiff “with sufficient time for [Plaintiff] to review and then mail to the Court prior to the

pretrial conference on March 19, 2015.” 9 However Defendant would n ot promise to comply

with Plaintiff’s “unilateral deadline of January 13, 2015.” 10

Defendant sent his corrections to the pre trial stipulation with a letter dated February 19,

2015. 11 Plaintiff says he received these materials on February 24, 2015. 12 In Defe ndant’s

c orrections/additions to the pre trial stipulation, Defendant suggested that each party submit

4 Scheduling Order, Exhibit 1, Item 214, ¶8.

5 Exhibits 2, 3, 4, and 5, Item 214.

6 Motion, Item 213, at *2 ( citing Exhibit 6 to Item 213).

7 Exhibits 8, 9, Item 214.

8 Exhibit 7, Item 214.

9 Exhibit 7, Item 214.

10 Exhibit 7, Item 214.

11 Exhibit 10, Item 214.

12 Motion, Item 213, at 2.4 proposed jury instructions 13 and verdict sheets two weeks before trial rather than providing these

materials at that point

. 14

III. I NSTANT M OTION

Plaintiff argues that Defendant has violated the scheduling order by not providing

proposed jury instructions and verdict sheets in Defendant’s corrections/additions to the pretrial

stipulation and instead suggesting that Defendant would provide these documents two weeks

before trial. 15 Plaintiff accuses Defendant of engaging in “dilatory tactics” and says that two

weeks prior to trial is “too late for the Defendant to provide the documents without prejudicing

the Plaintiff by the lack of time to research, prepare [,] and submit counterproposals.” 16 Plaintiff

asks that Defendant be sanctioned by striking Defendant’s second counterclaim and “waving any

objections.” 17

On February 26, 2015, the Court issued an Opinion deferring deci sion on Defendant’s

two motions to exclud e testimony from Plaintiff’s proffered experts. 18 The Court extended

Plaintiff 90 days to supplement the record to identify a specific causation expert and the content

of this expert’s testimony in accordance with Rule 26. 19 The trial date was postponed an d will

be rescheduled upon resolution of these matters. 20 Because the Court has given Plaintiff 90

calendar days to submit the additional material, the pretrial conference will be postponed until

sometime after these 90 days have elapsed . Because of the c hanges to the trial schedule, which

the Court has made to accommodate Plaintiff’s need to secure a specific causation expert, the

13 Joint Proposed Pretrial Stipulation, Item 214, at 17, ¶16.

14 Joint Proposed Pretrial Stipulation, Item 214, at 16, ¶13.

15 Motion, Item 213, at 1.

16 Motion, Item 213, at 3.

17 Motion, Item 213, at 1.

18 Opinion, Item 211.

19 Opinion, Item 211, at 17.

20 Opinion, Item 211, at 17, n.98.5 Court finds that Defendant will be able to comply with the Trial Scheduling Order by providing

Defendant’s corrections/additio ns to the pretrial stipulation at least 10 days prior to the pretrial

conference.

Since Defendant is not currently in violation of the Trial Scheduling Order, Plaintiff’s

instant Motion for sanctions is DENIED

.

IT IS SO ORDERED.

___________ /s/

_____________________

M. J ANE B RADY

Superior Court Judge