IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR K

ENT COUNTY
BRIAN LEE JOHNSON, : : C.A. No: K13C-09-041 RBY Plaintiff, : : v. : : KATHLEEN GUDZUNE, : : Defendant. :

Submitted: October 2 8, 2014 Decided : Dece mber 5, 2 014
Upon Con sideration of Defe ndant’s Motion to D ismiss DENIED ORDER Brian Lee Joh nson, Pro se

. Beth H. Chr istma n, Esquir e, Casa rino Chris tman S halk Ransom & Doss, P.A., Wilmington, Delaware for Defendant

.

Young, J.Johnson v. Gudzune

C.A. No.: 13C-09-041 RBY December 5, 2014

2 SUMMARY The Cour

t is p resented

with Ka thleen Gu dzune’s (“D efendant” ) Motion to Dism iss for w ant of

pros ecuti on. Def

endan t’s moti on ari ses o ut of Brian John son’s (“ Plaintiff”) failureto attend a court ordered hear

ing on Septe mber

4, 20 14. Th e hearing was sche duled following Plain tiff’s coun sel’s withdrawal fr om re presenta tion
on August

7, 2014. Defendant’s m otion, at this point, is premature. The degree o f Plain tiff’s indifference to the litig ation, an d the delay he has caused, is not so great
as to warrant im

media te term ination of the litigat

ion. At the mom ent, there has been only one i nst ance of neglect on Plaintiff’s part. Regarding in particular pro se litigants, efforts affordin g the opportu nity to rem edy suc h parties’ failure s to litigate
are to be p rov id ed b efo re d is mi ssal. T hus , Defe ndant’s M otion to Dis miss i s DENIED at this juncture. FACTS AND PROCEDUR ES Plaintiff filed the instant ac tion against Defenda nt, alleg ing negligen ce on Defendant’s part while operating a vehicle. The two were involved in an autom obile acc ident on De laware Route 7, with Plainti ff’s allegedly sustaining injurie s in the crash. Plaintiff fi led this suit on Septem

ber 30, 201 3, while represe nted at the

timeby the firm

of Young & Malm

berg, P. A. On A

ugust 7, 2014, follo wing this C ourt’s o rder, P laintiff’ s counsel vol untarily withdrew

from representation. A hearing was m andated by this Court, during which the Court wished to h ear Pla intiff’ s plans going f orward, now that he

was rep resenting himself pro se . The he aring wa s scheduled for Sept embe r 4, 2014, however , only Defenda nt attende d. Plaint

iff did not, and has not, contacte d either th is Court orJohnson v. Gudzune

C.A. No.: 13C-09-041 RBY December 5, 2014

1 Ayers v. D.F. Quillen & Sons, Inc. , 188 A.2d

510, 511 (Del. 1963 ); Super. Ct. Civ. R. 41.

2 Draper v

. Med. Ctr. Of Delawar

e , 767 A.2d 796, 798 (Del. 2001) (internal quotations omitted).

3 Wilmi ngton Trust C

o. v. Barr y , 397 A.2d 135, 138 (Del. Super. Ct. 1979) (internal quotations omitted).

4 Park Ctr. Condominium Council v. Epps , 723 A.2d 1195, 1199 (Del. Super. Ct. 1998).

5 Id.

6 Id. 3 the Defendant, re garding his a bsence fr om the hearing. By D efendant’ s motio n, filed on Se

ptemb er 26, 2014 , Defe ndant seeks to have the action dism

issed, followin g Plainti ff’s non-app earance. STANDARD OF REVIEW Pursuant t o Superior

Court Civi l Rule 41, it is “ within thesound discre tionof the Court” to d

ismiss an action

for “want of prosecu tion.” 1 This autho rity d raws fr om the Co urt’s “ inherent po wer to m anage its o wn affairs and to a chieve or derly an d expedit ious disp osition of its bus iness.” 2 “The purpose is to dispose of cases when
nec ess ary, not to allow

parties t o main

tain a faint spar k of life in their

litigati on.” 3 In considerin g such m otions to dism iss, the C ourt must ba lance the dual policy considera tions of “giving litigants a day in Court” and the interests of judicial
eco nomy. 4 Where

delay is caused by “gross ne glect and lack of atte ntion,” dismissal is appropriate. 5 By contrast, where the delay is unavoidab le, “ the partie s should not be made to pay for circu mstances beyond t heir contr ol.” 6Johnson v. Gudzune

C.A. No.: 13C-09-041 RBY December 5, 2014

7 Ayers , 188 A.2d at 510.

8 Park Ctr. , 723 A.2d at 1199.

9 Ayers , 188 A.2d at 511 (reasoning that although Rule 41(b) doe s not set a time frame, Rule 41(e) provides some relevant guidance in allowing dismissal after one y ear of inaction). 4 DISCUSSION As t he Plaintiff has not fi led a res ponse to De fendant’ s motio n, the Court considers only

Defend ant’s a rgument s. Defen dant seeks to di smiss Pl aint iff’s action, ba sed upon his alle ged failur e to prosecute the ca se. The delay in pros ecution o f which Plaintiff is accused, consists of his failure to attend this Court’s heari n g on September

4, 2014. The purpose of this hearing was to determine how Plaintiff wishedto procee d, follow ing his counse l’s wit hdrawal on August

7, 2014. D efendant contends that this unexcused a bsence fr om the court ordered hearing, rises to the level of want of pr

osecution, which merits dism issal pursua

nt to Super

ior Court C ivil Rule 41(b). As an initial matter, dism issals under Rule 41(b) are at the discretion of the Court. 7 Parties may , of cour se, bring motion s to dismiss under th is rule, to determ ine whether a party ’s litiga

tion conduct

is so wantin g as to war

rant ter minat ion of the action. The ty

pe of beha

vior calling for

dismissal has been described as “gross neglect and lack of at tention .” 8 In addition, the Delaware Suprem e Court has reasoned that any delay of over

a yea r, wou ld at least

begin to ra

ise the poss ibility

of an action being dismissed pursuant to Rule 41(b). 9 Al tho ugh not directly on point, the Court also finds it instructive to consider the Christian v. Counseli ng Resour ce Assoc., Inc. line of ca ses, rec ently decided byJohnson v. Gudzune

C.A. No.: 13C-09-041 RBY December 5, 2014

10 60 A.3d 10 83 (Del. 2013); Hill v. Du Shuttle , 58 A.3d 4 03 (Del. 2013); Adams v. Aidoo , 58 A.3d 410 (Del. 2013).

11 Christian, 60 A.3d at 1084.

12 Id ., at 1087.

13 Christian , 60 A.3d a

t 1087; Hill , 58 A.3d a

t 406; Adams , 58 A.3d at 414. 5 the Delaw are Supreme Court, 10 to clarif y the a ppropriate

conduct of trial cour

ts in dismis sing claim s “w ithout being h eard on the mer its” for “ attorney s’ fail

ure to obey scheduling

orders.” 11 Recognizing that dismissal of an a ction is the most severe sanction a trial court can impose, the De laware Supreme Court directs that trial cour ts careful ly cons ider six fa ctors bef ore choosin g such an ac tion: (1) the exten t o f the par

ty’ s personal responsibil ity; ( 2) the pre judice t o the adversary caused by

the failur

e to m eet sched

ulin g order s and respon d to dis cov ery; (3) a hist ory of dilatorine ss; (4) whether the conduct

of the party or the attorn ey w as willf

ul or in bad faith; (5) the e ffectiveness of san ctions other than dismissal; and (6) the meritoriousness of the claim or defense. 12 Indeed, in deter m ining wheth er trial courts abu sed their d

iscretion in impo sing this ultim ate sanct

ion, the D elaware Suprem e Court c los ely s crutinize d their decisio ns, chec king specif ically that these

factors had been co nsidered a nd applied. 13 Lookingat the fa cts of this ca se, the C ourt does not find Plaintif f’s con duct is,
as yet, so grossly neglectful as to merit dism issal. Plaintiff’s counsel withdrew from represe ntation

on August 7, 2014. Although not laudatory by any m eans, Plaintiff has failed to com ply wi th only one court order since tha t withdra wal, having not attended the Septem

ber 4, 2014 hearing. As indica ted, the Supreme Court has instructed thatJohnson v. Gudzune

C.A. No.: 13C-09-041 RBY December 5, 2014

14 767 A.2d at 798.

15 Id.

16 60 A.3d at 1087.

17 767 A.2d at 798. 6 Delaware courts are to give co nsiderati on to a pro se Plaintiff ’s inexperience in

ruling up on motions to dismiss for failure to prosecute. 14 In Draper v. Med. Ct r. Of Delaware , a somewhat analogous situation where plaintiff’s counsel had withdrawn from represe ntation, t

he Suprem

e Court de term ined it

was the C ourt’s r

ole to “m ake
so me effort to get the case back on track before dismissing for failure t o prosecu te.” 15 To dismiss thi s case at thi s time, would seem preci pitant. Turning to the factors considered by the Christian line of ca ses, thes e too caution against dismissal of the action prematurely . Like the Draper court, th e Christian court wa s concern ed with the hasty term ination of l awsuits. The Christian court reasoned : “ [t]he trial court’s refusal to step in when asked to resolve discovery difficult ies, and there

by avoi d the ultim

a te sanctio n of dism

issal, w as an abuse

of discretio n.” 16 This is ak

in to the Draper co urt’s im ploration t

hat trial courts make efforts to “ge t the case

back on tra ck,” pri or to outrig ht dism issal. 17 The six factors articulated by the Christian lin e of case s support the judicial preference for having

cases dec ided on m erit. A s applied to the fact s of the inst ant matter, these six

considera

tions, on the whole , do not we igh towar ds term ination of Plain tiff’s action. The first factor asks to what extent the party

is persona lly responsible

for the delay. Her

e, where P laintiff is no longer r epresent ed by c ounsel,Johnson v. Gudzune

C.A. No.: 13C-09-041 RBY December 5, 2014

18 58 A.3d at 413 (“[t]he trial court gave Adams numerous extensions, and Adams had no excuse for her fa

ilure to c omply

with the de adlines” ); see also H ill , 58 A.3d at 406 (holding that one “factor alone, did not justify imposition of the most severe sanction available to the court”).

19 See e.g., Adams , 58 A.3d at 413 (“Finally ...Adams’ refusal to provide discovery was willful...[she] simply did not think she should have to reveal information she considered to be private and irrelevant”). 7 the Court can only deduce that Plaintiff is solely re sponsible fo r not atten ding the September

hearing. Howeve r, looking at the Christian cases – e.g . Adams v. Aidoo

– this singular instance of neglect is insuffic ient ground f or dismissal, even if Plaintiff is fully responsible. 18 The s eco nd c ons ide rati on i nqu ires whet her the part y’ s de lay has causedprejudi ce to her adver sary. Compa red to the m

any oc casions of postponem ent exhibited by the offending p arties in the Christian cases, h aving to re schedule a status conference is, at be st, a min or inconven ience to D efendant. The third factor looks at the liti gant ’s history

of dilator iness. This is Plai ntiff’ s first transgre ssion – ther e is no histo ryto spe ak of. Fourth, courts are instructed to consider whether the party has acted in bad fait

h in causing the delay . Gene rally spe aking, bad

faith cons ists of repeate d insubordina

tion, aft er several reproa ches by a court. 19 This opinion

is th e first reprimand issued by the Court, and, as of ye t, the Cou rt is unawa re of Pl aint iff’s
reason for missing the he aring. F inally , the Cour t revie w s the m eritoriou sness of Plain tiff’s claim . Although it is too ea

rly, at this sta ge of the li tigation, to pass any ultima te judgm ent on

the worth iness of Pl aintiff’ s claim , there is certainl y nothing to leadthis Court to a contrary conclusion. It is eviden t, that the se six fac tors weig h towards per mitting the Pl aintiff’s cla im to be decided on its merits. Wi th this in m

ind, the C ourt DENIES the Def endant’ s motio n, furthe rJohnson v. Gudzune

C.A. No.: 13C-09-041 RBY December 5, 2014

8 instructing

that Plai ntiff

is to make himself

available to counsel to provide desired discovery by January 15, 2015, or suffer Dismissal of h is cla im upon Motion of Defendant. CONCLUSION Despite Plaintif

f’s failure to at

tend this Court’s mandated hearing, it would be, atthis nascent stage of the litigation, prem ature to di smiss P laintiff’ s suit for w ant of prosecution. Plaintiff

has not displayed the requisite level of neglec t, war ranting such action

by the Court. D efendant’ s motio n is DENIED

. IT IS SO ORDERED

.
/s/ Rober t B. Youn g J. Gud RBY /l mc oc: Prothonotary cc: Counsel Brian Lee Joh nson, Pro se Opinion Di stribution File