IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

IN AND FOR KENT COUNTY

BRIAN LEE JOHNSON, :

: C.A. No: K13C-09-041 RBY

Plaintiff, :

:

v. :

: 

KATHLEEN GUDZUNE, :

:

Defendant. :

Submitted: October 28, 2014

Decided: December 5, 2014

Upon Consideration of Defendant’s 

Motion to Dismiss

DENIED

ORDER

Brian Lee Johnson, Pro se.

Beth H. Christman, Esquire, Casarino Christman Shalk Ransom & Doss, P.A.,

Wilmington, Delaware for Defendant. 

Young, J.
Johnson v. Gudzune 

C.A. No.: 13C-09-041 RBY

December 5, 2014 

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SUMMARY 

 The Court is presented with Kathleen Gudzune’s (“Defendant”) Motion to

Dismiss for want of prosecution. Defendant’s motion arises out of Brian Johnson’s

(“Plaintiff”) failure to attend a court ordered hearing on September 4, 2014. The

hearing was scheduled followingPlaintiff’s counsel’s withdrawalfrom representation

on August 7, 2014. Defendant’s motion, at this point, is premature. The degree of

Plaintiff’s indifference to the litigation, and the delay he has caused, is not so great

as to warrant immediate termination of the litigation. At the moment, there has been

only one instance of neglect on Plaintiff’s part. Regarding in particular pro se

litigants, efforts affording the opportunity to remedy such parties’ failures to litigate

are to be provided before dismissal. Thus, Defendant’s Motion to Dismiss is

DENIED at this juncture.

FACTS AND PROCEDURES

Plaintiff filed the instant action against Defendant, alleging negligence on

Defendant’s part while operating a vehicle. The two were involved in an

automobile accident on Delaware Route 7, with Plaintiff’s allegedly sustaining

injuries in the crash. Plaintiff filed this suit on September 30, 2013, while

represented at the time by the firm of Young & Malmberg, P.A. On August 7,

2014, following this Court’s order, Plaintiff’s counsel voluntarily withdrew from

representation. A hearing was mandated by this Court, during which the Court

wished to hear Plaintiff’s plans going forward, now that he was representing

himself pro se. The hearing was scheduled for September 4, 2014, however, only

Defendant attended. Plaintiff did not, and has not, contacted either this Court or
Johnson 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 Delaware, 767 A.2d 796, 798 (Del. 2001) (internal quotations

omitted). 

3 Wilmington Trust Co. v. Barry, 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. 

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the Defendant, regarding his absence from the hearing. By Defendant’s motion,

filed on September 26, 2014, Defendant seeks to have the action dismissed,

following Plaintiff’s non-appearance. 

STANDARD OF REVIEW

Pursuant to Superior Court Civil Rule 41, it is “within the sound discretion of

the Court” to dismiss an action for “want of prosecution.”1 This authority draws from

the Court’s “inherent power to manage its own affairs and to achieve orderly and

expeditious disposition of its business.”2 “The purpose is to dispose of cases when

necessary, not to allow parties to maintain a faint spark of life in their litigation.”3 In

considering such motions to dismiss, the Court must balance the dual policy

considerations of “giving litigants a day in Court” and the interests of judicial

economy.4 Where delay is caused by “gross neglect and lack of attention,” dismissal

is appropriate.5 By contrast, where the delay is unavoidable, “the parties should not

be made to pay for circumstances beyond their control.”6
Johnson v. Gudzune 

C.A. No.: 13C-09-041 RBY

December 5, 2014 

7 Ayers, 188 A.2d at 510.

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

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 Ayers, 188 A.2d at 511 (reasoning that although Rule 41(b) does not set a time frame,

Rule 41(e) provides some relevant guidance in allowing dismissal after one year of inaction). 

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DISCUSSION

As the Plaintiff has not filed a response to Defendant’s motion, the Court

considers only Defendant’s arguments. Defendant seeks to dismiss Plaintiff’s action,

based upon his alleged failure to prosecute the case. The delay in prosecution of

which Plaintiff is accused, consists of his failure to attend this Court’s hearing on

September 4, 2014. The purpose of this hearing was to determine how Plaintiff

wished to proceed, following his counsel’s withdrawal on August 7, 2014. Defendant

contends that this unexcused absence from the court ordered hearing, rises to the level

of want of prosecution, which merits dismissal pursuant to Superior Court Civil Rule

41(b). 

As an initial matter, dismissals under Rule 41(b) are at the discretion of the

Court.7 Parties may, of course, bring motions to dismiss under this rule, to determine

whether a party’s litigation conduct is so wanting as to warrant termination of the

action. The type of behavior calling for dismissal has been described as “gross neglect

and lack of attention.”8 In addition, the Delaware Supreme Court has reasoned that

any delay of over a year, would at least begin to raise the possibility of an action

being dismissed pursuant to Rule 41(b).9 

Although not directly on point, the Court also finds it instructive to consider

the Christian v. Counseling Resource Assoc., Inc. line of cases, recently decided by
Johnson v. Gudzune 

C.A. No.: 13C-09-041 RBY

December 5, 2014 

10 60 A.3d 1083 (Del. 2013); Hill v. DuShuttle, 58 A.3d 403 (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 at 1087; Hill, 58 A.3d at 406; Adams, 58 A.3d at 414.

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the Delaware Supreme Court,10 to clarify the appropriate conduct of trial courts in

dismissing claims “without being heard on the merits” for “attorneys’ failure to obey

scheduling orders.”11 Recognizing that dismissal of an action is the most severe

sanction a trial court can impose, the Delaware Supreme Court directs that trial courts

carefully consider six factors before choosing such an action:

(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; and (6) the meritoriousness of the claim or defense.12

Indeed, in determining whether trial courts abused their discretion in imposing

this ultimate sanction, the Delaware Supreme Court closely scrutinized their

decisions, checking specifically that these factors had been considered and

applied.13

Looking at the facts of this case, the Court does not find Plaintiff’s conduct is,

as yet, so grossly neglectful as to merit dismissal. Plaintiff’s counsel withdrew from

representation on August 7, 2014. Although not laudatory by any means, Plaintiff has

failed to comply with only one court order since that withdrawal, having not attended

the September 4, 2014 hearing. As indicated, the Supreme Court has instructed that
Johnson 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.

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Delaware courts are to give consideration to a pro se Plaintiff’s inexperience in ruling

upon motions to dismiss for failure to prosecute.14 In Draper v. Med. Ctr. Of

Delaware, a somewhat analogous situation where plaintiff’s counsel had withdrawn

from representation, the Supreme Court determined it was the Court’s role to “make

some effort to get the case back on track before dismissing for failure to prosecute.”15

To dismiss this case at this time, would seem precipitant. 

Turning to the factors considered by the Christian line of cases, these too

caution against dismissal of the action prematurely. Like the Draper court, the

Christian court was concerned with the hasty termination of lawsuits. The Christian

court reasoned: “[t]he trial court’s refusal to step in when asked to resolve discovery

difficulties, and thereby avoid the ultimate sanction of dismissal, was an abuse of

discretion.”16 This is akin to the Draper court’s imploration that trial courts make

efforts to “get the case back on track,” prior to outright dismissal.17

The six factors articulated by the Christian line of cases support the judicial

preference for having cases decided on merit. As applied to the facts of the instant

matter, these six considerations, on the whole, do not weigh towards termination of

Plaintiff’s action. The first factor asks to what extent the party is personally

responsible for the delay. Here, where Plaintiff is no longer represented by counsel,
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 failure to comply with the deadlines”); see also Hill, 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”). 

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the Court can only deduce that Plaintiff is solely responsible for not attending the

September hearing. However, looking at the Christian cases – e.g. Adams v. Aidoo –

this singular instance of neglect is insufficient ground for dismissal, even if Plaintiff

is fully responsible.18 The second consideration inquires whether the party’s delay has

caused prejudice to her adversary. Compared to the many occasions of postponement

exhibited by the offending parties in theChristian cases, having to reschedule a status

conference is, at best, a minor inconvenience to Defendant. The third factor looks at

the litigant’s history of dilatoriness. This is Plaintiff’s first transgression – there is no

history to speak of. Fourth, courts are instructed to consider whether the party has

acted in bad faith in causing the delay. Generally speaking, bad faith consists of

repeated insubordination, after several reproaches by a court.19 This opinion is the

first reprimand issued by the Court, and, as of yet, the Court is unaware of Plaintiff’s

reason for missing the hearing. Finally, the Court reviews the meritoriousness of

Plaintiff’s claim. Although it is too early, at this stage of the litigation, to pass any

ultimate judgment on the worthiness of Plaintiff’s claim, there is certainly nothing to

lead this Court to a contrary conclusion. It is evident, that these six factors weigh

towards permitting the Plaintiff’s claim to be decided on its merits. 

With this in mind, the Court DENIES the Defendant’s motion, further
Johnson v. Gudzune 

C.A. No.: 13C-09-041 RBY

December 5, 2014 

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instructing that Plaintiff is to make himself available to counsel to provide desired

discovery by January 15, 2015, or suffer Dismissal of his claim upon Motion of

Defendant. 

CONCLUSION

Despite Plaintiff’s failure to attend this Court’s mandated hearing, it would be,

at this nascent stage of the litigation, premature to dismiss Plaintiff’s suit for want

of prosecution. Plaintiff has not displayed the requisite level of neglect, warranting

such action by the Court. Defendant’s motion is DENIED.

IT IS SO ORDERED.

 /s/ Robert B. Young 

 J.

GudRBY/lmc

oc: Prothonotary

cc: Counsel 

Brian Lee Johnson, Pro se

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