IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

McKINLEY SIMMONS, SR., )

)

Plaintiff, )

)

v. ) C.A. No. N23C-01-010 SPL

)

ONE STOP TOBACCO OUTLET )

AND MARKET, LLC., )

SHIPRA, LLC., ET AL., )

)

Defendants. )

Submitted: March 15, 2024

Decided: March 21, 2024

Upon Defendant’s, One Stop Tobacco Outlet and Market, LLC’s

Motion to Dismiss, 

GRANTED.

1

ORDER

This 21st day of March 2024, upon consideration of Defendant One Stop 

Tobacco Outlet and Market, LLC’s (“One Stop Tobacco”) Motion to Dismiss,

2

it 

appears to the Court that:

1. On January 4, 2023, Simmons filed his complaint in this Court.

3

1 For the reasons set forth herein, the Court hereby dismisses Simmons’ claims 

against all named defendants. 

2 D.I. 54. By letter dated February 27, 2024, the Court invited Simmons to respond 

to Defendant’s motion by March 15, 2024. Simmons has not responded.

3 D.I. 1.
Defendant, One Stop Tobacco, answered the complaint on March 3, 2023.4

 On 

March 9, 2023, the Court entered an order permitting Simmons to amend his 

complaint5and, that same day, he filed an amended complaint adding defendants.6 

As of August 2, 2023, all but one defendant, Jennifer Lee, had been served with, and 

answered, the amended complaint. 

2. On August 2, 2023, citing the development of a conflict, Simmons’

counsel moved to withdraw from the case.7 With no opposition from defendants, 

the Court permitted counsel to withdraw.8

3. On September 27, 2023, One Stop Tobacco moved to compel the 

production of discovery.9 At an October 24, 2023, hearing on the motion, Simmons

expressed difficulty hearing questions and comments directed to him from the Court. 

The Court rescheduled the hearing to January 10, 2024,10 and followed up with 

written correspondence to Simmons.11 The Court requested Simmons follow 

through with scheduled medical appointments to address his hearing, inform the 

4 D.I. 5.

5 D.I. 7.

6 D.I. 8. 

7 D.I. 35.

8 D.I. 38. 

9 D.I. 40. 

10 D.I. 46.

11 D.I. 47. 
Court whether he will continue to represent himself, and provide a status update with 

respect to his discovery obligations.12

4. On January 10, 2024, the Court granted One Stop Tobacco’s motion to 

compel and directed Simmons to respond to discovery by February 23, 2024 and 

imposed a series of pre-trial deadlines for the parties.13 In addition to issuing an 

updated trial scheduling order,14 the Court issued a letter to the parties to provide a 

summary of the January 10 hearing during which time the court “informed Mr. 

Simmons that his case could be dismissed if he fails to actively prosecute the matter 

and adhere to the various scheduled deadlines.”15

5. On February 26, 2024, One Stop Tobacco filed the Motion to Dismiss 

presently before the Court.16 Simmons has taken no action since the January 10, 

2024, hearing and declined to respond to defendant’s motion at the Court’s 

invitation.17

6. “For failure of the plaintiff to prosecute or to comply with these Rules, 

or any order of Court a defendant may move for dismissal of an action or any claim 

12 Id.

13 D.I. 49.

14 D.I. 50.

15 D.I. 51.

16 D.I. 54.

17 D.I. 55.
against the defendant.”18

 The Superior Court has discretion in imposing a sanction 

for a party’s failure to follow a scheduling order or comply with Court procedure.19 

The Court is mindful that “[t]he sanction of dismissal is severe and courts are and 

have been reluctant to apply it except as a last resort.”20 Where the motion is filed 

against a pro se plaintiff, the Court will generally afford some leniency. However, 

“[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.”21 “The Court will accommodate pro se litigants only to the 

extent that such leniency does not affect the substantive rights of the parties.”22 The 

Court has endeavored to accommodate Simmons within these parameters.

7. “The duty to diligently prosecute a case falls upon the plaintiff, not the 

court.”23 Litigants, whether represented by counsel or appearing pro se, “must 

18 Super. Ct. R. Civ. P. 41(b).

19 Drejka v. Hitchens Tire Service Inc., 15 A.3d 1221, 1224 (Del. 2010).

20 Id. (quoting Hoag v. Amex Assurance Co., 953 A.2d 719, 717 (Del. 2008)).

21 Draper, 767 A.2d at 799.

22 Maddox v. Isaacs, 2013 WL 2297030, at *2 (Del. Super. Ct. May 7, 2013) (cleaned 

up). 

23 Alston v. Maahs, 2019 WL 1220932, at *2 (Del. Mar. 14, 2018) (affirming the 

Superior Court’s sua sponte dismissal of a pro se plaintiff’s complaint for lack of 

prosecution).
diligently prepare their cases for trial or risk dismissal for failure to prosecute.”24

 

Delaware Courts consider the following factors when deciding whether to dismiss a 

case under Rule 41(b):

(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.25

8. Applying the Drejka factors to this case, the Court finds that dismissal 

is warranted. First, Simmons chose to represent himself in these proceedings; thus, 

the failure to prosecute rests on him alone. Second, Simmons’ failures to comply 

with the trial scheduling orders and this Court’s procedural rules denied defendants 

the ability to prepare their defense. Third, Simmons has simply not pursued his case; 

while he may no longer wish to pursue his claims, within the contours of the Drejka 

factors, his lack of participation evidences a pattern of dilatoriness. Fourth, while 

the Court does not find that Simmons engaged in bad faith in his pursuit of his claim, 

he has chosen not to participate. Fifth, there is no suitable alternative option here; 

the Court has rescheduled discovery deadlines in the expectation that Simmons 

24 Plantz v. Wal-Mart Stores East LP, 2019 WL 112756, *1 (Del. Super. Ct. Jan. 4, 

2019) (quoting Draper, 767 A.2d at 799).

25 Drejka, 15 A.3d at 1224 (quoting Minna v. Energy Coal S.p.A, 984 A.2d 1210, 

1215 (Del. 2009)). 
would engage in the prosecution of his claims. He did not. “[I]t [is] clear that lesser 

sanctions would not have induced compliance.”26 Sixth, because Simmons has 

chosen not to participate in the pursuit of his claims, defendants are not able to assert 

a defense and the Court is thus unable to assess whether any claims or possible 

defenses have merit. 

9. “The Delaware Supreme Court has held that dismissal may be 

warranted under the Drejka factors where the court has repeatedly instructed 

plaintiff on what to do and that failure to comply with any instructions could result 

in dismissal.”27 While this Court maintains a “strong policy in favor of deciding 

cases on the merits,”28 this Court’s application of the factors identified in Drejka 

lead it to the inescapable conclusion that Simmons’ case must be dismissed. 

IT IS SO ORDERED.

Sean P. Lugg, Judge

oc: Prothonotary

Cc: Counsel of Record via File & ServeXpress

McKinley Simmons

26 Adams v. Aidoo, 58 A.3d 410, 412 (Del. 2013).

27 Id. at *3 (citing Adams, 58 A.3d at 412).

28 Cunningham v. Christiana Care Health Services, Inc., 2021 WL 195037, *2 (Del. 

Super. Ct. Jan. 20, 2021) (citing Keener v. Isken, 58 A.3d 407, 409 (Del. 2013)).