Submitted: November 13, 2013
Upon Appellee's Motion to Dismiss. Granted.
Walt F. Schmittinger, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Appellant.
Denis J. Menton, Esquire of Tybout Redfearn & Pell, W i l m i ngton, Delaware; attorney for Appellee.
The issue before the Court is whether the Appellee's Motion to Dismiss pursuant to Civil Rule 72(i) should be granted.
On May 28, 2013 the Industrial Accident Board (hereinafter "the Board" or "the IAB") denied a Petition to Determine Additional Compensation Due filed by Appellant Anne Marie Hogsten (hereinafter "Appellant"). Appellant had filed the Petition in regards to a knee injury Appellant suffered decades earlier while working as a public school physical education teacher for the State (hereinafter "Appellee"). On May 31, 2013 Appellant filed her Notice of Appeal. Appellant was represented by counsel throughout the IAB proceedings and when her Notice of Appeal was filed. As far as the Court is aware, Appellant is still represented by counsel.
On August 30, 2013 this Court issued a brief schedule for the case. Appellant was required to file an opening brief by September 23, 2013. Appellant never filed an opening brief, nor has Appellant filed a request with the Court for additional time to file an opening brief.
On October 11, 2013 Appellee filed the instant Motion to Dismiss pursuant Superior Court Civil Rule 72(i). In the Motion, Appellee claims that counsel for Appellee contacted counsel for Appellant on three separate occasions–September 9, September 17, and September 30–to inquire as to whether Appellant intended to proceed with her appeal. Appellee claims that counsel for Appellant never responded to any of these inquiries.
By letter dated October 11, 2013 the Court informed Appellant that her response to the Motion was due no later than 10 days from the date of the letter. Appellant never filed a response.
Superior Court Civil Rule 72(i) provides that upon a motion to dismiss by any party, the Court may dismiss an appeal from an agency decision for any reason deemed by the Court to be appropriate, including inter alia "for failure of a party diligently to prosecute the appeal." Civil Rule 107(f) provides that if a brief is not filed within the time required ...