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Johnson v. Gudzune

Superior Court of Delaware, Kent

December 5, 2014

BRIAN LEE JOHNSON, Plaintiff,
v.
KATHLEEN GUDZUNE, Defendant.

Submitted: October 28, 2014

Upon Consideration of Defendant's Motion to Dismiss.

Brian Lee Johnson, Pro se.

Beth H. Christman, Esquire, Casarino Christman Shalk Ransom & Doss, P.A., Wilmington, Delaware for Defendant.

ORDER

Robert B. Young, J.

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 following Plain tiff's coun sel's withdrawal from 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 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]

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 ...


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