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McDaniel v. Cyntellex Series 8 LLC

Superior Court of Delaware, New Castle

August 8, 2018

Cyntellex Series 8 LLC

          Peter K. Janczyk, Esquire Edelstein Martin & Nelson

          Miranda D. Clifton, Esquire Young & McNelis


         Dear Counsel:

         This case presents perhaps the worst example of lack of professionalism ever encountered by this Judge. Before the court is a case where Plaintiff's Counsel, Peter K. Janczyk's, failure to comply with discovery requests and a court order, or otherwise communicate with Defense Counsel resulted in the Defendant filing a motion to dismiss the complaint for failure to prosecute. Instead of responding to Defendant's motion, Plaintiff's Counsel filed a motion to withdraw in which he informed the court for the first time that he was terminated by his client over two months prior. For the reasons that follow, the Defendant's motion to dismiss is DENIED, but sanctions are imposed on Plaintiff's Counsel, Peter K. Janczyk, for noncompliance with the court's discovery order. Mr. Janczyk's motion to withdraw is GRANTED, and Plaintiff has 60 days to obtain new counsel and inform the court, or he must otherwise take proceedings in this case; failure to do so may result in dismissal of the case under Superior Court Civil Rule 41(e).


         This is a negligence case brought by Plaintiff Gaddies McDaniel against Defendant Cyntellex Series 8 LLC arising out of a slip and fall. Plaintiff retained Peter Janczyk to represent him. Plaintiff, through his counsel, filed the complaint on September 5, 2017, and it was served the next month. Since that time, Plaintiff has not taken any action to move the case forward.[1]

         On November 13, 2017, Defense Counsel sent a letter to Plaintiff's Counsel notifying him of her representation of Defendant, requesting documentation on special or boardable damages, and supplying medical authorizations for Plaintiff to execute. Mr. Janczyk did not respond to Defense Counsel's letter. On December 8, 2017, Defendant formally served interrogatories, a request for production, a second set of medical authorizations, and a request for the identification of boardable expenses on Plaintiff.[2] Again, Mr. Janczyk did not respond to Defendant's requests.

         On February 21, 2018, after receiving no Rule 3(h) documents from Plaintiff and no response to Defendant's interrogatories or request for production, Defense Counsel sent a letter to Plaintiff's Counsel inquiring as to when responses would be received. For the third time, Mr. Janczyk did not respond. Because Defendant had also not received Plaintiff's signed medical authorizations, Defense Counsel emailed Plaintiff's Counsel on February 26, 2018 inquiring as to when the authorizations would be received. No response to the email was received. That same day, Defense Counsel sent a letter reminding of Plaintiff's discovery obligation and inquiring as to when she would receive a response to Defendant's requests for interrogatories, production of documents, Plaintiff's boardable expenses, Rule 3(h) documents, and Plaintiff's signed medical authorizations. For the fifth time, Mr. Janczyk also did not respond. Defense Counsel still proceeded to try and move the case forward by scheduling a deposition of the plaintiff.

         Defense Counsel next contacted Plaintiff's Counsel by telephone on March 1, 2018. When Defense Counsel called Mr. Janczyk's office she spoke with one of his staff members. Later that day, Defense Counsel followed up with an email to Mr. Janczyk detailing the conversation she had with his staff member, and also attaching a third medical authorization form and additional copies of Defendant's interrogatories, request for production, request for boardable expenses, and a notice of deposition of Plaintiff. Yet again, Mr. Janczyk did not return the phone call or respond to the email. This was at least the sixth time Mr. Janczyk did not respond to Defense Counsel's legitimate inquiries.

         On March 9, 2018, Defense Counsel attempted to contact Plaintiff's Counsel by facsimile to inform Plaintiff's Counsel of Defendant's intent to file a motion to compel. Defense Counsel made four unsuccessful attempts to send a fax to the number associated with Mr. Janczyk. She then called Mr. Janczyk's office and his staff provided an alternative number. A successful fax was sent on March 12, 2018. Mr. Janczyk did not respond to the fax either.

         Defendant filed a motion to compel discovery, to which Plaintiff did not respond. Consequently, this court signed the order compelling discovery on April 18, 2018.[3] The deadline for Plaintiff's discovery response, set for May 17, 2018, came and went. In yet another series of failures, Mr. Janczyk and his client did not comply with the court's order in any respect, and Plaintiff's Counsel made no attempt to communicate with the court or Defense Counsel either before or after the deadline. Accordingly, Defendant filed a motion to dismiss for failure to prosecute on May 21, 2018.[4] Plaintiff did not respond to the motion. Rather, Mr. Janczyk filed a motion to withdraw as Plaintiff's Counsel one month later.[5]The court held a hearing on July 16, 2018 for argument on both motions.

         During the hearing, Plaintiff's Counsel conceded that he did not respond to any correspondence by Defense Counsel, and had not in any way complied with Plaintiff's discovery obligations under the court order. Mr. Janczyk argued that he did not respond to Defense Counsel or comply with the court order because "he could not comply" with the discovery requests because his client was uncooperative. When asked by the court how many times he tried to write to or contact his client, Plaintiff's Counsel provided only one example where on or about March 5, 2018-albeit, after at least seven attempts at communication by Defense Counsel-he sent the Plaintiff a letter with the interrogatories and medical authorizations. Counsel could not locate that letter or any other letter to his client during the hearing. Mr. Janczyk also stated to the court that he possessed Rule 3(h) medical records for the plaintiff, but did not produce the records to Defense Counsel because "he thought she had already received them."

         Contemporaneously, as to his motion to withdraw, Mr. Janczyk stated that he was apparently terminated by his client two months prior, on April 26, 2018, during an in-office meeting. Mr. Janczyk argued he did not inform the court or file a motion to withdraw until June 26, 2018-after the court's ordered deadline and after the Defendant filed its motion to dismiss-because Mr. Janczyk could not reach the plaintiff to ostensibly find out if new counsel had been retained. Sometime after the hearing Mr. Janczyk ...

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