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Fish v. Matthew Palmer

Superior Court of Delaware

November 20, 2018

HARRY FISH, Plaintiff,
v.
MORENZO CONRAD MATTHEW PALMER, Defendant.

          Submitted: October 9, 2018

         Upon Defendant's Motion to Dismiss GRANTED

          ORDER

          Andrea L. Rocanelli, Judge

         Upon consideration of the motion to dismiss filed by Defendant Morenzo Conrad Matthew Palmer ("Defendant"); the facts, arguments and legal authorities set forth by Defendant; statutory and decisional law; and the entire record in this case, the Court finds as follows:

         1. On August 8, 2016, Plaintiff Harry Fish ("Plaintiff") brought this action against Defendant alleging that Plaintiff suffered personal injuries as a result of an automobile accident caused by Defendant.

         2. On November 2, 2017, Defendant filed Interrogatories and a Request for Production Directed to Plaintiff. No response was received.

         3. By Order dated June 26, 2018, the Court granted the motion to withdraw as counsel filed by Plaintiff's counsel. represented litigant, resending Defendant's Interrogatories and Request for Production and advising that responses to discovery were overdue and that responses must be received within twenty (20) days. No response was received.

         5. On September 19, 2018, Defendant moved to dismiss this action pursuant to Superior Court Rule of Civil Procedure 41(b) ("Rule 41(b)") for failure to prosecute the action.

         6. By Letter dated September 24, 2018, the Court set a deadline of October 8, 2018, for Plaintiff's response to the Motion to Dismiss and advised Plaintiff that the Court would consider the Motion to Dismiss unopposed if Plaintiff failed to file a response.

         7. Plaintiff has not responded to Defendant's Motion to Dismiss or otherwise communicated with the Court or Defendant.

         8. Pursuant to Superior Court Rule of Civil Procedure 16, "parties must adhere to the trial judge's scheduling order and conduct discovery 'in an orderly fashion.'"[1] If a party fails to obey the Court's scheduling orders, the Court may impose sanctions, which may include the sanction of dismissal.[2] To that end, Rule 41(b) allows a defendant to move for dismissal of an action for "failure of the plaintiff to prosecute or to comply with these rules, or any order of Court."[3]

         9. However, because the sanction of dismissal is severe, dismissal is appropriate only if a lesser sanction cannot cure the offending conduct.[4] The Court considers six factors when determining whether dismissal is appropriate:

(1) the extent of the party's personal responsibility;
(2) the prejudice to the adversary caused by the failure to meet scheduling orders and ...

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