                                    COURT OF CHANCERY
                                            OF THE
                                    STATE OF DELAWARE

TAMIKA R. MONTGOMERY-REEVES                                          Leonard Williams Justice Center
      VICE CHANCELLOR                                                500 N. King Street, Suite 11400
                                                                    Wilmington, Delaware 19801-3734

                                Date Decided: August 3, 2018

    Samuel L. Guy, Esquire                       Steven J. Fineman, Esquire
    Samuel L. Guy, Attorney at Law               Blake Rohrbacher, Esquire
    1601 Concord Pike, Suite 38C                 Kevin M. Gallagher, Esquire
    Wilmington, Delaware 19899                   Richards, Layton & Finger, P.A.
                                                 920 North King Street
                                                 Wilmington, Delaware 19801

           RE:    Samuel L. Guy v. Luke Mette et al.
                  C.A. No. 2017-0121-TMR
     Dear Counsel:

           This letter opinion resolves Defendants’ Motion to Dismiss for Failure to

     Prosecute and Plaintiff’s Cross Motion for a Default Judgment for Failure to File an

     Answer or Opening Brief. For the reasons stated herein, the Motion to Dismiss for

     Failure to Prosecute is GRANTED and the Motion for Default Judgment for Failure

     to File an Answer or Opening Brief is DENIED.

     I.    BACKGROUND

           Plaintiff filed this action in the morning of February 16, 2017. He also sought

     expedition and injunctive relief regarding a Wilmington City Council meeting to be

     held that evening. I denied his request for an expedited hearing on the merits and

     ordered the parties to confer and establish a case schedule.
Guy v. Mette et al.
C.A. No. 2017-0121-TMR
August 3, 2018
Page 2 of 4

      In response to the Court’s order, Defendants’ counsel sent Plaintiff a letter

suggesting that the case was moot and should be dismissed. Plaintiff denied that the

case was moot and did not agree to dismiss the complaint. Thus, Defendants filed a

motion to dismiss on March 31, 2017. On April 21, 2017, Defendants’ counsel sent

Plaintiff an email seeking a briefing schedule. Plaintiff never responded to the email,

never requested a briefing schedule, and never again contacted Defendants’ counsel.

In fact, Plaintiff did not file anything else in this action until June 29, 2018, after

Defendants moved to dismiss this action.

II.   ANALYSIS

      The Court of Chancery Rules reflect the inherent power of this Court to

manage its docket to prevent unnecessary and wasteful delay. Under Rule 41(b), a

defendant may move for dismissal of an action for “failure of the plaintiff to

prosecute.” Ct. Ch. R. 41(b). Under Rule 41(e), this Court may dismiss an action

“wherein no action has been taken for a period of 1 year … unless good reason for

the inaction is given.” Ct. Ch. R. 41(e). “In deciding what constitutes ‘good reason’

the court should balance the reasons for, and length of the delay, against the policy

in favor of deciding cases on the merits.” Solow v. Aspect Res., LLC, 46 A.3d 1074,

1076 (Del. 2012). Under Rule 55(b), “[w]hen a party against whom a judgment for

affirmative relief is sought, has failed to appear, plead or otherwise defend as
Guy v. Mette et al.
C.A. No. 2017-0121-TMR
August 3, 2018
Page 3 of 4

provided by these Rules, and that fact is made to appear, judgment by default may

be entered.” Ct. Ch. R. 55(b).

      “In this case, the . . . analysis under Court of Chancery Rules 41(b) and (e) is

straightforward. Plaintiff failed to take any substantive activity to prosecute this case

for a period of well over one year.” Tooley v. AXA Fin., Inc., 2009 WL 1220624, at

*2 (Del. Ch. Apr. 29, 2009). Plaintiff’s sole justification for his delay is that

Defendants failed to file an opening brief in support of their motion to dismiss. But

Defendants proposed a briefing schedule and waited for more than a year for

Plaintiff’s response. Plaintiff ignored Defendants’ request to enter into a customary

briefing schedule. And Plaintiff never separately applied to this Court for an order

fixing a briefing schedule, which Court of Chancery Rule 7(b)(4) allows. Ct. Ch. R.

7(b)(4) (“If the parties are unable to agree to a brief schedule, any party may apply

for an order fixing such schedule.”). “It is the responsibility of the plaintiff to

prosecute an action, and mere inaction by a defendant does not excuse inaction by a

plaintiff.” Tooley, 2009 WL 1220624, at *2 n.8. Thus, Plaintiff has failed to provide

good reason for his inaction.

      The analysis under Court of Chancery Rule 55(b) is equally straightforward.

At no time have Defendants “failed to appear, plead or otherwise defend as provided

by [the] Rules.” To the contrary, they appeared and defended the Motion to Expedite
Guy v. Mette et al.
C.A. No. 2017-0121-TMR
August 3, 2018
Page 4 of 4

and Motion for Injunctive Relief. Thereafter, they filed a motion to dismiss and

attempted to negotiate a briefing schedule with Plaintiff. Thus, Plaintiff’s motion

for default judgment fails.

      CONCLUSION

      For the reasons set forth above, the Motion to Dismiss for Failure to Prosecute

is GRANTED and the Motion for Default Judgment for Failure to File an Answer

or Opening Brief is DENIED.

      IT IS SO ORDERED.

                                             Sincerely,
                                             /s/Tamika Montgomery-Reeves
                                             Vice Chancellor
TMR/jp
