IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JANET BATCHELOR, )
)

) C.A. No. K17C-11-001 NEP

PLAINTIFF, ) In and For Kent County

)
v. )
)
ALEXIS PROPERTIES, LLC, )
BB PROPERTIES OF DELAWARE, )
LLC, JOHN WELCOME d/b/a )
WELCOME HOME REALTY, and )
LIVEINDE.COM, INC., )
)
DEFENDANTS. )

Submitted: August 19, 2019
Decided: August 26, 2019

ORDER

Upon Joint Motion for Sanctions of Defendants Alexis Properties, LLC, BB
Properties of Delaware, LLC, Johns Welcome d/b/a Welcome Home Realty, and
Liveinde.com, Inc.

GRANTED

Before the Court is the Joint Motion for Sanctions (hereinafter the “Joint
Motion”) of Defendants Alexis Properties, LLC, BB Properties of Delaware,
LLC, John Welcome d/b/a Welcome Home Realty, and Liveinde.com, Inc.

(hereinafter, collectively, “Defendants”), against Plaintiff Janet Batchelor.’ In the

 

' Ms. Batchelor is self-represented.
Joint Motion, Defendants seek the sanctions of dismissal and attorneys’ fees for
Plaintiffs continued refusal to comply with discovery obligations and with the
orders of this Court regarding those obligations.
Factual and Procedural Background

The Joint Motion is a culmination of a series of events resulting from
Plaintiff's ongoing refusal to comply with her discovery obligations in this case.

On March 14, 2019, the Court issued an order granting a motion to compel
brought by Defendants Alexis Properties LLC, John Welcome d/b/a Welcome
Home Realty, and Liveinde.com, Inc. (hereinafter, collectively, “Propounding
Defendants”), and requiring Plaintiff to respond to Propounding Defendants’
outstanding discovery requests by April 15, 2019. The Court’s order further
provided that Plaintiff's failure to do so could result in sanctions, including but
not limited to “adverse findings of fact and/or dismissal of Plaintiff's action.”

Following Plaintiff's service of inadequate responses to the discovery
requests, and her failure to respond to a motion for sanctions (hereinafter the
“Previous Motion”) filed by Propounding Defendants or to appear at an oral
argument on the Previous Motion, the Court, on June 5, 2019, granted in part and
deferred in part the Previous Motion. Specifically, the Court imposed a monetary
sanction upon Plaintiff--awarding $1,025.00 in attorneys’ fees to Propounding

Defendants payable no later than 30 days from the date of the order--but deferred
Propounding Defendants’ request for dismissal of Plaintiffs claims. The Court
allowed Plaintiffan additional 30 days from the date of the order to serve adequate
responses to the discovery requests, and authorized Propounding Defendants to
renew their request for sanctions should Plaintiff fail to serve adequate responses
to the discovery requests.

Propounding Defendants, along with the remaining Defendant, BB
Properties of Delaware, LLC, have now filed the Joint Motion on the basis that
Plaintiff has failed to pay the sanction imposed by the Court or to serve revised
discovery responses. Defendants seek dismissal with prejudice of Plaiintiff’s
claims along with additional attorneys’ fees. Plaintiff was provided the
Opportunity to respond to the Joint Motion, but she has failed to do so.

Discussion

In its June 5 order, this Court relied upon the Delaware Supreme Court’s
decision in Hoag v. Amex Assurance Co.’ There, the Supreme Court noted that
Superior Court Civil Rule 37(b)(2)(C) requires a showing of “wilfulness or
conscious disregard of court-ordered discovery” before the sanction of dismissal
is imposed, and further that dismissal is appropriate only “if no other sanction

would be more appropriate under the circumstances.”?

 

2 953 A.2d 713 (Del. 2008).
3 Id. at 717 (quoting Holt v. Holt, 472 A.2d 820, 823 (Del. 1984).
This Court did find, in its June 5 order, that Plaintiff's failure to provide
adequate discovery responses, together with her failure to respond to the Previous
Motion or to appear at the hearing on the Previous Motion, evinced a wilful and
conscious disregard of court-ordered discovery, but the Court also recognized that
the sanction of dismissal should be employed only as a last resort. Accordingly,
the Court explicitly stated that it would give Plaintiff “one more opportunity to
respond to Defendants’ discovery requests before turning to the ultimate sanction
of dismissal, i.e., to see if sanctions other than dismissal may be effective,
particularly given the Court’s strong policy favoring deciding cases on the
merits.”

Plaintiff has refused to take advantage of the opportunity that the Court has
provided her. In fact, Plaintiff has done essentially nothing to advance her claims
in this litigation, or otherwise to participate in this case, since she served her
inadequate discovery responses upon Propounding Defendants on April 18, 2019.
The Court hereby finds that Plaintiffs failure to serve any revised response,
inadequate or otherwise, to Propounding Defendants’ discovery requests since
June 5, 2019, demonstrates a further wilful and conscious disregard of court-
ordered discovery. As the Supreme Court noted in Hoag, “’[t]rial courts should
be diligent in the imposition of sanctions upon a party who refuses to comply with

discovery orders, not just to penalize those whose conduct warrants such
sanctions, but to deter those who may be tempted to abuse the legal system by
their irresponsible conduct.’”*

Regrettably, therefore, because the less severe sanction of a monetary
penalty has failed to persuade Plaintiff to comply with the Court’s orders
regarding discovery in this case, the Court is left with no option but to impose the
ultimate sanction of dismissal. Furthermore, the Court will award additional
attorneys’ fees to Defendants—an award that is mandatory in a case such as this
one.°

WHEREFORE, for the foregoing reasons, Defendants’ Joint Motion for
Sanctions is GRANTED.

IT IS HEREBY ORDERED that all claims of Plaintiff in this case are
DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that attorneys’ fees of $475.00 are awarded
to Defendants pursuant to Superior Court Civil Rule 37(b)(2)(C), and that the
amount of $475.00 is hereby reduced to a judgment against Plaintiff and in favor

of Defendants Alexis Properties, LLC, BB Properties of Delaware, LLC, John

Welcome d/b/a Welcome Home Realty, and Liveinde.com, Inc.

 

* Id. (quoting Holt, 472 A.2d at 824).

> See Holt, 472 A.2d at 823 (where party fails to comply with court order permitting
discovery, award of expenses including attorneys’ fees is mandatory unless failure was
justified or other circumstances make award unjust).
IT IS FURTHER ORDERED that the sanction of $1,025.00 previously
imposed by this Court in its order of June 5, 2019, is hereby reduced to a judgment
against Plaintiff and in favor of Defendants Alexis Properties, LLC, John

Welcome d/b/a Welcome Home Realty, and Liveinde.com, Inc.

/s/ Noel Eason Primos
Judge

NEP/wjs

Via File & ServeXpress and U.S. Mail

oc: Prothonotary

cc: Janet Batchelor
Michael G. Rushe, Esquire
Daniel L. Huestis, Esquire
Brian T. Riggin, Esquire
