            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


DUANE HARDY,                                 :
                                             :     C.A. No: N14C-08-174 RBY
                  Plaintiff,                 :     In and for New Castle County
                                             :
      v.                                     :
                                             :
JACOBS & CRUMPLAR, P.A., ROBERT              :
JACOBS, THOMAS CRUMPLAR,                     :
RAEANN WARNER, EDWARD M.                     :
LURIA, STEPHEN NEUBERGER,                    :
THOMAS NEUBERGER, AND THE                    :
NEUBERGER FIRM, P.A.,                        :
                                             :
                  Defendants.                :

                               Submitted: May 1, 2016
                                Decided: June 2, 2016

                       Upon Consideration of Defendants’
                        Motions for Summary Judgment
                                 GRANTED

                                     OPINION

Duane Hardy, Pro se.

Jeffrey M. Weiner, Esquire, Law Offices of Jeffrey M. Weiner, P.A., for Defendants
Jacobs & Crumplar, P.A., Robert Jacobs, Thomas Crumplar, Raeann Warner, Stephen
Neuberger, Thomas Neuberger, and The Neuberger Firm, P.A.

John A. Elzufon, Esquire, and Loren R. Barron, Esquire, Elzufon Austin Tarlov &
Mondell, P.A., Wilmington, Delaware for Defendant Edward M. Luria.

Young, J.
Hardy v. Jacobs & Crumplar, P.A., et. al.
N14C-08-174 RBY
June 2, 2016



                                       SUMMARY
       Duane Hardy (“Plaintiff”) filed an action against Defendants including
attorneys from law firms Jacobs & Crumplar, P.A. and the Neuberger Firm
(collectively, “Firm Defendants”) and Edward Luria (“Defendant Luria”), for
allegedly negligent drafting of a trust agreement, selection of trustees, and execution
of trust agreement. Firm Defendants and Defendant Luria each filed a motion for
summary judgment. Because Plaintiff has failed to prosecute this action which has
been pending for almost two years, Defendants’ motions for summary judgment are
GRANTED with prejudice.
                              FACTS AND PROCEDURE
       This case arose following a complex civil tort litigation involving the Catholic
Diocese of Wilmington (“DOW”) and 150 sexual abuse survivors. The Plaintiff here
eventually received a $578,000 settlement from the DOW. In August 2014, Plaintiff
sued a number of Defendants including his former attorneys, Firm Defendants and
Defendant Luria, for legal malpractice in advising, drafting, and executing a trust to
manage the settlement moneys.
       In October 2014, Defendant Luria moved to dismiss the claim for failure to
allege breach of the professional standard of care. In response, Plaintiff sought to
present expert testimony of the standard of care for attorneys representing similar
clients in similar cases. The Court denied Defendant Luria’s motion to dismiss
pending expert disclosure.
       In October 2015, Firm Defendants moved to bar the expert testimony of

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Hardy v. Jacobs & Crumplar, P.A., et. al.
N14C-08-174 RBY
June 2, 2016

Plaintiff’s proposed expert, an attorney named Benson. Benson had represented
another sexual abuse survivor who received a settlement following the same DOW
class action as Plaintiff. Plaintiff claimed that Benson could give expert testimony
regarding the legal malpractice issue in this case. The Court denied Defendant’s
motion to bar Benson’s expert testimony, but preserved the right to refile after
Plaintiff provided the expert report.
       In January 2016, Plaintiff’s attorney moved to withdraw as counsel and extend
the expert disclosure deadline. This Court granted both requests over Defendants’
objections, setting an expert disclosure deadline of March 25, 2016. Plaintiff has
failed to provide expert disclosure to date.
       Firm Defendants moved for summary judgment on March 29, 2016. Defendant
Luria moved for summary judgment on April 12, 2016. Both Defendants asserted
Plaintiff’s failure to prosecute as a basis for the motions.
                                 STANDARD OF REVIEW
       Summary judgment is appropriate where the record exhibits no genuine issue
of material fact so that the movant is entitled to judgment as a matter of law.1
“Summary judgment may not be granted if the record indicates that a material fact is
in dispute, or if it seems desirable to inquire more thoroughly into the facts in order
to clarify the application of the law to the circumstances.”2 The court should consider




       1
           Tedesco v. Harris, 2006 WL 1817086 (Del. Super. June 15, 2006).
       2
           Id.

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Hardy v. Jacobs & Crumplar, P.A., et. al.
N14C-08-174 RBY
June 2, 2016

the record in the light most favorable to the non-moving party.3 The movant bears the
initial burden of establishing no genuine issue of material fact exists.4 Once such a
showing has been made, the burden shifts to the non-moving party to show evidence
to the contrary.5
                                         DISCUSSION
       The Court extended the deadline for Plaintiff’s expert disclosure, which has
now passed without response from Plaintiff. To date, Plaintiff has not provided record
evidence of the alleged breach of duty. Thus, while the material fact of an alleged
breach of the standard of care was in dispute throughout this litigation, the Court
already has made all possible accommodations to permit further inquiry into that fact.
Defendants previously objected to the deadline extension, and now raise the resulting
prejudice from delay as a basis for the motions for summary judgment. Plaintiff has
failed to prosecute his case diligently, which has prejudiced Defendants.
                                        CONCLUSION
       For the foregoing reasons, the Defendants’ Motions for Summary Judgment
in favor of all Defendants are GRANTED with prejudice.
       IT IS SO ORDERED.
                                                     /s/ Robert B. Young
                                                       J.



       3
           Id.
       4
           Ebersole v. Lowengrub, 54 Del. (4 Storey) 463 (Del. 1962).
       5
           Id.

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Hardy v. Jacobs & Crumplar, P.A., et. al.
N14C-08-174 RBY
June 2, 2016

RBY/dsc
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oc: Prothonotary
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