      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KENNETH M. FLOWERS as                      )
Administrator of the Estate of             )
CHRISTINE FLOWERS, Deceased;               )
KENNETH M. FLOWERS,                        )
Individually; KAREN FLOWERS;               )
LAWRENCE FLOWERS and                       )   C.A. No. N15C-06-281 CLS
ANTHONY MIMMS,                             )
                                           )
       Plaintiffs,                         )
                                           )
              v.                           )
                                           )
CHRISTIANA CARE HEALTH                     )
SYSTEM,                                    )
INPATIENT CONSULTANTS OF                   )
DELAWARE, INC.                             )
and ANURADHA                               )
AMARA, M.D.,                               )
                                           )
       Defendants.                         )

                        Date Submitted: March 28, 2019
                            Decided: April 3, 2019

      Upon Consideration of Defendant's Motion for Involuntary Dismissal.
                                  Granted.


A. Dale Bowers, Esquire. Law Office of A. Dale Bowers, P.A., 203 North
Maryland Avenue, Wilmington, Delaware, 19804. Attorney for Plaintiffs.

Emeka Igwe, Esquire. The Igwe Firm, 1500 Walnut Street, Suite 409, Philadelphia,
PA, 19102. Admitted Pro Hac Vice Attorney for Plaintiffs.

Richard Galperin, Esquire & Joshua H. Meyeroff, Esquire. Morris James LLP.,
500 Delaware Avenue, Suite 1500, Wilmington, Delaware, 19801. Attorneys for
Defendants IPC Healthcare and Dr. Amara.

                                       1
   Upon consideration of the Defendant’s Motion for Involuntary Dismissal for

failure to comply with this Court’s November 13, 2018 Order, and the record of the

case, it appears that:

   1. This action arises from the medical treatment of Mrs. Flowers in August 2013.

      Plaintiffs allege that Defendants were negligent in their care and treatment of

      Mrs. Flowers, resulting in her unfortunate passing. Plaintiffs brought an

      action on behalf of the estate and as individuals. Trial was scheduled to begin

      on November 13, 2018.

   2. At the pre-trial conference a discussion was held with regards to the

      administrator of the estate. It was known at that time the administrator would

      not be attending trial. Plaintiffs’ counsel indicated they would file a motion

      to change the administrator. No motion was filed, and the Administrator did

      not attend trial.

   3. On the morning of trial, with a panel of prospective jurors awaiting voir dire

      Plaintiffs’ counsel alerted Defense counsel and the Court that in addition to

      the administrator, one of the other named Plaintiffs would not be attending.

   4. Plaintiffs’ counsel sought permission from the Court to dismiss the missing

      Plaintiff from the case, or in the alternative, a continuance.

   5. The Court heard argument from the parties on the options available. Defense

      counsel opposed either option, but took the position that if a continuance was

                                          2
         to be granted, they would be entitled to costs. Defense counsel estimated

         those costs to be between $25,000 to $35,000. The Court gave counsel time

         to consider this amount.

     6. Delaware counsel hesitated, appeared uncomfortable, and yielded the decision

         to pro hac counsel. With full knowledge of the cost estimate, pro hac counsel

         thought about it for a while and then said he “would be willing to incur those

         costs.”1

     7. The Court continued the case with costs. The Court made it clear a scheduling

         conference would be held only after costs had been paid.

     8. On December 10, 2018, Plaintiffs’ counsel received the itemized costs

         incurred by Defendants. The attached letter requested payment within 45

         days.

     9. On February 25, 2019, seventy-seven days from the date of their letter, with

         no response from Plaintiffs, Defense counsel filed this Motion for Involuntary

         Dismissal under Superior Court Civil Rule 41 (b).

     10. An action may be involuntarily dismissed for failure of the plaintiff to

         prosecute or to comply with these Rules, or any order of Court, a defendant

         may move for dismissal of an action or of any claim against the defendant.2



1
    Trial Conference Tr., at 34.
2
    Super. Ct. Civ. R. 41
                                            3
    11. Dismissal of an action for want of prosecution rests within the sound

       discretion of the Court.3 The purpose of the Rule permitting involuntary

       dismissal is as a safeguard against delay, disposing of cases when necessary,

       as opposed to allowing parties to maintain a “faint spark of life in their

       litigation.”4 A litigant must actively pursue a case from its inception through

       its resolution.5

    12. Plaintiffs’ counsel was aware of the amount involved when they agreed to

       pay those costs, yet to date Plaintiffs have failed to pay any portion of the

       requested costs.

    13. Defense counsel received no response to the December 10 request. Plaintiffs’

       first objection to the fees was raised in their opposition to this Motion.

       Plaintiffs’ counsel is correct that Defendants would have incurred some of the

       fees included in their itemization regardless of trial date. However, Plaintiffs’

       argument neglects to address the fees incurred by their eleventh hour

       continuance request including expert witness travel and accommodation, and

       cancelation fees.




3
  Park Ctr. Condo. Council v. Epps, 723 A.2d 1195, 1198 (Del. Super. Ct. 1998).
4
  Id, (quoting Wilmington Trust Co. v. Barry, , 397 A.2d 135, 138 (Del. Super. Ct.
1979).
5
  Id.
                                        4
    14. Although Delaware Courts have a preference for affording a Plaintiff their

       day in Court, Defendants also deserve the protection of the Court and should

       not have the weight of lawsuits hanging over their head indefinably.6

    15. With full knowledge of the conditions imposed by the Court, counsel for both

       parties agreed to a continuance. Compliance with the Court’s Order was a

       prerequisite to continuing this action. Plaintiffs’ counsel has failed to comply

       with those conditions, and now objects. Plaintiffs have provided no objective

       reason for their noncompliance with the Court’s Order, nor why this case

       should not be dismissed in the interest of judicial economy.

    Therefore, for the reasons stated above, Defendant’s Motion for Involuntary

Dismissal for Failure to Prosecute and Comply with this Court’s Order is

GRANTED.

       IT IS SO ORDERED.




                                                     /s/ Calvin L. Scott
                                                     Judge Calvin L. Scott, Jr.




6
 Breeding v. Hillandale Farms of Delaware, Inc., 2011 WL 378847, at *2 (Del.
Super. Ct. Jan. 28, 2011).
                                     5
