            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


FREIDA L. IVORY,                              :
                                              :     C.A. No: K15C-08-014 RBY
                     Plaintiff,               :     In and For Kent County
                                              :
      v.                                      :
                                              :
HARRINGTON RACEWAY, INC., d/b/a               :
HARRINGTON RACEWAY & CASINO,                  :
and GAMING ENTERTAINMENT                      :
(DELAWARE), L.L.C., a Delaware                :
Limited Liability Company,                    :
                                              :
                     Defendants.              :


                              Submitted: November 7, 2016
                              Decided: December 28, 2016


           Upon Consideration of Defendant’s Motion for Summary Judgment
                      and/or Dismiss for Failure to Prosecute
                                      DENIED

                                       ORDER


Gary W. Aber, Esquire, Wilmington, Delaware for Plaintiff.

Douglas T. Walsh , Esquire, Marshall, Dennehey, Warner, Coleman & Goggin,
Wilmington, Delaware for Defendants.



Young, J.
Ivory v. Harrington Raceway, Inc., et al.
C.A. No. K15C-08-014 RBY
December 28, 2016

                                        SUMMARY
       Freida L. Ivory (“Plaintiff”) filed a negligence claim against Harrington
Raceway, Inc., d/b/a Harrington Raceway & Casino and Gaming Entertainment
(Delaware), L.L.C., a Delaware Limited Liability Company (“Defendant”). Defendant
filed a Motion for Summary Judgment and/or to Dismiss for Failure to Prosecute.
Any inactivity on the part of Plaintiff regarding this litigation has been for a time
insufficient to cause a Dismissal for failure to prosecute. Summary judgment is
improper, since Plaintiff’s new expert discovery cutoff date has yet to pass.
Defendant’s Motion for Summary Judgment and/or to Dismiss for Failure to
Prosecute is, at this point, DENIED.
                               FACTS AND PROCEDURE
       Plaintiff alleges that on August 31, 2013, an interior stall door fell, striking
her, while she was in the restroom at Harrington Raceway & Casino. She further
alleges that Defendants knew or should have known about the alleged likelihood
that the stall door would fall. Plaintiff asserts that she suffered severe and
permanent injuries in this alleged incident.
       Defendant states that Plaintiff must submit to a discovery deposition and
must notify it as to her expert’s identity and opinion. Defendant further asserts that
it has tried numerous times to schedule this deposition and obtain this expert
information unsuccessfully, sometimes, allegedly, without even a response from
Plaintiff. Defendant also asserts that it was forced to ask for an extension to its
expert discovery cutoff due to Plaintiff’s alleged failures. In support of its
contentions, Defendant submitted the original Scheduling Order; letters dated June

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Ivory v. Harrington Raceway, Inc., et al.
C.A. No. K15C-08-014 RBY
December 28, 2016

24, 2016, July 15, 2016, and August 26, 2016, attempting to schedule depositions
and start a discussion regarding Plaintiff’s expert; and the Order amending the
original Scheduling Order.
        Plaintiff filed this case on August 18, 2015. On December 22, 2015, this
Court issued a Scheduling Order setting the Plaintiff’s expert discovery cutoff for
June 2, 2016. The same order set the Defendant’s expert discovery cutoff for
August 2, 2016. Plaintiff filed notice of her responses to Defendant’s
interrogatories and Defendant’s request for production of documents on January
20, 2016. On August 5, 2016, this Court granted Defendant’s Motion to Amend
the Case Scheduling Order so that Defendant’s expert disclosure deadline changed
to “60 days after Plaintiff submits to a deposition and produces her expert reports.”
Defendant filed this Motion for Summary Judgment and/or to Dismiss for Failure
to Prosecute on October 11, 2016. Plaintiff did not respond to this Motion.
        Instead, on October 26, 2016, Plaintiff wrote a letter to this Court asking
that the trial be rescheduled. On November 28, 2016, this Court entered a new
Scheduling Order extending the Plaintiff’s expert discovery cutoff to February 28,
2017.
                                STANDARD OF REVIEW
        Delaware Superior Court Civil Rule 41(b) states that “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




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Ivory v. Harrington Raceway, Inc., et al.
C.A. No. K15C-08-014 RBY
December 28, 2016

defendant.”1
         Alternatively, summary judgment is appropriate where the record exhibits
no genuine issue of material fact, and the movant is entitled to judgment as a
matter of law.2 This Court shall consider the “pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any” in
deciding the motion.3 The moving party bears the initial burden of demonstrating
the nonexistence of material issues of fact.4 The burden then shifts to the
nonmoving party to show that there are material issues of fact in dispute.5 The
Court views the record in the light most favorable to the nonmoving party.6 When
material facts are in dispute, or “it seems desirable to inquire more thoroughly into
the facts, to clarify the application of the law to the circumstances,” summary
judgment will not be appropriate.7 However, when the facts permit a reasonable
person to draw but one inference, the question becomes one for decision as a




         1
             Super. Ct. Civ. R. 41(b).
         2
             United Vanguard Fund, Inc. v. Takecare, Inc., 693 A.2d 1076, 1079 (Del. May 22,
1997).
         3
             Super. Ct. Civ. R. 56(c).
         4
             Fauconier v. USAA Cas. Ins. Co., 2010 WL 847289, at *2 (Del. Super. Mar. 1, 2010).
         5
             Id.
         6
             Moore v. Sizemore, 405 A.2d 679, 680 (Del. Aug. 6, 1979).
         7
             Sztybel v. Walgreen, 2011 WL 2623930, at *2 (Del. Super. June 29, 2011).

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Ivory v. Harrington Raceway, Inc., et al.
C.A. No. K15C-08-014 RBY
December 28, 2016

matter of law.8
                                         DISCUSSION
       First, Defendant moves to have Plaintiff’s claim dismissed because of her
failure to prosecute the matter properly. As noted, despite repeated efforts and
comity on the part of Defendant, Plaintiff has failed to provide even fundamental
responses. That has been exaggerated by Plaintiff’s prevailing upon the Court for
extended flexibility, only to treat that largess casually. Indeed, Plaintiff barely
filed her claim within the statutorily permissible time period.
       Although Plaintiff’s lack of attention to her responsibilities in pursuit of this
claim is glaring, the time from filing to the present has been less than 18 months.
Defendant’s reliance on Breeding v. Hillandale Farms of Delaware, Inc.9 is
appropriate, but that case involved a dormancy of over three years. Here, there was
some activity within a year of Defendant’s Motion.
       Accordingly, Defendant’s Motion to Dismiss for failure to prosecute is
DENIED. Nevertheless, Plaintiff is warned that she is now on notice that further
dilatory action will subject her to Dismissal.
       Next, Defendant moves for Summary Judgment because of the absence of
medical expert testimony to support any claim for related injury, as is required.10
Because, as mentioned, Plaintiff was afforded the extended ability to provide


       8
           Wootten v. Kiger, 226 A.2d 238, 239 (Del. 1967).
       9
           2011 WL 378847 Del. Super.
       10
            Rayfield v. Power, 840 A.2d 642 (Del. 2003).

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Ivory v. Harrington Raceway, Inc., et al.
C.A. No. K15C-08-014 RBY
December 28, 2016

expert discovery to Defendant, which would not been foreclosed until February
28, 2017, Defendant’s Motion is some two months premature. For that reason,
Defendant’s Motion for Summary Judgment is, for that time period, DENIED.
       SO ORDERED this 28th day of December, 2016.

                                                /s/ Robert B. Young
                                                           J.

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