      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

HARRY FISH,                     )
         Plaintiff,             )
                                )
    v.                          )         C.A. No.: N16C-08-065 ALR
                                )
MORENZO CONRAD MATTHEW          )
PALMER,                         )
        Defendant.              )
                   Submitted: October 9, 2018
                   Decided: November 20, 2018

                       Upon Defendant’s Motion to Dismiss
                                 GRANTED

                                      ORDER

      Upon consideration of the motion to dismiss filed by Defendant Morenzo

Conrad Matthew Palmer (“Defendant”); the facts, arguments and legal authorities

set forth by Defendant; statutory and decisional law; and the entire record in this

case, the Court finds as follows:

      1.     On August 8, 2016, Plaintiff Harry Fish (“Plaintiff”) brought this action

against Defendant alleging that Plaintiff suffered personal injuries as a result of an

automobile accident caused by Defendant.

      2.     On November 2, 2017, Defendant filed Interrogatories and a Request

for Production Directed to Plaintiff. No response was received.

      3.     By Order dated June 26, 2018, the Court granted the motion to

withdraw as counsel filed by Plaintiff’s counsel.
      4.      On August 9, 2018, Defendant sent a letter to Plaintiff as a self-

represented litigant, resending Defendant’s Interrogatories and Request for

Production and advising that responses to discovery were overdue and that responses

must be received within twenty (20) days. No response was received.

      5.      On September 19, 2018, Defendant moved to dismiss this action

pursuant to Superior Court Rule of Civil Procedure 41(b) (“Rule 41(b)”) for failure

to prosecute the action.

      6.      By Letter dated September 24, 2018, the Court set a deadline of October

8, 2018, for Plaintiff’s response to the Motion to Dismiss and advised Plaintiff that

the Court would consider the Motion to Dismiss unopposed if Plaintiff failed to file

a response.

      7.      Plaintiff has not responded to Defendant’s Motion to Dismiss or

otherwise communicated with the Court or Defendant.

      8.      Pursuant to Superior Court Rule of Civil Procedure 16, “parties must

adhere to the trial judge’s scheduling order and conduct discovery ‘in an orderly

fashion.’”1 If a party fails to obey the Court’s scheduling orders, the Court may

impose sanctions, which may include the sanction of dismissal.2 To that end, Rule




1
  Abdullah v. Rago, 2016 WL 6246891, at *3 (Del. Super. Oct. 24, 2016) (citing
Dillulio v. Reece, 2014 WL 1760318, at *3 (Del. Super. Apr. 23, 2014)).
2
  Id.

                                          2
41(b) allows a defendant to move for dismissal of an action for “failure of the

plaintiff to prosecute or to comply with these rules, or any order of Court.”3

      9.     However, because the sanction of dismissal is severe, dismissal is

appropriate only if a lesser sanction cannot cure the offending conduct.4 The Court

considers six factors when determining whether dismissal is appropriate:

      (1) the extent of the party’s personal responsibility;
      (2) the prejudice to the adversary caused by the failure to meet
          scheduling orders and respond to discovery;
      (3) a history of dilatoriness;
      (4) whether the conduct of the party or the attorney was willful or in
          bad faith;
      (5) the effectiveness of sanctions other than dismissal, which entails
          an analysis of alternative sanctions; and
      (6) the meritoriousness of the claim or defense.5

      10.    Upon consideration of these factors, the Court finds that dismissal is

appropriate in this case. Plaintiff has not participated in this action since filing his

Complaint, despite the efforts of the Court and Defendant, who is prejudiced by

Plaintiff’s failure to comply with the Court’s Orders and to provide discovery

responses. The Court has been generous in giving Plaintiff opportunities to respond,

and Plaintiff has failed to do so. In addition, because Plaintiff has been completely

absent in this action, the Court finds that a lesser sanction would not cure Plaintiff’s

conduct.


3
  Super. Ct. Civ. R. 41(b).
4
  See, e.g. Drejka v. Hitchens Tire Serv., Inc., 15 A.3d 1221, 1222 (Del. 2010).
5
  Id. at 1224.

                                           3
      11.    The Court recognizes that self-represented litigants may be held to a

less stringent standard in presenting their cases under certain circumstances. 6

However “[l]itigants, whether represented by counsel or appearing pro se, must

diligently prepare their cases for trial or risk dismissal for failure to prosecute.” 7

Indeed, “[t]here is no different set of rules for pro se plaintiffs, and the trial court

should not sacrifice the orderly and efficient administration of justice to

accommodate the unrepresented plaintiff.”8

      12.    Therefore, the Court finds that this action must be dismissed with

prejudice for Plaintiff’s failure to cooperate with discovery and failure to participate

in the litigation or respond to the motion to dismiss.

      NOW, THEREFORE, this 20th day of November, 2018, Defendant’s

Motion to Dismiss is hereby GRANTED. Plaintiff’s Complaint is hereby

DISMISSED WITH PREJUDICE.

      IT IS SO ORDERED.

                                                                                                                                  Andrea L. Rocanelli
                                               ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                               The Honorable Andrea L. Rocanelli




6
  Hayward v. King, 2015 WL 6941599, at *4 (Del. Nov. 9, 2015); Anderson v.
Tingle, 2011 WL 3654531, at *2 (Del. Super. Aug. 15, 2011); Buck v. Cassidy
Painting, Inc., 2011 WL 1226403, at *2 (Del. Super. Mar. 28, 2011).
7
  Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001).
8
  Id.

                                           4
