      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
                   IN AND FOR KENT COUNTY


BRIAN LEE JOHNSON,                          :
                                            :     C.A. No: K13C-09-041 RBY
            Plaintiff,                      :
                                            :
      v.                                    :
                                            :
KATHLEEN GUDZUNE,                           :
                                            :
            Defendant.                      :


                            Submitted: October 28, 2014
                            Decided: December 5, 2014


                         Upon Consideration of Defendant’s
                                Motion to Dismiss
                                    DENIED

                                     ORDER

Brian Lee Johnson, Pro se.

Beth H. Christman, Esquire, Casarino Christman Shalk Ransom & Doss, P.A.,
Wilmington, Delaware for Defendant.




Young, J.
Johnson v. Gudzune
C.A. No.: 13C-09-041 RBY
December 5, 2014

                                    SUMMARY
       The Court is presented with Kathleen Gudzune’s (“Defendant”) Motion to
Dismiss for want of prosecution. Defendant’s motion arises out of Brian Johnson’s
(“Plaintiff”) failure to attend a court ordered hearing on September 4, 2014. The
hearing was scheduled following Plaintiff’s counsel’s withdrawal from representation
on August 7, 2014. Defendant’s motion, at this point, is premature. The degree of
Plaintiff’s indifference to the litigation, and the delay he has caused, is not so great
as to warrant immediate termination of the litigation. At the moment, there has been
only one instance of neglect on Plaintiff’s part. Regarding in particular pro se
litigants, efforts affording the opportunity to remedy such parties’ failures to litigate
are to be provided before dismissal. Thus, Defendant’s Motion to Dismiss is
DENIED at this juncture.
                           FACTS AND PROCEDURES
      Plaintiff filed the instant action against Defendant, alleging negligence on
Defendant’s part while operating a vehicle. The two were involved in an
automobile accident on Delaware Route 7, with Plaintiff’s allegedly sustaining
injuries in the crash. Plaintiff filed this suit on September 30, 2013, while
represented at the time by the firm of Young & Malmberg, P.A. On August 7,
2014, following this Court’s order, Plaintiff’s counsel voluntarily withdrew from
representation. A hearing was mandated by this Court, during which the Court
wished to hear Plaintiff’s plans going forward, now that he was representing
himself pro se. The hearing was scheduled for September 4, 2014, however, only
Defendant attended. Plaintiff did not, and has not, contacted either this Court or

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Johnson v. Gudzune
C.A. No.: 13C-09-041 RBY
December 5, 2014

the Defendant, regarding his absence from the hearing. By Defendant’s motion,
filed on September 26, 2014, Defendant seeks to have the action dismissed,
following Plaintiff’s non-appearance.
                                 STANDARD OF REVIEW
       Pursuant to Superior Court Civil Rule 41, it is “within the sound discretion of
the Court” to dismiss an action for “want of prosecution.”1 This authority draws from
the Court’s “inherent power to manage its own affairs and to achieve orderly and
expeditious disposition of its business.”2 “The purpose is to dispose of cases when
necessary, not to allow parties to maintain a faint spark of life in their litigation.”3 In
considering such motions to dismiss, the Court must balance the dual policy
considerations of “giving litigants a day in Court” and the interests of judicial
economy.4 Where delay is caused by “gross neglect and lack of attention,” dismissal
is appropriate.5 By contrast, where the delay is unavoidable, “the parties should not
be made to pay for circumstances beyond their control.”6



       1
           Ayers v. D.F. Quillen & Sons, Inc., 188 A.2d 510, 511 (Del. 1963); Super. Ct. Civ. R.
41.
       2
         Draper v. Med. Ctr. Of Delaware, 767 A.2d 796, 798 (Del. 2001) (internal quotations
omitted).
       3
         Wilmington Trust Co. v. Barry, 397 A.2d 135, 138 (Del. Super. Ct. 1979) (internal
quotations omitted).
       4
           Park Ctr. Condominium Council v. Epps, 723 A.2d 1195, 1199 (Del. Super. Ct. 1998).
       5
           Id.
       6
           Id.

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Johnson v. Gudzune
C.A. No.: 13C-09-041 RBY
December 5, 2014

                                            DISCUSSION
         As the Plaintiff has not filed a response to Defendant’s motion, the Court
considers only Defendant’s arguments. Defendant seeks to dismiss Plaintiff’s action,
based upon his alleged failure to prosecute the case. The delay in prosecution of
which Plaintiff is accused, consists of his failure to attend this Court’s hearing on
September 4, 2014. The purpose of this hearing was to determine how Plaintiff
wished to proceed, following his counsel’s withdrawal on August 7, 2014. Defendant
contends that this unexcused absence from the court ordered hearing, rises to the level
of want of prosecution, which merits dismissal pursuant to Superior Court Civil Rule
41(b).
         As an initial matter, dismissals under Rule 41(b) are at the discretion of the
Court.7 Parties may, of course, bring motions to dismiss under this rule, to determine
whether a party’s litigation conduct is so wanting as to warrant termination of the
action. The type of behavior calling for dismissal has been described as “gross neglect
and lack of attention.”8 In addition, the Delaware Supreme Court has reasoned that
any delay of over a year, would at least begin to raise the possibility of an action
being dismissed pursuant to Rule 41(b).9
         Although not directly on point, the Court also finds it instructive to consider
the Christian v. Counseling Resource Assoc., Inc. line of cases, recently decided by

         7
             Ayers, 188 A.2d at 510.
         8
             Park Ctr., 723 A.2d at 1199.
         9
         Ayers, 188 A.2d at 511 (reasoning that although Rule 41(b) does not set a time frame,
Rule 41(e) provides some relevant guidance in allowing dismissal after one year of inaction).

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Johnson v. Gudzune
C.A. No.: 13C-09-041 RBY
December 5, 2014

the Delaware Supreme Court,10 to clarify the appropriate conduct of trial courts in
dismissing claims “without being heard on the merits” for “attorneys’ failure to obey
scheduling orders.”11 Recognizing that dismissal of an action is the most severe
sanction a trial court can impose, the Delaware Supreme Court directs that trial courts
carefully consider six factors before choosing such an action:
    (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; and (6) the meritoriousness of the claim or defense.12

Indeed, in determining whether trial courts abused their discretion in imposing
this ultimate sanction, the Delaware Supreme Court closely scrutinized their
decisions, checking specifically that these factors had been considered and
applied.13
       Looking at the facts of this case, the Court does not find Plaintiff’s conduct is,
as yet, so grossly neglectful as to merit dismissal. Plaintiff’s counsel withdrew from
representation on August 7, 2014. Although not laudatory by any means, Plaintiff has
failed to comply with only one court order since that withdrawal, having not attended
the September 4, 2014 hearing. As indicated, the Supreme Court has instructed that

       10
         60 A.3d 1083 (Del. 2013); Hill v. DuShuttle, 58 A.3d 403 (Del. 2013); Adams v. Aidoo,
58 A.3d 410 (Del. 2013).
       11
            Christian, 60 A.3d at 1084.
       12
            Id., at 1087.
       13
            Christian, 60 A.3d at 1087; Hill, 58 A.3d at 406; Adams, 58 A.3d at 414.

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Johnson v. Gudzune
C.A. No.: 13C-09-041 RBY
December 5, 2014

Delaware courts are to give consideration to a pro se Plaintiff’s inexperience in ruling
upon motions to dismiss for failure to prosecute.14 In Draper v. Med. Ctr. Of
Delaware, a somewhat analogous situation where plaintiff’s counsel had withdrawn
from representation, the Supreme Court determined it was the Court’s role to “make
some effort to get the case back on track before dismissing for failure to prosecute.”15
To dismiss this case at this time, would seem precipitant.
      Turning to the factors considered by the Christian line of cases, these too
caution against dismissal of the action prematurely. Like the Draper court, the
Christian court was concerned with the hasty termination of lawsuits. The Christian
court reasoned: “[t]he trial court’s refusal to step in when asked to resolve discovery
difficulties, and thereby avoid the ultimate sanction of dismissal, was an abuse of
discretion.”16 This is akin to the Draper court’s imploration that trial courts make
efforts to “get the case back on track,” prior to outright dismissal.17
      The six factors articulated by the Christian line of cases support the judicial
preference for having cases decided on merit. As applied to the facts of the instant
matter, these six considerations, on the whole, do not weigh towards termination of
Plaintiff’s action. The first factor asks to what extent the party is personally
responsible for the delay. Here, where Plaintiff is no longer represented by counsel,


      14
           767 A.2d at 798.
      15
           Id.
      16
           60 A.3d at 1087.
      17
           767 A.2d at 798.

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Johnson v. Gudzune
C.A. No.: 13C-09-041 RBY
December 5, 2014

the Court can only deduce that Plaintiff is solely responsible for not attending the
September hearing. However, looking at the Christian cases – e.g. Adams v. Aidoo –
this singular instance of neglect is insufficient ground for dismissal, even if Plaintiff
is fully responsible.18 The second consideration inquires whether the party’s delay has
caused prejudice to her adversary. Compared to the many occasions of postponement
exhibited by the offending parties in the Christian cases, having to reschedule a status
conference is, at best, a minor inconvenience to Defendant. The third factor looks at
the litigant’s history of dilatoriness. This is Plaintiff’s first transgression – there is no
history to speak of. Fourth, courts are instructed to consider whether the party has
acted in bad faith in causing the delay. Generally speaking, bad faith consists of
repeated insubordination, after several reproaches by a court.19 This opinion is the
first reprimand issued by the Court, and, as of yet, the Court is unaware of Plaintiff’s
reason for missing the hearing. Finally, the Court reviews the meritoriousness of
Plaintiff’s claim. Although it is too early, at this stage of the litigation, to pass any
ultimate judgment on the worthiness of Plaintiff’s claim, there is certainly nothing to
lead this Court to a contrary conclusion. It is evident, that these six factors weigh
towards permitting the Plaintiff’s claim to be decided on its merits.
       With this in mind, the Court DENIES the Defendant’s motion, further


       18
         58 A.3d at 413 (“[t]he trial court gave Adams numerous extensions, and Adams had no
excuse for her failure to comply with the deadlines”); see also Hill, 58 A.3d at 406 (holding that
one “factor alone, did not justify imposition of the most severe sanction available to the court”).
       19
           See e.g., Adams, 58 A.3d at 413 (“Finally...Adams’ refusal to provide discovery was
willful...[she] simply did not think she should have to reveal information she considered to be
private and irrelevant”).

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Johnson v. Gudzune
C.A. No.: 13C-09-041 RBY
December 5, 2014

instructing that Plaintiff is to make himself available to counsel to provide desired
discovery by January 15, 2015, or suffer Dismissal of his claim upon Motion of
Defendant.
                                  CONCLUSION
      Despite Plaintiff’s failure to attend this Court’s mandated hearing, it would be,
at this nascent stage of the litigation, premature to dismiss Plaintiff’s suit for want
of prosecution. Plaintiff has not displayed the requisite level of neglect, warranting
such action by the Court. Defendant’s motion is DENIED.
      IT IS SO ORDERED.


                                            /s/ Robert B. Young
                                                       J.

GudRBY/lmc
oc: Prothonotary
cc: Counsel
    Brian Lee Johnson, Pro se
    Opinion Distribution
    File




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