Opinion
C.A. No. 92C-02-188-RRC.
Submitted: September 8, 1999.
Decided: October 19, 1999.
On Plaintiff's Motion for Reargument. DENIED.
James F. Kipp, Esquire Doerler, Esquire Trzuskowski, Kipp, Kelleher Pearce 1020 N. Bancroft Parkway 19899 P.O. Box 429 Wilmington, Delaware 19899 Attorneys for Plaintiff.
David M. Lukoff, Esquire William L. Elzufon Austin P.O. Box 1630 Wilmington, Delaware Attorney for Defendant Maternity Gynecology Associates, P.A.
Richard Galperin, Esquire Morris, James, Hitchens Williams P.O. Box 2306 Wilmington, Delaware 19899 Attorney for Defendant Medical Center of Delaware, Inc.
Dear Counsel:
On August 25, 1999, this Court granted, pursuant to Super. Ct. Civ. R. 41(b), Defendants' Motion to Dismiss this medical malpractice case against both defendants because of Plaintiff's failure to have diligently prosecuted the case. Plaintiff then filed a Motion for Reargument pursuant to Super. Ct. Civ. R. 59(e). Defendant Medical Center of Delaware, Inc. filed a Response in opposition; Defendant Maternity Gynecology Associates, P.A. has adopted the Medical Center's Response. For the reasons that follow, Plaintiff's Motion for Reargument is denied.
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By way of brief background to this case which has a lengthy procedural history: this action for medical malpractice, stemming from Defendants' alleged medical negligence in July 1990, was filed on February 21, 1992 by Mr. Kipp as counsel for Plaintiff. Mr. Kipp was permitted to withdraw as counsel for Plaintiff on October 27, 1995 because, as Mr. Kipp stated in his Motion to Withdraw as Counsel, "irreconcilable differences have occurred, and [Mr. Kipp] is now unable to represent Shaunttel C. L. Draper further." Plaintiff then prosecuted the case herself. When asked further by the Court on March 31, 1997 (in connection with Defendants' first Motion to Dismiss) about the reasons for his withdrawal, Mr. Kipp stated, "I just could not deal with Shaunttel's father, Stanley, who had taken control of her life, and taken control of the case." On March 31, 1997, this Court granted Defendants' first Motion to Dismiss because of 1) Plaintiff's failure to have timely completed a pre-trial stipulation, 2) Plaintiff's failure to have appeared at a pre-trial conference and 3) Plaintiff's failure to have identified any medical expert for trial. Plaintiff, acting pro se, appealed that order of dismissal to the Supreme Court of Delaware. On March 17, 1998, the Supreme Court reversed this Court's order of dismissal and remanded the case back to the Superior Court "for further proceedings." Draper v. Medical Center of Delaware, Inc., et al. Del. Supr., No. 182, 1997, Hartnett, J. (Mar. 16, 1998) (ORDER). Explaining its reversal of this Court's March 31, 1997 order that had dismissed the case, the Supreme Court said that
Plaintiff's Counsel's Motion to Withdraw as Counsel at 2.
March 31, 1997 Hearing on Defendant's Motion to Dismiss, Tr. at 8.
Draper v. Medical Center of Delaware, et al., Del. Super., C.A. No. 92C-02-188, Del Pesco, J. (March 31, 1997) (Bench Ruling).
. . . the illogical text of [apparently Supreme Court] pro se filings by Draper, the unrealistic demands she made on Mr. Kipp [in the Superior Court], the existence of a mental examination that had never been submitted to the [Superior] Court, and Mr. Kipp's willingness to step forward [as of March 31, 1997] and again represent Draper, all mandated against the dismissal, especially in view of the Delaware public policy favoring giving a litigant her day in court. (Citation omitted).
The Supreme Court also noted that Mr. Kipp had been originally allowed to withdraw from the case in 1996 because Plaintiff's father had interfered with Mr. Kipp's representation of Plaintiff, but that by March 17, 1998, Plaintiff's father was "no longer in this case" (citation omitted). Also, and although the Supreme Court stated that another ground for its reversal was "the existence of a mental examination [of Plaintiff] that had never been submitted to the [Superior] Court," Plaintiff has not relied on that factor in her present opposition to Defendant's present second motion to dismiss. This Court, at oral argument on August 25, held that that issue, to the extent it was still viable, had been waived.
This Court notes that Plaintiff's father was present in the courtroom at oral argument on Defendant's Motion to Dismiss on August 25, 1999 and raised his hand twice during the Court's oral ruling in an apparent effort by him to be recognized by the Court in the middle of its ruling. Draper v. Medical Center of Delaware, et al., Del. Super., C.A. No. 92C-02-188, Cooch, J. (Aug. 25, 1999) (Bench Ruling) Tr. at 18, 26-27. Plaintiff nevertheless maintains that her father is now "no longer in this case." Affidavit of Shaunttel C. L. Draper of August 30, 1999 at 3 (attached to her August 30, 1999 Motion for Reargument).
The mandate from the Supreme Court was received by the Prothonotary on March 17, 1998. The docket of the Prothonotary reflected no record activity from that date by either party or the Court in this case until April 29, 1999 when the Prothonotary sent out a standard notice of potential Super. Ct. Civ. R. 41(e) dismissal to Plaintiff, pro se, and to counsel for Defendants. Plaintiff responded by letter filed June 1, 1999, stating that the Court had ordered Mr. Kipp to "assume sole Counsel responsibilities in this action" and that she was "currently awaiting instruction from the Court."
This case had been reassigned to me from the previous assigned judge on or about January 1, 1999. I first became active in this case when a case manager assigned to me in the Prothonotary's office brought Plaintiff's letter filed June 1, 1999 to my attention. I then sent out a letter to all counsel on June 11 asking Mr. Kipp to submit a status report about this case. Mr. Kipp responded by letter dated June 16 advising that, in response to my June 11 letter, he had just entered his appearance for Plaintiff, and he requested a conference in the case "to get this matter to trial." A status conference was then scheduled by me for July 6, 1999 which had to be rescheduled for reasons unrelated to the motion to dismiss. Defendant Medical Center of Delaware, Inc. then filed a Motion to Dismiss on July 16, 1999 (subsequently joined in by co-defendant Maternity Gynecology Associates, P.A.). After reviewing Plaintiff's response and after hearing oral argument on August 25, 1999, this Court granted Defendant's motion and dismissed the case. The essential basis for the Court's dismissal on August 25, 1999 was the Plaintiff's complete lack of prosecution of this case since the Supreme Court's reversal of this Court's March 31, 1997 order dismissing the case. Plaintiff then filed the pending motion for reargument.
Draper v. Medical Center of Delaware, et al., Del. Super., C.A. No. 92C-02-188, Cooch, J. (Aug. 25, 1999) (Bench Ruling).
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The gist of Plaintiff's Motion for Reargument is that Plaintiff supposedly had made numerous but ultimately unsuccessful pro se efforts to move the case forward after she learned that the Supreme Court had reversed this Court's March 31, 1997 order. On August 30, 1999, Plaintiff submitted an affidavit in connection with her motion for reargument, which affidavit reads in toto:
1. I am the Plaintiff in the above referenced action.
2. Following the entry of the Supreme Court of Delaware's March 16, 1998 order, I was advised by Mr. Kipp that I needed to contact the Court and ask it to enter a scheduling order for the case on Remand.
3. At least one time per month during 1998, I called this Court to speak with Judge Del Pesco's case manager to determine the status of the scheduling of my case. The case manager consistently informed me that Judge Del Pesco's calendar was full through January of 1999. During this time I was also informed that Judge Del Pesco was being transferred to the criminal division and that my case would be assigned to a new judge. I was repeatedly told to call back in January 1999.
4. In November 1998, [my roommate] Benjamin Simmons and I went to the Prothonotary's office to ascertain if the Court had taken any action in my case and if there had been any motions filed.
5. In November 1998, I called Judge Del Pesco's office and informed her secretary of my new address.
6. In January 1999, I was informed by Judge Del Pesco's case manager that my case had been reassigned and that the Court would be contacting me with regard to future actions to be taken.
7. After my case was transferred from Judge Del Pesco, Court personnel were unable to inform me which judge had been assigned my case and, therefore, I was unable to contact the judge assigned my case to request a scheduling order.
8. After I received the Rule 41(e) Notice, I filed a Response, in person, at the office of the Prothonotary. At that time, Court personnel were unable to tell me which judge had been assigned my case. Because Court personnel would not file my Response without a judge's initials on it, I wrote in the initials for Judge Del Pesco, SCD, next to the civil action number on my Response.
9. It is now, and always has been, my desire to continue to proceed with this action and I will continue, through the efforts of counsel, to pursue this case.
10. On August 25, 1999 my father gave me a ride to the courthouse. My father's presence in the courtroom was not due to his active involvement in this action. As I previously indicated to the Court, my father is no longer in this case.
Affidavit of Shaunttel C. L. Draper of August 30, 1999.
Plaintiff also submitted an affidavit of her roommate, Benjamin Simmons, in support of her averments. That affidavit reads in toto:
1. Since approximately November, 1996 I have been Shaunttel C. L. Draper's roommate. I am employed as an Animal Lab Technician at Jefferson University in Philadelphia.
2. Throughout 1998, I encouraged Shaunttel to contact the Superior Court of Delaware regarding her case. On several occasions in 1998 and 1999, I personally witnessed Shaunttel call the Court to inquire about the scheduling of her case.
3. In October or November 1998, I accompanied Shaunttel to the Prothonotary's office. While in the Prothonotary's office, Shaunttel reviewed her file in this action and inquired about the scheduling of her case. At that time, Court personnel informed us that there was some type of scheduling freeze because the judges were about to switch divisions and that there would be no scheduling until after the first of the year.
Affidavit of Benjamin Simmons of August 30, 1999.
Significantly, these new assertions of claimed efforts by Plaintiff to have tried to prosecute her case after the Supreme Court's reversal are now being submitted to the Court for the first time in connection with Defendants' July 16, 1999 motion to dismiss. The sole basis of Plaintiff's opposition to Defendants' July 16, 1997 motion to dismiss had been the failure of this Court, after the Supreme Court's reversal of the order of dismissal, to have itself initiated a scheduling conference or to otherwise have taken appropriate action to set a trial date. Plaintiff had originally asserted in her opposition to Defendant's July 16, 1999 Motion to Dismiss that
. . . [t]he Superior Court, and not Plaintiff, was required to set into motion a procedural or scheduling order for the remanded case, and Plaintiff expected to hear from the Court as to the next proceeding in the case (emphasis added).
Plaintiff's Response to Defendant's Motion to Dismiss at ¶ 2.
The assertions now made in Plaintiff's Motion for Reargument were not made in Plaintiff's Response to the motion to dismiss nor were they advanced at oral argument on August 25, 1999; as stated, the sole basis of Plaintiff's opposition to Defendants' motion to dismiss had been the failure of this Court to have initiated a scheduling conference after the Supreme Court's reversal. (Also, no explanation for Plaintiff's record delay in prosecuting the case had been set forth in Mr. Kipp's letter of June 16, 1999 to the Court, although that letter might have provided an opportunity to advise the Court as to why the case had not been prosecuted, particularly in light of the Court's obvious interest about the long period of inactivity in this case.)
In her Motion for Reargument, Plaintiff states that, after the Court issued its bench ruling on August 25, that Plaintiff's counsel "asked to be heard again" (to orally present these new claims), but that the Court denied that request. Motion for Reargument at ¶ 1. That is true; however, no discourtesy to counsel was intended, nor was there any lack of desire by the Court to consider all appropriate information, but the Court had at that time considered both Plaintiff's counsel's written response and oral arguments, and had then announced its decision.
The time for Plaintiff to have made these new assertions was in response (written and oral) to the motion to dismiss, not in a motion for reargument. It is well settled that a motion for reargument will be granted only if it can be shown that a court overlooked controlling legal principles or otherwise misapprehended the law. Interim Healthcare v. Fournier, Del. Ch., C.A. No. 13003, Jacobs, V.C. (March 25, 1994) (Letter Op.). A motion for reargument cannot be used to advance new arguments not made in connection with the original motion. McElroy v. Shell Petroleum, Inc., Del. Supr., 618 A.2d 91 (1992); El Di, Inc. v. Justice of the Peace Court, Del. Super., C.A. No. 97A-03-003, Lee, J. (April 23, 1998) (Mem. Op.).
The new assertions set forth in her and in her roommate's affidavit of various pro se activities about her supposed efforts to prosecute this case in the time period from March 17, 1998 to June 1, 1999 do not form a proper basis for reargument. The motion for reargument based on the new factual allegations is DENIED.
The Court therefore does not need to resolve the factual allegations set forth in the affidavits of Plaintiff and of Benjamin Simmons. Even if the facts there averred are true, or partly true, they will not be considered since the allegations were raised for the first time on the motion for reargument. See McElroy at 91. However, upon receipt of Plaintiff's motion for reargument, I conferred with Judge Del Pesco's two case managers in the Prothonotary's office who had been assigned to her in the operative time period. (Those two case managers were then assigned to me on January 1, 1999, that being the date that I assumed Judge Del Pesco's civil caseload of approximately 800 civil cases when Judge Del Pesco transferred to the Criminal Division.) Both of those case managers (Plaintiff's affidavit refers to "case manager" in the singular) have separately advised me, contrary to the affidavits submitted with the Motion for Reargument, that 1) no telephone contact from anyone identifying herself as Shaunttel Draper was ever made to either of them during that time period, 2) neither case manager ever advised Plaintiff that Judge Del Pesco's calendar was "full through January 1999" and 3) neither of them "repeatedly" (let alone even once) advised Plaintiff to "call back in January 1999." (I made no additional effort to identify any other unnamed "court personnel" also referred to in Plaintiff's affidavit.) Lastly, Judge Del Pesco's secretary has advised me that she has no recollection of ever receiving a phone call from anyone identifying herself as Shaunttel Draper who wanted to provide her with a new address; Judge Del Pesco's secretary further advised me that her standard response to such telephone calls from a pro se party is to advise the pro se party to inform the Prothonotary, in writing, of any new address. That was never done in this case.
Plaintiffs Motion for Reargument also asserts (as was originally argued by Plaintiff in response to the second Motion to Dismiss) that the Court's August 25, 1999 order dismissing the case was erroneous because the Court "failed to follow its own internal operating procedures" because the Court did not, upon learning of the Supreme Court's reversal of the March 17, 1998 dismissal of the case, itself schedule a conference with the pro se Plaintiff and counsel for Defendants to set a new trial date, establish new discovery deadlines, etc. Plaintiff now seeks an unspecified "lesser sanction" than dismissal. The Court will not repeat in detail the bases for its dismissal on August 25. However, this Court acknowledged on August 25, and acknowledges now, that it assumes some responsibility for not having scheduled a conference after the Supreme Court's reversal and remand. However, the Court believes that it was also incumbent upon Plaintiff, either pro se or especially through Mr. Kipp promptly then re-entering his appearance, to have initiated a request for a scheduling conference at an appropriate time after the Court had not acted.
Motion for Reargument at ¶ 7.
A fair reading of the Supreme Court's Order of March 16, 1998 is that the Supreme Court expected Plaintiff's counsel, upon reversal and remand, to then enter his appearance on behalf of Plaintiff, given the representations made by him on March 31, 1997 to this Court that he would do so if this Court would grant a continuance of the April 1997 trial date. While recognizing that this Court should have set up a conference after the reversal, it was nevertheless an independent and separate obligation on the part of Plaintiff or Mr. Kipp to have initiated a request for judicial action. As has been stated in the context of the joint duty of both the bench and the bar to seek to monitor and improve the administration of justice,
[b]oth the bench and bar have a heavy affirmative obligation to see that the judicial system is operating within acceptable time and cost standards. Neither should have the excuse that the other has not acted; both bear the responsibility.
ABA Comm. To Reduce Court Costs and Delay, Attacking Litigation Costs and Delay, ch. 6, p. 75 (1985).
This Court necessarily must, and regularly does, rely in part on parties to litigation to advise the Court of any perceived need to take judicial action. It is commonplace in the Superior Court for a party to advise the Court that, in that party's view, some particular judicial initiative is needed.
Plaintiff relies on this Court's April 11, 1991 "Civil Administrative Order" as support for her position. Section 6 of that Order does provide that "[a] scheduling order shall be entered in every civil case after the Court considers the complexity of the action and the time reasonably needed to prepare the case for trial." That provision, however, must always be viewed in the context of an individual case; the failure of this Court to enter a scheduling order will not in all circumstances prevent a case from being dismissed pursuant to Super Ct. Civ. R. 41 if the circumstances otherwise warrant, as here, dismissal of the action. Additionally, it should be noted that § 1 of that Order provides that "[c]ounsel have a responsibility as officers of the Court to eliminate unnecessary delay consistent with their ethical obligations to their clients."
Plaintiff also relies on the "Superior Court (New Castle County) Civil Case Assignment Plan" (July 13, 1995) and its similar requirement that the Court should issue a scheduling order, but that document, like the 1991 Civil Administrative Order, must ultimately be viewed in the context of the circumstances of a particular case.
In Norwest Bank Minneapolis National Association v. Wilk, the Superior Court denied a defendant's Rule 41(e) Motion to Dismiss for failure to prosecute. In that case, suit had been filed when a limited partnership engaged in the production, development and sale of oil and natural gas defaulted on its loan from a lending institution. The motion was based on the fact that the action had lain dormant for 27 months. The motion was denied "based on the premise that substantive settlement negotiations, in fact, did occur [in that 27 month period] as alleged by plaintiff" (That factor is not present in this case.) The Wilk Court balanced opposing interests and considered the following factors: (1) the period of inactivity; (2) reasons for inactivity; (3) prejudice for defendant; (4) fairness to plaintiff and public policy. The Wilk court found the factors were in favor of plaintiff and denied the motion to dismiss.
Del. Super., C.A. No. 85C-JL-128, Herlihy, J. (Dec. 2, 1991) (Mem. Op.).
Id.
Id.
Other courts have spoken to the issue of the appropriateness of lesser sanctions than dismissal. In Lee v. Friedman, a suit deriving from an automobile accident (with some factors not present here), there had been no activity by the plaintiff for fifteen months. The Indiana Court of Appeals for the 1st District considered 1) the type of delay that may be considered so lengthy as to validate a dismissal for want of prosecution and 2) whether dismissal without entry of a lesser sanction was appropriate. In determining if the dismissal was appropriate, the Lee Court considered many factors, some of which (relevant to this case) included, "the length of the delay; the reason for the delay; the degree of personal responsibility on the part of the plaintiff; . . . the amount of prejudice to defendant caused by the delay [and] the existence and effectiveness of sanctions less drastic than dismissal which fulfill the purposes of the rules and the desire to avoid court congestion . . ." Upon consideration of those factors, the Lee Court found that the lengthy period of delay warranted dismissal of the action.
Lee v. Friedman, 637 N.E.2d 1318 (Ind.Ct.App. 1st Dist. 1994).
Id. at 1320.
The plaintiff in Lee had claimed that dismissal was not appropriate without the entry of a lesser sanction first, but the Lee Court held that "the court need not impose a sanction less severe than dismissal where the record of dilatory conduct is clear."
Id. at 1321.
In the present case, the analysis used in Wilk and Lee is useful. In consideration of the specific factors espoused in Wilk and used generally in Lee, this Court, in dismissing this case on August 25 for a second time, found that the balance of interests lay with dismissal of the action. Addressing the specific factors set out in Wilk, this Court in effect found:
(1) Period of inactivity — the Supreme Court had remanded the case to back to Superior Court on March 17, 1998. The next docket entry was not until April 29, 1999 when the Prothonotary sent out a standard notice of potential Super. Ct. Civ. R. 41(e) dismissal to which Plaintiff responded on June 1, 1999.
(2) Reasons for inactivity — Plaintiff contended in her response to Defendant's Motion to Dismiss that she was waiting for the Court to take the initiative and to give her notice as to the next proceeding in the case. This is not a sufficient reason for the lengthy inactivity.
(3) Prejudice to defendant — Although Defendants have not shown significant prejudice, they have identified sufficient prejudice to warrant dismissal. Defendants have been obligated to continue its defense of a seven year old case with no prospect of resolution. Defendant represents that additional litigation expenses have been incurred and witnesses have been inconvenienced.
(4) Fairness and public policy — Although there is strong reluctance on a court's part to deprive litigants of a right to their day in court, the Wilk court counterbalanced "the principle that a wrong should have a remedy" with the competing interest that "the law will not aid a plaintiff who sleeps on [her] rights." In the present case, the Supreme Court's remand for further proceedings kept the action alive for Plaintiff. Instead of taking advantage of the Supreme Court's reversal and initiating a request for judicial action after this Court had not itself scheduled a conference, Plaintiff allowed the case to languish and responded only after the Rule 41(e) notice had been sent out on April 29, 1999. This Court agrees with Defendant's prediction that Plaintiff would have continued her non-prosecution of this case had the Court not issued its April 29, 1999 Rule 41(e) notice of potential dismissal. Furthermore, as stated above, Defendants have had the burden of defending this case for seven years.
Id.
This Court is aware that dismissal of an action for failure to prosecute is a harsh sanction. However, this Court is satisfied that the stage and nature of the proceedings on August 25 called for dismissal as the only appropriate action. "Where [dismissal of an action] operates as an adjudication on the merits, dismissal of an action, under the federal and state procedural rules, for failure of prosecution has been deemed a harsh sanction, and one that should be ordered only in extreme circumstances on a showing of a clear record of delay." Plaintiff contends that the case should not have been dismissed and argues the Court should have imposed some other unidentified sanction than dismissal. The Lee Court addressed that very issue and said, "the court need not impose a sanction less severe than dismissal where the record of dilatory conduct is clear."
24 Am.Jur.2d Dismissal § 64.
Lee at 1321.
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I gave the issues raised by Defendants' July 16, 1999 motion to dismiss much careful thought and consideration given especially the Supreme Court's reversal of a prior order dismissing this case and this Court's failure to have scheduled a conference after the reversal. This second dismissal for failure to prosecute was not entered lightly, but the factual circumstances on August 25 were significantly different than those circumstances existing at the time of the first dismissal on March 31, 1997. This Court has also considered, to the extent appropriate, Plaintiff's pre-March 31, 1997 lack of compliance with Superior Court pre-trial procedures as an additional basis for its August 25 dismissal of the case. As I said in my bench ruling on August 25, the Supreme Court's reversal of the first order of dismissal was an opportunity, not a guarantee, for the Plaintiff to have her day in court.For the above reasons, Plaintiff's above motion for reargument is DENIED.
IT IS SO ORDERED.