Opinion
C.A. No. 04C-03-009-RFS.
Submitted: December 2, 2005.
Decided: December 19, 2005.
Defendants' Motion to Dismiss — GRANTED
ORDER OF DISMISSAL
The Plaintiff, Christina Paoli (hereafter "Paoli") is representing herself in a civil suit. She filed a complaint against Defendants, Cape Henlopen School District and Morris, James, Hitchens Williams, LLP (hereafter "Defendants"). Paoli alleges she was defamed verbally and in writing during her work and in her discharge in February through May of 2004. David N. Williams, Esquire represents the Defendants (hereafter "Williams").
The complaint was docketed on March 4, 2004. Thereafter, Defendants filed a motion to dismiss. A hearing was held on May 21, 2004. The Plaintiff was given thirty days to amend her complaint and was cautioned to obtain counsel given the requirement to follow court rules.
Paoli filed an amended complaint on June 30, 2004 and continued on a pro se basis. Defendants answered on July 12, 2004. In accordance with usual procedures, a scheduling conference was held on October 6, 2004 at 9:00 a.m. Although noticed, Paoli was not present but Defendants appeared. (Docket #8). Paoli ignored the direction to appear at the scheduling conference to plan the management of the case. Super. Ct. Civ. R. 16(b).
Nevertheless, the Scheduling Order was entered on October 8, 2004. It established a discovery cutoff date of February 17, 2005 and a trial date of September 19, 2005, together with times for motions to amend pleadings, for dispositive motions, and for a pretrial conference. On August 31, 2004, Defendants filed notice of their service of discovery through a First Set of Interrogatories and First Set For Production served on Paoli. Paoli's answers to this discovery were due on or before September 29, 2004.
In this regard, Paoli did not answer the discovery within the required thirty day period. Super. Ct. Civ. R. 33(a)(b)(3). On November 1, 2004, Paoli filed a motion to limit discovery, well past the time such a motion should have been filed, i.e., on or before September 29, 2004. Any objections should have been filed with the answers to the interrogatories. Super. Ct. Civ. R. 33(b)(1). Paoli's failure to object in a timely manner resulted in a waiver of any ground of objection. Super. Ct. Civ. R. 33(b)(4). Defendants filed a motion to compel answers to the discovery on November 5, 2004.
A hearing on these motions was held on December 17, 2004. Defendants' motion was granted, and Paoli's motion was denied. Paoli was ordered to fully and completely answer and respond to the discovery due Defendants. The Court reserved decision on the Defendants' request for attorneys' fees and costs. Paoli was ordered to respond on or before Friday, January 28, 2005, which took Paoli's schedule into account. The Scheduling Order was changed to extend the discovery cutoff date for another month to March 17, 2005. Subsequently, the discovery cutoff date was extended until May 17, 2005 to permit additional time for Defendants to obtain complete discovery from Paoli.
Thereafter, on June 1, 2005, a Second Motion to Compel Responses to Discovery Requests was filed by Defendants. (Docket #28). It claimed Paoli's responses continued to be incomplete, conclusory, and evasive. In interrogatory No. 11, Paoli was requested to identify and describe the "false and defamatory language" alleged in her complaint. According to Defendants, even after the Court's order of December 17, 2004, Paoli did no more than generalize in a response filed on January 28, 2005 that some of the statements were made at due process hearings and some were made elsewhere.
Additionally, interrogatory No. 9 requested Paoli to identify and describe each false statement she claimed was made by the District and for each, identify: (a) the words in each statement that are untrue; (b) whether the words were spoken or published; (c) the date and place the words were spoken or published; (d) the manner in which the words were spoken or published; and (e) the name and address of each person to whom the words were spoken or published. Further, interrogatory No. 10 requested Paoli to identify the same information about false statements allegedly made by Morris, James, Hitchens and Williams. According to Defendants, Paoli gave a combined answer to interrogatories 9 and 10. She summarily stated that some false statements were made by Jennifer Brierley, Esquire and some were made by others in at least eight different times and places.
Moreover, the first sentence of Defendants' First Set of Interrogatories advised Paoli "to provide verified answers to the following Interrogatories in accordance with Rule 33 of the Superior Court Rules of Civil Procedure . . ." (Docket #28, exh A). A review of Paoli's response supports Defendants' complaints that, among other things, the response was general, vague and incomplete. As to questions 9 and 10, the answers were mixed together, and they were not under oath. (Docket #22). The rules require that separate answers be given to the questions and that they must be under oath. Super. Ct. Civ. R. 33(b)(1).
The Second Motion to Compel Discovery was scheduled for presentation on Friday, June 17, 2005 at 11:00 a.m. (Docket #28). On June 15, 2005, Paoli called Defendants advising she had a preexisting obligation to be in another court on June 17, 2005. For that reason, Paoli requested that the Second Motion to Compel be rescheduled. (Docket #29). Also, Paoli prepared a request to the Court for a continuance saying she had a Justice of the Peace Court hearing to attend on June 17, 2005. (Docket #32, exh.1).
Consequently, the Second Motion to Compel was rescheduled for presentation on Friday, July 15, 2005 at 11:00 a.m. (Docket #30). Defendant did not appear on July 15th, and an Order was entered that Paoli "shall deliver to Defendant full and complete answers to Defendant's First Set of Interrogatories and All Documents Requested in Defendant's First Production of Documents within 7 Days of this Order . . ." Further, the discovery cutoff date was extended until August 26, 2005 with different times for the presentation of dispositive motions. Defendants notified Paoli about the July 15, 2005 Order by letter of the same date. (Docket #41).
Thereafter, on August 11, 2005, Defendants filed a Motion to Dismiss for Paoli's failure to prosecute under Super. Ct. Civ. R. 41(b) which provides, in pertinent part, that:
"(b) Involuntary dismissal: Effect thereof. For failure of the plaintiff to prosecute or to comply with these Rules, or any order of the Court, a defendant may move for dismissal of an action or of any claim against the defendant."
Defendants demonstrated that the case was stalled given Paoli's failure to answer the discovery on the alleged defamation. The Motion to Dismiss was scheduled for presentation on Friday, September 16, 2005 at 11:00 a.m. On September 15, 2005, Paoli requested a continuance of the September 16th motion. (Docket #35). The Court granted the request, giving Paoli another opportunity to obtain counsel within thirty days. If counsel did not appear by October 17, 2005, the case would proceed. (Docket #36). Acceding to her request, Defendants' Motion to Dismiss was not heard on September 16, 2005, and the trial date of September 19, 2005 was continued.
Thereafter, Defendants renoticed their Motion to Dismiss for Friday, December 2, 2005 at 11:00 a.m. Paoli filed a response to that motion and appeared. (Docket #38). The Court considered the positions of the parties at length.
Paoli blames the failure to respond to the orders, rules and procedures of the Court on a lawyer whom she consulted about this and other unrelated cases, Darryl Fountain (hereafter "Fountain"). Fountain was suspended by the Supreme Court on July 11, 2005 for various matters. Paoli's complaint against Fountain in Board Case No. 29, which was part of the grounds of suspension, did not involve this case. In re Fountain, 876 A.2d 1167 (Del. 2005).
To establish the position, she makes this statement: "5. Plaintiff did not realize that Mr. Fountain never even entered his appearance in the case until she went to the court on November 30 to see exactly what was in the file and make copies of parts of the file." Paoli did appear in Superior Court on November 30, 2005. Paoli hoped Fountain would enter his appearance as indicated in her January 28, 2005 response to Williams. (Docket #22). However, Paoli knew that Fountain did not enter his appearance by April 1, 2005. Fountain notified the Court of this fact on March 28, 2005 and sent Paoli a copy of the communication. (Docket #39). Paoli acknowledged that she may have seen it. Concerning this case, Fountain said "I have no plans to become involved. I have no knowledge of any other Delaware attorney who she may have consulted with."
On March 16, 2005, Defendants advised the Court, with notice to Paoli, that: "On February 1, 2005, Paoli provided incomplete responses to Defendants' First Set of Interrogatories and Request for Production of Documents. Paoli also cancelled her February 17th deposition and offered dates to reschedule it. Defendants have not, however, rescheduled Paoli's deposition because her discovery responses remain incomplete and fall short of providing the specificity Defendants require to proceed. More recently, Paoli advised Jennifer Brierley, Esquire that her legal counsel intended to enter an appearance on her behalf. We deferred pressing forward hoping and anticipating Paoli would secure counsel. To date, Paoli's attorney has not done so. Defendants have therefore written to Paoli pointing out the deficiencies in her discovery responses, and asking her to provide complete and verified responses by April 4th." (Docket #23). The deficiencies letter was of the same date and sent to Paoli (Docket #40).
In a letter to the Court dated April 3, 2005, Paoli acknowledged receiving Williams' letter dated March 16, 2005, upon her return from Florida on March 30, 2005. (Docket #25). Fountain referenced the same letter, confirming Paoli's statement to Brierley. Fountain said: "I am writing at the request of Ms. Paoli, who desires that I document that I did meet with her last year, discussed the above case and the possibility of my involvement. I believe that she wants to establish that her representation to being represented was in good faith. I thus assume that I am the attorney referred to in Mr. Williams' March 16, 2005 letter to the Court." As previously noted, Fountain made it crystal clear, however, that he would not represent her in this litigation. (Docket #39).
In her April 3rd letter, Paoli advised: "Also, Mr. Darryl Fountain told me he was going to enter his appearance in this case. He even spoke to Mr. Williams on my behalf about this case. Darryl had a $200 retainer, left from the Kim Lankford case, that he said could be used for this case. (Former attorney, John Green was present and witnessed this discussion.) I did not know that Darryl Fountain wasn't taking this case until I received the letter dated March 16th from Mr. Williams. Mr. Williams asked me to provide complete responses by April 4th. Considering the fact that I have been out of town until March 30th, this is impossible. . . . I was under the impression that Darryl Fountain was entering his appearance in this case because that is what he told me. I can't help it if he changed his mind due to personal circumstances." (Docket #25-emphasis added).
Under these circumstances, I find Paoli knew Fountain would not enter his appearance in this case on April 1, 2005. Her contrary statements in paragraph 5, quoted above, violate obligations of candor and good faith required of litigants.
Furthermore, in paragraph 10 of her response, Paoli states: ". . . Please note that the erroneous 101 Loginberry Court address was used by Mr. Williams for his motion to compel discovery in May which I never received, for notice of hearing on July 15 which I never received, for the Order of the Court on July 15 which I never received, for the motion to dismiss on August which I never received until I obtained copies of today, November 30, 2005." (Docket #38-emphasis added).
The motion to compel discovery in May refers to Defendants' Second Motion to Compel Responses to Discovery Requests dated May 27, 2005. (Docket #28). A certificate of service showed that a copy of the Notice of Motion, Second Motion to Compel Discovery Responses, and proposed order was served on May 27, 2005 by mail, addressed to Paoli at 101 Loginberry Court, Rehoboth, Delaware, 19971. I find that Paoli received these pleadings. She called Mr. Williams to continue the June 17, 2005 hearing, and Paoli separately wrote a request to the Court to change that date. (Docket #'s 29 and 32, exh.1).
The reference to the August motion to dismiss is to the Defendants' Motion to Dismiss for Failure to Prosecute Pursuant to Rule 41(b) with 12 exhibits (A-L) filed on August 11, 2005. It was scheduled for presentation on Friday, September 16, 2005 at 11:00 a.m. (Docket #32). A certificate of service certified that it was mailed to Paoli at 101 Loginberry Court, Rehoboth, Delaware 19971. I find that Paoli received these pleadings given her request on September 14, 2005 that the September 16th hearing date be continued. (Docket #35). Paoli referenced the motion which is the Defendants' Motion to Dismiss. (Docket #32). Five of the 12 exhibits (H-L) of that motion concern Defendants' Second Motion to Compel, its rescheduling, and the Court's July 15th Order which Defendants provided to Paoli. In her letter of September 14, 2005, Paoli acknowledged the motion to dismiss. Although expressing other complaints, she did not deny receiving notice of the rescheduling of Defendant's Second Motion to Compel to July 15, 2005. Nor did she deny receiving the Court's Order of July 15, 2005. (Docket #'s 30, 32, 44). Under the circumstances, her failure to do so amounts to an admission.
Also, on November 30, 2005, Paoli advised court staff about her desire to copy items from the file. Significantly, Paoli said she received the Defendants' August Motion to Dismiss. However, she needed a copy because she had lost it.
Considering Paoli received pleadings before and after the July 15th hearing date, I find that Paoli received but ignored the notice of the presentation of Defendants' Second Motion to Compel dated June 30, 2005 which was scheduled for July 15, 2005. (Docket #30). It was sent to the 101 Loginberry Court, Rehoboth, Delaware address which was used for the initial presentation of the Second Motion to Compel for Friday, June 17, 2005 and for the Motion to Dismiss for Friday, September 16, 2005. (Docket #'s 28, 32). She received notice of other pleadings and correspondence at the same address as well. It was her record address. This address was used in the caption of her amended complaint. (Docket #6). Disciplinary Counsel's letter of July 15, 2005 used this address to notify Paoli about complaints against Fountain on Board Case No. 29, 2004. (Docket #38, exhibit A). It was also the address used by the Court in granting the continuance for the September 16, 2005 hearing. The mail was sent on September 15, 2005, and it was not returned undeliverable to the Court. (Docket #36). Consequently, I find that Paoli's contrary statements in paragraph 10, quoted above, violate obligations of candor and good faith expected of parties.
Attached to Paoli's December 1, 2005 reply to the motion to dismiss, was a notice of address change indicating her current address as 34363 Summerlyn Drive, #204, Lewes, Delaware, 19958.
Paoli also claims that she gave Fountain her records to respond to the discovery that was the subject of Defendants' March 16, 2005 letter concerning the deficiencies. (Docket #'s 23, 40). Paoli claims that she needs time now to reconstruct information to answer the outstanding discovery. This assertion is not persuasive for several reasons.
First, Fountain advised that he was not representing Paoli on March 28, 2005. (Docket #39). Paoli acknowledged this fact in her letter of April 3, 2005, responding to Williams' letter of March 16, 2005. (Docket #25). In this communication, she asked the Court to schedule a motion to compel, consistent with her continuing self representation. However, despite knowing that Fountain would not take her case, she claims to have given Fountain her file to address the discovery deficiencies mentioned in the March 16, 2005 letter on this matter. (Docket #40). This assertion makes no sense given her knowledge that Fountain was not representing her when she received the two letters of March 16, 2005 together with Fountain's communication. With this background, her argument about not having the file is a shallow excuse.
Further, Paoli was advised on December 17, 2004 that the rules of the Court must be followed. The essential elements of the defamation claim are the subject of Defendants' Interrogatories 9-10-11, and Requests for Production related thereto. From August of 2004 to date, Defendants sought discovery of the claimed false oral and written statements and the parties who allegedly made them. Paoli has not complied with this Court's Order of December 17, 2004. She has not complied with this Court's Order of July 15, 2005. She has not complied with the discovery rules. The delay has resulted in multiple changes to the Scheduling Order, and the cancellation of the September trial date.
Moreover, by continuing the September 17, 2005 hearing date on Defendants' motion to dismiss, Paoli did not take advantage of the hiatus to comply. Nothing has been filed to date on the discovery even after Fountain's suspension on July 11, 2005. Paoli complains that her motion to compel has never been scheduled. Yet, she has never filed a proper motion. Super. Ct. Civ. R. 37 sets forth the requirements. Even without reading the rule, she had the opportunity to review two motions to compel filed by Defendants. In any event, the record shows Defendants served certain discovery to Paoli on April 27, 2005. (Docket #27).
Paoli has not complied with the most basic and easily understood Court rules that answers to interrogatories must be separately answered and be under oath. Defendants brought these points home to her. Super. Ct. Civ. R. 33(b)(1). (Docket #'s 14, 28, 40).
Judges are reluctant to dismiss cases and prefer to decide disputes on the merits. Litigants are entitled to their day in Court, whether represented by counsel or not. Their entitlement, however, does not give them carte blanche to ignore judicial orders, procedures and rules. Without compliance, the management of cases and their expeditious disposition are impeded. This is the present situation. The Defendants have been prejudiced given the extended undue delay and the incurrence of unnecessary expenses.
Paoli has attempted to hire counsel other than Fountain but has not been able to do so. Although cautioned from the beginning and although additional time was given for her to secure counsel, no lawyer has yet entered an appearance. Notwithstanding, the discovery sought from Paoli is simple, straightforward, and clear. It could have been answered on September 29, 2004 even without the benefit of counsel. Paoli has disobeyed the orders, rules, and procedures of this Court. She has frustrated the management of the civil trial process. Paoli has been less than candid in significant ways, violating fundamental principles of the judicial process.
Considering the foregoing, this Court hereby dismisses the Amended Complaint with prejudice under Rule 41(b).