Swen v. Miller

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PERMEAH SWEN, )
A.B. a minor, B.H., a minor, )
)
Plaintiffs, ) C.A. No. N23C-04-131 PAW
)
v. )
)
JAMES DAVIS MILLER, )
)
Defendant. )

Submitted: October 28, 2024
Decided: November 27, 2024

MEMORANDUM OPINION AND ORDER

Upon Consideration of Defendant’s Renewed Motion to Dismiss;

GRANTED.

WINSTON, J.
I. FACTUAL AND PROCEDURAL BACKGROUND

This is a personal injury action arising from a motor vehicle accident on July

4, 2021.1 Plaintiff Permeah Swen (“Plaintiff Swen”) was driving a 2020 BMW X3

with her two children, minors A.B. and B.H. (together with Plaintiff Swen, the

“Plaintiffs”), when her vehicle was rear-ended by Mr. Miller.2 Plaintiff Swen filed

a Complaint on March 2, 2023, in the Court of Common Pleas of the State of

Delaware.3 Defendant James Davis Miller answered the Complaint and demanded

a jury trial, and, accordingly, the matter was transferred to this Court in April of

2023.4

On August 16, 2023, this Court issued the first Trial Scheduling Order.5

Among other deadlines, the Trial Scheduling Order set the Plaintiffs’ expert report

deadline for October 10, 2023.6

Thereafter the case was replete with Plaintiffs’ repeated failures to comply

with their obligations, even though the Court made multiple efforts to explain those

obligations and advise them of the consequences of a failure to do so. The following

1
Docket Item (“D.I.”) 1.
2
Id.
3
Id.
4
Id.
5
D.I. 2.
6
Id.
2
summarizes the progress (or the lack thereof) of the matter after its reassignment to

this Court:

• October 17, 2023, Defendant moved to dismiss the Complaint for failure to
state a claim upon which relief could be granted.7 In response, Plaintiff Swen
requested an extension for submission of her expert reports to gather
necessary medical records, payments, and billing records and to secure
counsel for this matter.8 Plaintiff Swen represented that her request was
unopposed by Defendant.9 On October 22, 2023, the Court granted
Plaintiff’s first request for an extension as unopposed and provided Plaintiff
an additional 45 days beginning on October 23, 2023.10 Defendant clarified
his position and requested the Court order a briefing schedule for his pending
Motion to Dismiss.11

• After briefing was complete, the Court heard oral argument on Defendant’s
Motion to Dismiss.12 At that time, Plaintiff Swen disclosed that, contrary to
her earlier representations, she was unable to retain an expert and sought an
extension of time to procure an expert report. Plaintiffs were also unable to
secure counsel. On March 26, 2024, the Court denied Defendant’s Motion
to Dismiss and directed Plaintiffs to file an amended complaint within 15
days.13 The Court also ordered the parties to meet and confer regarding
Plaintiffs’ outstanding discovery responses. The Court also reminded
Plaintiff Swen of her discovery obligations given that the parties were four
months away from trial. Despite the Court’s March 26, 2024 Order directing
Plaintiffs to file an amended complaint, they failed to do so.

• On April 18, 2024, Defendant filed a Motion to Compel seeking responses to
outstanding Interrogatories, Requests for the Production of Documents, and

7
D.I. 4.
8
D.I. 6.
9
Id.
10
D.I. 7.
11
D.I. 8.
12
D.I. 26.
13
D.I. 26.
3
expert disclosures.14 On April 29, 2024 the Court ordered Plaintiffs to
respond by May 8, 2024 and informed them that failure to respond by the
deadline may result in the Court granting the Motion to Compel as
unopposed.15 Plaintiff filed her answers to Form 30 Interrogatories five days
after the Court ordered deadline but did not file a response to the Motion.16
A hearing was held on May 15, 2024, in which the Court granted Defendant’s
Motion to Compel.17

• On May 22, 2024, Defendant filed a Motion to Dismiss for Failure to
Prosecute.18 Defendant noted Plaintiffs’ continual failure to adhere to the
Court’s orders to amend the Complaint and produce discovery responses. In
accordance with the Trial Scheduling Order, on May 31, 2024, Defendant
submitted pretrial papers, but without any contribution from Plaintiffs by the
required deadline.19

• On June 10, 2024, the Court issued a letter which noted that the parties had
not attempted to complete good faith mediation as ordered in the August 16
Trial Scheduling Order.20 Accordingly, the Court ordered the parties to
complete a good faith mediation before July 1, 2024, and postponed the July
25, 2024 trial.21

• Mediation was ultimately unsuccessful.22 Accordingly, on June 20, 2024, the
Court issued a letter ordering Plaintiffs to respond to the Motion to Dismiss
by June 28, 2024.23 On June 26, 2024, Plaintiff Swen requested another

14
D.I. 27.
15
D.I. 29.
16
D.I. 30.
17
D.I. 31; D.I. 32.
18
D.I. 34.
19
D.I. 41.
20
D.I. 43.
21
Id.
22
D.I. 46.
23
D.I. 47.
4
extension to produce her expert report and discovery.24 Plaintiff Swen later
filed an untimely response to the Motion to Dismiss, in which she renewed
her request for an extension.25

• The Court held a scheduling conference on July 29, 2024.26 At the parties’
scheduling conference, Plaintiff Swen conceded that no advancement had
been made to obtain an expert. The Court advised Plaintiff Swen that her
case would not go to trial without an expert witness. The Court issued an
Amended Trial Scheduling Order the following day, in which the Court set
the deadline for the pre-trial stipulation as September 2, 2024.27 Trial was set
to begin on January 13, 2025.28

• On September 24, 2024, the Court heard oral argument on Defendant’s
Motion to Dismiss. Plaintiff Swen again conceded she still had not filed an
amended complaint, secured an expert witness for trial, or produced expert
disclosures. In denying the Motion to Dismiss, the Court warned Plaintiff
Swen that her further dilatory action, including failing to amend the
Complaint, secure an expert witness, and produce expert disclosures, would
subject Plaintiffs to dismissal of their claims. The Court directed Plaintiff
Swen to file an amended complaint by October 1, 2024, and to submit the
necessary expert disclosures by October 8, 2024.29

Despite the Court’s October 1, 2024, order directing Plaintiff Swen to file an
amended complaint, she failed to do so. Defendant renewed his Motion to
Dismiss for failure to prosecute.30 The Court would have been justified in
dismissing the matter for failure to prosecute at this juncture. Nonetheless,
the Court decided to give Plaintiffs another chance. Accordingly, the Court
entered an order directing Plaintiffs to show cause why this case should not

24
D.I. 50.
25
D.I. 53.
26
D.I. 55.
27
D.I. 56.
28
D.I. 56.
29
D.I. 59.
30
D.I. 60.
5
be dismissed. 31 Plaintiffs were ordered to show cause within seven business
days of the order as to why they failed to meet the October 1, 2024, amended
complaint deadline and the October 8, 2024, expert deadline.32

• On October 28, 2024, Plaintiffs filed a notice of service of discovery, an
expert report for one of the minor plaintiffs, and their motion for
continuance.33 Plaintiff Swen advised that she was unable to proceed and
sought a 120-day extension. She disclosed “significant personal difficulties,”
including lack of custody of one of the minor plaintiffs.34 Plaintiff Swen has
otherwise not filed a response to the Court’s order to show cause and has still
not filed an amended complaint.

II. ANALYSIS

The Court has “discretion to resolve scheduling issues and to control its own

docket.”35 Superior Court Civil Rule 16 provides that parties must adhere to the trial

judge’s scheduling order and conduct discovery “in an orderly fashion.”36 A parties’

failure to comply with a scheduling order permits the Court to impose appropriate

sanctions.37 Among the various sanctions available to the Court is the sanction of

dismissal.38 The Court, however, does not have unfettered discretion to sanction a

31
D.I. 61.
32
Id.
33
D.I. 64.
34
Id.
35
Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 528 (Del. 2006).
36
Del. Super. Ct. Rule 16.
37
Dillulio v. Reece, 2014 WL 1760318 at *3 (Del. Super. Apr. 23, 2014).
38
Abdallah v. Rago, 2016 WL 6246891 at *3 (Del. Super. Oct. 24, 2016).
6
party by dismissing the case; the “sanction of dismissal is severe and courts are and

have been reluctant to apply it except as a last resort.”39

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

defendant.”40 However, a case should not be dismissed before trial because of a

failure to obey a scheduling order when the prejudice caused by the offending

conduct can be cured by a lesser sanction.41 Accordingly, the Court must consider:

(1) the extent of the party’s personal responsibility; (2) the prejudice to the adversary;

(3) a history of dilatoriness; (4) whether the conduct was willful or in bad faith; (5)

the effectiveness of sanctions other than dismissal; and (6) the merits of the claim or

defense.42

After considering these factors, the Court finds dismissal appropriate in this

case. The delay here is solely attributable to Plaintiffs. There is prejudice to the

Defendant, who is just as entitled as Plaintiffs to have these claims resolved in a

timely fashion. Defendant is also prejudiced by Plaintiffs’ failure to comply with

39
Id. (citing Hoag v. Amex Assurance Co., 953 A.2d 713, 717 (Del. 2008)).
40
Del. Super. Ct. Rule 41(b).
41
Abdallah, 2016 WL 6246891 at *3.
Id. (citing Drejka v. Hitchens Tire Serv., Inc., 15 A.3d 1221 (Del. 2010);
42

Christian v. Counseling Resource Assoc., Inc., 60 A.3d 1083 (Del. 2013)).
7
the Court’s orders and provide expert disclosures. 43 The record here is replete with

delays and defaults by Plaintiff Swen, and the Court has been generous in allowing

her multiple chances to diligently prepare her case. The Court also warned Plaintiffs

on September 24, 2024, that any further dilatory action, including failing to amend

the Complaint and secure her experts for trial, would subject her claims to

dismissal.44

The Court finds that no sanction less than dismissal will be adequate. The

Court has inherent power to dismiss an action for failure to prosecute or failure to

comply with a scheduling order to “manage its own affairs and to achieve the orderly

and expeditious disposition of its business,”45 and it will do so here. The Court

recognizes that self-represented litigants may be held to a less stringent standard in

presenting their cases under certain circumstances.46 However, all litigants—self-

represented or not—must diligently prepare their case for trial or risk dismissal for

failure to prosecute.47 Indeed, this Court has no different set of rules for self-

43
See D.I. 60 (“[T]he Defendant’s costs have continued to increase to try to bring
this case to a close. The interests of the Defendant have to be considered as
well.”).
44
D.I. 59.
45
Gebhart v. Ernest DiSabatino & Sons, Inc., 264 A.2d 157, 159 (Del. 1970).
46
Hayward v. King, 2015 WL 6941599, at *4 (Del. Nov. 9, 2015).
47
Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001).
8
represented litigants, and the Court should not sacrifice the orderly and efficient

administration of justice to accommodate an unrepresented party.48

III. CONCLUSION

For these reasons, the Defendant’s renewed Motion to Dismiss for failure to

prosecute is GRANTED.

IT IS SO ORDERED.

/s/ Patricia A. Winston
Patricia A. Winston, Judge

48
Id.
9