Abdallah v. Rago

SUPERIOR COURT
OF THE
STATE OF DELAWARE

JOHN A. PARKINS, JR. NEW CASTLE COUNTY COURTHOUSE
JUDGE 500 NORTH KING STREET, SUITE 10400
WILMINGTON, DELAWARE 19801-3733
TELEPHONE: (302) 255-2584

October 24, 2016

Nabil Abdallah Wilson B. Davis, Esquire
48 Fairway Road Tanisha L. Merced, Esquire
Apartment 3A New Castle County Law Department
Newark, Delaware 19711 87 Reads Way
New Castle, Delaware 19720-1648

Re: Nabil Abdallah
v. Joseph Rago
and New Castle County
C. A. No. N15C-03-043 JAP

Dear Mr. Abdallah and Counsel:

This is a ruling on Defendant’s motion to dismiss for failure to

prosecute.

Background

This personal injury case arises from a November 28, 2013 motor

vehicle accident. At approximately 3:00 a.m. Defendant Joseph Rago, a

Master Corporal in the New Castle County police department, was

responding to an emergency in his patrol vehicle. His emergency lights were

on and his siren was activated when he entered an intersection controlled by

a traffic light. Plaintiff, who had the green light, entered the intersection and

his vehicle was struck by the County Police car.
 Plaintiff, then represented by counsel, filed suit on March 6, 2015, and

Defendants’ counsel deposed him the following October. At his deposition,

Plaintiff testified under oath that he was unable to work or drive as a result

of the injuries he suffered in the accident. Unknown to Plaintiff, Plaintiff was

surveilled immediately after the deposition. He was videotaped leaving the

building in which the deposition took place, driving to a nearby industrial

park where he entered and drove a commercial vehicle for a company known

as “All American Logistic.” A few days after the deposition, Plaintiff, his

counsel, and Defendants’ counsel appeared at mediation. During the

mediation the defendants showed Plaintiff the videotape, whereupon Plaintiff

abruptly left the mediation. A few days later Defendants’ counsel was

contacted by Plaintiff’s counsel or the mediator (it is not clear which) and the

parties worked out a settlement. Not long thereafter, Plaintiff’s counsel

wrote to the court that the matter had been settled.

Apparently Mr. Abdallah had second thoughts about the settlement

and refused to sign the papers. Defendants eventually filed a motion to

enforce settlement, and Plaintiff’s counsel filed a motion to withdraw his

appearance. The court conducted a hearing attended by Defendants’

counsel, Plaintiff’s counsel, and the Plaintiff himself. The court granted

Plaintiff’s counsel to withdraw and denied Defendants’ motion to enforce

settlement. The court advised Plaintiff of his right to retain a new attorney

or represent himself. Mr. Abdallah never found an attorney willing to

represent him, so he proceeded pro se throughout the rest of the case.

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 Thereafter the case was replete with Plaintiff’s repeated failures to

comply with his obligations, even though the court took pains to explain

those obligations and advise him of the consequences of a failure to do so.

The following summarizes the progress (actually the lack thereof) of the

matter after Mr. Abdallah undertook to represent himself.

 At the February 26, 2016 hearing in which the court granted

Plaintiff’s counsel’s motion to withdraw, the court directed

Plaintiff (who was present at that hearing) to appear in court for

a status conference on March 17, 2016. The same day the

court sent Mr. Abdallah and Defendant’s counsel a letter

confirming the March 17 date and directing them to appear.

 Mr. Abdallah did not appear at the March 17 conference nor did

he advise the court he would be unable to attend. Defendants’

counsel was present. At the conference the court scheduled the

pretrial conference for April 12, 2016 and required submission

of the pretrial order no later than April 7, 2016.

 The same day as the conference the court sent a letter to Mr.

Abdallah advising him of the deadlines and telling him that

“[f]ailure to comply with these deadlines will result in dismissal

of these claims.” (bold in original)

 Mr. Abdallah did not appear at the pretrial conference. Even

though not required to do so, prior to the scheduled conference

Defendants’ counsel prepared a draft pretrial order and sent it

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 to Mr. Abdallah. Counsel reported they had heard nothing from

Mr. Abdallah since February 26, 2016.

 The court would have been justified in dismissing the matter for

failure to prosecute at this juncture. Nonetheless it decided to

give Mr. Abdallah another chance. As such, it entered an order

directing Mr. Abdallah to show cause why his case should not

be dismissed for failure to prosecute.

 Mr. Abdallah timely responded to the order. In the response he

wrote:

Please be advised that [it] was only upon
receiving and reading the letter of “ORDER”
which was sent to me by yourself or the
Superior Court of the State of Delaware that I
became aware or fully aware that I had failed
to meet letter’s deadlines which I was warned
about in its March 17, 2016 scheduling letter.

Later in his response he continued:

Mr. Judge Parkins, please be advised that I
did not receive any documentation informing
me to appear before the court for a pretrial
Conference at/on April 16, 2016 and therefore
I had no knowledge that I was to do so.

 On April 29, 2016, the court reviewed the evidence and found

that Mr. Abdallah had received the notices and that his

response to the order to show cause was without merit. Despite

this, the court still did not dismiss the case. Rather, it found

that sanctions were in order. The court declined to enter

sanctions until Mr. Abdallah and Defendants had an

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 opportunity to weigh in on the issue of sanctions. It therefore

scheduled a hearing on sanctions for May 16, 2016.

 Mr. Abdallah attended the May 16 hearing. Here, the court gave

Mr. Abdallah yet another chance. It ordered him to pay the

county $200 (in two $100 monthly increments) to partially

defray the cost of having to send its attorneys to attend the

hearing which Mr. Abdallah did not attend. It also ordered Mr.

Abdallah to produce copies of his income tax returns (which

were relevant to his claims for lost wages) by June 30, 2016 and

expert reports by July 30, 2016. The court confirmed this in a

written order issued the same day.1 At the hearing the court

explained the importance of the expert reports and the

consequences of not providing them:

THE COURT: Mr. Abdallah, I don't mean to lecture you
but I need to let you know, physicians don't need to
do this and they don't do it for free. You need to
make arrangements to pay him for that and you
need to do that sooner rather than later because he
needs to put this on his calendar. And what I don't
want is to have everybody get ready for trial and
start the first day of trial, only to find out that you
haven't made arrangements to have your physician
come and testify.

MR. ABDALLAH: One main thing I'm just curious to
know is that I just want to know without a
physician coming in and testifying for me, does that
mean that my case cannot continue, can I still be
able to go to trial?

1 As testament to the court’s leniency, the court gave Mr. Abdallah an extra day to produce
his expert witness reports, requesting them on or before July 31, 2016.

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 THE COURT: You cannot go to trial without a
physician. And you are also going to have to get this
physician to write a report and send it to the
County's attorneys and you have to pay the
physician to do that, do you understand that?

MR. ABDALLAH: Understood.
…
THE COURT: Now, Mr. Abdallah, you need to
provide reports from your expert witnesses, written
reports, and you need to do that by July 30th, do
you understand that?

MR. ABDALLAH: Yes.

THE COURT: That means you have to make
arrangements with your physician and whoever else
you are going to call an as expert witness, you need
to make arrangements to pay them if they want to
be paid and they have to write a report about your
condition and what they will testify to at trial.

MR. ABDALLAH: Understood, Your Honor.

THE COURT: If you don't do that, if you don't
comply with that deadline, your case will be
dismissed.

 Mr. Abdallah made the two $100 payments but failed to

produce his tax returns by the June 30 deadline. Defendants

moved to dismiss because Mr. Abdallah had not complied with

the June 30 deadline for producing his tax returns. The court

deferred ruling on that motion on the remote chance that Mr.

Abdallah would provide expert discovery by the July 30

deadline and this case could finally be heard on the merits.

 Mr. Abdallah did not comply with the July 30 deadline, so on

August 23, 2016 the defendants again moved to dismiss. The

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 court conducted a hearing on that motion on September 19,

2016 which Mr. Abdallah attended. He was given a chance to

explain why he had not complied and why his case should not

be dismissed. He gave unsatisfactory reasons for either.

 Mr. Abdallah did not appear at the pre-trial conference

scheduled for October 21, 2016.

Analysis and Decision

The court has “discretion to resolve scheduling issues and to control

its own docket.”2 Pursuant to Superior Court Civil Rule 16, parties must

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

orderly fashion.”3 A parties’ failure to obey a scheduling order permits the

court to impose appropriate sanctions. Among the various sanctions

available to the court is the sanction of dismissal.4 The court however does

not have unfettered discretion to sanction a party by dismissing the case.5

Indeed the “sanction of dismissal is severe and courts are and have been

reluctant to apply it except as a last resort.”6

Superior Court Civil Rule 41(b) states that where there is a “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 . . . .”7 The court is

mindful of the Christian and Drejka cases decided by the Delaware Supreme

2 Sammons v. Doctors for Emergency Servs., P.A., 913 A.2d 519, 528 (Del. 2006).
3 Dillulio v. Reece, 2014 WL 1760318, at *3 (Del. Super. 2014).
4 Id.
5 Drejka v. Hitchens Tire Service, Inc. 15 A.3d 1221 (Del. 2010) (illuminating that the court

should weigh certain factors prior to a determination of a sanction of dismissal).
6 Hoag v. Amex Assurance Co., 953 A.2d 713, 717 (Del. 2008).
7 Del. Super. Ct. Rule 41(b).

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Court.8 In general, those decisions stand for the proposition that 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. To this end the court has examined the following: (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.9

The court finds that there are no sanctions short of dismissal which

will remedy the prejudice to defendants and protect the court’s ability to

manage its docket. The delay here is solely attributable to Plaintiff himself.

There is prejudice to the defendants, who are just as entitled as Plaintiff to

have the claims resolved is a timely fashion. The record here is replete with

delays and defaults by Plaintiff, and the court has been generous to a fault

in allowing him second chances. The matter has gotten to the point where

the court finds that no sanction less than dismissal will be adequate.10 The

8 Drejka v. Hitchens Tire Serv., Inc., 15 A.3d 1221 (Del. 2010); Christian v. Counseling
Resource Assoc., Inc., 60 A.3d 1083 (Del. 2013); see, e.g., Granton v. Johnson, 2014 WL
7148786, at *2 (Del. Super. 2014) (“The Supreme Court's imploration in Draper v. Med. Ctr.
of Del. (a case contemplating Rule 41(b)) that courts attempt to “get the case back on track,”
is akin to its motivation in Christian to curtail the hasty disposition of cases, without
considering their merits.”).
9 Drejka, 15 A.3d at 1224.
10 Gunzl v. One Off Rod & Custom, Inc., 2015 WL 59749, at *1–2 (Del. 2015) (where the court

explained to the plaintiff the discovery process, the need for an expert to support his claims,
and granted plaintiff several time extensions to comply with the expert deadline outlined in
the scheduling order, the court was in its discretion to dismiss the case); Harrison v. Del.
Supermarkets, Inc., 2014 WL 2718830, at *1–2 (the court was in its discretion to dismiss
the case where several extensions of time were granted to pro se plaintiff and the court
advised plaintiff that if he did not get the correct expert to testify by the amended scheduling
order the complaint would be dismissed); Jonason v. North Silver Lake, LLC, 2014 WL

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

failure to comply with a scheduling order in order to “manage its own affairs

and to achieve the orderly expeditious disposition of its own business,”11 and

it will do so here.12

For these reasons, the Defendant’s motion to dismiss for failure to

prosecute is GRANTED.

Very truly yours,

John A. Parkins, Jr.

oc: Prothonotary

4782814, at *1 (Del. Super. 2014) ((1) plaintiff failed to attend deposition after several forms
of notice; (2) plaintiff did not comply with trial scheduling order stating that there was an
expert discovery cut-off deadline for plaintiff; and (3) defendant has not received any
communications from plaintiff).
11 Gebhart v. Ernest DiSabatino & Sons, Inc., 264 A.2d 157, 159 (Del. 1970).
12 This power is not limited, and applies equally to pro se plaintiffs. Adams v. Aidoo, 58 A.3d

410, 413 (Del. 2013). Utilizing the balancing factors enumerated in Drejka the court found
that a pro se plaintiff was personally responsible for her failure to provide discovery. The pro
se litigant clearly understood what was required and the court carefully explained to her
that she was not free to ignore interrogatories that she believed were irrelevant or personally
invasive. Second, there was a history of dilatoriness. The trial court gave plaintiff numerous
extensions, and she had no excuse for her failure to comply with the deadlines. Finally,
because plaintiff’s refusal to provide discovery was willful, it was apparent that no lesser
sanctions would have induced compliance. Id.

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