Delaware Business Litigation Report

District Court Issues Show Cause Order to Determine Whether Tort Action Should Be Dismissed for Failure to Prosecute

Cherry Line, S.A. v. Muma Services f/k/a Murphy Marine Services, Inc., C.A. No. 03-199-JJF, 2006 U.S. Dist. Lexis 29818 (D. Del. May 8, 2006). Defendant filed a motion for sanctions and for dismissal for failure to prosecute. Plaintiff had filed a complaint on February 14, 2003, alleging that defendant had negligently harmed plaintiff's vessel while defendant was contracted to provide stevedoring services. Plaintiff failed to prosecute the action for two years, and the court ordered plaintiff to show cause why the action should not be dismissed for failure to prosecute on July 14, 2005. The plaintiff then filed a stipulated scheduling order, which the court entered, but subsequently failed to respond to any of defendant's discovery requests, despite its initial assurances that discovery responses were forthcoming. Defendant filed a motion to compel, which plaintiff did not answer, but instead requested an extension to the scheduling order. The court granted defendant's motion to compel, and ordered plaintiff to provide discovery responses within twenty days of the court's order. Plaintiff failed to comply with the order, and defendant moved to dismiss. The court observed that it had the discretion to dismiss a case for failure to obey the court's discovery orders under Fed. R. Civ. P. 37(b)(2)(C), and determined that plaintiff exhibited a "history of dilatoriness," including a failure to obey the court's order requiring it to respond to defendant's discovery requests. The court noted that, given plaintiff's failure to offer any substantive reasons for the delay in preoscuting the case, the court was left with no other conclusion than to assume that plaintiff had willfully failed to obey the court's orders and to prosecute the action. The court determined to permit plaintiff with a final opportunity to avoid dismissal with prejudice by explaining its delay, and issued a show cause order. Share