Lee v. McLean.
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SUPERIOR COURT OF THE STATE OF DELAWARE RICHARD R. COOCH RESIDENT JUDGE NEW CASTL E COUNTY C OURT HO USE 500 NORTH K ING STREET, SUITE 10400 WILMINGTO N, DELAWAR E19801 (302) 255-0664 July 14, 2004 Paul A. Wernlé Jr., Esquire New Castle Corporate Commons 92 Read s Way New Castle, Delaware 19720 Jerome M. Capone, Esquire 4 East 8th Street, Suite 200 Wilmington, Delaware 19801 Re: Lee v. McLean C.A. No. 01C-05-169 RRC On Defendant s Motion to Dismiss. Granted. Submitted: July 12, 2004 Decided: July 13, 2004 Dear Counsel: Defendant s Motion to Dismiss is scheduled for oral argument on July 21, 2004. By letter to counsel dated June 14, 2004, the Court directed Plaintiff to file a Response by June 25, 2004. The Court advised in that letter that [f]ailure of Plaintiff to file a Response by this date may result in the Court deeming the motion as unopposed. Nevertheless, Plaintiff did not file a Response by June 25. My civil case manager telephoned Mr. Wernlé on July 8 to ask Mr. Wernlé why no response had been filed; Mr. Wernlé apologized for overlooking the June 25, 2004 deadline date and stated that he would promptly file a Response. A Response was filed on July 12. The Motion to Dismiss is based on Plaintiff s failure to cooperate with her attorney by keeping in touch with him. Mr. Wernlé advised the Court and opposing counsel at the May 4, 2004 scheduling conference that he had lost contact with his client. The Motion to Dismiss further recites that Defendant tried to schedule Plaintiff s deposition for June 3, 2004 but that Plaintiff s attorney s secretary advised Mr. Capone that Mr. Wernlé was still unable to reach his client. In Mr. Wernlé s July 12 Response, he notes inter alia that he still is not [ ] able to contact his client since last fall, despite numerous telephone calls and some correspondence . . . [and that he] was forced to have a skip tracer in order to attempt to locate [his] client. Mr. Wernlé stated that [m]y intention therefore is to present only oral argument at the time the Motion is heard. The Court finds no need for oral argument. This case was filed in May 2001. Plaintiff has failed to prosecute this case and to comply with Superior Court rules and orders of court pursuant to Superior Court Civil Rule 41(b). Various deadlines established at the May 4 scheduling conference are fast approaching. The trial is scheduled for December 6, 2004. The case will be dismissed on two bases: 1) Plaintiff s failure to have filed a Response to the Motion to Dismiss by June 25, 2004, which motion the Court deems unopposed and 2) for the reasons otherwise set forth in this letter. Defendant s Motion to Dismiss is GRANTED. Oral argument scheduled for July 21, 2004 at 9:00 a.m. is cancelled. IT IS SO ORDERED. Very truly yours, RRC/mtc cc: Prothonotary
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