Opinion
C.A. No. 12207-NC
Date Submitted: April 2, 2001
Dated Decided: April 11, 2001
Arthur L. Dent, Esquire.
Stephen E. Jenkins, Esquire.
Dear Counsel:
Respondent Cancer Treatment Centers of America, Inc. ("CTCA") has again moved, pursuant to Court of Chancery Rules 41(b) (e), to dismiss this appraisal action for the failure of Petitioner Robert Michael Lane ("Lane") to prosecute.
Respondent Cancer Treatment Centers of America, Inc.'s Second Motion to Dismiss for Failure to Prosecute.
This action has now been pending for more than ten years. Except for some intermittent discovery, very little has been done to move this case forward. Some of the delay may have been attributable to Lane's efforts in a related matter in Oklahoma. Nevertheless, there is little to justify the pace of these proceedings.
On June 15, 1999, CTCA moved to dismiss for failure to prosecute; that motion was granted on November 17, 1999. Lane moved for reargument; the motion for reargument was granted on March 16, 2000. Shortly thereafter, Lane obtained new counsel who entered their appearance on April 5, 2000. No scheduling order was entered and neither party filed anything with the Court until status reports were requested earlier this year. On February 22, 2001, and after CTCA had filed its pending motion to dismiss for failure to prosecute, Lane submitted his status report and asked for a scheduling conference to set a trial date for the fall of this year.
Lane v. Cancer Treatment Centers of America. Inc., Del. Ch., C.A. No. 12207, Steele, V.C. (November 17, 1999).
Lane v. Cancer Treatment Centers of America, Inc., Del. Ch., C.A. No. 12207, Steele, V.C. (March 16, 2000).
Lane points out that, although there are no docket entries caused by the parties between the entry of the appearance of his new counsel and CTCA's motion to dismiss, his counsel were actively pursuing his cause. Their efforts involved reviewing the record in this action as well as the record in the Oklahoma proceedings. A significant impediment was first recognized in September, 2000, when Lane's counsel learned that the firm that had been retained to provide expert valuation analysis and testimony was no longer pursuing valuation assignments. An effort to persuade that firm to finish Lane's work was unsuccessful. Thus, Lane's counsel had to search for, interview, and select a new valuation expert. That effort, apparently, is almost complete.
Affidavit of Arthur L. Dent, dated March 28, 2001.
This Court has numerous tools to control its docket and to encourage the timely resolution of matters before it. Among those tools are Chancery Rule 41(b), which authorizes dismissal "[f]or failure of the plaintiff to prosecute," and Chancery Rule 41(e), which authorizes dismissal of any "cause pending where no action has been taken for a period of 1 year" and where there has been no "good reason for the inaction." The decision to dismiss for failure to prosecute is committed to the Court's discretion. Because both Chancery Rules 41(b) and 41(e) deal with inexcusable delay, they overlap somewhat.
See, e.g., Gebhart v. Ernest DiSabatino Sons. Inc., Del. Supr., 264 A.2d 157, 159 (1970).
Yancey v. National Trust Co., Del. Supr., No. 204, 1993, Moore, J. (Aug. 30, 1993) (Order); Taylor v. Council of South Bethany, Del. Ch., C.A. No. 1203-S, Steele, V.C., (May 16, 1995); Council 81, AFCSME v. New Castle County, Del. Ch., C.A. Nos. 8816 8817, Jacobs, V.C. (Sept. 16, 1988).
CTCA's effort to secure dismissal through Chancery Rule 41(e) must fail for the simple reason that one year did not pass between the granting of Lane's motion for reargument and Lane's request for a scheduling conference to set a trial date.
From the time of the initial dismissal in November, 1999, until the reinstatement of this action in March, 2000, Lane was effectively precluded from taking any action in this matter. Moreover, it may be that the better date for evaluating application of Chancery Rule 41(e) would be the date of entry of appearance by Lane's new counsel in early April, 2000. Here, the substitution of counsel was not a device employed to secure additional delay. Indeed, it came promptly after the Court's dismissal of this action for failure to prosecute was revoked by the granting of Lane's motion for reargument.
Although Chancery Rule 41(e) is applied in the context of activity (or, more accurately, inactivity) within the last year, Chancery Rule 41 (b) requires consideration of this case's lengthy, if somewhat, sparse, history. Lane's dilatory conduct before March, 2000, was not excused or "immunized" by the Court's grant of reargument on March 17, 2000. Indeed, that Lane's right to pursue this action was salvaged only through the success of a motion for reargument should have impressed upon him the need for diligent efforts to pursue this matter in a timely fashion.
I am reluctant, however, to dismiss this action. Lane's counsel did initiate the process for establishing a trial date less than eleven months into the case. Furthermore, although the loss of the valuation expert may well have been another consequence of Lane's inordinate delay over the years, the processes of concluding that a new expert was needed and of selecting a new expert constituted a material effort by Lane's new counsel to prosecute his case.
See George Lynch. Inc. v. Armco Steel Corn., Del. Super., C.A. No. 80L-DE-27, Martin, J. (Feb. 27, 1987).
CTCA argues that "[m]erely contacting expert witnesses, by itself, should not be sufficient to avoid dismissal for failure to prosecute." If Lane's counsel's efforts during this eleven month period consisted only of a few phone calls, I would accept CTCA's argument. I am satisfied, however, that this is not a case where there were only a few incidental or half-hearted conversations with potential experts. His counsel first had to deal with the previously selected valuation firm and then had to launch a search for a new expert. Because of the nature of the dispute, the selection of a valuation expert is particularly important. While Lane's conduct throughout this litigation must be considered and has been considered, the reinstatement of this action in March of last year must be given some independent significance. In that light and under these unusual circumstances, Lane's efforts during the eleven months preceding his initiation of the trial scheduling process, even when assessed in the context of his delay before March, 1999, are sufficient to avoid dismissal.
Respondent Cancer Treatment Centers of America, Inc.'s Reply in Support of its Motion to Dismiss for Failure to Prosecute at 2.
In short, even though this matter has dragged on far too long, I conclude that the proper approach to management of this case is not to dismiss it, but instead to enter and to enforce a scheduling order setting a prompt trial date.
For the foregoing reasons, CTCA's Second Motion to Dismiss for Failure to Prosecute is denied.
My disposition of CTCA's motion to dismiss for failure to prosecute does not preclude CTCA from arguing that Lane's past conduct is an appropriate factor to consider in determining whether expert reports should be filed simultaneously, an issue which the parties are currently addressing.