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Bush v. Reyes

Superior Court of Delaware
Jan 19, 2001
C.A. No. 98C-02-005-PLA (Del. Super. Ct. Jan. 19, 2001)


C.A. No. 98C-02-005-PLA.

Decided: January 19, 2001.

Letter Opinion and Order on Plaintiff's Motion for Reargument of the December 19, 2000 Decision by this Court — MOTION DENIED.

Dear Mr. Longobardi and Mr. Parshall:

The Plaintiff, Crystal Bush, filed a timely Motion for Reargument of the Court's decision of December 19, 2000, granting Defendant's Motion to Dismiss. For the reasons stated herein the Motion is DENIED.

Plaintiff has moved for reargument on three grounds. First, plaintiff submits that she could not fully answer the outstanding discovery until she received defendant's answers to interrogatories. Second, plaintiff argues that there was a reluctance on her part to revisit the abuse that was the subject of the litigation. Third, plaintiff claims that since defendant cannot identify any real prejudice at this stage of the litigation her Complaint should not have been dismissed.

Plaintiffs first point, that she could not respond to discovery until answers to her discovery were propounded, must fail. Plaintiff relies on Warner v. Warner, Del. Super., 180 A.2d 279 (1962), in support of her argument. In Warner, this Court "denied a motion for default judgment under Rule 37 because the trial judge found that the defendant's filing of an answer to interrogatories 10 days late did not constitute the requisite willfulness to justify the sanction of dismissal." Shockley v. Wilmington Medical Center, Del. Supr., No. 59, 1988, Christie, J., 7-8 (Dec. 8, 1988)(ORDER), citing Warner v. Warner, Del. Super., 180 A.2d 279, 281-82 (1962).

In the case at bar, plaintiff did not wait a mere ten days, or even a month. Rather, she failed to provide Red Clay Consolidated School District and Alexis I. duPont High School (collectively "Red Clay") with answers to discovery until December 6, 2000, six months after Red Clay responded to her discovery request. In fact, it was not until Red Clay filed its Motion to Dismiss that plaintiff finally responded, and those responses were cursory and deficient. The answers propounded by plaintiff on December 6, 2000, were not in compliance with Super. Ct. Civ. R. 33(a), which requires each interrogatory answer to be "fully in writing and under oath." It was not until the day of the hearing, December 19, 2000, that Red Clay finally received verified interrogatories.

Next, plaintiff raises the claim that she was "reluctant . . . to revisit the abuse." The reluctance of a nineteen year-old to testify at her own arbitration, because it may be too traumatic, is simply not an acceptable basis for prolonging the litigation. Defendants and their counsel were present at the arbitration as was the arbitrator. In addition, even if plaintiff is actually traumatized, that mental or emotional distress hardly justifies her failure to sign a medical authorization until the day of the hearing on Defendant's Motion to Dismiss.

Finally, I disagree with plaintiff's claim that defendant can point to no prejudice at this stage of the litigation. Plaintiffs repeated failure to respond to discovery requests, coupled with her defiance of Judge Silverman's Order of October 27, 2000, has forced Red Clay to file and argue its Motion to Dismiss and now respond to this Motion for Reargument. Moreover, there is inherent prejudice in the fact that Red Clay has had to defend this case for an unnecessarily protracted period of time.

Moreover, the case law plaintiff cites to support her position is clearly distinguishable from the case as bar. In Sundor Electric, Inc. v. E.J.T. Construction Co., Del. Supr., 337 A.2d 651 (1975), where evasive answers were given in response to an interrogatory, the Court reversed a default judgment that was granted under Super. Ct. Civ. R. 37 because of "the relatively short period of time involved and that defendant did file answers within the time specified by the Court" and the "absence of willfulness in defendant's conduct." Id at 652 (emphasis added). In the present case, the plaintiff did not file answers within the time specified by the court — after the Court expressly ruled on a Motion to Compel — as the answers were nearly 30 days past due.

Plaintiffs reliance on Rittenhouse Assoc. v. Frederic A. Potts, Inc., Del. Supr., 382 A.2d 235 (1977), wherein the Supreme Court reversed the Superior Court's dismissal of plaintiffs action where plaintiff failed to comply with discovery, is also misplaced. In Rittenhouse, the court found that dismissal was too harsh a sanction because plaintiffs failure to comply with the discovery order was due solely to a dispute between in-state and out-of-state counsel. Id. at 237. In addition, the Court in that case noted that a majority of the discovery requested was available in public records. Id.

This Court finds most compelling the Delaware Supreme Court's decision in Wyndmoor Learning Center, Inc. v. William T. Smack Co, Inc., 590 A.2d 503 (1991)(ORDER). In Wyndmoor, the Supreme Court affirmed a Superior Court decision imposing default judgments for "wilful and repeated failure to comply with discovery and for failure to meet a mandatory trial date." Id at 2. The Supreme Court found that appellants not only failed to comply with discovery requests, including non-appearance at noticed depositions, but they "discharged their attorney on the eve of a long scheduled mandatory trial." Id

The same persistent and deliberate pattern of refusal by the individual appellants to participate in discovery evidenced in Wyndmoor is present in this case, coupled with instances of non-appearance. As stated, plaintiff failed to appear for her arbitration hearing, failed to respond to Court-ordered discovery, and failed to sign the Court-ordered medical authorization. Even after a specific Court-ordered deadline was established following a Motion to Compel, plaintiff defied the Judge's directive. With the extended time frames already afforded to plaintiff, the Court had no choice but to grant the relief requested by defendants.

For the foregoing reasons, Plaintiffs Motion for Reargument is DENIED. IT IS SO ORDERED.

Summaries of

Bush v. Reyes

Superior Court of Delaware
Jan 19, 2001
C.A. No. 98C-02-005-PLA (Del. Super. Ct. Jan. 19, 2001)
Case details for

Bush v. Reyes

Case Details

Full title:Crystal BUSH v. Victor M. REYES, Red Clay Consolidated School District…

Court:Superior Court of Delaware

Date published: Jan 19, 2001


C.A. No. 98C-02-005-PLA (Del. Super. Ct. Jan. 19, 2001)