Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1 :07-cv-00691-SLR Document 23 Filed 08/22/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PATRICLA WARD, _ )
Plaintiff, )
v. ) Civil Action No. 07-691 SLR
CATHOLIC CEMETERIES, INC., ) JURY TRIAL DEMANDED
Defendant. ) l
REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTIONS TO DISMISS
OR, IN THE ALTERNATIVE, TO COMPEL DISCOVERY
On Friday, July 25, 2008, Defendant, Catholic Cemeteries, Inc., by and through
its undersigned counsel, filed a Motion to Compel Responses to Discovery. (D.I. 21).2
Subsequently, on July 28, 2008, after Plaintiff failed to appear for her properly noticed
q l deposition, Defendant filed a second Motion to Dismiss for Failure to Cooperate with Discovery
or, in the Alternative, to Compel Discovery. (D.I. 22 (hereinafter, collectively, "the Motions")).
A For purposes of brevity and clarity, Defendant will address the relief sought in both of the
1 Motions in this Reply Memorandum.
Pursuant to Local Rule 7.1.2(b), responses to the Motions were due on August 11,
2008, and August 14, 2008, respectively. To date, however, Plaintiff has failed to file any
responsive pleadings with the Court. Pursuant to Local Rule 1.3, Plaintiff s failure to comply
with the Rules relating to motions should result in the determination of the Motions in
Defendant’s favor. In addition,—P1aintiff has also failed to provide any responses to Defendant’s
First Request for Production of Documents Directed to Plaintiff, First Set of Interrogatories
Directed to Plaintiff, or its Supplemental Request for Production of Documents Directed to
Plaintiff. Indeed, since the email of 3:15 a.m. on July 28, 2008 (D.I. 22, at Ex. C), Defendant’s
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counsel has received no further communication from Plaintiff"s counsel.l
Plaintiff’s failure to file any responsive pleadings, or to provide her discovery
responses during the interim period since the Motions were filed, must be viewed against a
backdrop of repeated failures to cooperate in discovery, to commrmicate with opposing counsel,
or to comply with deadlines set forth in various Orders, throughout the pendency of the instant
matter. These failures and omissions are set forth in detail in the Motions, and will not be
repeated here. Suffice it to say, Defendant has been hindered, prejudiced, and forced to incur
excessive unnecessary expenses by Plaintiff` s pattern of neglect and non—cooperation.
Inexplicably, Plaintiff persists in her pattern of non-cooperation in discovery in the instant matter
. despite the filing of the Motions.
Plaintiff’s repeated failure to cooperate in discovery is inexcusable. The Court
should dismiss her Complaint as a result of her willful failure to cooperate with discovery. See
Torres v. Amerada Hess Corp., 2007 U.S. App. LEXIS 17109 (3rd Cir. July 17, 2007). As in
Torres, the Plaintiff has repeatedly failed to fulfill her discovery obligations and has ignored
numerous deadlines. In light of this pattern of inexcusable misconduct, dismissal is an
appropriate, and indeed, a necessary sanction.2 In the alternative, Plaintiff should be compelled
to respond to the outstanding discovery requests and appear for her deposition when noticed by
Defendant. Further, Defendant should be awarded its reasonable attorney’s fees and costs with
I In his email of July 28, 2008, Plaintiffs cormsel indicated that he "hoped" to have his discovery responses
completed “this week." Of course, as noted above, Plaintiffs counsel has still not responded to any of the
outstanding discovery requests. Nor has he given any further indication of when such responses can be expected.
2 In addition to Fed. R. Civ. P. 37(d), a court may dismiss an action pursuant to Fed. R. Civ. P. 41(b) "[f]or failure of
the plaintiff to prosecute or to comply with [the Federal Rules] or any order of corut .... " Here, the Plaintiff has
failed to comply with the Rules governing discovery. Plaintiff has also failed to comply with Orders of the Court.
Finally, Plaintiff has failed to prosecute this action. Specifically, Plaintiff has failed to conduct any discovery
whatsoever, serving no interrogatories, no requests for production, and taking no depositions. Dismissal pursuant to
Rule 41(b) is therefore warranted.
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‘ respect to both of the Motions. See Al Barnett & Sons, Irzc. v. Outboard Marine Corp., 611 F.2d
32, 35-36 (3rd Cir. 1979) (authorizing sanctions including dismissal of Plaintiffs claims for
failing to appear for properly-noticed depositions). O
Finally, Defendant must also note that, should the Court elect not to dismiss the
present action, an amendment of the current Scheduling Order (D.I. 8) will be necessary.
Presently, case dispositive motions in the instant matter are due by September 12, 2008.
Defendant respectfully submits that the present date for the submission of case dispositive
motions must be modified due to Plaintiffs lack of cooperation in discovery.
WHEREFORE, Defendant respectfully requests that the Court grant the Motions
and enter an Order dismissing Plaintiffs Complaint, with prejudice, for failure to cooperate in
discovery,3 and awarding Defendant its reasonable attomey’s fees and costs incurred in
connection with the preparation of the Motions or, in the alternative, enter an Order compelling
the Plaintiff to (a) respond to Defendant’s First Request for Production of Doctunents Directed to
Plaintiff, First Set of Interrogatories Directed to Plaintiff, and its Supplemental Request for
Production of Doctunents Directed to Plaintiff, within ten (10) days of the entry of the Order, (b)
to appear for a deposition at a date, time, and location to be determined by the Defendant, and (c)
awarding Defendant its reasonable attomey’s fees and costs incurred in connection with the
preparation of the Motions. Defendant further respectfully requests that the foregoing Order
3 Pursuant to both Fed. R. Civ. P. 37(d) and/or 4l(b).
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specify that non-compliance will result in the dismissal, with prejudice, of the instant matter.
YOUNG CONAWAY STARGATT & TAYLOR, LLP
/s/ Michael P. Stajord, Esquire
Anthony G. Flynn, Esquire (1.D. #74)
Michael P. Stafford, Esquire (1.D. #4461)
The Brandywine Building
1000 West Street, 17th Floor, P.O. Box 391
Wilmington, DE 19899-0391
Telephone: (302) 571—6553;(302) 571-6675
Facsimile: (302) 576-3345; (302) 576-3293 _
_ Email: [email protected]; [email protected]
Dated August 22’ 2008 Attorneys for Defendant
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