Newton v. Schoeneberger

• Court: Superior Court of Delaware
• Decided: April 5, 2024
• Docket: N21C-04-141 SPL
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CASSANDRA NEWTON, ) ) Plaintiff, ) ) v. ) C.A. No. N21C-04-141 SPL ) MORGAN L. SCHOENEBERGER, ) ) Defendant. ) )

ORDER

This 5th day of April 2024, upon consideration of Defendant Morgan L.

Schoeneberger’s (“Schoeneberger”) Motion for Summary Judgment1 and her

Supplement,2 and having received no response from Plaintiff, Cassandra Newton

(“Newton”),3 it appears to the Court that:

BACKGROUND

1. On June 19, 2019, automobiles driven by Newton and Schoeneberger

collided. Newton alleged she “was the driver of a motor vehicle when it was

violently struck across the front on Westbound Martin Luther King Jr. Memorial

Highway, at the intersection of North Market Street and Frontage Road, in the City

1 D.I. 25. 2 D.I. 29. 3 Despite the Court’s invitations, (D.I. 26, 27, 27), Newton declined to respond to any of Schoeneberger’s pleadings seeking summary judgment. of Wilmington, by a motor vehicle driven by [Schoeneberger].”4 Schoeneberger

denied Newton’s description of the collision, but “admitted that an accident

involving vehicles operated by the parties occurred on the date stated.”5

2. On April 21, 2021, Newton, represented by counsel, filed a complaint

alleging Schoeneberger’s negligence proximately caused Newton’s property

damage and physical injury.6

3. On November 23, 2022, Newton’s counsel moved to withdraw.7 The

Court granted the motion on December 19, 2022, and afforded Newton “60 days to

seek new counsel or file on the record as pro se with the Court.”8 On January 9,

2023, Newton informed the Court that she “will be representing [herself] in all future

matters in relation to this case” and provided her physical address and e-mail address

for future correspondence.9

4. On June 1, 2023, and July 6, 2023, the Court convened the parties to

discuss the status of the case.10 Among other things, the Court addressed Newton’s

4 D.I. 1 (“Compl.”) ¶ 3. 5 D.I. 4 (“Ans.”) ¶ 3. 6 Compl. ¶¶ 5- 7. 7 D.I. 11. 8 D.I. 14, 15. 9 D.I. 16. 10 D.I. 19, 24.

2 responsibilities as a self-represented litigant. During the July 6 conference, the Court

adjusted various deadlines to allow Newton to meet her discovery obligations,

including the provision of medical records and expert opinions.

5. The docket evidences no discovery activity following the July 6

conference. Schoeneberger moved for summary judgment on November 30, 2023.11

On January 8, 2024, the Court informed the parties that it intended to decide

Schoeneberger’s motion on the pleadings and invited Newton to “file any opposition

to [Schoeneberger’s] Motion by no later than February 2, 2024.”12 To ensure all

allegations of Newton’s complaint were addressed and to provide Newton ample

opportunity to pursue her claims, the Court directed the parties to submit

supplemental argument by March 29, 2024.13 Newton has not responded.

STANDARD OF REVIEW

6. Under Superior Court Civil Rule 56, summary judgment will be granted

where “the pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.”14

11 D.I. 25. 12 D.I. 26. 13 D.I. 28. 14 Super. Ct. Civ. R. 56(c).

3 On a motion for summary judgment, this Court “(i) construes the record in the light

most favorable to the non-moving party; (ii) detects, but does not decide, genuine

issues of material fact; and (iii) denies the motion if a material fact is in dispute.” 15

The moving party bears the initial burden of demonstrating that the undisputed facts

support claims or defenses.16 If the motion is properly supported, then the burden

shifts to the non-moving party to demonstrate that there are material issues of fact

for the resolution by the ultimate fact-finder.17

ANALYSIS

7. Over a year ago, Newton affirmatively chose to represent herself in this

case.18 While this court affords some leeway to self-represented litigants, “there is

no different set of rules for pro-se plaintiffs.”19 The Court recognizes the challenges

faced by pro se litigants, but it cannot “sacrifice the orderly and efficient

15 US Dominion, Inc. v. Fox News Network, LLC, 2023 WL 2730567, at *17 (Del. Super. Ct. Mar. 31, 2023) (quoting CVR Refin., LP v. XL Specialty Ins. Co., 2021 WL 5492671, at *8 (Del. Super. Ct. Nov. 23, 2021) (cleaned up)). 16 Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1970) (citing Ebersole v. Lowengrub, 180 A.2d 467 (Del. Super. Ct. 1962)). 17 See Brzoska v. Olsen, 668 A.2d 1355, 1364 (Del. 1995). 18 D.I. 16. 19 Anderson v. Tingle, 2011 WL 3654531, at *2 (Del. Super. Ct. Aug. 15, 2011) (quoting Draper v. Med. Ctr. of Del., 767 A.2d 796, 799 (Del. 2001)).

4 administration of justice to accommodate the unrepresented plaintiff”20 or impair

“the substantive rights of those parties involved in the case at bar”21 to save claims

which plainly have no merit. This Court has endeavored to afford Newton every

opportunity to make her case, yet she has failed to do so. The Court, mindful of

Newton’s self-representation, adjusted the trial scheduling order to allow her to

produce necessary medical documents, yet there is only so much the Court can do.

It is against this procedural backdrop that the Court assessed Schoeneberger’s

motion.

A. Schoeneberger’s Motion for Summary Judgment

8. Schoeneberger asserts that, in the three years since filing this lawsuit,

Newton has not produced any medical expert opinion “concerning formal diagnoses,

causal relationship to this accident, prognoses, analysis of prior conditions,

permanence, need for further treatment, or any other aspect of competent medical

testimony to support [her] injury claim.”22 She argues that, because expert testimony

must be offered to establish a causal link between Newton’s injuries and the

20 Damiani v. Gill, 2015 WL 4351507, at *1 (Del. July 15, 2015) (quoting Draper, 767 A.2d at 799); see also, Sloan v. Segal, 2008 WL 81513, at *7 (Del. Ch. Jan. 3, 2008) (cleaned up) (“[S]elf representation is not a blank check for defect.”). 21 Alston v. State, 2002 WL 184247, at *1 (Del. Super. Ct. Jan. 28, 2002). 22 Mot. at ¶ 11.

5 accident, Newton “lacks an essential element of her case and, as a matter of law,

[Schoeneberger] is entitled to summary judgment.”23 Newton offers no response.

9. “In order to prevail in a negligence action, a plaintiff must show by a

preponderance of the evidence, that a defendant’s negligent act or omission breached

a duty of care owed to plaintiff in a way that proximately caused the plaintiff

injury.”24 While issues of negligence are generally not decided in summary

judgment, “this does not mean that summary judgment is never appropriate in

negligence actions.”25 Such is the case here.

10. To survive a motion for summary judgment, a plaintiff must

“adequately establish all the elements essential to their case that they would have the

burden of proving at trial.”26 “With a claim for bodily injuries, the causal connection

between the defendant’s alleged negligent conduct and the plaintiff’s alleged injury

must be proven by the direct testimony of a competent medical expert.”27 Where, as

23 Id. at ¶¶ 12, 17. 24 Duphily v. Delaware Elec. Co-op., Inc., 662 A.2d 821, 828 (Del. 1995) (citing Culver v. Bennett, 588 A.2d 1094, 1096-97 (Del. 1991)). 25 Gibson v. Metropolitan Group Property and Casualty Insurance Co., 2017 WL 5606714, at *2 (cleaned up). 26 Rayfield v. Power, 2003 WL 22873037, at *1 (Del. Dec. 2, 2003) (citing Burkhart v. Davies, 602 A.2d 56, 59 (Del. 1991) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986))). 27 Rayfield, 2003 WL 22873037, at *1 (citing Money v. Manville Corp., 596 A.2d 1372, 1376-77 (Del. 1991)).

6 here, the plaintiff fails to identify an expert witness or produce an expert report

establishing a causal connection between an accident and the plaintiff’s alleged

injuries, summary judgment is appropriate.28

11. The Court finds that Newton has neither identified an expert nor

produced an expert report as required to forge the causal connection between the

June 19, 2019, collision and her injuries. Thus, she cannot prove an essential

element of her claim and summary judgment in favor of Schoeneberger is warranted.

B. Newton’s Failure to Prosecute Her Claims

12. While an expert medical opinion is not required to establish the accident

caused the alleged damage to her vehicle, the Superior Court has discretion in

imposing a sanction for a party’s failure to follow a scheduling order or comply with

Court procedure.29 “The sanction of dismissal is severe and courts are and have been

reluctant to apply it except as a last resort.”30

28 See, e.g., Rayfield, 2003 WL 22873037, at *1; Manuel v. Wescott, 2020 WL 4464530, at *2 (Del. Super. Ct. Aug. 3, 2020); Wing v. Bichaco, 2014 WL 6675037, at *3 (Del. Super. Ct. Oct. 30, 2014); Sluss v. Davis, 2006 WL 2846387, at *2 (Del. Super. Ct. Oct. 4, 2006). 29 Drejka v. Hitchens Tire Service, Inc., 15 A.3d 1221, 1224 (Del. 2010). 30 Id. (quoting Hoag v. Amex Assurance Co., 953 A.2d 719, 717 (Del. 2006)).

7 13. “The duty to diligently prosecute a case falls upon the plaintiff, not the

court.”31 Litigants, whether represented by counsel or appearing pro se, “must

diligently prepare their cases for trial or risk dismissal for failure to prosecute.”32

Delaware Courts consider the following factors when deciding whether to dismiss a

case under Rule 41(b):

(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.33

14. Applying the Drejka factors to this case, the Court finds that dismissal

is warranted. First, Newton chose to represent herself in these proceedings; thus, the

failure to prosecute rests on her alone. Cognizant of Newton’s pro se status, the

Court afforded her ample opportunity to pursue her claims, yet she chose not to

meaningfully participate in the discovery process despite the Court’s repeated

encouragement. Second, Newton’s failures to comply with the trial scheduling order

31 Alston v. Maahs, 2019 WL 1220932, at *2 (Del. Mar. 15, 2018) (affirming the Superior Court’s sua sponte dismissal of a pro se plaintiff’s complaint for lack of prosecution). 32 Plantz v. Wal-Mart Stores East LP, 2019 WL 112756, at *1 (Del. Super. Ct. Jan. 4, 2019) (quoting Draper, 767 A.2d at 799). 33 Drejka, 15 A.3d at 1224 (quoting Minna v. Energy Coal S.p.A, 984 A.2d 1210, 1215 (Del. 2009)).

8 has prejudiced Schoeneberger’s ability to prepare a defense. Third, Newton’s failure

to adhere to the Court’s scheduling order or reply to inquiries from the Court

evidence a pattern of dilatoriness. Fourth, while the Court does not find that Newton

engaged in bad faith in her pursuit of her claim, she chose not to participate. Fifth,

there is no suitable alternative option here; the Court has already rescheduled

discovery deadlines in the expectation that Newton would engage in the prosecution

of her claims, yet she did not. Sixth, as evidenced by the Court’s summary judgment

discussion above, Newton has not produced evidence in support of her claims.

15. “The Delaware Supreme Court has held that dismissal may be

warranted under the Drejka factors where the court has repeatedly instructed

plaintiff on what to do and that failure to comply with any instructions could result

in dismissal.”34 While this Court maintains a “strong policy in favor of deciding

cases on the merits,”35 this Court’s application of the factors identified in Drejka

lead it to conclude that, to the extent that any of her claims survive the Court’s grant

of summary judgment, Newton’s case must be dismissed.

34 See Greene v. Allstate Insurance Company, 2017 WL 5606631, at *3 (Del. Super. Ct. Nov. 9, 2017) (citing Adams v. Aidoo, 58 A.3d 410, 412 (Del. 2013)). 35 Cunningham v. Christiana Care Health Services, Inc., 2021 WL 195037, at *2 (Del. Super. Ct. Jan. 20, 2021) (citing Keener v. Isken, 58 A.3d 407, 409 (Del. 2013)).

9 CONCLUSION

Schoeneberger’s Motion for Summary Judgment is GRANTED. This case is

hereby DISMISSED WITH PREJUDICE.

IT IS SO ORDERED.

_________________ ____________ Sean P. Lugg, Judge