v. Counseling Resource Associates, Inc., Del. Supr., No. 460,
2011 (Jan. 2, 2013), the Delaware Supreme Court promulgated a new standard
for trial courts to apply in determining what the penalty should be when a
pre-trial deadline is not met by one of the parties in the case.
Why this decision is important:
This is one of several cases decided on the same day by Delaware's High Court,
addressing the trial court's dismissal of a case due to a missed pre-trial
New Standard Announced:
This decision modifies the previous standard announced in a 2010 Supreme
Court opinion. The new standard that trial courts in Delaware need to follow
henceforth to determine the appropriate penalty when a pre-trial deadline is
missed, based on the strong public policy in Delaware to decide cases on their
merits, was explained as follows:
This is one of four appeals that the Court has considered
together because, in each case, the plaintiff's claims were dismissed
without being heard on the merits. (1)
For the past two years, the trial courts have been
applying the factors set forth in Drejka v. Hitchens Tire Service Inc.
(2) when deciding whether a case should be dismissed for the attorneys'
failure to obey scheduling orders. Because experience has shown that
sanctions are not always effective, to achieve the goal of eliminating
this problem, the Court has determined that it is necessary to refine the Drejka
Henceforth, parties who ignore or extend scheduling
deadlines without promptly consulting the trial court, will do so at their
own risk. In other words, any party that grants an informal extension to
opposing counsel will be precluded from seeking relief from the court with
respect to any deadlines in the scheduling order. By the same token, if
the trial court is asked to extend any deadlines in the scheduling order,
the extension should not alter the trial date. Counsel may face a compressed
time period to complete discovery, or the filing of dispositive motions,
but the most important aspect of the scheduling order - the trial date -
will be preserved. In the unusual circumstance where the trial court
does decide to postpone the trial date, litigants should expect that the
trial will be rescheduled after all other trials already scheduled on the
1. Hill v. DuShuttle, No. 381, 2011, ___A.3d
___ (Del. 2013); Adams v. Aidoo, No. 177, 2012, ___ A.3d ___(Del.
2013); and Keener v. Isken, No. 609, 2011, ___ A.3d___ (Del. 2013).
2. 15 A.3d 1221 (Del. 2010).
Another key quote from the case:
If one party misses a discovery deadline, opposing
counsel will have two choices - resolve the matter informally or promptly
notify the court. If counsel contacts the court, that contact can take the form
of a motion to compel, a proposal to amend the scheduling order, or a request
for a conference. Any one of these approaches will alert the trial court to the
fact that discovery is not proceeding smoothly. With that knowledge, the trial
court will be able to take whatever steps are necessary to resolve the problem
in a timely fashion. If the party chooses not to involve the court, that party
will be deemed to have waived the right to contest any late filings by opposing
counsel from that time forward. There will be no motions to compel, motions for
sanctions, motions to preclude evidence, or motions to continue the trial. It
is entirely possible, under this scenario, that some vital discovery will not
be produced until the day before trial. Still, the party prejudiced by the
delay accepts that risk by failing to promptly alert the trial court when the
first discovery deadline passes.
Each of the bevy of cases decided as a group, and cited
above, had different factual backgrounds, as one might expect, but the common
theme was that a pre-trial deadline of some type was missed, and the trial
court dismissed the each of the cases for failure to meet the deadline.
(Careful readers may recall decisions from the Court of Chancery that barred
the introduction of expert reports that were not submitted by the deadline in
the scheduling order. Query if those decisions would have been decided
differently if this new standard were applied.)
Each of the cases decided in this "collection of
decisions" are different enough that they should be consulted by anyone
confronted with this type of unpleasantness. For example, in the Hill
case cited above, an attorney failed to submit an expert report in a "trip and
fall" case, because he did not think one was necessary despite being subject to
a motion to compel. Although that stubbornness was not exemplary, the Court
reasoned that a "less harsh penalty" should have been employed prior to the
ultimate penalty of dismissal.
In the Keener case cited above, a reasonable
explanation was provided for filing a reply to a summary judgment motion only a
few dates late, when the case was only a few months old and no scheduling order
had been in place yet. This was not the type of situation, the Court reasoned,
where justice would be served by a dismissal of the case, and would violate the
strong public policy of Delaware to decided cases on the merits and not on some
Any lawyer who has been practicing long enough will
confront a situation where she or an opposing lawyer has missed a pre-trial
deadline, for either very good reasons or otherwise. This new decision from the
Delaware Supremes shows a kinder and gentler approach to the practice of
law-while at the same time upholding the high standards that the country has
come to expect from the Delaware Bench and Bar.
Read more Delaware business
litigation case summaries and commentary on Delaware
Corporate and Commercial Litigation Blog, a blog hosted by Francis G.X.
Pileggi, of Eckert Seamans.
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