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No: K15C-08-014 RBY 12-28-2016 FREIDA L.
Aber, Esquire, Wilmington, Delaware for Plaintiff.
Aber, Esquire, Wilmington, Delaware for Plaintiff.
Ivory "Plaintiff" filed a negligence claim against Harrington Raceway, Inc.
Any inactivity on the part of Plaintiff regarding this litigation has been for a time insufficient check this out cause a Dismissal for failure to prosecute.
Summary judgment is improper, since Plaintiff's new expert discovery cutoff date has yet to pass.
She further alleges that Defendants knew or should have known about the alleged likelihood that the stall door would fall.
Plaintiff harrington casino entertainment that she suffered severe and permanent injuries in this alleged incident.
Defendant states that Plaintiff must submit to a discovery deposition and must notify it as to her expert's identity and opinion.
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Defendant also asserts that it was forced to ask for an extension to its expert discovery cutoff due to Plaintiff's alleged failures.
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Plaintiff filed this case on August 18, 2015.
On December 22, 2015, this Court issued a Scheduling Order setting the Plaintiff's expert discovery cutoff for June 2, 2016.
The same order set the Defendant's expert discovery cutoff for August 2, 2016.
Plaintiff filed notice of her responses to Defendant's interrogatories and Defendant's request for production of documents on January 20, 2016.
On August 5, 2016, harrington casino entertainment Court granted Defendant's Motion to Amend the Case Scheduling Order so that Defendant's expert disclosure deadline changed to "60 days after Plaintiff submits to a deposition and produces her expert reports.
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On November 28, 2016, this Court entered a new Scheduling Order extending the Plaintiff's expert discovery cutoff to February 28, 2017.
STANDARD OF REVIEW Delaware Superior Court Civil Rule 41 b states that "for failure of the plaintiff to prosecute or to comply with these Rules, or any order of Court, a defendant may move for dismissal of an action or of any claim against the defendant.
Alternatively, summary judgment is appropriate where the record exhibits no genuine issue of material fact, and the movant is entitled to judgment as a matter of law.
This Court shall consider the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any" in deciding the motion.
The moving party bears the initial burden of demonstrating the nonexistence of material issues of fact.
The burden then shifts to the nonmoving party to show that there are material issues of fact in dispute.
The Court views the record in the light most favorable to the nonmoving party.
When material facts are in dispute, or "it seems desirable to inquire more thoroughly into the facts, to clarify the application of the law to the circumstances," summary judgment will not be appropriate.
However, when the facts permit a reasonable person to draw but one inference, the question becomes one for decision as a matter of law.
DISCUSSION First, Defendant moves to have Plaintiff's claim dismissed because of her failure to prosecute the matter properly.
As harrington casino entertainment, despite harrington casino entertainment efforts and comity on the part of Defendant, Plaintiff has failed to provide even fundamental responses.
That has been exaggerated by Plaintiff's prevailing upon the Court for extended flexibility, only to treat that largess casually.
Indeed, Plaintiff barely filed her claim within the statutorily permissible time period.
Although Plaintiff's lack of attention to her responsibilities in pursuit of this claim is glaring, the time from filing to the present has been less than 18 months.
Defendant's reliance on Breeding v.
Hillandale Farms of Delaware, Inc.
Here, there was some activity within a year of Defendant's Motion.
Accordingly, Defendant's Motion to Dismiss for failure to prosecute is DENIED.
Nevertheless, Plaintiff is warned that she is now on notice that further dilatory action will subject her to Dismissal.
Next, Defendant moves for Summary Judgment because of the absence of medical expert testimony to support any claim for related injury, as is required.
Because, as mentioned, Plaintiff was afforded the extended ability to provide expert discovery to Defendant, which would not been foreclosed until February 28, 2017, Defendant's Motion is some two months premature.
For that reason, Defendant's Motion for Summary Judgment is, for that time period, DENIED.

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