Free Motion to Dismiss for Lack of Prosecution - District Court of Delaware - Delaware

Case 1:05-cv-00580-GMS

Document 23

Filed 06/02/2006

Page 1 of 4

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE LISA DAVIS, Plaintiff, v. MCCULLOUGH & MCKENTY, P.A., and Daniel L. McKenty Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 05-580-GMS TRIAL BY JURY OF TWELVE DEMANDED

DEFENDANTS' MOTION TO DISMISS Pursuant to Federal Rule of Civil Procedure 41(b), defendants move this Court for an order dismissing all claims in the Complaint against them on the grounds that plaintiff has failed to prosecute and comply with the rules of this Court. In support of its motion, defendants offer the following: 1. The deposition of plaintiff, Lisa Davis, was scheduled for Tuesday, April 25, 2006,

at 11:00 a.m., in the law offices of McCullough & McKenty, P.A. See docket D.I. 15. This date was mutually chosen by counsel for plaintiff and defendants. Counsel for defendants was notified approximately one (1) hour prior to the deposition by counsel for plaintiff that plaintiff would not be in attendance. 2. Defendants rescheduled plaintiff's deposition for Wednesday, May 31, 2006, at 11:00

a.m., in the offices of McCullough & McKenty, P.A. See docket D.I. 18. Again, this date was mutually decided upon by counsel for plaintiff and defendants. Approximately ½ hour prior to the deposition, counsel for defendants was notified that, again, plaintiff would not be in attendance for the deposition.

Case 1:05-cv-00580-GMS

Document 23

Filed 06/02/2006

Page 2 of 4

3. case. 4.

Defendants have complied with every court order and discovery request issued in this

Pursuant to 41(b), this Court has authority to dismiss the case against the defendants

with prejudice for plaintiff's failure to prosecute her case and/or comply with the rules of this Court. 5. For the above reasons, defendants respectfully request that all claims be dismissed

against them with prejudice and that counsel be assessed costs incurred as a result of preparing for two depositions as well as this Motion. McCULLOUGH & McKENTY, P.A.

/s/ Dana Spring Monzo Dana Spring Monzo, Del. Bar # 4605 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 (302) 655-6749 Attorney for McCullough & McKenty, P.A. and Daniel L. McKenty June 2, 2006

Case 1:05-cv-00580-GMS

Document 23

Filed 06/02/2006

Page 3 of 4

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE LISA DAVIS, Plaintiff, v. MCCULLOUGH & MCKENTY, P.A., and Daniel L. McKenty Defendants. ) ) ) ) ) ) ) ) ) ) ORDER THIS COURT having considered defendants' Motion to Dismiss and any opposition thereto, and defendants being entitled to dismissal of plaintiff's claims as a matter of law, IT IS ORDERED that defendants' Motion to Dismiss is GRANTED and costs incurred be awarded to defendants.

C.A. No. 05-580-GMS TRIAL BY JURY OF TWELVE DEMANDED

___________________________ J.

Case 1:05-cv-00580-GMS

Document 23

Filed 06/02/2006

Page 4 of 4

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE LISA DAVIS, Plaintiff, v. MCCULLOUGH & MCKENTY, P.A., and Daniel L. McKenty Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No. 05-580-GMS TRIAL BY JURY OF TWELVE DEMANDED

CERTIFICATE OF SERVICE I certify that, on this date, a copy of the attached Defendants' Motion to Dismiss was served, electronically, on the following individual: Susan E. Flood, Esquire Legal Services Corporation of Delaware 100 West 10th Street, Suite 203 Wilmington, DE 19801

/s/ Dana Spring Monzo Dana Spring Monzo June 2, 2006