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1
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LETTER OPINION
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EXTRACTED KEY WORDS
DISMISS ORGEL COURT SCHEDULING CAPPELLI DEFENDANTS FAILURE MOTION PROSECUTE INACTION REASON DEL CHANCERY RULE SUBSTITUTING PARTIES DELAYS RETAINING EXPERTS MATTER DISCOVERY ENTRIES PENDING REPORT DOCKET ARGUE EXCESS LITIGATION DEATH SUCCESSION PROMPT |
COURT OF CHANCERY
OF THE
STATE OF DELAWARE
JOHN W. Now DOVER.
VICE CtiANcELLoR TELEPHONE
Submitted: May 8,200l FAC~MIE
Decided: August 3 1,200 1
Carmella P. Keener, Esquire Steven J. Balick, Esquire
ROSENTHAL, MONHAIT, GROSS ASHBY & GEDDES
& GODDESS, P.A. 222 Delaware Avenue
Mellon Bank Center, Suite 140 1 P.O. Box 1150
P.O. Box 1070 Wilmington, DE 19899- 1150
Wilmington, DE 19899- 1070
Daniel A. Dreisbach, Esquire
RICHARDS, LAYTON & FINGER
One Rodney Square
P.O. Box 551
Wilmington, DE 19899-055 1
Re: Orgel v. Cappelli, et al.
C.A. No. 9902-NC
Dear Counsel:
Defendants have moved, pursuant to Court of Chancery Rule 41(e),
for dismissal of this action because of Plaintiffs failure to prosecute.'
Melville G. Orgel filed this derivative action in 1988. An amended
complaint was filed and answered in 1993. Discovery (except for expert
discovery) was completed in 1994. In August 1997, an order granting
partial summary judgment was entered. Mr. Orgel died in 1998, and the
present plaintiff, Jane Orgel, was substituted as Plaintiff through an order
dated January 18, 1999. Except for status reports, there were no docket
' The parties' written submissions have provided the Court with a full understanding of
their contentions, and, thus, oral argument is not needed.
Orgel v. Cappelli, et al.
August 3 1,200l
Page 2
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2
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REPLY MEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISS
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EXTRACTED KEY WORDS
DISMISS DEFENDANTS LITIGATION PROSECUTE COURT INACTIVITY MOTION DOCKET DISCOVERY JANE ORGEL OPPOSITION FAILURE REASON PREJUDICE FOREGOING MONHAIT CHANCERY DELAWARE CAPELLI CONSTANCE BITONDO HEREBY JUSTIFIES DEL SUBSTITUTION REQUEST MICHAELS ATTITUDE RESPONSE ALLEGED ORDER |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
JANE ORGEL,
;
Plaintiff,
;
V. ) C.A. No. 9902
LUCA A. CAPELLI, JR., CONCETTA i
CAPELLI, CONSTANCE BITONDO
and LUNA INDUSTRIES, INC., 1
Defendants. ;
REPLY MEMORANDUM IN SUPPORT
OF DEFENDANTS' MOTION TO DISMISS
Defendants Luca A. Capelli, Jr., Concetta Cape& Constance Bitondo and Luna Industries,
Inc. hereby respond to Plaintiffs Opposition to Defendants' Motion to Dismiss ,as follows:
1. A period of inactivity of one year justifies dismissal of an action pursuant to
of Chancery Rule 4.1(e). See Yancev v. National Trust Co., Ltd., Del. Supr., 633 A.2d 372, 374
(1993). Other than the substitution of Jane Orgel as the named plaintiff this litigation has been
completely inactive For over three and a half vears and has occupied a place on the Court's docket
for nearly thirteen years.
2. The only real activity plaintiff cites in opposition to dismissal for failure to
is the "extensive discovery" that has taken place. This "extensive discovery consists of one
deposition, one request for admissions and the exchange of a handful of interrogatories and requests
for the production of documents. This basic discovery was completed in 1994 ;and does not justify
the perpetuation of a stagnant case on the docket of the Court.
3. The pace of litigation is determined by its record, not unsupported
counsel has been conversing with various experts. See Michaels v. Lesser, Del. Ch., 275
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