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Judge Andrews Considers Failure to Prosecute Claim, Orders Monetary Sanction Rather Than Immediate Dismissal

Judge Andrews recently issued a memorandum opinion in the case of WebXChange Inc. v. Dell Inc., et al., Civ. No. 08-132-RGA (D. Del. Dec. 15, 2011). WebXChange sued Dell and Federal Express for patent infringement, but has had a history of “irreconcilable-and total-breakdown[s] in the client-lawyer relationship.” Id. at 2-4. The defendants sought dismissal of the case, and on November 9, the court issued an order to show cause why the action should not be dismissed with prejudice. Id. at 4. When the plaintiff, without counsel, requested an extension of time to show cause, Judge Andrews noted that the plaintiff “has been in default of its obligations to prosecute the case since July 6, 2011.” Id. The plaintiff was “personally responsible for its lack of counsel . . . prejudice to the defendants arises from the delay . . . [and the] plaintiff’s conduct has been willful.” Id. at 6-7. Nevertheless, the court found that the plaintiff’s claim could be meritorious. Id. at 8. Therefore, although the facts “mostly suggest[ed] that dismissal [was] appropriate,” the court it instead took an “intermediate step . . . namely the imposition of a monetary sanction.” Id. at 8. Because “‘nothing has happened in the case’ since February 2011,” Judge Andrews concluded that it would “not make sense . . . that if new counsel do enter an appearance on January 17, 2012, the case should just go on as if the last six-to-eleven months had not happened.” Id. at 7. The plaintiff was therefore given until January 17, 2012 to both find new counsel and post $100,000 in escrow with the Clerk of the Court for defense costs.


Webxchange Inc. v. Dell Inc., et al., Civ. No. 08-132-RGA (D. Del. Dec. 15, 2011).

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