Call of Calendar, Duty of Register;

Continuances (a) Calendar Call; Each County; Time. Each year on the first Monday of March in Kent and Sussex Counties and on the second Monday of April in New Castle County, at such times as the Court shall fix, the Judges of the Court of Chancery shall call the calendar of all pending cases. The Court may by special order fix different or additional dates for such purpose. The Register shall prepare a list of all cases pending 60 or more days prior to the time fixed for the call of the calendar, and at least 10 days prior thereto shall cause a copy of the list to be mailed to each attorney of record in such cases; alternatively, the register may mail to each attorney of record in such cases notice that the list has been prepared and is available for distribution in the office of the Register. The list shall state the time and place of the calling of the calendar and shall indicate that the call is primarily for the purpose of determining whether there has been any undue delay in connection with pending matters. The call is not for the purpose of fixing argument or hearing dates. (b) Omitted. (c) Attorneys to be Present at Calendar Call. At the call of the calendar the attorneys will be expected to be present and explain the status of the case and any apparently unusual delay. The Court will then take such action as is deemed to be in the best interest of the proper administration of justice. (d) Continuance; Absence of Material Witness. Every motion for continuance upon the ground of the absence of or unavailability of a material witness shall be filed as soon as said absence or unavailability becomes known and shall be accompanied by an affidavit on behalf of the party applying therefor, setting forth the facts which the party expects to prove by such witness, the efforts made to procure the attendance of the witness, and the date when the absence or unavailability of the witness became known. If it be stipulated by the opposite party, that the witness if called would testify as set forth in the affidavit, the Court, in its discretion, may refuse the motion, and under such circumstances, the affidavit may be offered in evidence at the trial. History. Amended, effective Apr. 19, 1972. Rule 41. Dismissal of Actions (a) Voluntary Dismissal; Effect Thereof. (1) By Plaintiff; by Stipulation. Subject to payment of costs and the provisions of Rule 23(e) and Rule 23.1 an action may be dismissed by the plaintiff without order of court (i) by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs or (ii) by filing a stipulation or dismissal signed by all the parties who have appeared in the action. However, no such dismissal pursuant to subpart (i) above shall be effective where the complaint is subject to a motion to dismiss and the plaintiff has chosen to file an answering brief rather than seeking to amend. See Rule 15(a)(5). Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based on or including the same claim. (2) By Order of Court. Except as provided in paragraph (1) of this subdivision of this Rule, an action shall not be dismissed at the plaintiff’s instance save upon order of the Court and upon such terms and conditions as the Court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon defendant of the plaintiff’s motion to dismiss, the action shall not be dismissed against the defendants’ objection unless the counterclaim can remain pending for independent adjudication by the Court. Unless otherwise specified in the order, a dismissal under this paragraph is without prejudice. (b) Involuntary Dismissal; Effect Thereof. 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 the defendant. After presentation of plaintiff’s evidence, the defendant, without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The Court as trier of the facts may then determine them and render judgment against the plaintiff or may the plaintiff has completed decline to render any judgment until the close of all the evidence. Unless the Court in its order for dismissal otherwise specifies, a dismissal under this paragraph and any dismissal not provided for in this Rule, other than a dismissal for lack of jurisdiction or for improper venue, or for failure to join a party under Rule 19, operates as an adjudication upon the merits. (c) Dismissal of Counterclaim, Cross-Claim or Third-Party Claim. The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third- party claim. A voluntary dismissal by the claimant alone pursuant to subparagraph (1) of paragraph (a) of this rule shall be made before a responsive pleading is served or, if there is none, before the introduction of evidence at the trial or hearing. (d) Costs of Previously Dismissed Action. If a plaintiff who has once dismissed an action in any court commences an action based upon or including the same claim against the same defendant, the Court may make such order for the payment of costs of the action previously dismissed as it may deem proper and may stay the proceedings in the action until the plaintiff has complied with the order. (e) Inaction for 1 Year; Dismissal. Subject to the provisions of Rules 23, 23.1 and 23.2 in each cause pending wherein no action has been taken for a period of 1 year, the Court may upon application of any party, or on its own motion, and after reasonable notice, enter an order dismissing such cause unless good reason for the inaction is given, or the parties have stipulated with the approval of the Court as to such matter. History. Amended, effective Nov. 1, 1975; Dec. 21, 1978; June 1, 2004.