August 19, 2013
SHARON MULLEN, Plaintiff,
WAL-MART STORES EAST, LP, a Delaware corporation, Defendant.
Submitted: June 14, 2013
Jeffrey J. Clark, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Plaintiff.
David G. Culley, Esquire and Christina M. Gafford, Esquire of Tybout Redfearn & Pell, Wilmington, Delaware; attorneys for Defendant.
Before the Court is a Motion for Reconsideration of Commissioner's Order filed by the defendant, Wal-Mart Stores East, LP ("Defendant"). Defendant seeks reconsideration of an order issued on May 23, 2013 by Commissioner Freud compelling Defendant to produce (1) the statements of those who witnessed the plaintiff, Sharon Mullen ("Plaintiff"), slip and fall in Defendant's Camden store, and (2) a complete claims history and incident report of the vestibule area in which Plaintiff fell. For the foregoing reasons, Defendant's Motion for Reconsideration of the Commissioner's Order is denied.
II. Relevant Factual and Procedural History
On September 13, 2012, Plaintiff filed a complaint alleging that she slipped and fell in the vestibule of Defendant's Camden store on September 30, 2010. Plaintiff served interrogatories and requests for the production of documents upon Defendant along with her complaint.
Defendant filed its answer to Form 30 Interrogatories on November 16, 2012. In its answer, Defendant responded that certain statements made by two of its employees who had witnessed Plaintiff's fall constituted work product and was not discoverable. The statements in question were made during interviews conducted by Wal-Mart Claims Management in early October 2010. Defense counsel did not interview these employees until December 2010.
On May 9, 2013, Plaintiff filed a motion to compel Defendant to produce all statements made by Wal-Mart employees during the course of the October 2010 interviews and copies of all incident reports concerning prior falls in the vestibule in question. Defendant filed no response to Plaintiff's Motion to Compel. On May 23, 2013, Commissioner Freud held a hearing at which Defendant did not appear, and then entered an order requiring Defendant to comply with Plaintiff's request no later than May 30, 2013.
Defendant filed a timely motion for reconsideration of the Commissioner's order pursuant to Superior Court Civil Rule 132 on June 6, 2013. Plaintiff filed a response in opposition to the motion on June 12, 2013.
III. Standard of Review
Superior Court Civil Rule 132 ("Rule 132") provides, in pertinent part, that, "any party may serve and file written objections to the Commissioner's order which set forth with particularity the basis for the objections." Rule 132 further provides that "[a] judge may consider any hearing or pretrial matter ... only where it has been shown on the record that the Commissioner's order is based upon findings of fact that are clearly erroneous, or is contrary to law, or is an abuse of discretion."
Plaintiff argues that Defendant's motion for reconsideration was untimely, because under Superior Court Civil Rule 59(e), a party must move for reconsideration "within 5 days after the filing of the Court's opinion or decision." However, Plaintiff relies upon the wrong rule and time limitation. Superior Court Civil Rule 132(a)(3)(ii) governs the time for filing a motion for reconsideration of a Commissioner's order compelling discovery. That subsection provides that a party "may serve and file written objections to the Commissioner's order" within 10 days after the filing of said order. In the present case, Commissioner Freud entered the order compelling Defendant to comply with Plaintiff's discovery requests on May 23, 2013. Defendant moved for reconsideration on June 6, 2013. Since intermediate Saturdays and Sundays are excluded from the computation of time,  Defendant's motion was timely filed.
However, Defendant waived the right to contest Plaintiff's motion to compel by failing to file a responsive pleading within the time allotted under Superior Court Civil Rule 37(e)(3). Failure to file a responsive pleading "shall constitute a waiver of any opposition to the motion." Defendant cannot use a 132(a)(3)(ii) motion to contest the merits of the Commissioner's order. The Court has not found that the Commissioner's May 23, 2012 order was "based upon findings of fact that are clearly erroneous, or is contrary to law, or is an abuse of discretion."
Accordingly, Defendant's Motion for Reconsideration of Commissioner's Order must be DENIED.
IT IS SO ORDERED.
William L. Witham, Jr., Resident Judge