Submitted: May 30, 2017
Hammer, Dennis L. Schrader, Esq., R. Eric Hacker, Esq.,
Morris James Wilson Halbrook & Bayard, LLP
RICHARD F. STOKES JUDGE.
Plaintiffs Motion for Relief from Order.
the Court is Plaintiff, Nancy Hammer's ("Plaintiff
or "Hammer"), Motion for Relief from Order. This
Motion seeks to overturn the Court's orders issued April
26, 2017 and April 27, 2017. For the following reasons,
Plaintiffs Motion for Relief from Order is DENIED.
7, 2015, Plaintiff filed her Complaint against Defendants,
Howard Medical, Inc. and Howard Industries, Inc.
("Defendants" or "Howard"), alleging that
Howard owed her past due commissions for sales of medical
equipment she made to various hospitals. On August 6, 2015,
Defendants filed their Answer and Counterclaim, which alleged
tortious interference, breach of an accord and satisfaction
contract, unjust enrichment, and fraud. Initially, according
to the Court's Pretrial Scheduling Order, the final
pretrial conference was scheduled for April 4, 2017. The
three-day jury trial was set to begin May 1, 2017. For
various reasons, these dates were modified. By letter dated
March 10, 2017, the Court made the final scheduling
modification, which set the pretrial conference for April 26,
failed to attend the pretrial conference. The Court waited
approximately 30 minutes past the scheduled start time to
begin the conference. No oral argument took place. The Court
issued three orders: (1) denying Plaintiffs request for fees,
(2) granting but reducing Defendants' request for fees,
and (3) granting Defendants' Motion to Dismiss for
Discovery Violations ("Motion to Dismiss" or
"Motion"). Further, the Court discussed on the
record the rationale behind the denial of Plaintiffs request
to stay the case, request for recusal,  motion for
summary judgment in favor of her claims, and request for
summary judgment against Defendants' counterclaims.
Finally, the Court granted Defendants' oral motion to
dismiss their counterclaims without prejudice. Given that
both Defendants' Motion to Dismiss Hammer's claims
and oral motion to dismiss their own counterclaims were
granted, the Court found that any outstanding issues were
8, 2017, Hammer filed this Motion for Relief from Order. In
reality, this Motion is one for reargument and was not filed
within the appropriate period. Under Superior Court Civil
Rule 59(e), it is barred. Even if considered on its merits, the
effort is not persuasive. She seeks to set aside the
Court's orders under Superior Court Civil Rules 60 and
61. Plaintiff makes several main arguments to support her
request for relief under Rules 60 and 61. In addition to
these main arguments, her Motion is littered with various,
often redundant, objections to the Court's conduct in and
understanding of this case.
Hammer claims that clerical mistakes were made that allow for
relief under Rule 61(a). Little to no support for this
assertion was provided in her filings.
Hammer claims that she was not given notice of
Defendants' Motion to Dismiss or the April 26 pretrial
conference, which renders the resultant orders void under
Rule 60(b). According to Hammer, as a result of this lack of
notice, she did not attend the pretrial conference. In
Plaintiffs mind, the pretrial conference was an ex
parte proceeding, and any orders arising therefrom
should be set aside.
Plaintiff claims to have answered all of Defendants'
interrogatories fully and in compliance with the Court's
instructions; therefore, she believes it was improper for the
Court to dismiss the case on this basis. Hammer continues the
attack that Howard has not provided its discovery
notwithstanding the Court's previous
decision. She alleges that the Court did not
consider her objections on material that Howard provided on
January 24, 2017 because the issuance of the February
decisions followed the December 2, 2016 hearing. However,
they were considered through subsequent filings made between
the December hearing and the February decision
Hammer objects to the Court's characterization of her as
a difficult party who has engaged in dilatory tactics
throughout this litigation and asserts that the Court is
biased against her.
made several references throughout her filing to her
entitlement to relief under Rule 61. However, her filing is
conclusory, lacking sufficient support.
countered by asserting that Plaintiffs arguments relating to
Rule 60(a) and Rule 61 are irrelevant. Howard asserts that
Hammer did not give any examples of clerical mistakes made by
the Court that would allow relief under Rule 60(a). Further,
Howard argues that Hammer did not make any claims to support
her belief that she is entitled to relief under Rule 61.
regard to Rule 60, Defendants argue that Plaintiff was
claiming that the orders were void under Rule 60(b)(4)
because she believes that the orders were a result of ex
parte communications. Howard goes on to assert that
Hammer's characterization of the events as ex
parte is misguided and incorrect. Finally, Defendants
claim that to be granted relief under Rule 60(b), Plaintiff
would have to show the likelihood of a different outcome if
relief were granted, which she has not done. Thus, Defendants
claim that Plaintiff is not entitled to relief under either
Rule 60 or 61 and that the Court's orders should stand.
Court Civil Rule 60 reads as follows:
Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission
may be corrected by the Court at any time of its own
initiative or on the motion of any party and ...