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Hammer v. Howard Medical, Inc.

Superior Court of Delaware, Sussex

August 18, 2017

Nancy Hammer
Howard Medical, Inc., Howard Industries, Inc.

          Date Submitted: May 30, 2017

          Nancy Hammer, Dennis L. Schrader, Esq., R. Eric Hacker, Esq., Morris James Wilson Halbrook & Bayard, LLP


         Upon Plaintiffs Motion for Relief from Order.


         Dear Parties:

         Before 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.

         I. BACKGROUND

         On May 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, 2017.

         Plaintiff 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, [1] 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 moot.

         On May 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.[2] 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.

         First, 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.

         Second, 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.

         Third, 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.[3] 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 date.[4]

         Finally, 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.

         Plaintiff made several references throughout her filing to her entitlement to relief under Rule 61. However, her filing is conclusory, lacking sufficient support.

         Defendants 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.

         With 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.

         II. STANDARD

         Superior Court Civil Rule 60 reads as follows:

(a) Clerical Mistakes. 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 ...

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