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Hammer v. Howard Medical, Inc.

Superior Court of Delaware

October 30, 2017

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

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

         Dear Parties:

         On April 26, 2017, this Court issued an Order granting Defendants' Motion to Dismiss for Discovery Violations. On May 8, 2017, Plaintiff ("Hammer") filed her Motion for Relief ("Motion"). Defendants' ("Howard") Response was filed on May 30, 2017. On June 1, 2017, Hammer filed her Reply. On August 18, 2017, Hammer's Motion was denied. On August 28, 2017, Hammer filed a Response opposing the August 18th decision ("Response"). This Response is nothing more than a Motion for Reargument. Under Rule 59(e), a Motion for Reargument must be served and filed within five days after issuance of the opinion or decision in question.[1] Being untimely, [2] the Court cannot jurisdictionally hear Hammer's Response. It is DENIED on this basis.

         Even if not barred, the Response would not be persuasive. In this regard, several points should be made.

         After Hammer failed to appear at the pretrial conference on April 26, 2017, Howard's Motion to Dismiss was granted by letter opinion. Hammer knew the pretrial conference was scheduled for April 26th, as established by the Court's letter of March 13, 2017.[3] Hammer had knowledge of this date as well through the CourtConnect entry on April 3, 2017, which reflected that the pretrial conference date was moved to April 26, 2017.[4] The pretrial conference date was never changed. The trial date of May 1, 2017, as established by the Scheduling Order remained in place.[5]

         When Hammer was hospitalized on March 2, 2017 for a diabetic condition, the Deputy Prothonotary asked for medical information in response to Hammer's request to give her more time.[6] On March 7, 2017 and March 13, 2017, the Deputy Prothonotary advised that the Court would grant Hammer time, and asked for a doctor's note so the matter could be temporarily stayed.[7] Thereafter, the Court made three requests for detailed medical information to permit a reasoned consideration of a stay on March 31, 2017, April 5, 2017, and April 19, 2017.[8] Sufficient information was not provided. Hammer understood that a stay had not been granted, as she asked for a 90 day temporary stay in a pleading filed on April 10, 2017.[9] Concerning Howard's Motion to Dismiss initially scheduled for April 13, 2017, Hammer asked to attend by phone.[10] Hammer made no effort to attend or even to inquire about the pretrial conference.

         On April 24, 2017, the parties were advised by a letter from the Court that "at the pretrial conference, all pending matters will be discussed as requested in defendants' letter of April 21, 2017."[11] The docket included the quoted language. The letter was sent to Hammer's address of record. Also, out of an abundance of caution, it was emailed to Hammer's email account at 1:31 p.m. on April 24, 2017.[12]

         Hammer's Motion for Relief from Order was filed on May 8, 2017. Although it had 91 pages of arguments and exhibits, the Court's letter of April 24th is not mentioned anywhere. Howard filed its Reply on May 22, 2017. At several places Howard emphasizes the Court's April 24th letter:

At page 2: This Court later modified certain dates within the Pretrial Scheduling Order. often to accommodate Plaintiff The last modification came by way of this Court's March 10, 2017 letter in which the Court set April 26, 2017 as the date for the pretrial conference. The Court reiterated this in a Letter Order dated April 24, 2017, in which the Court informed the parlies that it would consider all pending matters at the parties' April 26 pretrial conference. The Plaintiff knew or should have known of these scheduled events.[13]
Further, at page 5: As noted earlier, on April 24, 2017, the Court's letter order informed the parties that it would consider all pending matters at (he parties' April 26 pretrial conference.[14]
Moreover, at page 11: Likewise, Plaintiff had notice and opportunity to appear at the April 26 pretrial conference. The April 26 date was set by the Court's March 10 Letter Order which revised the existing scheduling order to accommodate Plaintiffs all cued medical conditions. The Court reaffirmed that the April 26 hearing would occur, including in its April 24 Letter Order. That April 24 Letter Order expressly stated that "all pending matters ["would] be discussed" at the pretrial conference.[15]

On June 1, 2017, Hammer replied to Howard's May 22, 2017 filing. There, Hammer refers to the Court's April 24th letter this way: "The Court's letter of April 24, 2017 did not include the words April 26 as Defendants falsely allege in their response."[16] Further, Hammer asserts: "Defendants falsely misrepresent in their response that this Court's letter of April 24, 2017, 'reaffirmed that the April 26 hearing would occur.' The Court's letter of April 24, 2017 does not include such statement."[17] No claim of ignorance is made.

         After the Court's decision of August 18, 2017, Hammer's filing on August 28, 2017 asserts: "With regards to Judge Stokes letter of April 24, 2017. it did not include the words April 26 as alleged in Opinion. Further, Plaintiff received this April 24 letter after the hearing and pretrial conference were held, "[18] The latter argument is a new one which is waived under settled principles of law.[19]

         Nevertheless, for purposes of discussion only, it has no merit.

         Again, the pretrial conference of April 26th was scheduled in the March 13th letter. Nowhere does Hammer claim she did not know about this date nor deny receiving the March 13th letter. The statement in the Court's letter of April 24th about the pretrial conference plainly carries the April 26th date. To suggest differently is an argument weaved out of whole cloth. The April 24th letter was mailed to her address of record.

         Moreover, the Court emailed its April 24th letter to Hammer's email address. In her filings through June 1st, Hammer merely objected to the date of April 26th not being stated near the phrase "at the pretrial conference". While on April 28, 2017 Hammer asked the Court to email her a copy of Howard's April 21st letter, at no time did Hammer make a similar request about the Court's April 24th letter.[20] Again, Hammer did not complain about not receiving or knowing about it before the pretrial conference because she knew better.

         Hammer takes an untenable position with her denial of knowledge about Howard's April 21st letter. Obviously, Howard's letter requested that its Motion to Dismiss, originally set for hearing on April 13, 2017, be granted. It is clear that the issues were still alive at this time. Context is important. For over one year and multiple court orders and hearings, Hammer had been directed and told how to properly answer simple interrogatories.[21] By supplementing interrogatory responses prepared on February 19, 2017, but dated February 20, 2017 and filed on April 10, 2017, Hammer contended Howard's pending Motion to Dismiss was moot because she had fulfilled all of her obligations.[22]

         However, the subject was passed to give Howard an opportunity to respond by the Court's letter dated April 19, 2017.[23] Hammer has acknowledged knowledge and receipt of the April 19th letter.[24] In the letter Howard was ordered to respond to Hammer's claim that the discovery issues were moot. Hammer knew that Howard's response was due on April 21, 2017, as stated in the letter.[25]

         Hammer responded to the Court's April 19th letter. By letter filed on April 24, 2017, Hammer continued to complain about having to properly answer the interrogatories.[26] The letter makes the statement: "The Plaintiff is unable to address the Defendant's letter of April 21, 2017, since the Defendants have failed to provide the Plaintiff with a copy."[27]

         There is a parsing of words in this last statement which is concerning. Not getting a copy and not knowing what it is about it are two separate things. The issues were not resolved and Howard wanted its Motion granted, as reflected in the docket. Without undue repetition, the Court's letter of April 24th is tied into Howard's request for relief. Hammer's reference to the April 21st letter reflects her access to docket information. That information would include the Court's April 24th letter which called for the settling of all pending matters at the pretrial conference, as requested by Howard.[28] Under the electronic filing system, the publically available time of viewing the Court's letter of April 24th and Howard's letter of April 21st would be April 25th, the day before the pretrial conference.[29]

         Further, Howard properly served its April 21st letter to Hammer's address of record. Counsel submitted an affidavit dated May 22, 2017 by Maryann Lehman, an employee of that firm. The affidavit verifies that April 21st was the mailing date, the mail was sent to the record address, and the mail was never returned as "undeliverable."[30] Hammer did not dispute the service by a counter affidavit. Affidavits are required at the time of decision.[31]

         Notwithstanding, Hammer makes unsworn accusations that counsel fabricated service by manipulating a postage meter to falsely indicate an April 21st mailing date.[32] According to Hammer, the fraud was necessary because Howard's counsel ".. .found it necessary to deceptively concoct a defense, "[33] i.e., to refute her claim that the mailing of the April 21st letter had to be done after that date. This is a charge of unethical conduct. While litigants enjoy a privilege, unsupported claims of this nature are beyond the pale. Hammer does not have a good faith basis or evidential support for this serious accusation. While any meter has the potential for misuse, nothing more is presented here than Hammer's mere speculation. A lawyer can be suspended or disbarred for fraudulent conduct of this nature.[34] This is not the first time Hammer has accused Howard's counsel of unethical conduct and has exceeded litigation standards.[35]

         With this background, Hammer knew Howard's Motion was pending and that it would be considered at the pretrial ...


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