L. Schrader, Esq. R. Eric Hacker, Esq. Morris James Wilson
Halbrook & Bayard, LLP.
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. Being untimely,  the Court cannot
jurisdictionally hear Hammer's Response. It is
DENIED on this basis.
not barred, the Response would not be persuasive. In this
regard, several points should be made.
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. 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. The pretrial conference date was never
changed. The trial date of May 1, 2017, as established by the
Scheduling Order remained in place.
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. 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. 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. 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. Concerning Howard's Motion to Dismiss
initially scheduled for April 13, 2017, Hammer asked to
attend by phone. Hammer made no effort to attend or even
to inquire about the pretrial conference.
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." 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
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
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
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.
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
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." 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." No claim of ignorance is made.
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, " The latter argument is a
new one which is waived under settled principles of
for purposes of discussion only, it has no merit.
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.
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. Again, Hammer did not complain about not
receiving or knowing about it before the pretrial conference
because she knew better.
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. 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
the subject was passed to give Howard an opportunity to
respond by the Court's letter dated April 19,
2017. Hammer has acknowledged knowledge and
receipt of the April 19th letter. 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
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. 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."
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. 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.
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." Hammer did not dispute the
service by a counter affidavit. Affidavits are required at
the time of decision.
Hammer makes unsworn accusations that counsel fabricated
service by manipulating a postage meter to falsely indicate
an April 21st mailing date. According to
Hammer, the fraud was necessary because Howard's counsel
".. .found it necessary to deceptively concoct a
defense, " 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. This is not the first time Hammer has
accused Howard's counsel of unethical conduct and has
exceeded litigation standards.
this background, Hammer knew Howard's Motion was pending
and that it would be considered at the pretrial ...