Opinion
C. A. No. 06A-04-013 (CLS).
Submitted: February 9, 2007.
April 27, 2007.
Upon Consideration of Plaintiff's Motion to Alter or Amend a Judgment DENIED.
Miroslaw E. Kostyshyn, Pro Se, Wilmington, Delaware, Plaintiff.
Max B. Walton, Esquire, Connolly, Bove, Lodge Hutz, LLP, Wilmington, Delaware, Attorney for Defendant.
ORDER
1 Plaintiff Miroslaw E. Kostyshyn ("Plaintiff") has filed a Rule 59 Motion to Alter or Amend the Court's November 30, 2006 Opinion. Upon consideration of Plaintiff's Motion, it is, hereby, DENIED.
2 On November 30, 2006, the Court granted the Motion to Dismiss of Defendant Commissioners of the Town of Bellefonte ("Defendant Commissioners"). The Court held that: (1) Plaintiff lacks standing to attack a legislative act; (2) the Court does not have jurisdiction to hear an appeal of a legislative act; and (3) Plaintiff cannot state a claim for fraud without particularity. As to lack of standing, the Court specifically found that Plaintiff did not suffer from an "injury-in-fact". The Court further explained that the Board did not violate Plaintiff's rights because 22 Del. C. § 322(d) expressly permits Defendant Commissioners to enact new legislation.
Kostyshyn v. Comm'rs of Bellefonte, 2003 Del. Super. LEXIS 226.
Id. at *7.
Id.
In the current Motion to Alter or Amend this decision, Plaintiff first attempts to dispute the Court's decision on lack of standing. Plaintiff asserts that he "is not aggrieved, because the passage of Ordinance No. 2006-01 has yet to be adopted legally." According to Plaintiff, his Appeal of the Defendant Commissioners March 28, 2006 decision merely tried to demonstrate the invalid "way and method the Commissioners were using, to adopt Bellefonte Ordinance No. 2006-01."
Pl. Mot. to Alter or Amend J. at 1.
Id.
Second, Plaintiff alleges judicial misconduct by the attorney of Defendant Commissioners. Plaintiff highlights the fact that Defendant's attorney hand delivered a case on November 30, 2006 for the Court's review. According to Plaintiff, this act seems questionable, especially in light of the fact that this Court issued its Opinion in this matter on the very same date; November 30, 2006.
Salem Church (Delaware) Associates v. New Castle County, 2006 WL 2873745, at *14 (Del.Ch.).
3. Delaware law places a heavy burden on a plaintiff seeking relief pursuant to Rule 59. To obtain relief on a Motion to Alter or Amend Judgment, Plaintiff must establish on one of the following: (1) an intervening change in controlling law; (2) the availability of new evidence not previously available; or (3) the need to correct clear error of law or to prevent manifest injustice.
Fatovic, et. al. v. Chrysler Corp. et. al., 2003 Del. Super. LEXIS 441 at *2 (citing Executors of the Will of Mansfield, Del. Ch., C.A. No. 11340, Letter Op. at 2, Chandler, V.C. (Nov. 5, 1990); Arnold v. Society for Savings Bancorp., et al., Del. Ch., C.A. No. 12883, Letter Op. at 1, Chandler, V.C. (Jan. 30, 1995)).
Id. (citing N. River Ins. Co. v. Cigna Reinsurance. Co., 52 F.2d 1194, 1218 (3d Cir. 1995)).
4. The Court finds that Plaintiff has failed to establish one of the above grounds. Attempting to dispute the Court's decision on standing, Plaintiff argues that he "is not aggrieved". This argument essentially amounts to a circular line of reasoning that neither disproves the Court's earlier decision nor supports Plaintiff's current position. In fact, Plaintiff's statement provides additional support for the Court's earlier decision. By stating that he has not been aggrieved, Plaintiff seems to agree with the Court's finding that he lacks of standing.
However, after discounting "injury-in-fact", Plaintiff provides the Court with an alternate theory of "injury-in-fact". Plaintiff also argues that the Court should Alter or Amend Judgment because Defendant Commissioners invalidly adopted Bellefonte Ordinance No. 2006-01. Upon consideration of this argument, the Court, once again, finds that Plaintiff suffered from no "injury-in-fact". Defendant Commissioners did not violate Plaintiff's rights because they properly voted on Ordinance 2006-01 at the March 28, 2006 meeting in accordance with 29 Del. C. § 10004.
Finally, in regard to Plaintiff's claim of judicial misconduct by Defendant's attorney, the Court finds that his argument has no merit. Defendant's attorney did not engage in misconduct by bringing a case to the Court's attention on November 30, 2006. Defendant abided with the Superior Court rules of procedure by filing, or "hand delivering", this case with the Court. Because Defendant filed this case with the Court, Plaintiff also received a copy of it. Hence, Defendant did not engage in an ex parte communication with the Court as Plaintiff seems to suggest here. 5. Based on the foregoing reasons, Plaintiff's Motion to Alter or Amend Judgment is, hereby, DENIED.
IT IS SO ORDERED.