Opinion
C.A. No. S15C-05-006 RFS
02-14-2017
Re: Nancy Hammer v. Howard Medical, Inc., Howard Industries, Inc.
RICHARD F. STOKES JUDGE Nancy Hammer
P.O. Box 492
Nassau, Delaware 19969 Dennis L. Schrader, Esq.
R. Eric Hacker, Esq.
Morris James Wilson Halbrook & Bayard, LLP
107 W. Market Street
P.O. Box 690
Georgetown, Delaware 19947 Upon Plaintiff's Motion for Reconsideration. Denied. Dear Parties:
This is part of the litigation commenced by Nancy Hammer ("Hammer") against Defendants Howard Medical, Inc. and Howard Industries, Inc. ("Howard"). The Complaint was filed on May 7, 2015 and asserts a breach of contract claim against Howard for alleged unpaid commissions. On August 5, 2016, Defendants' Motion to Compel Proper Answers to Interrogatories was granted. As part of the bench ruling, Defendants' were awarded reasonable costs and attorneys' fees. On August 12, 2016, Defendants' counsel submitted an affidavit supporting this request. On August 10, 2016 and August 15, 2016, Plaintiff objected to the award. Defendant responded by a letter dated August 12, 2016. On October 20, 2016, the Plaintiff requested reconsideration of the decision. The amount of fees and costs was liquidated on February 14, 2017 in conjunction with various pending motions before the Court.
August 5, 2016 Order of Judge Richard F. Stokes, Docket Entry 119.
Super Ct. Civ. R. 37.
The October 20, 2016 motion will be read together with the August 10, 2016 letter. The essence of the material is the same, except for the form. The August 10, 2016 letter was written within the five day period permitted for reargument under Superior Court Rule of Civil Procedure 59(e). No prejudice is suffered by Defendants who responded on August 12, 2016.
Plaintiff claims that the Court introduced "New Matter" into the August 5, 2016 hearing by engaging in a discussion with the parties regarding the content of Defendants' interrogatories and Plaintiff's answers to those interrogatories. She claims that Defendants had only requested supplementation or clarification of Interrogatories Six (6) and Fourteen (14), so discussion of the remaining interrogatories was improper. The record refutes Plaintiff's positions but supports the statement made by Defendants' in the August 12, 2016 letter. Defendants properly pointed out that general supplementation and clarification was requested by the letter they sent dated June 9, 2016. The letter states in pertinent part: "With regard to your interrogatories, your objections require immediate clarification or withdrawal, and your answers require immediate supplementation." While there is specific reference to Interrogatories Six (6) and Fourteen (14), it is clear from the overall tenor of the letter that general clarification and supplementation was sought. Further, Howard's Motion to Compel filed on June 17, 2016 was broadly based. All of the interrogatories were discussed with Hammer at the August 5, 2016 hearing; Hammer did not make a claim that the scope was limited. Thus, the Court did not interject new material into the hearing by discussing each of the interrogatories.
Transcript of August 5, 2016 Hearing at 24; 29-34.
Letter from R. Eric Hacker, Esq., Morris James Wilson Halbrook & Bayard, to Nancy Hammer (June 9, 2016)(on file with the Delaware Superior Court).
Transcript of August 5, 2016 Hearing at 23-27.
Further, Plaintiff argues that the Court improperly awarded the Defendants' attorneys' fees. Where there is noncompliance with discovery, fees and costs are awarded. An award may not be made should the failure be substantially justified or if the circumstances make an award unjust. Hammer contends her failure to answer was justified by Howard's failure to answer her Second Request for Production of Documents. Plaintiff was not justified in failing to answer the interrogatories; boiler plate objections on lack of relevancy or claiming the question to be "not applicable" are improper. The idea that an interrogatory should not be answered until Plaintiff had received a response to her Second Request for Production of Documents is misplaced. The answers to interrogatories were due two days before she filed the Second Request for Production of Documents. When Hammer filed the Complaint she was required to have a factual basis for the suit. Plaintiff acknowledged she possessed information and material but has refused to come forward with the information.
Super. Ct. Civ. R. 37(a)(4).
Pl.'s Mot. Recons. Order Grant. Mot. Compel Disc. Award Costs Fees 4; Transcript of August 5, 2016 Hearing at 26:10-11; 41:11-16.
Defendants' Interrogatories were served on the Plaintiff on May 4, 2016. Thus, a response was required by the Plaintiff on June 4, 2016, pursuant to Rule 33. Defs.' Notice Service Disc. Request 1. Plaintiff did not serve her Second Request for Discovery on Defendants until June 6, 2016, two days after her response to Defendants' interrogatories were due. Pl.'s Notice Service Disc. Request 1.
Super. Ct. Civ. R. 11(b)(3); Chrysler Corp. v. Dann, 223 A.2d 384, 387 (Del. 1966) (holding that the Plaintiff must have some factual basis for asserting her claim. If there is none, the conclusion follows that the claim lacked merit).
Transcript of August 5, 2016 Hearing at 34-35.
The Plaintiff makes reference to her expense in noticing an earlier deposition for individuals living in Mississippi who were not parties to the suit. The individuals did not appear nor were they required to appear as explained to Plaintiff at a June 29, 2016 hearing, by letter, and yet against at the December 2, 2016 hearing. She cannot use her anger as a tool to frustrate Defendants' discovery.
Transcript of June 29, 2016 Hearing at 38-39; Letter from Judge Richard F. Stokes to Nancy Hammer and R. Eric Hacker, Esq., Morris James Wilson Halbrook & Bayard, (July 12, 2016) (on file at the Delaware Superior Court); Transcript of December 2, 2016 Hearing at 40.
The amount of costs and fees awarded considered all matters discussed in the letters of August 10 and 12, 2016.
Without undue repetition, the motion is denied for the following reasons:
(1) The motion claims that the Court interjected new arguments on behalf of defendants by reviewing all fifteen (15) interrogatories instead of two (2). Plaintiff claims that defendant's only sought clarification of the two interrogatories and not the other interrogatories.
(2) Again, this contention is belied by the record. When the Motion to Compel was filed on June 17, 2016, it sought an order on Plaintiff's failure to properly respond to outstanding discovery requests, including the interrogatories. The motion specifically stated: "Plaintiff responded to Defendants' Second Request, but Plaintiff's responses were inadequate incomplete [sic]...Defendants respectfully request that this Court enter and Order...Awarding Defendants costs and attorney fees [sic] incurred in preparing and presenting this Motion..."
(3) At the hearing on August 5, 2016, the Defendant's counsel was asked about this subject. The record shows:
THE COURT: Is the request as to them [the interrogatories] that she answer them fully?
MR. HACKER: Yes, Your Honor and be responsible for the fees for the motion to compel.
(4) At the hearing all the interrogatories were considered and Plaintiff had the opportunity to express her position.
Def.'s Mot. Compel Disc. 1, 3.
Transcript of August 5, 2016 Hearing at 27.
On October 20, 2016 the plaintiff requested reconsideration of the decision. On February 14, 2017, the Defendants' entitlement to fees was reduced to judgment in conjunction with Orders issued on pending motions before the Court. The October 20, 2016 motion will be considered nunc pro tunc with the August 10, 2016 letter. The essence of the material is the same and the letter would be timely, excluding the intervening weekend. The five (5) day period for reargument under Superior Court Rule of Civil Procedure 59(e) would therefore not be applicable.
Super. Ct. Civ. R. 6. --------
Considering on the foregoing, this Motion is DENIED.
IT IS SO ORDERED.
Very truly yours,
/s/_________
Richard F. Stokes, Judge Cc: Prothonotary
Nancy Hammer
Dennis Schrader, Esq.
R. Eric Hacker, Esq.