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 Joinder of Parties. Denied.
Upon Defendants' Request for Sanctions. Reserved. Dear Parties:
Plaintiff Nancy Hammer ("Hammer") filed a breach of contract suit against Howard Medical, Inc. and Howard Industries, Inc. ("Howard") on May 7, 2015. She has filed a Motion for Joinder of Parties ("Motion"). The Complaint seeks the recovery of alleged due commissions for Hammer's sales of medical equipment to third party vendors supplied by Howard. The Affidavit of Service signed by Hammer under oath on May 23, 2015 listed Howard as the corporate defendants. Hammer's Affidavit reflected that she sent the Summons and Complaint certified mail return receipt requested to Howard and that it had been signed by Andrew Coleman for the corporation on May 12, 2015.
Pl.'s Aff. of Service 1.
Id.
Following the filing of the Complaint on May 7, 2015, Hammer moved to have the Complaint amended on July 22, 2016 by adding Linda T. Howard ("Linda") and William W. Howard, Sr. ("William") as new parties. The Motion to Amend the Complaint was denied on August 5, 2016. This Motion for Joinder of Parties is merely an attempt to revisit the unsuccessful Motion to Amend the Complaint. The Motion to Reconsider the Motion to Amend was denied on February 14, 2017. This effort is barred by the law of the case doctrine. "The 'law of the case' is established when a specific legal principle is applied to an issue presented by facts which remain constant throughout the subsequent course of the same litigation." Here, there are no changed circumstances to indicate that the law of the case doctrine would not apply. This Motion is merely an end run effort to impermissibly add Linda and William as parties to the case.
Gannett Co., Inc. v. Kanaga, 750 A.2d 1174, 1181 (Del. 2000).
Id. (citing Kenton v. Kenton, 571 A.2d 778, 784 (Del. Super. Ct. 1990).
Superior Court Rule of Civil Procedure 19 provides for joinder of indispensable parties. Linda and William are not indispensable. First, Hammer, if her claim is successful, will have complete relief from Howard. Second, neither Howard's nor Linda and William's interest are affected by any aspect of the case or are placed in untenable positions by not being named defendants. The Complaint named Howard and was served on a Howard employee, which was sufficient. There is no requirement to bring Linda or William Howard into the case.
Super. Ct. Civ. R. 19(a) provides: "A person who is subject to service of process and whose joinder will deprive the Court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person's absence complete relief cannot be accorded among those already parties, or (2) the person claims an interest relating to the subject matter of the action and is so situated that the disposition of the action in the person's absence may (i) as a practical matter impair or impede the person's ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the Court shall order that the person be made a party..." See Incyte Corp. v. Flexus Biosciences, Inc., 2016 WL 1735485, at *8-9 (Del. Super. Ct. Apr. 19, 2016)(holding that a person was not a necessary or indispensable party in a contract case because complete relief could be afforded in his absence, the case could be decided without impairing his interests, and there was no real risk of incurring inconsistent obligations).
Further, Hammer makes conclusory claims that Linda and William as individuals are within the personal jurisdiction of the Delaware Superior Court. However, they reside in Mississippi and Hammer cannot show a basis for jurisdiction on generalized conclusions alone. No minimum contacts are sufficiently alleged which would bring Linda and William into the personal jurisdiction of the Court under the applicable long arm statute. Therefore, seeking joinder in this context would ultimately be a futile effort. Additionally, the Motion appears to be an effort to pierce the Howard corporate veil, which was another ground for the denial of the Motion to Amend.
Harmon v. Eudaily, 407 A.2d 232, 233 (Del. Super. Ct. 1979), aff'd 420 A.2d 1175 (Del. 1980).
Finally, Howard asks that its fees and costs necessary to respond to this Motion be awarded. Howard cites a Delaware Supreme Court decision, Kaung v. Cole Nat. Corp. That case states that an award of such costs and fees is proper where "the losing party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." The instant Motion wrongfully alleges in the first paragraph that "On May 12, 2015, service of the summons and Complaint was made on Linda and Howard and William W. Howard, Sr." In fact, it was made on Howard Industries, Inc. Further, Hammer has used this Motion as an attempt to reargue her Motion to Amend the Complaint, no fresh or pertinent arguments were presented. The sanctions imposed in Kaung came after trial and shifted fees and costs to the losing party. As Kaung looks at post-trial proceedings, I am reserving decision on the motion pending the final outcome of the litigation.
Kaung v. Cole Nat. Corp., 884 A.2d 500, 506 (Del. 2005).
Pl.'s Mot. Joinder Parties 1. --------
Considering the foregoing, Hammer's Motion for Joiner of Parties is DENIED. Howard's Motion for Sanctions is reserved.
IT IS SO ORDERED.
Very truly yours,
/s/_________
Richard F. Stokes, Judge Cc: Prothonotary
Nancy Hammer
Dennis Schrader, Esq.
R. Eric Hacker, Esq.