Opinion
C.A. No.: S15C-05-006 RFS
10-30-2017
RE: Nancy Hammer v. Howard Medical, Inc., and Howard Industries, Inc.
RICHARD F. STOKES JUDGE Ms. Nancy Hammer
PO Box 492
Nassau, DE 19969 Dennis L. Schrader, Esq.
R. Eric Hacker, Esq.
Morris James Wilson Halbrook & Bayard,
LLP
107 W. Market Street
P.O. Box 690
Georgetown, DE 19947 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. Being untimely, the Court cannot jurisdictionally hear Hammer's Response. It is DENIED on this basis.
Super. Ct. Civ. R. 59(e).
Hammer's response to the denial of her Motion for Relief was filed 1 day after the five-day deadline to file a motion for reargument.
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. 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.
Letter from Judge Richard F. Stokes to Parties, March 13, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 250; Trans. ID 60330185). At all times Hammer's record address is: P.O. Box 492, Nassau, Delaware. Dates referenced throughout the decision reflect the day on which the document was "clocked in" to the Court's e-filing system, File & Serve.
The scheduling event portion of CourtConnect reflected the pretrial conference originally set for April 4, 2017 had been moved to April 26, 2017. The entry dated April 3, 2017 reads in pertinent part as follows: "Pretrial conference scheduled for 4/4/17—rescheduled to 4/26/17."
Pretrial Scheduling Order, Feb. 25, 2016 (File & Serve Docket No. 58; Trans. ID 58603468).
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. 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.
File & Serve Docket No. 254; Trans. ID 60375655.
Id.
Letter from Judge Richard F. Stokes to Nancy Hammer, March 31, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 259); Letter from Judge Richard F. Stokes to Nancy Hammer, April 5, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 260; Trans. ID 60426199); Letter from Judge Richard F. Stokes to Nancy Hammer, April 19, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 266; Trans. ID 60492733).
Letter from Nancy Hammer to Judge Richard F. Stokes, April 10, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 261; Trans. ID 60453776).
Id.
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." 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.
Letter from Judge Richard F. Stokes to Parties, April 24, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 268; Trans. ID 60509112).
Hammer's email address is nh56199@gmail.com. In the case, Hammer wanted Howard to email filings to her, although there was no legal requirement to do so. Pl.'s Mot. Relief Order, Ex. B (File & Serve Docket No. 283; Trans. ID 60571799). The emailed letter is attached as Exhibit 1.
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 parties 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.
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 the 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 Plaintiff's alleged 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.
Defs.' Resp. Pl.'s Mot. Relief Order, 2 (internal citations omitted)(emphasis added)(File & Serve 284; Trans. ID 60629171).
Id. at 5 (internal citations omitted)(emphasis added).
Id. at 11 (internal citations omitted)(emphasis added). The Court notes that this quotation references the previously discussed March 13, 2017 letter as a letter dated March 10, 2017. This discrepancy exists because the letter was dated March 10, 2017, but was not "clocked-in" to the e-filing system, File & Serve, until March 13, 2017, after a weekend. As previously stated, the Court's dates reference the date a document was clocked-in to File & Serve. Under the electronic system, there is generally a 24 hour "roll over" period.
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.
Pl.'s Resp. Defs.' Resp. Pl.'s Mot. Relief Order, 2 (emphasis added)(File & Serve Docket No. 286; Trans. ID 60669421).
Id. at 12 (emphasis added).
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." The latter argument is a new one which is waived under settled principles of law.
Resp. Opp'n Op. Order Den. Pl.'s Mot. Relief Order, 9 (italicized and bolded text in original, underlining added)(File & Serve Docket No. 288; Trans. ID 61040623).
Peters ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at *2 (Del. Super. Ct. May 7, 2012).
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. Again, Hammer did not complain about not receiving or knowing about it before the pretrial conference because she knew better.
Pl.'s Mot. Relief Order, Ex. B (File & Serve Docket No. 283; Trans. ID 60571799).
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. 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.
Hammer v. Howard Medical, Inc. and Howard Industries, Inc., Order Granting Defendants' Motion to Dismiss for Discovery Violations, April 26, 2017 (File & Serve Docket No. 278; Trans. ID 60523286).
Pl.'s Resp. Defs.' Mot. Dismiss Disc. Violations, 1-2 (File & Serve Docket No. 264; Trans. ID 60453776).
However, 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 letter.
Letter from Judge Richard F. Stokes to Nancy Hammer, April 19, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 266; Trans. ID 60492733).
Letter from Nancy Hammer to Judge Richard F. Stokes, April 24, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 270; Trans. ID 60511625).
Id. at 3.
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. 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."
Id. The letter was filed at 4:42 p.m., over three hours after the emailing of the Court's April 24th letter. Letter from Nancy Hammer to Judge Richard F. Stokes, April 24, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 270; Trans. ID 60511625).
Id. at 6.
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. 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.
The Court's April 24, 2017 letter to the parties is File & Serve Docket No. 268 and is identified by Transaction ID 60509112. Hammer could have brought any matters of importance to her, which litigants commonly do at pretrial conferences.
Hammer had actual notice by virtue of the emailing of the Court's April 24th letter together with service from Howard discussed above.
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." Hammer did not dispute the service by a counter affidavit. Affidavits are required at the time of decision.
Defs.' Resp. Pl.'s Mot Relief Order, Ex. A (File & Serve Docket No. 284; Trans. ID 60629171).
Peters ex rel. Peters v. Texas Instruments, Inc., 2012 WL 1622396, at *3(Del. Super. Ct. May 7, 2012)("affidavits may not be submitted in support of a motion for reargument. Accordingly, the Court will not consider the affidavits submitted by Plaintiffs in support of their Motion for Reargument").
Notwithstanding, 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.
Pl.'s Resp. Defs.' Resp. Pl.'s Mot. Relief Order, 5 (File & Serve Docket No. 2861 Trans. ID 60669421).
Id.
In re Shearin, 721 A.2d 157 (Del. 1998); Fabrication or Suppression of Evidence as Ground of Disciplinary Action Against Attorney, 40 A.L.R.3d 169, §7a (originally published 1971).
At many points too numerous to cite, Hammer has personally attacked Howard's lawyers. For example, at a December 2, 2016 hearing, Hammer accused Howard and its counsel of impermissibly engaging in ex parte communications with the Court. However, when questioned by the Court Hammer refused to explain how she had come by this information because she had no support for her assertion. Hammer v. Howard Medical, Inc., 2017 WL 1170795, at *4 (Del. Super. Ct. Feb. 14, 2017).
With this background, Hammer knew Howard's Motion was pending and that it would be considered at the pretrial conference. Hammer simply ignored it.
Hammer seeks to cast a picture of herself as a victimized, helpless party. This is not so. Hammer's medical condition is not germane to the issues in Howard's motion. Her updated responses filed on April 10, 2017 were actually prepared on February 19, 2017 and dated on February 20, 2017, well in advance of any later diabetic problem. These responses were not compliant, and there is no expectation that they ever would be so given her record.
The Court also notes that the diagnosis of diabetes is very common, and is treated by doctors on a very regular basis. What is particularly unique or challenging about Hammer's health condition is not known. Hammer seems to believe that providing detailed information would somehow prejudice her case. Letter from Nancy Hammer to Judge Richard F. Stokes, April 10, 2017, para. 7 (on file with Delaware Superior Court, File & Serve Docket No. 261; Trans. ID 60453776).
Pl.'s Mot. Relief Order, Ex. E (File & Serve Docket No. 283; Trans. ID 60571799).
Moreover, specific information about her medical condition was sought. Hammer did provide a note from a nurse practitioner about an office visit on March 16, 2017. At that time Hammer had been discharged from Beebe Medical Center ("Beebe"). Thereafter, Hammer provided a doctor's note about her admission to Beebe on March 2, 2017. As previously indicated, to ascertain the extent of her problem, Hammer was ordered to provide more detailed information by three letters. The first letter is dated March 31, 2017. It ordered her to provide "all necessary medical documentation to the Court no later than April 12, 2017." The documentation was to include "records of your admissions to Beebe Hospital after February 14, 2017 to date." Hammer states that she was not hospitalized at Beebe on February 14, 2017 and, therefore, did not have to provide what should have been easily obtainable records. This explanation is spurious; Hammer did not follow the direction.
File & Serve Docket No. 254; Trans. ID 60375655.
Letter from Nancy Hammer to Judge Richard F. Stokes, April 10, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 261; Trans. ID 60453776), Ex. B.
Letter from Judge Richard Stokes to Nancy Hammer, March 31, 2017 (on file with the Delaware Superior Court, File & Serve Docket No. 259).
Pl.'s Resp. Opp'n Op. Order Den. Pl.'s Mot. Relief Order, 23 (File & Serve Docket No. 288; Trans. ID 61040623).
On April 5, 2017, a second letter directed Hammer to supply records after February 14, 2017, should she have been hospitalized at hospitals other than Beebe Hospital. On April 10, 2017, Hammer filed an emergency room note by a Beebe Hospital physician that only stated Hammer was admitted on Thursday, March 2, 2017 and that she would be unable to perform regular duties while hospitalized. The requested details were not provided.
Letter from Judge Richard F. Stokes to Nancy Hammer, April 5, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 260; Trans. ID 60426199).
By a third letter on April 19, 2017, over a month after she had seen a nurse practitioner, Hammer was ordered: "On the subject of a medical specialist, you must provide the name of the specialist and the date of your appointment by Friday, April 21, 2017." In a response, she claimed to have an appointment with a "specialist's nurse practitioner" on May 9, 2017. In context, a health practitioner associated with a specialist is different from the family practice nurse seen on March 16, 2017. The name of the specialist nurse or the specialist associated with doctors was not provided as required. As a result, the Court was left in the cold.
Letter from Judge Richard F. Stokes to Nancy Hammer, April 19, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 266; Trans. ID 60492733).
Letter from Nancy Hammer to Judge Richard F. Stokes, April 24, 2017 (on file with Delaware Superior Court, File & Serve Docket No. 270; Trans. ID 60511625). --------
Hammer has never claimed she could not attend or participate in the pretrial conference on April 26, 2017, even if by phone to accommodate any documented issue on her physical condition.
Considering the foregoing, Hammer's Motion remains DENIED. Any further submissions will be disregarded.
IT IS SO ORDERED.
Very truly yours,
/s/
Richard F. Stokes Attachment: Exhibit 1
cc: Prothonotary
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