Free Reply to Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ELAINE HALE, et al., Plaintiffs, v. Lieutenant WILLIAM BROWNE, et al., Defendants. : : : : : : : : :

C.A.No. 07-166-GMS

PLAINTIFFS' RESPONSE TO DEFENDANTS' MOTION FOR SUMMARY JUDGMENT On January 18, 2008, plaintiffs filed their Motion to Amend the First Amended Complaint (D.I. 20) pursuant to Federal Rule of Civil Procedure 15(a). (D.I. 53). Thereafter, on January 25, 2008, defendants filed their response which does not oppose plaintiff's Motion, but rather asks the Court to grant partial summary judgment as to three previously named defendants. (D.I. 54 (hereinafter "Defs. Mot.")). Discovery in this case is still in its initial phases. Plaintiffs have not had the opportunity to review the "voluminous" collection of documents still being produced by defendants, or conduct depositions of any of the individual defendants at issue. More importantly, defendants have still failed to provide Plaintiffs with all of three of the defendants signed affidavits in support of their claims of noninvolvement. Accordingly, defendants' motion for partial summary judgment should be denied. A. Defendants' Opposition in Limited in Scope. 1. Defendants do not object to the inclusion of Captain Robert Coupe,

Corporal Chris Popp, and Mark Lewis. (Defs. Mot. at ¶ 1). Further, defendants do not object to the amended "state-created danger" claim. (Id. at ¶ 2). Defendants' response focuses instead on changes that they believe plaintiffs should make, instead of the modifications plaintiffs did make.

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Accordingly, plaintiffs will limit their reply to address only those allegations raised in defendants' request for partial summary judgment as to defendants Lester, Simpson, and Parton. 2. Defendants ask the Court to grant summary judgment with regard to defendants

Parton, Lester and Simpson and accompany their motion with "affidavits." (Defs.' Exs. H-J). "When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must--by affidavits or as otherwise provided in this rule--set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e)(2). B. Corrected Statement of the Record as to Defendants Lester, Simpson, and Parton. 3. On October 23, 2007, defendants sent a letter to plaintiffs requesting the

voluntary dismissal of Defendants Lester, Simpson, and Parton due to their alleged lack of involvement in the death of Derek Hale. (Defs.' Ex. B). Defendants' counsel stated that it could provide affidavits from these individuals to substantiate counsel's representations. (Id. at 2). On December 4, 2007, plaintiffs sent a letter to defendants' counsel requesting the affidavits from all three individual defendants. (See Letter to R. Durstein from C. Hertzog, dated Dec. 4, 2007 (attached hereto as Pls.' Ex. A)). Plaintiffs indicated their shared desire to resolve this situation, and reasonably requested signed affidavits from each defendant prior to granting defendants' request for voluntary dismissal. 4. On December 12, 2007, defendants provided plaintiffs with a signed affidavit of

Darren Lester. (See Letter to C. Hertzog from R. Durstein, with attachments, dated Dec. 12, 2007 (attached hereto as Pls.' Ex. B)). On January 3, 2008, defendants provided plaintiffs with a signed affidavit of Charles Simpson. (See Letter to T. Neuberger from J. Lardner, with attachments, dated Jan. 3, 2008 (attached hereto as Pls.' Ex. C)). 2

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5.

On January 15, 2008, plaintiffs contacted defendants both to provide a copy of

the proposed amended complaint and to express concerns about dismissing Sgt. Parton. (See email to J. Parkins and R. Durstein from T. Neuberger (Defs.' Ex. E)). Defendants unreasonably withheld their previously indicated consent to the amended complaint, insisting that plaintiffs remove all three defendants. (See email to C. Hertzog, et al. from R. Durstein (Defs.' Ex. F)). 6. Defendants have never provided plaintiffs with a signed copy of Parton's affidavit.

In fact, the affidavits accompanying defendants' Response were all unsigned. (See Def. Exs. H-J). While defendants later submitted corrected affidavits from Lester and Simpson, they have still failed to proffer a signed affidavit from Parton indicating his lack of involvement in both the investigation and subsequent death of Derek Hale. (See Letter from J. Mitchell to N. Looby, with attachments, dated Jan. 25, 2008 (attached hereto as Pls.' Ex. D)). C. Summary Judgment is Inappropriate Against Defendant Parton. 7. With regard specifically to defendant Parton, defendants failed to submit an

affidavit in accordance with Rule 56(e)(1) to support their motion for partial summary judgment. Instead, defendants submitted an unsigned, draft affidavit. (Defs.' Ex. J). 8. When an affidavit is unsigned it cannot be considered by the district court

as proper evidence in support of a motion for summary judgment. Pension Ben. Guaranty Corp. v. Heppenstall Co., 633 F.2d 293, 300 (3d Cir. 1980). "In fact, an `unsigned affidavit' is a contradiction in terms." Mason v. Clark, 920 F.2d 493, 495 (8th Cir. 1990). "By definition an affidavit is a "sworn statement in writing made ... under an oath or on affirmation before ... an authorized officer." Id. (citing to Webster's Third New International Dictionary 35 (1965)). Accordingly, "the affidavit cannot be considered as evidence which might raise a genuine dispute 3

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of material fact precluding summary judgment." D'Ambrosio v. Chicago Truck Drivers, 1990 WL 119461, *2 (N.D.Ill.1990); Union Trust Co. of Maryland v. Wakefern Food Corp., 1989 WL 120756, *28 (D.N.J. 1989); Dugan v. Pennsylvania Millers Mut. Ins. Co., 871 F.Supp. 785, 792 (M.D.Pa. 1994). 9. Moreover, plaintiffs' counsel never received an affidavit detailing Parton's

alleged non-involvement despite receiving letters from defense counsel saying it was forthcoming. (See Defs.' Ex. B and D). It was not until defendants filed their response did they attempt to secure an affidavit from Parton, despite having months to do so. 10. Defendants have not offered any sworn testimony from defendant Parton stating

his alleged non-involvement with the investigation of Derek Hale. Therefore, since defendants' Motion regarding defendant Parton is not properly made and supported, plaintiffs rely on the allegations set forth in the complaint. No evidence exists to support the dismissal of defendant Parton and summary judgment should be denied. D. Summary Judgment is Inappropriate Against All Defendants. 11. Since discovery and depositions are in their beginning phases, summary judgment

is premature without the depositions of these three defendants. "Summary judgment is appropriate only when, after viewing the evidence in the light most favorable to the non-moving party, the court can conclude that `it is quite clear what the truth is, that no genuine issue remains for trial.'" Owens v. Aetna Life & Cas. Co., 654 F.2d 218, 236 n.4 (3d Cir. 1981) (citing Poller v. Columbia Broadcasting System, Inc., 368 U.S. 464, 467 (1962)). Thus, when the existence of material fact issues is uncertain, summary judgment is improper. See Wright-Moore Corp. v. Ricoh Corp., 908 F.2d 128, 136 (7th Cir. 1990) (holding summary judgment improper when fact issues were unclear). 4

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12.

Additionally, summary judgment must be used carefully to protect a litigant's

rights. Susman v. South Tex. Package Stores Ass'n., 33 F.R.D. 340, 343 (S.D.Tex. 1963). If summary judgment is granted and the three defendants are dismissed as a result, plaintiffs will be forever bared from pursuing a cause of action against them should evidence later surface that points to their involvement. See Martucci v. Mayer, 210 F.2d 259, 260 (3d Cir. 1954) ("A judgment under Rule 56 goes to the merits and operates in bar of the cause of action, not in abatement."). Accordingly, since the grant of defendants' summary judgment motion could operate to bar all causes of action against these three defendants, plaintiffs should be entitled to explore in detail their involvement, or lack of involvement, before they are dismissed. 13. Regarding specifically defendant Parton, even assuming, arguendo, that the Court

could consider Parton's unsigned affidavit in support of defendants' summary judgment motion, a material issue of fact exists. Defendants admit that as a SORT officer, Parton was involved in the "arrests of Hale's co-conspirators and the execution of search warrants." (Def. Mot. at ¶ 5). Likewise, as defendants' counsel admits "it is conceivable that he participated in the seizure of drugs or weapons that would be used as evidence against Hale." (See Email to Plaintiffs' counsel from R. Durstein, dated Feb. 6, 2008 (attached hereto as Pls.' Ex. E)). Further, defense counsel has recently agreed to the deposition of Parton. (See Email to Plaintiffs' counsel from R. Durstein, dated Feb. 7, 2008 (attached hereto as Pls.' Ex. F)). Thus, given Parton's admitted involvement with the investigation and his forthcoming deposition, it is inappropriate to release him and justice requires that plaintiff have the opportunity to explore the extent of his involvement prior to summarily dismissing him from the case. 14. Lastly, regarding defendants Lester and Simpson, the Court must protect

plaintiffs' right to amend the Complaint to include these two individuals. As discussed above, if 5

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summary judgment is granted, plaintiffs will be forever bared from pursuing a cause of action against them should evidence surface that points to their involvement. Plaintiffs are unsatisfied that defendants Lester and Simpson were completely removed from the investigation leading to the death of Derek Hale. For example, defendant Lester states in his affidavit that he was transferred from the Special Investigations Unit ("SIU") on May 8, 2006 "before the investigation moved forward from the concept stage." (See Defs.' Ex. H p.2). This leads to the conclusion that he was involved somehow in the conceptualization of the investigation. Likewise, defendant Simpson was the Commander of the Troop 2 Criminal Investigations Unit, formerly SIU, until May 6, 2008 when he was transferred. (Id. Ex. I p.1). This is the exact same timeframe defendant Lester stated the investigation was in the "concept stage." (Id. Ex. H p.2). Therefore, as Commander of the SIU and participant in the conceptualization of the investigation, plaintiff should at the very least be able to depose Lester and Simpson to determine the extent of their involvement. Accordingly at this stage, since depositions are just beginning and a material issue of fact exists, summary judgment is inappropriate. 15. Plaintiffs share in defendants' desire to name the proper parties. They ask,

therefore, that they be permitted to confirm the validity of defendants' representations before considering whether these parties should be dismissed. E. Conclusion 16. Therefore, for the reasons discussed above, the Court should deny defendants'

Motion for Summary Judgment and allow discovery to proceed against defendants Lester, Simpson and Parton.

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THE NEUBERGER FIRM, P.A. /s/ Thomas S. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) CHERYL A. HERTZOG, ESQ. (Pro Hac Vice) Two East Seventh Street, Suite 302 Wilmington, DE 19801 (302) 655-0582 [email protected] [email protected] [email protected] ARNOLD & PORTER L.L.P. RANDAL SHAHEEN, ESQ. RYAN RICHARDSON, ESQ. JENNIFER RISEN, ESQ. 555 12th Street, NW Washington, DC 20004 (202) 942-5000 (phone) (202) 942-5999 (fax) OF COUNSEL: JOHN W. WHITEHEAD, ESQ. DOUGLAS MCKUSICK, ESQ. THE RUTHERFORD INSTITUTE P.O. Box 7482 Charlottesville, Virginia 22906 (434) 978 3888 Attorneys for Plaintiffs Elaine Hale and the Estate of Derek J. Hale and cooperating attorneys for The Rutherford Institute

JACOBS & CRUMPLAR, P.A. /s/ Thomas C. Crumplar ROBERT JACOBS, ESQUIRE (#244) THOMAS C. CRUMPLAR, ESQUIRE (#942) Two East Seventh Street, Suite 400 Wilmington, DE 19801 (302) 656-5445 7

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[email protected] [email protected] Attorneys for Plaintiffs Dennis W. Hale and Connie M. Hale Dated: February 8, 2008

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CERTIFICATE OF SERVICE I, Thomas S. Neuberger, being a member of the bar of this Court do hereby certify that on February 8, 2008, I electronically filed this Response with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

John A. Parkins, Esq. Richards, Layton & Finger One Rodney Square 920 N. King Street Wilmington, DE 19801

Ralph Durstein, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801

/s/ Thomas S. Neuberger THOMAS S. NEUBERGER, ESQ.
Hale / Pleadings / M otions / R esponse to D s' SJ M otion

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PLAINTIFFS' EXHIBIT A

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PLAINTIFFS' EXHIBIT B

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PLAINTIFFS' EXHIBIT C

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PLAINTIFFS' EXHIBIT D

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PLAINTIFFS' EXHIBIT E

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Cheryl Hertzog
From: Sent: To: Cc: Durstein III Ralph (DOJ) [[email protected]] Wednesday, February 06, 2008 1:08 PM Cheryl Hertzog Seifert Mark W (DSP)

Subject: RE: Hale v. Browne Cheryl: I was hoping that we would have a ruling soon from the Court on the Motion for Leave to Amend that would give some clarity to the status of Al Parton in this case, and perhaps persuade you of the futility in taking his deposition. As his affidavit makes clear, he won't be able to tell you anything about either the investigation or the shooting of Hale. He did participate in the arrest of some of Hale's co-conspirators, and in the execution of search warrants that yielded evidence utilized in the criminal case. It is conceivable that he participated in the seizure of drugs or weapons that would be used as evidence against Hale, but the best witness on that would be the search warrant affiant. I will sound him out on available dates in March. My own schedule isn't too bad. Did you have any specific dates in mind? It would also be helpful to have some guidance from the Court on Darren Lester and Chip Simpson. Unlike Al Parton, neither had any role whatsoever in the apprehensions or seizures, and, like Parton, they were not involved in the drug and organized crime investigation that included Hale. Their affidavits clearly reflect that, and I have provided the names of their successors. Tom Neuberger had previously indicated that he would voluntarily dismiss them from the case, but that hasn't happened. Now you want to take their depositions? I must be missing something. Before I attempt to deal with scheduling, could you give me some idea where you are going with this? I want to try and cooperate in discovery, but this would be a total waste of time ­ theirs and ours. Are you going to want to schedule depositions of the remaining DSP defendants and potential witnesses who did participate in the drug and organized crime investigation? If you can give me an idea who (beyond those currently scheduled) you want and when, I can begin to sound them out. Their schedules can be challenging, as most of them still have SIU duties, and some may be needed in the criminal prosecutions arising out of the Hale investigation. But I'm sure we can work out mutually-convenient dates. Ralph K. Durstein III Deputy Attorney General From: Cheryl Hertzog [mailto:[email protected]] Sent: Wednesday, February 06, 2008 12:15 PM To: Cheryl Hertzog; Durstein III Ralph (DOJ); Parkins, John Cc: Thomas S. Neuberger; [email protected] Subject: RE: Hale v. Browne Ralph, I have not yet received a response to my request for agreeable dates to depose defendant Parton. Along these same lines, plaintiff would like also to depose defendants Lester and Simpson in March. Please let me know at least two dates in March that work best for you so I may notice these depositions in a timely fashion.

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Thank you, ~ Cheryl

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From: Cheryl Hertzog Sent: Monday, January 28, 2008 11:45 AM To: 'Durstein III Ralph (DOJ)'; 'Parkins, John' Cc: Thomas S. Neuberger; 'HaleStorm ([email protected])'; 'Thomas Crumplar' Subject: Hale v. Browne Ralph, As you see I have noticed the depositions of Mark Lewis and Chris Popp on the agreed upon dates. Plaintiff would also like to notice the deposition of Sgt. Al Parton sometime in March. Could you please give us a date in March that works best for you? Thank you, ~ Cheryl ~~~~~~~~~~~~~~~ Cheryl A. Hertzog, Esq. * Licensed in PA and NJ only The Neuberger Firm, P.A. Attorneys and Counsellors at Law Two East Seventh Street, Suite 302 Wilmington, DE 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected]

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PLAINTIFFS' EXHIBIT F

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Cheryl Hertzog
From: Sent: To: Cc: Durstein III Ralph (DOJ) [[email protected]] Thursday, February 07, 2008 10:21 AM Cheryl Hertzog Parton Alfred (DSP)

Subject: RE: Hale v. Browne Cheryl: Al Parton is available anytime in March, except for the week of March 10-14, when he is in training. My calendar is clear as well, except for March 21. Let me know what date/time is good for you. Dirk From: Cheryl Hertzog [mailto:[email protected]] Sent: Wednesday, February 06, 2008 12:15 PM To: Cheryl Hertzog; Durstein III Ralph (DOJ); Parkins, John Cc: Thomas S. Neuberger; [email protected] Subject: RE: Hale v. Browne Ralph, I have not yet received a response to my request for agreeable dates to depose defendant Parton. Along these same lines, plaintiff would like also to depose defendants Lester and Simpson in March. Please let me know at least two dates in March that work best for you so I may notice these depositions in a timely fashion. Thank you, ~ Cheryl From: Cheryl Hertzog Sent: Monday, January 28, 2008 11:45 AM To: 'Durstein III Ralph (DOJ)'; 'Parkins, John' Cc: Thomas S. Neuberger; 'HaleStorm ([email protected])'; 'Thomas Crumplar' Subject: Hale v. Browne Ralph, As you see I have noticed the depositions of Mark Lewis and Chris Popp on the agreed upon dates. Plaintiff would also like to notice the deposition of Sgt. Al Parton sometime in March. Could you please give us a date in March that works best for you? Thank you, ~ Cheryl ~~~~~~~~~~~~~~~ Cheryl A. Hertzog, Esq. * Licensed in PA and NJ only The Neuberger Firm, P.A.

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Attorneys and Counsellors at Law Two East Seventh Street, Suite 302 Wilmington, DE 19801-3707 Phone 302.655.0582 Fax 302.655.9329 Email: [email protected]

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