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

Case 1:04-cv-01394-GMS

Document 265

Filed 07/24/2006

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

CAPTAIN BARBARA L. CONLEY, Plaintiff, v. COLONEL L. AARON CHAFFINCH, individually, Defendant.

: : : : : : : : : :

C.A.No.04-1394-GMS

PLAINTIFF'S REPLY IN SUPPORT OF HER MOTION TO STRIKE DEFENDANT'S REPLY IN SUPPORT OF THEIR SANCTIONS MOTION (D.I. 258) FOR FAILURE TO COMPLY WITH LOCAL RULE 7.1.3 A. Merits Argument. In their opening motion, defendant claimed that four specific statements of counsel violated the rules. Plaintiff responded on the merits to those four specific allegations in their Answering Brief. In their Reply Brief, defendant belatedly added several additional statements that they now claim also violate the rules. Local Rule 7.1.3 was designed to prevent this type of sandbagging which deprives the opposing party of the opportunity to respond to the new alleged statements, in violation of the Due Process Clause. Defendant's sandbagging violates the local rule. Accordingly, the additional statements and supporting argument added by defendant should not be considered and must be stricken. See Rockwell Tech, LLC v. Spectra-Physics Lasers, Inc., 2002 WL 531555, *3 (D.Del. March 26, 2002) (attached to opening motion). B. Other Defense Arguments. 1. The Claim that No New Material Was Identified. First, defendant claims

Case 1:04-cv-01394-GMS

Document 265

Filed 07/24/2006

Page 2 of 4

that no new evidence or argument were identified in plaintiff's motion to strike. (DAB at 1-2). However, defendant himself identifies some of the new specific statements in the very next paragraph of their brief. (DAB at 2). Additionally, at page 2 of her opening motion to strike, plaintiff cited to the pages of the defense reply containing the new evidence. 2. The Claim that Plaintiff Must Guess What Statements Defendants Allege As a Basis For Sanctions. The defense also asserts that they need not list and identify statements that may serve as the basis for sanctions. (DAB at 2). The due process clause requires otherwise. See, e.g. Jones v. Pittsburgh Nat. Corp., 899 F.2d 1350, 1358-59 (3d Cir. 1990); Fellheimer, Eichen & Braverman, P.C. v. Charter Technologies, Inc., 57 F.3d 1215, 1225 (3d Cir. 1995); see generally Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985).1 3. The Claim That Plaintiff Is Not Entitled to File a Brief. Defendant moved for sanctions. The form of doing so was a speaking motion. That defendant chose to waive the right to file a 40 page brief and instead rely on a short 6 page speaking motion has no affect on plaintiff's right to file a substantive response on the merits to the weighty sanctions issues the defense raised. (Cf. DAB at 3-4). 4. The Claim That Local Rules 7.1.1 Was Not Complied With. Lastly, the defense claim that Local Rule 7.1.1 was not complied with is similarly without merit. (DAB at 4-5). Counsel e-mailed defendant and raised the sandbagging issue. When the defense response ignored the issues raised and instead revealed that further discussion would be fruitless, plaintiff

As to the defense surprise argument (DAB at 2-3), plaintiff was indeed surprised that defendant contested and had a problem with the additional statements he raised in his reply brief. Plaintiff assumed that all challenged statements would have been specifically identified in their opening sanctions motion. 2

1

Case 1:04-cv-01394-GMS

Document 265

Filed 07/24/2006

Page 3 of 4

filed the present motion to strike. 5. The Claim That This Motion is Without Merit and Fees Should Be Awarded to the Defense. As discussed above and in the opening motion, defendant sandbagged plaintiff and argued from new evidence in their reply brief, thus depriving plaintiff of the opportunity to respond on the serious sanctions issues the defense had raised. The defense conduct clearly violated the due process clause as well as the local rule. Accordingly the defense claim that this is a frivolous motion is without merit. Plaintiff waives a reply brief on this matter. Respectfully Submitted, THE NEUBERGER FIRM, P.A.

/s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: July 24, 2006 Attorneys for Plaintiff

3

Case 1:04-cv-01394-GMS

Document 265

Filed 07/24/2006

Page 4 of 4

CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on July 24, 2006, I electronically filed this Pleading with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Ralph K. Durstein III, Esquire Department of Justice Carvel State Office Building 820 N. French Street Wilmington, DE 19801 James E. Liguori, Esquire Liguori, Morris & Yiengst 46 The Green Dover, DE 19901

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

Conley/ Pleadings / Motion to Strike for Failure to Comply - Sanctions.RB.final

4