                              SUPERIOR COURT
                                   of the
                            STATE OF DELAWARE
Jeffrey J Clark                                              Kent County Courthouse
  Judge                                                           38 The Green
                                                                 Dover, DE 19901
                                                            Telephone (302)735-2111

                                   October 31, 2019



Robert F. Phillips, DAG                          Christopher M. Coggins, Esquire
Department of Justice                            Coggins Law, LLC
391 Lukens Drive                                 1007 North Orange Street, 4th Floor
New Castle, DE 19720                             Wilmington, DE 19801


                              Submitted: October 25, 2019
                               Decided: October 31, 2019


       RE:        Sean M. Garvin, Secretary of the Department of Natural
                  Resources & Environmental Control v. Joseph W. Booth &
                  Margaret A. Booth
                  S18M-10-040 JJC

Counsel:

       This letter reflects the Court’s decision regarding the Secretary’s motion for a
continuance of the February 10, 2020 trial. For the following reasons, the motion is
granted.
                                   Positions of the parties
       The Secretary requests a continuance because he has not yet fully determined
his damages. The Booths oppose the request by relying primarily on the Court’s July
10, 2019 Memorandum Opinion and Order that resolved the Secretary’s motion for
summary judgment. They argue that the law of the case limits the Secretary’s claims
to investigation and study related costs. They also argue that the law of the case
limits the Secretary to damages that had ripened on or before the oral argument
regarding summary judgment. Namely, they argue that the Secretary’s desire to
continue the trial to identify evidence of damages that the Court has ordered
precluded does not constitute good cause.


                                         Standard
         A party requesting a trial continuance must demonstrate good cause. As the
Delaware Supreme Court has recognized, good cause exists “when the moving party
has been generally diligent, the need for more time was neither foreseeable nor its
fault, and refusing to grant the continuance would create a substantial risk of
unfairness to that party.” 1 The Court in exercising its discretion “must balance its
duty to admit all relevant and material evidence with its duty to enforce standards of
fairness and the [rules of the court].” 2


                               Good cause for a trial continuance
         At the outset, the Secretary’s written motion addresses his desire to identify
ongoing (1) investigation, study, and planning costs and (2) clean-up costs. Given
the Court’s summary judgment decision, the law of the case precludes recovery of
clean-up costs.
         It is inappropriate, however, to limit the Secretary’s potential recovery to
study and planning costs that were incurred before the time of the summary judgment
oral argument.       The Court included references in its Memorandum Opinion and
Order reciting the Secretary’s agreement to so limit its damages. The Court did so

1
    Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1107 (Del.2006).
2
    Concord Towers, Inc. v. Long, 348 A.2d 325, 326 (Del.1975).
                                              2
in the portion of its decision addressing the future scope of discovery. When
reviewing the oral argument transcript, however, counsel for the Secretary made no
representation about limiting the Secretary’s claim to damages incurred to date.
Rather, counsel estimated that approximately $260,000 of investigation and study
costs had been incurred. He also represented, on behalf of the Secretary, that
DNREC would not seek clean-up costs or civil penalties.
           The Secretary filed suit in October 2018 making this case approximately one
year old. This is the first continuance request by either party. Here, the Secretary
demonstrates good cause to continue the trial. In his written motion, he sufficiently
explains the difficulties DNREC has faced in finalizing the studies necessary to
identify remedial measures.3 In large part, the delay in finalizing these studies and
fixing their costs has been outside the Secretary’s control. Given the General
Assembly’s reflected intent that the Secretary be permitted to seek broad recovery
of remedial costs, it would be manifestly unjust to deny a continuance designed to
give the Secretary a fair opportunity to identify and seek such costs.
          Nevertheless, in fairness to the Booths, the matter will not be continued
indefinitely. The Secretary is unable to estimate the time necessary to conclude these
studies or to fix their costs. This suit and the amount he claims is a significant
concern for the Booths who defend this matter in their individual capacities. The
Secretary chose to file this suit somewhat prematurely, before his agency incurred
much of what he now seeks to recover. Given the Booths’ opposition to the
continuance request, the Secretary’s inability to estimate an end-point to the
investigation or planning stages, and the Booths’ interest in finality, the continuance
will be of limited duration.




3
    Plaintiff’s Motion, Para. 4 (a) – (h)
                                            3
                                     Conclusion
      A new scheduling order will issue. It will include a six month deadline for
the Secretary to identify the study and planning costs that he seeks to recover. Any
such costs not fully identified and fairly presented to the Booths before that deadline
will be barred from introduction at trial pursuant to Superior Court Civil Rule 37
(b)(2)(B). The revised scheduling order will also include a new discovery deadline
to provide the Booths sufficient time to conduct discovery regarding any newly
identified costs. Trial will then follow soon thereafter. The parties are directed to
coordinate a scheduling teleconference with the Court as soon as practical.
      IT IS SO ORDERED


                                              Very truly yours,

                                              /s/ Jeffrey J Clark
                                                      Judge



JJC/jb
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