SUPERIOR COURT
OF THE
STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947

TELEPHONE (302) 856-5264

August 18, 2017

Nancy Hammer
P.O. Box 492
Nassau, Delaware 19969

Dennis L. Schrader, ESq.

R. Eric Hacker, ESq.

Morris James Wilson Ha]brook & Bayard, LLP
107 W. Market Street

P.O. Box 690

Georgetown, Delaware 19947

Re: Ncmcy Hammer v. Howard Medical, lnc., Howard lndustries, Inc.
C.A. No. S]SC-OS-()06 RFS

Date Submitted: May 30, 2017
Date Decided: August 18, 2017

Upon Plaintiff`s Motion for Relief from Order.
Denied.

Dear Parties:
Before the Court is Plaintiff, Nancy Harnmer’S (“Plaintift” or “Hammer”), Motion for
Relief from Order. This Motion Seeks to overturn the Court’s orders issued April 26, 2017 and

April 27, 2017. For the following reasons, Plaintiff`S Motion for Relief from Order is DENIED.

I. BACKGROUND

On May 7, 2015, Plaintiff filed her Complaint against Defendants, Howard Medical, Inc.
and Howard Industries, Inc. (“Defendants” or “Howard”), alleging that Howard owed her past
due commissions for sales of medical equipment she made to various hospitals On August 6,
2015, Defendants filed their Answer and Counterclaim, which alleged tortious interference,
breach of an accord and satisfaction contract, unjust enrichment, and fraud. lnitially, according
to the Court’s Pretrial Scheduling Order, the final pretrial conference was scheduled for April 4,
2017. The three-day jury trial was set to begin May 1, 2017. For various reasons, these dates
were modified. By letter dated March lO, 2017, the Court made the final scheduling
modification, which set the pretrial conference for April 26, 2017.

Plaintiff failed to attend the pretrial conference The Court Waited approximately 30
minutes past the scheduled start time to begin the conference No oral argument took place. The
Court issued three orders: (1) denying Plaintiff s request for fees, (2) granting but reducing
Defendants’ request for fees, and (3) granting Defendants’ Motion to Dismiss for Discovery
Violations (“Motion to Dismiss” or “Motion”). Further, the Court discussed on the record the
rationale behind the denial of Plaintiffs request to stay the case, request for recusal,l motion for
summary judgment in favor of her claims, and request for summary judgment against

Defendants’ counterclaims Finally, the Court granted Defendants’ oral motion to dismiss their

 

l Hammer denies that she asked for recusal, but the nature of her letter was such that the Court treated it as a request
for recusal. Further, the Court notes that Hammer has raised the bias issue on previous occasions, after which the
Court engaged in a Los v. Los analysis and concluded that it was disinterested and impartial at all times. This
analysis is a matter of record. See Letter from Judge Richard F. Stokes to Nancy Hammer (August 29, 2016)(on file
with the Delaware Superior Court). All decisions, whether written or oral, were given With reasons and were
appealable subject to appropriate rules. The Court does not hold any bias against Hammer that stems from some
extrajudicial source or information gathered outside of participation in this case. While Hammer disagrees with the
rulings, objectively there is no untoward appearance of bias. The Court has remained objective at all times. In
Short, Hammer’s claim ofjudicial bias is unfounded Los v. Los, 595 A.2d 381, 384-85 (Del. 1991).

2

counterclaims without prejudice. Given that both Defendants’ Motion to Dismiss Hammer’s
claims and oral motion to dismiss their own counterclaims were granted, the Court found that
any outstanding issues were moot.

On May 8, 2017, Hammer filed this Motion for Relief from Order, In reality, this Motion
is one for reargument and was not filed within the appropriate period. Under Superior Court
Civil Rule 59(e), it is barred.2 Even if considered on its merits, the effort is not persuasive She
seeks to set aside the Court’s orders under Superior Court Civil Rules 60 and 61. Plaintiff makes
several main arguments to support her request for relief under Rules 60 and 61. ln addition to
these main arguments, her Motion is littered with various, often redundant, objections to the
Court’s conduct in and understanding of this case.

First, Hammer claims that clerical mistakes were made that allow for relief under Rule
6l(a). Little to no support for this assertion was provided in her filings.

Second, Hammer claims that she was not given notice of Defendants’ Motion to Dismiss
or the April 26 pretrial conference, which renders the resultant orders void under Rule 60(b).
According to Hammer, as a result of this lack of notice, she did not attend the pretrial
conference In Plaintiff s mind, the pretrial conference was an ex parte proceeding, and any
orders arising therefrom should be set aside.

Third, Plaintiff claims to have answered all of Defendants’ interrogatories fully and in
compliance with the Court’s instructions; therefore, she believes it was improper for the Court to
dismiss the case on this basis. Hammer continues the attack that Howard has not provided its
discovery notwithstanding the Court’s previous decision.3 She alleges that the Court did not

consider her objections on material that Howard provided on January 24, 2017 because the

 

2 Hammer is well aware of Rule 59’s requirement for filings made during the course of the case. See Hammer v.
Howard Medical, Inc., 2017 WL 1180085 (Del. Super. Ct. Feb. 14, 2017).
3 See Hammer v. Howard Medical, lnc., 2017 WL 1179864 (Del. Super. Ct. Feb. 14, 2017).

3

issuance of the February decisions followed the December 2, 2016 hearing. However, they were
considered through Subsequent filings made between the December hearing and the February
decision date.4

Finally, Hammer objects to the Court’s characterization of her as a difficult party who
has engaged in dilatory tactics throughout this litigation and asserts that the Court is biased
against her.

Plaintiff made several references throughout her filing to her entitlement to relief under
Rule 61. However, her filing is conclusory, lacking sufficient support.

Defendants countered by asserting that Plaintiffs arguments relating to Rule 60(a) and
Rule 61 are irrelevant Howard asserts that Hammer did not give any examples of clerical
mistakes made by the Court that would allow relief under Rule 60(a). Further, Howard argues
that Hammer did not make any claims to support her belief that she is entitled to relief under
Rule 61.

With regard to Rule 60, Defendants argue that Plaintiff was claiming that the orders were
void under Rule 60(b)(4) because she believes that the orders were a result of ex parte
communications Howard goes on to assert that Hammer’s characterization of the events as ex
parte is misguided and incorrect. Finally, Defendants claim that to be granted relief under Rule

60(b), Plaintiff would have to show the likelihood of a different outcome if relief were granted,

 

4 On February 3, 2017, Hammer sent a letter to the Court asserting that Howard’s discovery submissions were
inadequate She claimed that the “Discovery Inventory” provided by Howard was unhelpful and incomplete, that
certain files provided by Howard could not be opened, and that certain documents still had not been produced.
Letter from Nancy Hammer to Judge Richard F. Stokes (Feb. 3, 2017)(on file With the Delaware Superior Court). In
response, Howard stated that the Discovery Inventory had been created at Hammer’s express request and that the
documents Hammer claimed had not been turned over had in fact been provided or were outside of the date range of
her request Letter from R. Eric Hacker, Esquire, Morris J ames Wilson Halbrook & Bayard (Feb. 7, 2017)(0n file
with the Delaware Superior Court). The arguments made in both letters were addressed in the Court’s February 14,
2017 Order on the issue. Hammer v. Howard Medical, Inc., 2017 WL 1179864, at *6 (Del. Super. Ct. Feb. 14,

2017).

which she has not done. Thus, Defendants claim that Plaintiff is not entitled to relief under
either Rule 60 or 61 and that the Court’s orders should stand.

II. STANDARD
Superior Court Civil Rule 60 reads as follows:

(a) Clerical Mistakes. Clerical mistakes in judgments, orders or other parts of the
record and errors therein arising from oversight or omission may be corrected
by the Court at any time of its own initiative or on the motion of any party and
after such notice, if any, as the Court orders.

(b) Mistake; Inadvertence; Excusable Neglect; Newly Discovered Evidence;
Fraud, etc. On motion and upon such terms as are just, the Court may relieve
a party or a party’s legal representative from a final judgment, order, or
proceeding for the following reasons: (1) mistake, inadvertence, surprise, or
excusable neglect; (2) newly discovered evidence which by due diligence
could not have been discovered in time to move for a new trial under Rule
59(b); (3) by fraud (whether heretofore denominated intrinsic or extrinsic),
misrepresentation or other misconduct of an adverse party; (4) the judgment is
void; (5) the judgment has been satisfied, released, or discharged, or a prior
judgment upon which it is based has been reversed or otherwise vacated, or it
is no longer equitable that the judgment should have prospective application;
or (6) any other reason justifying relief from the operation of the judgment A
motion under this subdivision does not affect the finality of a judgment or
suspend its operation. This Rule does not limit the power of a Court to
entertain an independent action to relieve a party from a judgment, order or
proceeding, or to grant any relief provided by statute, or to set aside a
judgment for fraud upon the Court, or to deal with judgments by confession as
provided by law. Writs of coram nobis, coram vobis, and audita querela are
abolished, and the procedure for obtaining relief from judgments shall be by
motion as prescribed in these Rules or by an independent action.

Thus, Rule 60(a) allows for the correction of clerical mistakes resulting from an oversight or
omission by the Court. Rule 60(b) allows for relief from a judgment on one of the five
enumerated grounds or for any reason justifying relief from the judgment

Rule 61 reads as follows:

No error in either the admission or the exclusion of evidence and no error or

defect in any ruling or order or in anything done or omitted by the Court or by any

of the parties is ground for granting a new trial or for setting aside a verdict or for

vacating, modifying or otherwise disturbing a judgment or order, unless refusal to
take such action appears to the Court inconsistent with substantial justice. The

Court at every stage of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the parties

Rule 61 states the traditional harmless error rule lt generally operates in the appeals context5
However, Rule 61 also will be used when a trial court is “passing on a motion for a new trial or
in considering whether to set aside a verdict or otherwise to disturb a judgment or order” because
the court “must be guided by what substantial justice requires and must disregard errors that

were harmless.”6

III. ANALYSIS
The Court will examine Rule 60 and its subsections as well as Rule 61 in turn. Rule
60(a) allows the Court to correct a clerical mistake Here, there is no evidence, or even assertion,
that a clerical error exists in any of the Court’s orders Plaintiff makes a broad reference to

“specific clerical mistakes and omissions in the Court’s Letters and Orders’7 in her Response to

7 However, there are no

Defendants [sic] Response to Plaintiffs Motion for Relief from Order.
clear examples of clerical mistakes, and the Court sees no reason to grant relief on this basis

Plaintiff also may not be granted relief under Rule 60(b). While she does not directly
reference Rule 60(b)(4), it appears that Hammer is arguing that the Court’s orders stemming
from Defendants’ Motion to Dismiss and the April 26 pretrial conference are void because they
were issued as a result of ex parte communications

Neither Defendants’ Motion to Dismiss nor the April 26 pretrial conference were ex parte

communications According to the Delaware Supreme Court in Brookins v. State, “Black’s Law

 

5 wright &Miner, § 2882

° ld.

7 It should be noted that Plaintiff has been informed on multiple occasions that responses to responses are improper
and to refrain from making such filings See Letter from Alan Barraclough, Civil Judicial Case Manager to Judge
Richard F. Stokes, to Parties (Nov. 3, 2016)(0n file with Delaware Superior Court); Letter from Alan Barraclough,
Civil Judicial Case Manager to Judge Richard F. Stokes, to Parties (Nov. 18, 2016)(on file with Delaware Superior
Court); Letter from Alan Barraclough, Civil Judicial Case Manager to Judge Richard F. Stokes, to Parties (Feb. 3,
2017)(0n file with Delaware Superior Court).

Dictionary defines “ex parte” as something being made by one party: ‘Done or made at the
instance and for the benefit of one party only, and without notice to, or argument by, any person
adversely interested; of or relating to court action taken by one party without notice to the
other.”’8 Here, the circumstances surrounding Defendants’ Motion to Dismiss or the April 26
pretrial conference do not constitute an ex parte communication

Defendants filed their Motion to Dismiss for Discovery Violations on March 29, 2017.9
Attached to the Motion was a Notice to Hammer that Defendants’ Motion to Dismiss would be

presented to the Court on April 13, 2017.10 On April 10, 2017, Hammer filed Plaintiffs

l

Response to Defendants [sic] Motion to Dismiss for Discovery Violations.l On the same date,

in response to Defendants’ Motion, Hammer also provided additional, but still incomplete,
interrogatory responses to Defendants.12 Thus, it is nonsensical for Hammer to claim that she
had no notice of Defendants’ Motion to Dismiss. The Motion Was not an ex parte
communication

Plaintiff also was provided adequate notice of the April 26 pretrial conference13 In the
Court’s letter dated March 10, 2017, Hammer was informed that “[t]he pretrial conference shall
be held on Wednesday, April 26, 2017 at 10:00 a.m.”14 This letter was both mailed to Plaintiff s

post office box and notice of the letter was uploaded to the Court’s electronic docket, Delaware

 

8 Brookins v. State, 922 A.2d 389, 392 (Del. 2007)(internal citations omitted).

9 Docket Entry 258.

10 This date was later changed by the Court.

ll Docket Entry 264. The Response is dated February 20, 2017.

'2 Docket Entry 262.

13 The pretrial conference is a serious event The Court has broad authority to manage the litigation, including the
disposition of pending motions and may impose sanctions, including dismissal for failure to attend. Super. Ct. Civ,

R- 16 (C), (d)7 (0-
14 Docket entry 250.

State CourtConnect.15 Moreover, the Court sent a letter dated April 24, 2017 Stating that all
pending matters would be discussed at the pretrial conference Again, this letter was mailed to
Hammer and notice was uploaded to the electronic docket16 Finally, Howard Sent Hammer a
Notice of Motion pertaining to various motions in limine which listed April 26, 2017 as the date
for the pretrial conference.17 Therefore, it is disingenuous for Hammer to feign ignorance of the
scheduled pretrial conference Hammer has feigned surprise at other stages in the litigation.18
She was afforded adequate notice of the proceeding, but chose not to attend. Hammer’s willful
absence from the conference did not render it ex parte Thus, the orders cannot be voided on this
basis

Additionally, the April 24 letter stated that “[a]t the pretrial conference all pending
matters would be discussed....”19 Therefore, presentation of the Defendants’ Motion to Dismiss
should not have taken Plaintiff by surprise, as the Motion was a matter pending before the Court.
Also, Defendants’ included with the Motion a Certificate of Service, which Showed that the
Motion was provided to Hammer via both U.S. mail and email. Hammer’s claimed lack of
notice is unfounded lt was proper for the Court to rule on the Motion at the time of the pretrial
conference

Moreover, Plaintiff attacks the grounds on which Defendants’ Motion to Dismiss was

granted. Defendants requested for Plaintiffs case to be dismissed because she repeatedly and

 

15 The scheduling event portion of the electronic filing system reflected the pretrial conference originally set for
April 4, 2017 had been moved to April 26, 2017. The entry on Delaware State CourtConnect dated April 3, 2017
reads in pertinent part as follows: “Pretrial conference scheduled for 4/4/17_rescheduled to 4/26/17.”

16 The entry on Delaware State CourtConnect reads in pertinent part as follows: “Letter from Richard F. Stokes,
Judge . .At the pretrial conference, all pending matters Will be discussed. . . .”

17 Def.’s Mot. In Limine Exclude Evidence Not Provided During Disc; Def.’s Mot. In Limine Exclude Irrelevant
Unfairly Prejudicial Evidence.

18 See Letter from Nancy Hammer to Judge Richard F. Stokes (August 10, 2017)(on file with the Delaware Superior
Court); Hammer v. Howard Medical, Inc., 2017 WL 1167550, at *3 (Del. Super. Ct. Feb. 14, 2017).

19 Letter from Judge Richard F. Stokes to Parties (April 24, 2017)(on file with Delaware Superior Court)(emphasis

added).

willfully failed to respond to interrogatories20 After considering the six Drejka factors,21 the
Court decided that, in light of Hammer’s continued non-compliance, dismissal with prejudice
Was the only appropriate sanction.22 Hammer continues to argue that she has complied with all
discovery obligations regarding the interrogatories23 No additional answers to interrogatories
have been filed since the issuance of the April 26, 2017 order; therefore, the Court’s opinion on
this matter remains unchanged Dismissal was appropriate and necessary.

Furthermore, the Plaintiff has no cause for relief under Rule 61. As mentioned before,
Rule 61 states the harmless error rule Again, it is not an avenue for reargument Rule 61 directs
the Courts to correct only those errors which harm the substantial rights of the litigants; harmless
errors should be ignored.24 Typically, Rule 61 is applied when considering an appeal. However,
Rule 61 can be used by the trial court when considering a motion for a new trial.25 Additionally,
the basic idea underpinning Rule 61, which is to avoid upsetting decisions of the Court for
harmless errors, is present in Delaware case law pertaining to trial courts For example, the
Delaware Superior Court stated, “[T]he United States Supreme Court has observed that harmless
error rules ‘serve a useful purpose insofar as they block setting aside convictions for small errors

or defects that have little, if any, likelihood of having changed the result in any way.’ [The

 

20 Def.s’ Mot. Dismiss Disc. Violations, l.

2’ Drejko v. Hitehens Tire Serv. lne., 15 A.3d 1221, 1224 (Del. 2010)(1istmg the six factors as fonows, “(1) the
party’s personal responsibility; (2) the prejudice caused to the adversary; (3) the party’s history of dilatoriness; (4)
whether the party’s conduct was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal; and
(6) the meritoriousness of the party’s claim or defense.”).

22 superior court order dated April 26, 2017.

23 Mot. Relief order, 9.

24 As previously mentioned, the Court balanced the Di'ejka factors before determining that dismissal was the
appropriate sanction. Therefore, the result is consistent with the notion of substantial justice referenced in Rule 61.
Furthermore, while subsequent argument may reveal that that statute of limitations has not run, Hammer still cannot
show the meritoriousness of her claim for the reasons stated in the letter opinion. Further, to date, Hammer has been
unable to substantiate her claim, and she is unlikely to ever do so, given her over year long pattern of failing to
answer interrogatories and general uncooperativeness thus far.

25 Pttmey v. Rosirt, 791 A.2d 902, 906 (Del. super Ct. 2001)(“A new trial should be granted if improper comments
prejudicially affect substantial rights of the plaintiff.”); Chandler v. Miles, 8 W.W.Harr 431, 193 A. 567, 582 (Del.
Super. Ct. 193 7)(Stating that new trials on the ground of newly discovered evidence “will be allowed only where the
Court is convinced that a new trial would be in furtherance of justice.”).

9

harmless error rule] is imbedded in the rules of the courts of this state.”26 Thus, When operating
in a quasi-appellate capacity, the Court must abide by Rule 61.

However, this case does not lend itself to relief under Rule 61. Rule 61 cannot be used as
a belated, backdoor attack on Howard’s Motion to Dismiss. First, there has been no trial in this
case, so there is obviously no motion for a new trial to be considered Rule 61 is most
commonly employed by a trial court when considering a motion for a new trial. Even if there is
some relevant application of Rule 61 to this case, there is no reason for the Court to upset the
judgments because any errors, if any, did not affect the substantial rights of the parties No error
was committed that materially affected the outcome of the case, so the judgements stand

Finally, the Court acknowledges Hammer’s argument that she was too ill to carry on her
responsibilities in the litigation and that she believed a stay had been granted to accommodate
her medical issues There was nothing in any of the Court’s correspondence on this issue to
indicate that a stay had been granted The Court understood that Hammer was hospitalized at
Beebe Medical Center on March 2, 2017 for diabetes From the paucity of information provided,
Hammer was in the community on or about March 16, 2017. Because of this Situation, the Court
repeatedly requested that Hammer provide additional and more detailed information regarding
her medical condition.27 However, Plaintiff at no point provided adequate information, including
but not limited to providing easily obtainable Beebe Medical Center records The Court also
notes that during this period Hammer was still able to file various documents with the Court on
other subjects There was no reason for Hammer to believe that a stay had been granted,

especially in light of the fact that she never fully complied with the Court’s request for additional

 

26 State v. Teague, 2009 WL 929935, at *3 (Del. Super. Ct. Apr. 3, 2009).

27 Letter from Judge Richard F. Stokes to Parties (March lO, 2017)(0n file with Delaware Superior Court); Letter
from Judge Richard F. Stokes to Nancy Hammer (March 31, 2017)(under seal); Letter from Judge Richard F. Stokes
to Nancy Hammer (April 5 , 2017)(under seal). These letters are orders and Hammer marched to the beat of her own
drum on this as Well as other orders throughout the case

10

information, including but not limited to identifying her medical provider.28 Lastly, the Court
would like to point out that Hammer’s medical condition in no way factored into the dismissal of
this case The only ground for dismissal focused on her refusal to fully answer Howard’s
interrogatories that was represented in the still noncompliant response that Hammer prepared on
February 20, 2017.29 Her physical health at a later time was immaterial.

In conclusion, Plaintiff s Motion is barred by Rule 59(e). Further, Plaintiff has neither
shown that the judgment is void under Rule 60(b)(4) nor that there is any other reason justifying
relief from the judgment under Rule 60(b)(6). Also, her reliance on Rule 61 is misplaced
Considering the foregoing, Plaintiffs Motion for Relief from Order is DENIED.

IT IS SO ORDERED.

Very 'ruly yours

 
  

 

 

l_'ii,cl ard F. Stokes

cc: Prothonotary’s Office

 

28 In addition to her failure to provide adequate medical information, Hammer participated in filing documents at a
point close in time to the pretrial conference See Aff. for Att’ys Fees (March 3, 2017); Letter from Nancy Hammer
to Judge Richard F. Stokes (March 24, 2017)(on file with the Delaware Superior Court); Letter from Nancy Hammer
to Judge Richard F. Stokes (April lO, 2017)(on file with the Delaware Superior Court); Letter from Nancy Hammer
to Judge Richard F. Stokes (April 24, 2017)(on file with the Delaware Superior Court). Hammer’s filings reflect
that she was well enough to attend the pretrial conference and proceed with her case At no point did Hammer assert
that she did not attend the pretrial conference because her health prevented her from doing so, only that she did not
have notice of the event See In re New Century TRS Holdings, Inc., 526 B.R. 562, 566-67 (D. Del.
2014)(dismissing a case when pro se plaintiff failed to submit filings after being given multiple extensions The
plaintiff claimed that she was unable to make such filings because hand surgery had limited her ability to type
However, the Court noted that the plaintiff had filed other documents with the Court during the time period she was
supposedly unable to type, purportedly on her own behalf. The Court weighed the Poulis factors (like those in
Drejka) for dismissal and found that such action was an appropriate sanction).

29 The Court notes that on February 23, 2017 Hammer requested extensions to the filing deadline for her answering
brief and various responses to defense motions In her request for more time there was no mention of Hammer’s
health troubles Letter from Nancy Hammer to Judge Richard F. Stokes (February 23, 2017)(on file with the
Delaware Superior Court). The Court granted her extensions, over Defendants’ objection. Letter from Judge
Richard F. Stokes to Parties (March 10, 2017)(on file with the Delaware Superior Court).

ll

