Free Letter - District Court of Delaware - Delaware

Case 1 :05-cv-00796-SLR Document 25 Filed 12/21 /2006 Page 1 of 2
‘ ATTORNEYS AND COUNSELLORS AT LAW I
Two EAST SEVENTH STREET U
SUITE 302
WILMINGTON, DELAWARE 19801-3707
WWWNEUBERGERLAWCOM I
EMA11.: INl?O@NEUBERGERLAWCOM
THOMAS S. NEUBERGER, ESQUIRE
STEPHEN J. NEUBERGER, ESQUIRE PHONE: (302) 655-0582
CHERYL A. HERTzoc, ESQUlRE* Fax: (302) 655-9329
*(LrcENsED ONLY IN PA AND NJ)
December 21, 2006
VIA HAND DELIVERY and CM/ECF
The Honorable Sue L. Robinson
Lock Box 31 A
United States District Court _ A
- District of Delaware _
844 King Street
9 Wilmington, DE 19801
· RE: Whitwell v. Archmere, et al., C.A.No. 05-796-SLR
Upcoming Default Hearing
Dear Chief Judge Robinson: A I
The court has scheduled a default hearing in this matter for January 30, 2007 at 8:30 a.m.
. (D.I. 24).
Based on my experience, this is a rare proceeding. My only base of reference is the
procedure followed in the Delaware Superior Court. There the upcoming hearing would only be
for the purpose of entering the default and scheduling a later hearing or trial on the compensatory
and punitive damages, if any, to be awarded. My research has revealed that there is precedent for
the federal courts to follow a similar scenario. Durant v. Husband, 28 F.3d 12, 15 (3d Cir.
8 1994)(in a default action for Lmliquidated damages, if it is necessary to detennine the amount of
damages or to establish the truth of any averment by evidence, the court may conduct a hearing
. pursuant to Fed.R.Civ.P. 55(b)(2)); Comdyge I, Inc. V. Corbin, 908 F.2d 1142, 1152 (3d Cir.
1990) ("punitive damages ca.nnot be awarded simply on the basis of the pleadings, but must
instead be established at an evidentiary hearing held pursuant to Fed.R.Civ.P. 55(b)(2) because
they clearly are not liquidated or computable.”). 5
I respectfully request that the Court follow a similar two part procedure in our present A
case. Could the Court please reply so that I am on notice and know how I am to prepare for and
present my case in this matter? I will need to use one medical expert at trial and need to prepare

Case 1 :05-cv-00796-SLR Document 25 Filed 12/21 /2006 Page 2 of 2
The Honorable Sue L. Robinson
December 21, 2006
Page 2
and schedule that physician.
The case law also permits a jury to hear this matter in either an advisory or other capacity.
Hutton v. Fisher, 359 F.2d 913, 916-917 (3d Cir. l966)(affinning award of damages by a jury in
default damages hearing); Pen-O-Tex Oil & Leasehold Co v. Pittsburgh Western Oil Co., 66
F.2d 657 (3d Cir. l933)(stating that the district court held a jury trial on the issue of damages in a
default hearing); U.S. Fire Ins. Co. v. Aldworth Co., Inc., 2005 WL 1522280, *2 (D.N.J. Jrme 28,
2005)(district court entered default judgment and tried the amount of damages to a jury); Rankin
v. SEPTA, 1986 WL 12430, *1 (E.D.Pa. Oct. 31, 1986)(district court granted plaintiffs motion
for default judgment and ordered a jury trial on damages); see also Goodman v. DeAzoulay,
1986 WL 4988, *2 (E.D.Pa. Apr. 23, l986)(finding no jury issue with regard to damages since
both parties agreed to be bound by amount stated in joint pretrial order) and Winters v. Textron,
@, 187 F.R.D. 518, 522 (M.D.Pa. July 12, 1999)(district court order stating failure to comply
with the court’s order will result in "default judgment and a jury trial on the issue of damages").
Consequently, plaintiff requests that the issue of damages be scheduled for a one and a
half day jury trial. Damages herein are not liquidated but consist of tort damages for personal
injuries and emotional distress, as well as punitive damages. A jury is uniquely qualified to
address such an award.
Very truly yours,
Thomas S. Neuberger
cc: Commander Kenneth Whitwell (via email) "
Whitwell \ Letters \ Robinson.02