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

Case 1:05-cv-00567-GMS

Document 13

Filed 09/08/2005

Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOSEPH N. GIELATA, Plaintiff, v. ANDREA L. ROCANELLI, individually and in her official capacity as Chief Counsel of the Office of Disciplinary Counsel for the Supreme Court of Delaware, THE STATE OF DELAWARE, and THE OFFICE OF DISCIPLINARY COUNSEL FOR THE SUPREME COURT OF DELAWARE, Defendants. REPLY IN FURTHER SUPPORT OF PLAINTIFF'S MOTION TO STRIKE THE AFFIDAVIT OF DEBRA LAWHEAD FROM DEFENDANT STATE OF DELAWARE'S OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF AUGUST 2, 2005 ORDER DISMISSING CLAIMS AGAINST THE STATE OF DELAWARE Plaintiff submits this Reply in Further Support of his Motion to Strike (the "Strike Motion") the Affidavit of Debra Lawhead (the "Affidavit") from Defendant State of Delaware's Opposition to Plaintiff's Motion for Reconsideration of the August 2, 2005 Order Dismissing Claims Against the State of Delaware (the "State"). Once again, in contravention of the Delaware Code's clear prohibition, the State insists that sovereign immunity precludes the monetary damages sought by Plaintiff against the State. This, despite the unambiguous statutory instruction that "[t]he defense of sovereignty...cannot and will not be asserted...." 18 Del. C. § 6511 (emphasis added). Section 6511 plainly mandates statutory estoppel of precisely this contention by the State.

Civil Action No. 05-567-GMS

Case 1:05-cv-00567-GMS

Document 13

Filed 09/08/2005

Page 2 of 4

The statute does not merely waive sovereign immunity and demonstrate consent to suit-- it specifically prohibits the State from even asserting the defense of sovereign immunity. Even without such estoppel, the contention that sovereign immunity is not waived because the State has failed to obtain commercial insurance is meritless in light of the State's self-insurance program. See 18 Del. C. § 6530 et seq. In its opposition to the Strike Motion, the State raises a new argument, not previously raised: that the State's explicit waiver of sovereign immunity under § 6511 does not extend to suits brought in federal court. The State's reliance on Kardon v. Hall, 406 F. Supp. 4 (D. Del. 1975) for this proposition is misplaced in light of the Third Circuit's subsequent clarification of Kardon: The rationale for construing a waiver narrowly is to protect the state treasury, and when a state is insured against the loss from a claim, that rationale is attenuated. Therefore, although a state's insurance coverage does not necessarily imply a waiver of the Eleventh Amendment, the reasoning of Kardon may be inapposite in this case. The record does not disclose whether or not Delaware is insured against loss from the type of claim made here. Therefore, we decline to decide whether Delaware has waived its Eleventh Amendment immunity, and we remand the case to the district court to determine if this type of loss is insured and, if so, whether Eleventh Amendment immunity has been waived. West v. Keve, 571 F.2d 158, 164 (3d Cir. 1978) (footnote omitted). Here, there is, at the very least, a material question of fact concerning the extent to which the State's self-insurance program covers Plaintiff's claims. Further, Plaintiff

contends that, whether or not the State has, in fact, obtained commercial insurance to cover Plaintiff's claims, the Delaware Code plainly directs the State to maintain and/or

-2-

Case 1:05-cv-00567-GMS

Document 13

Filed 09/08/2005

Page 3 of 4

obtain such insurance, without exception.

The State's arguments ignore the plain

language of the relevant statutes or fail to take the statutes seriously. In addition to the foregoing, the State has not presented any tenable reason or authority to justify consideration of the Affidavit at this time. See Melo v. Hafer, 912 F.2d 628, 634 (3d Cir. 1990) (summary judgment standard not followed in absence of "complete factual record developed during a defined discovery period"). Accordingly, it is respectfully requested that the Court grant the Strike Motion and exclude the Affidavit from consideration of Plaintiff's Motion for Reconsideration of the August 2, 2005 Order Dismissing Claims Against the State. Dated: September 8, 2005 By: Respectfully submitted, /s/ Joseph N. Gielata Joseph N. Gielata, Esq., pro se (#4338) 501 Silverside Road, Suite 90 Wilmington, Delaware 19809 (302) 798-1096

-3-

Case 1:05-cv-00567-GMS

Document 13

Filed 09/08/2005

Page 4 of 4

UNITED STATES DISTRICT COURT DISTRICT OF DELAWARE CERTIFICATE OF SERVICE I hereby certify that, on September 8, 2005, I electronically filed the REPLY IN FURTHER SUPPORT OF PLAINTIFF'S MOTION TO STRIKE THE AFFIDAVIT OF DEBRA LAWHEAD FROM DEFENDANT STATE OF DELAWARE'S OPPOSITION TO PLAINTIFF'S MOTION FOR RECONSIDERATION OF AUGUST 2, 2005 ORDER DISMISSING CLAIMS AGAINST THE STATE OF DELAWARE with the Clerk of Court using CM/ECF which will send notification of such filing to: Richard Hubbard, Esq. Delaware Dept. of Justice 820 N. French St., 6th Floor Carvel State Building Wilmington, DE 19801 Attorney for Defendants

/s/ Joseph N. Gielata Joseph N. Gielata (DSB # 4338) Attorney at Law 501 Silverside Road, Suite 90 Wilmington, Delaware 19809 (302) 798-1096 [email protected]