Free Response to Motion - District Court of Delaware - Delaware

Case 1:05-cv-00567-GMS

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Filed 09/02/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ) ) 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. ) JOSEPH N. GIELATTA,

Civil Action No. 05-567-GMS

DEFENDANT STATE OF DELAWARE'S OPPOSITION TO PLAINTIFF'S MOTION TO STRIKE THE AFFIDAVIT OF DEBRA LAWHEAD COMES NOW the defendant State of Delaware, through undersigned counsel, without waiving any defenses as to lack of service, and hereby opposes plaintiff's Motion to Strike the Affidavit of Debra Lawhead, on the following grounds: 1. Plaintiff argues that the affidavit of Debra Lawhead must be disregarded upon consideration of Plaintiff's Motion for Reconsideration of the August 2, 2005 Order. Plaintiff's argument ignores the Delaware case law cited in the Opposition to the Motion, and therefore lacks merit. 2. More importantly, Plaintiff's Motion for Reconsideration itself fails to identify any waiver by the State of Delaware of Eleventh Amendment immunity. Plaintiff assumes that if Delaware had waived sovereign immunity in its state courts, such a waiver would be tantamount to a waiver of Eleventh Amendment immunity. However, Plaintiff is wrong. It is well established that a waiver of sovereign immunity by a State in its state courts does not

Case 1:05-cv-00567-GMS

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constitute a waiver of Eleventh Amendment immunity. Smith v. Town of Dewey Beach, 659 F. Supp. 752, 756 (D.Del. 1987); Kardon v. Hall, 406 F.Supp. 4, 8 (D.Del. 1975). FOR THE FOREGOING REASONS, the defendant State of Delaware respectfully requests that this Court deny plaintiff's motions to strike the affidavit of Debra Lawhead and for reconsideration of the August 2, 2005 Order of District Judge Shapiro. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Richard W. Hubbard _________________________ Richard W. Hubbard, I.D. #2442 Deputy Attorney General Carvel State Office Building 820 N. French Street, 6th floor Wilmington, DE 19801 (302) 577-8308 [email protected] Attorney for Defendants

Dated: September 2, 2005

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Case 1:05-cv-00567-GMS

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CERTIFICATE OF MAILING AND/OR DELIVERY
The undersigned certifies that on September 2, 2005, he caused the foregoing document to be delivered to the following persons in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Joseph N. Gielata, Esquire 501 Silverside Road, Ste. 90 Wilmington, DE 19809 MANNER OF DELIVERY: x One true copy by electronic delivery. One true copy by facsimile transmission to each recipient x _Two true copies by first class mail, postage prepaid, to each recipient Two true copies by Federal Express _ Two true copies by hand delivery to each recipient /s/ Richard W. Hubbard ______________________________ Richard W. Hubbard, I.D. # 2442 Deputy Attorney General Carvel State Office Building 820 N. French Street, 6th floor Wilmington, DE 19801 (302) 577-8308 [email protected]

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