Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01 568-M PT Document 29 Filed 1 1/29/2007 Page 1 of 2
CHARLES E. BUTLER
ATTORNEY AT LAW
1224 N. King Street
Wilmington, Delaware 19801
(302) 655-4100 T
Admitted D€i¤W¤{¤t Fax: (302) 655-4212
Pcmsylvama md Amcm Email: [email protected]
November 29, 2007
VIA CMIECF FILIN_G_
The Honorable Mary Pat Thynge
United States District Court
Lock Box 8
800 King Street
Wilmington, DE 19801
RE: Riddell v. Gordon, et al. No. 04-01201
Tobin v. Gordon, et al. No. 04-01211
Jamison v. Gordon, et al. No. 04-01568
Dear Judge Thynge:
I write on behalf of defendants Thomas Gordon, Sherry Freebery and David _
McAllister, whom l represent, as well as defendant John Cunningham, who is represented
by Kathleen Jennings. Esq. and has authorized me to write on his behalf. Defendant New
Castle County is represented by Young Conaway and that firm is aware of our position
and is in agreement aswell.
As the Court is no doubt aware, the three matters in the caption above are all J
brought by current or former New Castle County police officers. Thomas Neuberger.
Esq. represents the plaintiff in Riddell and Tobin. Martin Haverly, Esq. represents the
plaintiff in Jamison and is co counsel with Mr. Neuberger in Riddell. All three cases
were initially assigned to Judge Kent Jordan, who has vacated his seat on the bench in
favor of one on the Third Circuit. While Judge Jordan had the cases, he did order stays in
the Riddell and Tobin cases pending resolution of criminal charges against certain
individual defendants. A stay was never formally entered in Jamison, but extensions —
were routinely entered while the criminal matter proceeded. Those criminal charges have
now been resolved, but the vacancy created by Judge Jordan’s departure has not. That
may explain why your Honor called for a scheduling conference to be held on December
7. 2007.
We note, somewhat parenthetically, that the stays previously ordered have not
been formally lified by Order of the Court. While we have no objection to lifting the `
stays since the basis for their entry has passed, it does seem that plaintiff ought to present
a form of Order before further proceedings in Riddell and Tobin.

Case 1:04-cv-01568-MPT Document 29 Filed 11/29/2007 Page 2 of 2
The Honorable Mary Pat Thynge
November 29, 2007
Page 2 r
On a more substantive matter, the Court may be aware that all defendants,
including defendant New Castle County, have tiled a motion to dismiss the Jamison
complaint for several reasons. the most relevant of which is qualified immunity. The
Jamison/qualified immunity argument is significant for at least three reasons. First, when
a motion to dismiss based upon qualified immunity is pending, "discovery should not be ·
allowed?] A discovery schedule would undermine the very nature of the asserted
immunity.; Second. the individual defendants fully intend to assert qualified immunity as
to the remaining two matters before the Court. Qualified immunity is thus central to a
determination of whether discovery ought to proceed in any of the cases. Finally. if the
Court denies the individual defendants qualified immunity, the ruling will in all
likelihood be appealed pursuant to Mitchell v. Forsyth} and discovery will necessarily be
stayed pending review by the Third Circuit. A
This is not to suggest that there is nothing to be done. The stays have not been
formally lifted. Plaintiff in Jamison is now a couple of weeks overdue in tiling his
answering brief in response to defendants motion to dismiss. Defendants have not filed
their motions to dismiss and briefs in support in the remaining two cases, but are certainly
amenable to a briefing; schedule if the Court is inclined to set one. _
Lastly, there is the question of your Honor’s status in presiding over these
matters. We think there may be some benefit in convening to determine if all parties are
in agreement with submitting these cases to your Honor for decision. We note that when
we attempted to resolve these issues among ourselves, Mr. Neuberger reacted to our
position with language like “obstruction," ‘°blackmail," "meritless” and “I remind you of
your obligations under Rule ll." Our sense is that this is not the kind of rhetoric likely to e
lead to productive discussions among counsel. A conference to at least set some briefing
deadlines and to clarity your Honor’s status may well be in order. We do think it
premature and unworkable, however, to set a discovery schedule.
Respectfully submitted.
/s/ Charles E. Butler
lSiegert v. Gilley, 500 U.S. 226, 23l (l99l); Harlow v. Fitzgerald, 457 U.S. 800 (1982).
2 Siegcrt. at 235; Geter v. Fortenbegry 849 F. 2d I550. I553 (5** Cir. I988).
3 472 U.S. SI l, 526-27 (1985).