Free Transcript - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT IN AND FOR THE DISTRICT OF DELAWARE - - CHIEF HENRY V. TOBIN, III, CIVIL ACTION : Plaintiff, : v. : : THOMAS P. GORDON, individually and in : his official capacity; SHERRY FREEBERY, : individually and in her official capacity;: COLONEL JOHN L. CUNNINGHAM, RETIRED, : individually; COLONEL DAVID F. McALLISTER,: individually and in his official capacity;: and NEW CASTLE COUNTY, a municipal : corporation, : NO. 04-1211 (MPT) Defendants. - - Wilmington, Delaware Wednesday, April 16, 2008 at 8:30 a.m. TELEPHONE CONFERENCE - - BEFORE: HONORABLE MARY PAT THYNGE, Magistrate Judge - - APPEARANCES:

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LAW OFFICE OF JOHN M. LAROSA BY: JOHN M. LAROSA, ESQ. and

20 21 22 23 24 25 Brian P. Gaffigan Registered Merit Reporter THE NEUBERGER FIRM, P.A. BY: STEPHEN J. NEUBERGER, ESQ. Counsel for Plaintiff

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APPEARANCES: (Continued)

OBERLY JENNINGS & RHODUNDA, P.A. By: KATHLEEN JENNINGS, ESQ. Counsel for Colonel John L. Cunningham, Retired

YOUNG CONAWAY STARGATT & TAYLOR, LLP BY: MARGARET M. DiBIANCA, ESQ. Counsel for New Castle County and Colonel David F. McAllister

- oOo P R O C E E D I N G S (REPORTER'S NOTE: The following telephone

conference was held in chambers, beginning at 8:30 a.m.) THE COURT: Good morning. Good morning, Your Honor. This

MS. DIBIANCA: is Molly DiBianca calling. THE COURT:

Hi.

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 LaRosa. I hope here.

MS. DIBIANCA:

I'm going to connect everyone in

THE COURT:

Molly, we'll tell you if you don't. You sure will. Stand by.

MS. DIBIANCA: Hello.

Is anyone else on the line? Hi, it's Kathy Jennings. Hi, Kathy. Judge Thynge is on

MS. JENNINGS: MS. DIBIANCA: the line also.

Do we have Tom Neuberger? MR. NEUBERGER: Tom Neuberger is here and John

MS. DIBIANCA:

Fantastic.

And Your Honor still is there? THE COURT: Yes, I am. You didn't lose me.

MS. DIBIANCA: MR. NEUBERGER: THE COURT: MR. LAROSA: THE COURT:

That is success. Good morning, Your Honor.

Good morning. Good morning, Your Honor. The purpose I understand of this

call is to find out how successful the parties have been in trying to negotiate the final leg of this settlement and whether we need to have some type of mini briefing on this and an actual hearing. MR. NEUBERGER: Neuberger for the plaintiff. Okay. Your Honor, this is Tom

Your Honor, we weren't able to

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resolve the matter of fees. moving forward.

We just need to get the matter

We're prepared to file a motion and the

supporting documentation in 10 business days if that is okay. And I suggest 10, 20, and 10-day briefing. I would

need that time to get affidavits on my hourly rate and of that my co-counsel. That's basically where we're at. I

did, when it all failed, I did serve some requests for production of documents asking for data on their hourly rates and their time and billing records. delay my opening papers. That need not

As long as I get that by the time

of my reply memo, that would close the matter out. THE COURT: Well, let me ask you, Tom, do you

really need a reply in this circumstance or can we just leave the reply as such so that we can just set up a date; and the replies would be for both of you, any argument that you wish to present to the court. MR. NEUBERGER: Your Honor? THE COURT: simultaneous briefing. No, no, no. I'm not saying Are you saying simultaneously,

I'm saying your opening their This is my

answering and then let's put the reply off. suggestion.

Put a reply off but allow you to make

additional argument as well as the fact they'll be able to make argument at the hearing. MR. NEUBERGER: I don't want to have a hearing.

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After 34 years, I hope we don't have to have a hearing here. It's a waste of judicial resources. schedule it for a hearing, fine. it under submission. THE COURT: That is what you are suggesting? If they file counter-affidavits But if you want to

I'm just thinking to take

MR. NEUBERGER:

on my hourly rate, then maybe you would have to have a hearing, but I would hope you don't have to have a hearing. THE COURT: Okay. What your suggesting is not

having an argument on this. MR. NEUBERGER: Of course not. The tail

shouldn't wag the dog, Your Honor.

We would just put it in

the right posture and then when the court gets around to it -- and we know how busy the court is -- you will rule. We tried to work it out. I think our hourly rates are in Other than that, it's

dispute so I'd have to do that.

putting it in front of you, here is what the time was and here is what it was intended on; and they can say what they want in response to that; and I'll cite a little authority. It shouldn't become a huge mountain, Your Honor. THE COURT: position is. Okay. I understand what your

What is the position of the defense? MS. DIBIANCA: THE COURT: I think we actually agree. Good.

Okay.

MS. DIBIANCA:

I don't think a hearing would be

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necessary. facts.

I think it can be decided on the law and the As far

I doubt that a hearing would be necessary.

as discovery goes, I'm not sure, if we didn't have reply briefing, what Mr. Neuberger's position would be on the discovery; but I would just ask that discovery not start -the clock on that not start to run until a petition has at least been filed. Right now, none has been filed; so the

discovery was a little bit premature, I think. MS. JENNINGS: That would be my application,

too, Your Honor, because I believe discovery was served on all defendants. THE COURT: this: All right. What I'm going to do is

We'll have the standard opening, answering and reply We'll have the discovery begin running when you

briefs.

file your petition, Tom, but we'll make certain that when that discovery would be due would be prior -MR. NEUBERGER: THE COURT: To my reply?

-- prior to your reply. Yes, that would be fine.

MR. NEUBERGER: THE COURT:

That's how we'll do it. I guess I filed it late last

MR. NEUBERGER:

week, something like that, just to get it on the record. THE COURT: Sure. As long as the court issues an

MR. NEUBERGER:

order that it is 10, 20, and then reply, you know, 5 days

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after the discovery issue is resolved or complied with, that would work, something like that. MS. DIBIANCA: And would defendants have enough

time to file discovery response and have it returned before the answering brief is due? MR. NEUBERGER: MS. DIBIANCA: MR. NEUBERGER: Yes. Okay. If you want more time, if you

want to file your discovery response before you do your answering brief, that's fine with me. rush you. I'm not trying to

The court can issue a briefing schedule that says

I filed mine on such-and-such a day and you do your discovery responses and then file your answering brief, that's fine. I don't have any problem with that. MS. DIBIANCA: We can shorten the length of If we want to agree

discovery, which is fine with me, too.

it wouldn't be due in 30 days, it would be 20 days, that's fine. MR. NEUBERGER: Yes, that's fine. Why don't we

put a stipulation in front of the court. THE COURT: it this way, Tom. stipulation. MR. NEUBERGER: agree. Yes, I think we can probably That's a very good idea. Let me put

Hopefully, all four of you can agree to a

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MS. DIBIANCA: THE COURT:

Yes, I think we can, too. I

That, I'm hoping you can do. I'm not

didn't find this was necessarily contentious.

suggesting that the discussions of counsel are contentious on the fee applications. in opinion. I understand there are differences If I don't find

So get the stipulation over.

it offensive, I'll sign off on it.

If I do, I'll make I would hope I

modifications but I doubt it will happen. would see it within the next week, please. MS. DIBIANCA: THE COURT: Oh, certainly.

Yes.

So we can get this on some type of

MS. DIBIANCA: THE COURT:

Yes. And I'm

And get it moving forward.

not a big fan about having hearings.

It's just that on some

of the fee applications that have been presented to me, and I recognize this is not a patent case. want to have the hearing. MR. NEUBERGER: Okay. I can understand that. All patent cases

But this is a relatively smaller amount of money than a patent case, Your Honor. THE COURT: I don't know, Tom. Sometimes some

of those patent cases, I settled one not too long ago for under $25,000. MR. NEUBERGER: And they had a hearing? And

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they wanted a hearing? THE COURT: fees. MS. DIBIANCA: THE COURT: Which probably costs more. One attorney alone And they wanted a hearing on their

Absolutely.

costs more than what the case settled for. MR. NEUBERGER: there, Your Honor. THE COURT: well. All right. Okay. And save your own time as We'll try to save your time

I'll just look forward to your

stipulation and we'll go from there. MR. NEUBERGER: MS. DIBIANCA: MS. JENNINGS: THE COURT: Thank you, Your Honor. Thank you, Your Honor. Thank you, Your Honor. Good-bye now.

Take care.

(Telephone conference ends at 8:37 a.m.)