Free Letter - District Court of Delaware - Delaware

Case 1:04-cv-01207-GMS

Document 98

Filed 03/17/2006

Page 1 of 2

Montgomery, McCracken, Walker & Rhoads, llp
attorneys at law Richard Montgomery Donaldson
Admitted in Delaware, Pennsylvania & New Jersey

300 Delaware Avenue, Suite 750 Wilmington, DE 19801 302-504-7800 Fax 302-504-7820

123 South Broad Street Avenue of the Arts Philadelphia, PA 19109 215-772-1500 Fax 215-772-7620 LibertyView 457 Haddonfield Road, Suite 600 Cherry Hill, NJ 08002 856-488-7700 Fax 856-488-7720 1235 Westlakes Drive, Suite 200 Berwyn, PA 19312 610-889-2210 Fax 610-889-2220

Direct Dial 302-504-7840

[email protected]

March 17, 2006 VIA ECF FILING The Honorable Gregory M. Sleet United States District Court for the District of Delaware J. Caleb Boggs Federal Building 844 N. King Street, Room 4324 Lockbox 19 Wilmington, DE 19801 Re: Plaintiffs' Citation of Supplemental Authority Price v. Chaffinch, No. 04-956-GMS Foraker v. Chaffinch, No. 04-1207-GMS

Dear Judge Sleet: By letter dated March 16, 2006, Plaintiffs brought to the attention of this Court the Third Circuit's recent opinion in O'Connor v. City of Newark, --- F.3d ---, No. 05-2237, 2006 WL 590357 (3d Cir. Mar. 13, 2006). O'Connor is wholly inapposite to the pending cases. It holds that, when considering application of statues of limitation, the "bright-line distinction" between "continuing violations" and "discrete acts," recognized by the Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101 (2002), applies equally to retaliation claims under § 1983 as to those under Title VII. 2006 WL 590357, at *2, *3. This Court, of course, has never been asked to determine whether the claims of Plaintiffs Price, Warren, and Foraker are subject to any statute of limitations. Plaintiffs seem to rely on O'Connor only because it mentions in dicta the standard for First Amendment retaliation set forth in Suppan v. Dadonna, 203 F.3d 228 (3d Cir. 2000). The parties do not dispute this "deter a person of ordinary firmness" standard. Rather, the material issue of fact in the instant cases is whether Defendants' actions are "de minimis violations" for

A LIMITED LIABILITY PARTNERSHIP FORMED IN PENNSYLVANIA LOUIS A. PETRONI ­ NEW JERSEY RESPONSIBLE PARTNER

Case 1:04-cv-01207-GMS

Document 98

Filed 03/17/2006

Page 2 of 2

Montgomery, McCracken, Walker & Rhoads, llp

The Honorable Gregory M. Sleet. March 17, 2006 Page 2

which there is no constitutional liability. This issue was not before the court in O'Connor, and the court did not even attempt to address it. As always, we are at the Court's disposal if any further briefing on this issue would be helpful.

Respectfully yours, /s/ Richard M. Donaldson Richard M. Donaldson

RMD/rjf Cc: Thomas Stephen Neuberger, Esq. (via ECF Service) Stephen J. Neuberger, Esq. (via ECF Service) Martin D, Haverly, Esq. (via ECF Service)