Free Response to Motion - District Court of Delaware - Delaware

Case 1:08-cv-00295-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NINA SHAHIN, Plaintiff; v. LIGUORI, MORRIS & YIENGST, et al, Defendants. RESPONSE OF NORMAN H. BROOKS, JR. AND THEODORE J. SEGLETES TO PRO SE PLAINTIFF'S MOTION FOR RULE 11 SANCTIONS Attorneys Norman H. Brooks, Jr. and Theodore J. Segletes hereby submit the following in response to the motion for sanctions filed against them by the pro se Plaintiff in the abovecaptioned matter. Whereas Plaintiff's motion is procedurally and substantively deficient, C. A. No. 08-295 GMS

Attorneys Brooks and Segletes respectfully request that it be DENIED, and that the Court award such other relief as the Court deems just and appropriate. I. Procedural Deficiencies Plaintiff's motion for sanctions is procedurally deficient in light of her failure to comply with Fed. R. Civ. P. 11(c)(2), which requires a party seeking sanctions to give the opposition notice and permit a 21-day period in which to cure whatever perceived defect exists prior to filing a motion for sanctions. Despite the fact that this procedural deficit was noted by Counsel for the Judicial Defendants and Counsel for Young Conaway in their preliminary responses to similar Rule 11 motions that Plaintiff filed against them, Plaintiff nonetheless filed this motion on August 12th with no notice to Attorneys Brooks or Segletes in satisfaction of Rule 11(a)(2). Had Plaintiff given Counsel such notice, they would have had the opportunity to cure any perceived defects, as they have.

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II.

Substantive Deficiencies Plaintiff's motion must fail on its merits because it does not actually state a basis upon

which sanctions may be imposed. Each of these paragraphs will be discussed below in turn. A. Plaintiff's Allegation that Attorneys Brooks and Segletes Misrepresented the Facts of the Case Has Been Rendered Moot.

Plaintiff takes issue with a footnote to the statement of the case included in the Opening Brief submitted by Liguori, Morris & Yiengst ("LMY) in support of its motion to dismiss. Specifically, she argues that the statement that LMY never represented the Delaware Federal Credit Union ("Del-One") with regard to the "Third Case" identified in her Complaint is factually incorrect. Plaintiff's Motion for Sanctions, p. 1 (D.I. 34). In a letter to the Court, Attorney Segletes explained that he had misunderstood the facts as presented to him and that the Plaintiff was generally correct in her assertion that LMY did initially represent Del-One in the Third Case for the period of one week. Attorney Segletes appended to that letter three substitute pages to LMY's Motion to Dismiss, which contain more accurate factual statements that are consistent with Ms. Shahin's contentions. (See Exhibit 1 of D.I. 36, LMY's Letter to Judge Sleet dated August 15, 2008, attached hereto in its entirety as Exhibit A). The fact that the undersigned were willing to amend LMY's Opening Brief with these changes underscores the problem with the pro se plaintiff's failure to comply with the requirements of Fed. R. Civ. P. 11(c)(2). Had Plaintiff brought her concerns about the Statement of Facts contained in LMY's Opening Brief to the undersigned's attention before filing the instant motion, as she was required to do under the Rule, they could have amended the Brief and cured any defect without Court intervention1

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Even still, the undersigned recognizes that these efforts probably would not have prevented Plaintiff from making unfounded accusations of ethical violations against LMY's attorneys, as evidenced by the fact that she refused to

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Notwithstanding the fact that undersigned timely amended LMY's Opening Brief to accurately reflect the factual background of the Third Case, the inaccurate statement initially presented to the Court was not prejudicial to the Plaintiff in any way. The fact that LMY entered its appearance and Answered Plaintiff's Complaint in that action, only to be replaced as DelOne's counsel one week later, does not add to the harm allegedly suffered by the Plaintiff, nor does it substantively change any of the arguments in LMY's Opening Brief in Support of Motion to Dismiss (D.I. 28). Although the undersigned candidly amended the Opening Brief, Plaintiff has persisted in taking her position that their actions were somehow improper, going so far as to state in a letter to the Court that she "does not buy" their very reasonable explanation. (See D.I. 39, Letter from Plaintiff to Court Regarding her Motion for Sanctions, p. 2). She then attacks the credibility of Counsel based on her belief that their client, Mr. Morris, "made his way through the entire Delaware Court system...by lying [and] falsifying facts." Id. Aside from the inherent

impropriety of the Plaintiff imputing her perception of Mr. Morris to his attorneys in this matter, the larger issue is that the Plaintiff is not the one charged with evaluating the credibility of the attorneys or the parties in this action. The undersigned have explained the mis-statement and have taken all appropriate steps to correct it. It is this Court's task, and not the Plaintiff's, to determine whether the actions were sufficient. Although Plaintiff may not agree with the undersigned's position on the propriety of dismissal, this is no reason for Plaintiff to submit a letter to the Court that contends more unsubstantiated allegations of fraud and dishonesty. Although counsel is mindful of the fact that Plaintiff is proceeding pro se, and should be afforded a certain amount of latitude due to a lack of
withdraw the motion after the revisions were made and notwithstanding the undersigned's letter to her (Exhibit B) requesting its withdrawal.

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formal legal training, this is simply no excuse for a "smear campaign" of unfounded and accusations against the undersigned Counsel, similar to her campaign against the judicial defendants. Her attempts to paint counsel as dishonest individuals are misguided, offensive, and inappropriate. B. Attorneys Brooks and Segletes Duly Notified the Plaintiff of Their Representation of Liguori, Morris & Yiengst in This Matter.

Plaintiff's second basis for an award of sanctions is based on her allegations that "[b]oth attorneys from the form [sic] of Marks, O'Neal [sic], O'Brien, and Courtney, P.C. have never notified the Plaintiff that they represent the firm of Liguori Morris & Yiengst, so the Plaintiff learnt about their representation only on 07/31/2008 at the office of the clerk of the federal District Court when she filed her first motion in Opposition to the Deputy Attorney General's Motion to Dismiss." (See D.I. 34, pp. 2-3). In Counsel's August 15 letter to the Court, the undersigned admitted that he is without explanation as to why Ms. Shahin did not receive LMY Attorneys' Entries of Appearance. (Exhibit A, at pg. 2). As evidenced therein at Exhibit 2, Ms. Shahin was served with copies of each Entry of Appearance via United States Mail to the address she has listed on all pleadings and correspondence related to this case. (See. Ex. A at Ex. 2 thereof; see also D.I. 5 & 6). Neither the Entries of Appearance, nor any other filing in this case, has ever been returned as undeliverable. More importantly, however, Plaintiff was not prejudiced in any way by her alleged failure to receive the Entries of Appearance. A review of Plaintiff's responsive briefs and letters in this matter demonstrates that Plaintiff, while she may have seen the undersigned's entry of appearance a week after LMY filed its own Motion to Dismiss, has not alleged that she did not receive the motion in a timely manner, or that she was not already on notice of the undersigned's representation of LMY when she eventually saw the formal Entry of Appearance. Moreover, she

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clearly knew of the representation weeks before her Answering Brief in Opposition to LMY's Motion to Dismiss was actually due. In fact, in the undersigned's letter to her, the undersigned specifically noted that he did not believe she was prejudiced by allegedly not receiving the service of the Entries of Appearance and asked if she disagreed with this position. (Ex. B, pg. 1) In her responsive letter to the Court (D.I. 39) Plaintiff makes no allegation that the alleged failure of service unfairly prejudiced her in any way. The record is clear that Plaintiff received all other documents filed by LMY's Counsel as she has responded accordingly. Moreover, Plaintiff has at all times, acknowledged that the undersigned are counsel of record for LMY in this action, and has spoken directly with them on the telephone in their capacity as counsel for LMY. Ms. Shahin was not the target of malicious intent or unethical conduct by LMY's counsel if in fact, she failed to receive their entries of appearance. C. Plaintiff Now Agrees That Bivens Does Not Apply to Her Claims Against LMY

Plaintiff's third basis for sanctions is an allegation that the undersigned "concealed" the case of Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), which she argued was relevant to her claims, and supportive of a decision in her favor. (See D.I. 34 at p. 2). However, Plaintiff has since formally reversed her position on this issue. (See D.I. 41; See also Exhibit C, Letter from Plaintiff to Court of August 26th, 2008). Whereas Plaintiff now concedes that Bivens does not apply, her allegations that the undersigned wrongfully concealed the matter are moot.

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III.

Conclusion Whereas Plaintiff's motion for sanctions is procedurally and substantively deficient, the

undersigned respectfully request that it be dismissed in its entirety, and that the Court award counsel such relief as it deems just and appropriate. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. /s/ Theodore J. Segletes, III . Norman H. Brooks, Jr., Esq. (#2568) Theodore J. Segletes, III, Esq. (#4456) 913 North Market Street, Suite 800 Wilmington, DE 19801 (302) 658-6538 F: (302) 658-6537 Attorneys for Defendant Liguori, Morris & Yiengst Dated: August 29, 2008

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CERTIFICATE OF SERVICE I, Theodore J. Segletes, III, hereby certify that on this 29th day of August, 2008, I caused a true and correct copy of the foregoing Response to the Motion for Sanctions against Norman H. Brooks, Jr. and Theodore J. Segletes, III to be served upon counsel of record via First Class Mail at the following addresses: DAG Kevin R. Slattery, Esq Delaware Department of Justice 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801 (302) 577-8500 Email: [email protected] Attorney for State Judicial Defendants Richard H. Morse, Esquire Young, Conaway, Stargatt & Taylor, LLP P.O. Box 391 Wilmington, DE 19899-0391 (302) 571-6600 Email: [email protected] Attorneys for Defendant Young, Conaway, Stargatt & Taylor, LLP

I further certify that on this 29th day of August, 2008, I caused a true and correct copy of the Response to the Motion for Sanctions against Norman H. Brooks, Jr. and Theodore J. Segletes, III to be served upon the Plaintiff via First Class Mail at the following address: Ms. Nina Shahin 103 Shinnecock Road Dover, DE 19904 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. /s/ Theodore J. Segletes, III . Theodore J. Segletes, III, Esq. (# 4456) 913 North Market Street, Suite 800 Wilmington, DE 19801 (302) 658-6538 F: (302) 658-6537 [email protected]

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