SUPERIOR COURT

of the

STATE OF DELAWARE

Jeffrey J Clark Kent County Courthouse

 Judge 38 The Green

 Dover, DE 19901

 Telephone (302)735-2111

October 31, 2019

Robert F. Phillips, DAG Christopher M. Coggins, Esquire

Department of Justice Coggins Law, LLC

391 Lukens Drive 1007 North Orange Street, 4th Floor

New Castle, DE 19720 Wilmington, DE 19801

Submitted: October 25, 2019

Decided: October 31, 2019

RE: Sean M. Garvin, Secretary of the Department of Natural

Resources & Environmental Control v. Joseph W. Booth &

Margaret A. Booth 

S18M-10-040 JJC

Counsel:

This letter reflects the Court’s decision regarding the Secretary’s motion for a 

continuance of the February 10, 2020 trial. For the following reasons, the motion is 

granted. 

Positions of the parties

The Secretary requests a continuance because he has not yet fully determined 

his damages. The Booths oppose the request by relying primarily on the Court’s July 

10, 2019 Memorandum Opinion and Order that resolved the Secretary’s motion for 
2

summary judgment. They argue that the law of the case limits the Secretary’s claims

to investigation and study related costs. They also argue that the law of the case 

limits the Secretary to damages that had ripened on or before the oral argument 

regarding summary judgment. Namely, they argue that the Secretary’s desire to 

continue the trial to identify evidence of damages that the Court has ordered

precluded does not constitute good cause. 

Standard

A party requesting a trial continuance must demonstrate good cause. As the 

Delaware Supreme Court has recognized, good cause exists “when the moving party 

has been generally diligent, the need for more time was neither foreseeable nor its 

fault, and refusing to grant the continuance would create a substantial risk of 

unfairness to that party.”1 The Court in exercising its discretion “must balance its 

duty to admit all relevant and material evidence with its duty to enforce standards of 

fairness and the [rules of the court].”2

Good cause for a trial continuance

At the outset, the Secretary’s written motion addresses his desire to identify

ongoing (1) investigation, study, and planning costs and (2) clean-up costs. Given 

the Court’s summary judgment decision, the law of the case precludes recovery of 

clean-up costs. 

It is inappropriate, however, to limit the Secretary’s potential recovery to 

study and planning costs that were incurred before the time of the summary judgment 

oral argument. The Court included references in its Memorandum Opinion and 

Order reciting the Secretary’s agreement to so limit its damages. The Court did so 

 

1 Coleman v. PricewaterhouseCoopers, LLC, 902 A.2d 1102, 1107 (Del.2006).

2 Concord Towers, Inc. v. Long, 348 A.2d 325, 326 (Del.1975).
3

in the portion of its decision addressing the future scope of discovery. When 

reviewing the oral argument transcript, however, counsel for the Secretary made no 

representation about limiting the Secretary’s claim to damages incurred to date. 

Rather, counsel estimated that approximately $260,000 of investigation and study

costs had been incurred. He also represented, on behalf of the Secretary, that 

DNREC would not seek clean-up costs or civil penalties. 

The Secretary filed suit in October 2018 making this case approximately one 

year old. This is the first continuance request by either party. Here, the Secretary 

demonstrates good cause to continue the trial. In his written motion, he sufficiently 

explains the difficulties DNREC has faced in finalizing the studies necessary to 

identify remedial measures.

3

 In large part, the delay in finalizing these studies and 

fixing their costs has been outside the Secretary’s control. Given the General 

Assembly’s reflected intent that the Secretary be permitted to seek broad recovery 

of remedial costs, it would be manifestly unjust to deny a continuance designed to 

give the Secretary a fair opportunity to identify and seek such costs.

Nevertheless, in fairness to the Booths, the matter will not be continued 

indefinitely. The Secretary is unable to estimate the time necessary to conclude these 

studies or to fix their costs. This suit and the amount he claims is a significant 

concern for the Booths who defend this matter in their individual capacities. The

Secretary chose to file this suit somewhat prematurely, before his agency incurred

much of what he now seeks to recover. Given the Booths’ opposition to the 

continuance request, the Secretary’s inability to estimate an end-point to the 

investigation or planning stages, and the Booths’ interest in finality, the continuance 

will be of limited duration. 

 

3 Plaintiff’s Motion, Para. 4 (a) – (h)
4

Conclusion

A new scheduling order will issue. It will include a six month deadline for 

the Secretary to identify the study and planning costs that he seeks to recover. Any 

such costs not fully identified and fairly presented to the Booths before that deadline 

will be barred from introduction at trial pursuant to Superior Court Civil Rule 37 

(b)(2)(B). The revised scheduling order will also include a new discovery deadline 

to provide the Booths sufficient time to conduct discovery regarding any newly 

identified costs. Trial will then follow soon thereafter. The parties are directed to 

coordinate a scheduling teleconference with the Court as soon as practical. 

IT IS SO ORDERED

Very truly yours,

/s/ Jeffrey J Clark

Judge

JJC/jb

Via File&Serve Xpress