## 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

D epartment of Justice Coggins Law, LLC

391 Lukens Drive 1007 North Orange Street, 4 th 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 t he Secretary’s motion for a

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

granted

.

Position s 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 for2

summary judgment. T hey argue that the law of the cas e limits the Secretary ’s claims

to invest igation and study related costs

. T hey also argue that the law of the case

limits the Secretary to damages that had ripened o n 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 w as 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 Secret ar y’s written motion addresses his desire to identify

ongoing (1) investigati on, 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 in appr opriate, ho wever, to limit the Secretary’s potential recovery to

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

oral argument. T he 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 transc ript, however, counsel for the S ecretary made no

representation about limiting the Secret ary’s claim to damages incurred to date

.

Rather, counsel estimate d 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 penalti es

.

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

year old

. This is the first contin uance request by either party. Here , the Secretary

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

explains the difficulties DNREC has faced i n finalizing the studies necessary to

identify remedial measures

. 3 In large part, the delay in finalizing these studies and

fixing their cost s has been outside the Secretary’s control. Given t he General

As sembly’s reflected intent that the Secretary be permitted to seek broad recover y

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

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

Nevertheless, i n 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 Booth s 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 inab ility 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 Secre tary to i dentify the s tudy 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 discov ery 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

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