395 Associates, LLC, Plaintiff/Appellant, v. New Castle County, et al., Defendants/Appellees.

Judgment No. 05A-01-013-JRJ.Superior Court of Delaware, New Castle County.Submitted: August 12, 2005.
Decided: November 28, 2005.

Richard L. Abbott, Esquire, 724 Yorklyn Road, Suite 240, Hockessin, Delaware, 19707, for the Plaintiff/Appellant.

Mary A. Jacobson, Esquire, 87 Reads Way, New Castle, Delaware, 19720, for the Defendants/Appellees.


Having reviewed the written submissions, pertinent case law, Delaware Lawyers’ Rules of Professional Conduct and Principles of Professionalism for Delaware Lawyers, the Court issues the following INTERIM ORDER. The Court raises Superior Court Civil Rule 12, subpart (f) sua sponte with regard to the content of Appellant’s Reply Brief found on pages seven, two, three and four, respectively. The Court is aware this is an atypical application of Rule 12(f), in that case law suggests sua sponte
rulings to strike are traditionally used to permit consideration of untimely motions to strike or motions to strike made under the incorrect rule.[1] However, the Court is obligated to undertake this inquiry, even absent a motion to strike by the Appellees, given the plainly disparaging and discourteous tone of the Appellant’s briefing and the Court’s interest in restoring professional civility in this matter. Thus, for the reasons that follow, the Court on its own initiative ORDERS STRICKEN from the Appellant’s Reply Brief all of the improper commentary identified below. The Appellant is instructed to re-file an amended Reply Brief within ten (10) days of this INTERIM ORDER.

Procedural Background
By way of background, the Appellant filed its Complaint for writ of certiorari on January 26, 2005, seeking appellate review of two administrative decisions: the July 13, 2004 Notice of Rule to Show Cause Decision issued by the New Castle County Department of Land Use and the December 30, 2004 Decision of the New Castle County Board of License, Inspection and Review (the “Board”).[2] Specifically, the Appellant requests the reversal and remand of the Board’s Decision, alleging that the Board: (1) proceeded irregularly by applying the incorrect legal standard and issuing an invalid written opinion; (2) committed errors of law in reaching it conclusions as to the issues of the statute of limitations, waiver, equitable estoppel and application of the BOCA National Building Code; and (3) erroneously found the grading/drainage Violation Notice unsatisfied. The Court allowed the petition for the Appellant’ writ of certiorari on February 7, 2005, and, on March 8, 2005, the record was filed with the Prothonotary. Pursuant to the June 16, 2005 modified briefing schedule, briefing in this matter concluded with Appellant’s August 12, 2005 submission of the “Plaintiff’s Reply Brief’ that is presently at issue.[3]

Motions to Strike are governed by Superior Court Civil Rule 12. Subpart (f) of Rule 12 permits the Court on its own initiative and at any time to “order stricken from any pleading . . . any redundant, immaterial, [or] impertinent . . . matter.” As a general rule, party motions to strike such matters are disfavored.[4] Further, objectionable material will only be stricken if it is clearly found to be “`unduly prejudicial'”[5] Therefore, courts grant such motions “sparingly, and then only if clearly warranted, with doubt being resolved in favor of the pleading.”[6]

To that end, the Court considers whether the matter pleaded “has some relevancy to the cause of action,” “is directly in reply” to a matter pleaded and is “offered in support of a direct issue.”[7] Accordingly, an “immaterial” matter is defined as one that has “no essential or important relationship to the claim for relief or the defenses being pleaded, or a statement of unnecessary particulars in connection with and descriptive of that which is material.”[8] Similarly, statements that “do not pertain, and are not necessary, to the issues in question” are “impertinent” materials.[9] A matter can be stricken if it clearly has “no possible bearing on the subject matter of the litigation” or fails to “set out any issuable fact” and is found “unduly prejudicial” to a party.[10]

With regard to the Appellant’s Reply Brief, the Court questions what possible connection or relationship exists between the Appellant’s allegations that the Board proceeded irregularly under an incorrect legal standard or that its written conclusions were fabricated by its attorney, and the abusive commentary on page seven of the Appellant’s Reply Brief.[11] Page seven contains a diatribe opining that citizens’ boards ignore applicable legal standards in decision making and are the functional equivalent of an appointed “group of monkeys.”[12] This disparagement culminates with the Appellant’s assertion that such a board permits its attorney to “interpret the grunts and groans of the ape members” to reach “whatever conclusions” the attorney wishes based on the record.[13] These statements are disgraceful and have no place in our Bar or this Court. The statements serve no other purpose than to inflame, insult and offend, and have no legal “value or relevancy” to the relief sought by the Appellant or defenses offered by the Appellees on appeal.[14]

Unfortunately, the Appellant does not stop there. Instead the Appellant peppers its legal arguments with uncivil and unnecessarily rude critiques of the Appellees’ positions that drip with sarcasm.[15] The two most egregious of these attacks appear in the closing paragraph of the Appellant’s “Counter-Statement of Facts” and the opening paragraph of its argument.[16] The Appellant closes its recitation of the facts by asking the sardonic and unnecessary question: “Why would the [Appellee] want to start making decisions on the merits when it could continue to run [the Appellant] into the ground for sport based upon whatever whimsical speculation the [Appellee] could conjure up?”[17]

The Appellant’s argument section follows with, “[n]ever one to miss an opportunity to deny a party the right to a fair and impartial hearing on the merits, the County outdoes itself again by raising for the first time on appeal that [the Appellant] is barred from appealing the timely filed Rule to Show Cause decision . . .”[18] This attack, impugning the honesty, fairness, integrity, impartiality, and competence of the Appellee is highly inappropriate and constitutes “undignified or discourteous conduct that is degrading to a tribunal.” The Appellant concludes this paragraph by directing the Court’s attention to Appellees’ legal authority cited in their Answer because it will “quickly dispense with this ridiculous argument.”[19] Like the undignified and discourteous “monkey” analogies discussed above, the Court finds this content to be “impertinent material” that does not pertain and is wholly unnecessary to the issues at bar.[20] It has “no essential or important relationship” to any claims made in the Appellant’s writ or Appellees’ defenses.[21]

Not only are the above statements irrelevant to resolution of the issues on appeal, but this unprofessional discourse is prejudicial because it places before the Court inflammatory statements implicating the integrity, intellect and competence of the Appellees and their attorney in an ill fated attempt to color the Court’s perception of the legal issues before it. Consequently, the Appellant is ordered to strike all of these statements from its Reply Brief and re-file its amended reply in ten (10) days.

Finally, the Court expresses its deep concern about the unnecessarily antagonistic tenor of written advocacy in this case. The Court agrees that the Appellees’ reference to the Appellant’s principal forming his own home warranty company “[r]ather than purchase a home warranty from a reputable and established . . . company” was at best unnecessary.[22]
However, it in no way justifies the Appellant’s subsequent uncivil commentary offered to the Court in its briefing. Nor does it justify raising the issue informally, via footnote in the Appellant’s “Counter-Statement of Facts,” that suggests the comment represents the Appellees’ hope that “the Court will decide the matter based upon any potential bias or prejudice that it may have against [the principal], rather than on the merits.”[23]

It is troubling that the Court must remind counsel for both parties that incivility and personal attacks cross the boundary of zealous advocacy into the realm of unprofessional conduct that only degrades the quality the legal practice in Delaware. Counsel should remember that “[t]he ethical standard requiring lawyers to represent a client zealously is qualified by the phrase `within the bounds of the law.'”[24] “[T]heir role is to zealously advance the legitimate interests of their clients, while maintaining appropriate standards of civility and decorum.”[25] “Civility is an attitude, a way of thinking that demands people be treated with dignity and respect.”[26] As explained by the Delaware Supreme Court, civility plays:

an important role in the administration of civil and criminal justice. Without it, litigation becomes even more expensive and public trust and confidence in the administration of justice is undermined.[27]

Moreover, counsel should bear in mind that legal professionals who bring:

“a clear commitment to thoughtful listening, tolerant mutual respect, and measured, caring advocacy and decision making”:[28] shine a light upon the meaning of ordered liberty for all who are affected by the justice system. We are the keepers of civility in that system. We are the keepers of the rule of law. We must, therefore, be models of civility wherever we are.[29]

Within the practice of law, courtesy, formality and decorum are not simply a matter of form:

[d]ecorum makes for efficiency in the courtroom and an increase in the exchange of information. Rule of decorum and etiquette prevent chaos . . . and assist in the discovery of truth between conflicting evidence. Disruptive tactics thwart justice. Civility aids ethics while incivility corrupts.[30]

Specifically, with regard to the benefits of professional, civil conduct before judges, one commentator has noted that:

[a] courteous presentation permits the decision maker to concentrate on the subject matter at hand rather than have to rule out distractions caused by rudeness, inappropriate behavior or personal attacks.[31]

Thus, for the benefit of all parties and in the interests of the administration of justice, this Court reminds counsel that it expects “all counsel will act to represent their respective clients in an exemplary manner with conscious respect of the fine professional traditions that Delaware attorneys are expected to present in our courts.”[32] “Counsel are all professionals and, as Delaware attorneys, should take justifiable pride in attorney civility which has been promoted within this State.”[33] Therefore, they “should not reflect any ill feelings that clients may have toward their adversaries,” in their dealings with the Court and other counsel.[34]
Counsel are also reminded that:

lawyers are always engaged in the administration of justice. . . . The public’s respect for the administration of justice is frequently a function of how they see lawyers — the officers of the court — conduct themselves in routine matters.[35]

Generally, [l]awyers should treat all other lawyers, all parties, and all witnesses courteously, not only in court, but also in other written . . . communications.”[36] Written submissions to the court “should [not] disparage the integrity, intelligence, morals, ethics, or personal behavior of an adversary unless such matters are directly relevant under the controlling substantive law.”[37] Further, counsel “should avoid hostile, demeaning, or humiliating words in written and oral communication with adversaries.”[38]

As the Court made clear in Crowhorn v. Nationwide Mutual Insurance Company, this Court will not “[condone] or . . . accept or permit the use of profanity, acrimony, derisive gibes, or sarcasm with respect to any communication related to any matter, proceeding, writing, meeting, etc.” involved in pending cases.[39] And, although a member of the Delaware Bar submitted the uncivil briefing presently before this Court, and not an attorney admitted pro hac vice, the Court’s recommendation in Crowhorn is still appropriate: “both parties . . . should become intimately familiar with the preferred conduct for Delaware attorneys as set forth in Delaware Supreme Court Rule 71 which contains the Delaware State Bar Association Statement of Principles of Lawyer Conduct.”[40]
Specifically, the Court directs counsel’s attention to the Principles of Professionalism for Delaware Lawyers, subpart A (1)-(4), which provides in pertinent part, that Delaware attorneys should:

develop and maintain the qualities of integrity . . . [and] civility . . . that mark the most admired members of our profession . . . A lawyer’s integrity requires personal conduct that does not impair the rendering of professional service of the highest skill and ability; . . . [and] treating others with respect . . . [A] lawyer . . . should treat all persons, including adverse lawyers and parties, fairly and equitably. . . . Professional civility is conduct that shows respect . . . for the courts and colleagues. . . . Respect for the court requires . . . emotional self-control; . . . the absence of scorn and superiority in words of demeanor. . . . A lawyer should represent a client with vigor. . . . Such representation, however, does not justify conduct that . . . is abusive, rude or disrespectful. A lawyer should recognize that such conduct may be detrimental to a client’s interests and contrary to the administration of justice.[41]

As its final point, the Court instructs Appellant’s counsel that:

[t]he profession [will] go a long way toward reaching a reputation of professionalism and civility if we do our best to think first and act as we would want to be treated. . . . The purpose of this profession is to serve clients, the public and the administration of justice. Therefore, as officers of the Court, we are duty bound to be professional and civil.[42]

It is a sad day when the Court must intervene in matters of this sort, which may implicate Rule 3.5.(d) of the Delaware Lawyers’ Rules of Professional Conduct.[43] Having now done so, the Court does not anticipate any further incivility, unprofessional written advocacy or other undignified or discourteous conduct that is degrading to the Court and casts a pall over our rich tradition of civility and professionalism.


[1] See Myer v. Dyer, 1987 WL 9669, at *2 (Del.Super.) (noting that “[e]ven if the motion is considered untimely, this Court may rule sua sponte to strike those portions of the Complaint . . . it considers to be `immaterial’ or `impertinent.'”); Stinnes Interoil, Inc. v. Petrokey Corp., 1983 WL 412258, at *1, (Del.Super.) (explaining that “since the Court, under this rule, may act on its own initiative, an untimely motion may be considered.”); Goldsmith v. Doctors for Emergency Services, Inc., 1984 WL 547849, at *1 (Del.Super.) (applying Super. Ct. Civ. R. 12(f) to a motion to strike brought under Rule 9(b), finding “[t]he Court, however, finding those portions [of the complaint] redundant . . . will, of its own initiative, strike those portions.”).
[2] Pl. Opening Br., 395 Assocs., LLC. v. New Castle County, C.A. No. 05A-01-013 (Apr. 29, 2005). (D.I. 8).
[3] Pl. Reply Br., 395 Assocs., LLC. v. New Castle County, C.A. No. 05A-01-013 (Aug. 12, 2005). (D.I. 15).
[4] Messina v. Klugiewicz, 2004 WL 1043793, at *2 n. 6 (Del. Ch.) (citing 2A J. MOORE, MOORE’S FEDERAL PRACTICE § 12.21[2], at 2317 (2d ed. 1985)).
[5] Salem Church (Delaware) Assocs. v. New Castle County, 2004 WL 1087341, at *3 (Del.Ch.) (considering a party’s motion to strike under the equivalent Court of Chancery Rule, Ct. Ch. R. 12(f)); Crowhorn v. Nationwide Mut. Ins. Co., 2001 WL 695542, at *7 (Del.Super.) (applying Super. Ct. Civ. R. 12(f)).
[6] Crowhorn, 2001 WL 695542, at *7 (citing Pack Process, Inc. v. Celotex, 503 A.2d 646, 660 (Del.Super.Ct. 1985).
[7] Id. (citing Pack Process, 503 A.2d at 660).
[8] Salem, 2004 WL 1087341, at *2 (citing 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1382, at 706-08 (2d ed. 1990)).
[9] Salem, at *2 (citing 5A CHARLES ALAN WRIGHT ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1382, at 711 (2d ed. 1990)).
[10] Messina, 2004 WL 1043793, at *2 n. 6; Crowhorn, 2001 WL 695542, at *7 (citing Pack Process, 503 A.2d at 660) Salem, 2004 WL 1087341, at *3.
[11] Crowhorn, 2001 WL 695542, at *8.
[12] Pl. Reply Br., at 7. (D.I. 15).
[13] Id.
[14] Crowhorn, 2001 WL 695542, at *8.
[15] Pl. Reply Br., at 1 n. 1 (“snide litigation tactic”), 2 (“Laughably, the County found . . .”), 3 (“To describe such irresponsible . . . conduct as arbitrary would be charitable.”), 18 (“The County is so confused . . .”).
[16] See Pl. Reply Br. at 2-3, 4.
[17] Id. at 2-3.
[18] Pl. Reply Br., at 4.
[19] Id.
[20] Board of Education v. Sussex Tech Education Ass’n., 1998 WL 157373, at *2 (Del.Ch.) (granting a motion to strike portions of a complaint, detailing a party’s improper touching of a student, as “irrelevant and prejudicial allegations” included for “no legally appropriate reason” given the “purely procedural issue” of which tribunal “should decide the question of arbitrability.”).
[21] Salem, 2004 WL 1087341, at *2.
[22] Def. Answering Br., 395 Assocs. LLC v. New Castle County, C.A. No. 05A-01-013 (Jul. 22, 2005), at 3. (D.I. 14).
[23] Pl. Reply Br., at 1 n. 1. (D.I. 15).
[24] Randy J. Holland, President’s Message, THE BENCHER, Jul./Aug. 2003, at 2.
[25] CODE OF PRETRIAL CONDUCT 4(a) (Am. Coll. of Trial Lawyers 2002).
[26] Jason Hawkins, Language Civility, THE BENCHER, Jul./Aug. 2005, at 13.
[27] Kaung v. Cole Nat. Corp., 884 A.2d 500, 507 (Del. 2005).
[28] Deanell R. Tacha, President’s Message, THE BENCHER, Jul./Aug. 2005, at 2.
[29] Id.
[30] John J. Jurcyk, Jr., Honor The Law! The Essential Role of Civility in the Legal System, THE BENCHER, Jul./Aug. 2005, at 21.
[31] Id. at 20.
[32] Crowhorn v. Nationwide Mut. Ins. Co., 2002 WL 1274052, at *5 (Del.Super.)
[33] State v. Aizupitis, 1996 WL 33322267, at *3 (Del.Super.).
[34] CODE OF PRETRIAL CONDUCT 4(a) (Am. Coll. of Trial Lawyers 2002).
[35] Randy J. Holland, President’s Message, THE BENCHER, Jul./Aug. 2003, at 2.
[39] Crowhorn, 2002 WL 1274052, at *5 (finding revocation of the admission pro hac vice of an attorney unnecessary to preserve the integrity or fairness of proceedings in spite of behavior that included the use of similar uncivil language in correspondence during an earlier arbitration.).
[40] Id.
[41] Supr. Ct. R. 71(b)(ii).
[42] John J. Jurcyk, Jr., Honor The Law! The Essential Role of Civility in the Legal System, THE BENCHER, Jul./Aug. 2005, at 21.
[43] DEL. LAWYERS’ RULES OF PROF’L CONDUCT R. 3.5(d): “A lawyer shall not . . . engage in conduct intended to disrupt a tribunal or engage in undignified or discourteous conduct that is degrading to a tribunal.” See also Matter of Shearin, 721 A.2d 157, 162 (Del. 1998); Matter of Ramunno, 625 A.2d 248 (Del. 1993); Paramount Commc’ns v. QVC Network, 637 A.2d 34, 53
(Del. 1993).