McCaffrey v. City of Wilmington, et al.
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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY MORGAN MCCAFFREY, Plaintiff, ) ) ) v. ) ) CITY OF WILMINGTON, ) PATROLMAN MICHAEL ) SPENCER, individually and in his ) capacity as an officer, SERGEANT ) GERALD MURRAY, individually ) and in his capacity as an officer, ) CORPORAL RALPH SCHIFANO, ) individually and in his capacity as an ) officer, MASTER SERGEANT ) SHERRI TULL, individually and in ) her capacity as an officer, and ) CHIEF MICHAEL J. SZERBA, ) Individually and in his capacity ) as an officer, ) Defendants. ) C.A. No. N12C-01-138 PLA Submitted: November 27, 2012 Decided: December 5, 2012 UPON PLAINTIFF S MOTION FOR REARGUMENT DENIED On this 5th day of December, 2012, it appears to the Court that: 1. Plaintiff Morgan McCaffrey filed her complaint on January 19, 2012 alleging negligence, recklessness, and civil rights violations against the City of Wilmington and various members of the City s police department. 1 The facts were set forth in a prior order, issued by this Court on April 25, 2012. They are as follows: This is a personal injury lawsuit arising from a traffic accident that occurred late in the evening on June 5, 2010. The Complaint alleges that Defendant Michael Spencer ( Spencer ), a patrolman in the WPD, ran a red light and hit McCaffrey s car, injuring her. Immediately following the accident, Spencer identified himself as an off-duty police officer. He called the police to report the accident at the scene. According to the Complaint, Spencer admitted that he had been drinking alcohol before driving that night. Spencer and McCaffrey waited for the police at the scene of the accident for about fifteen minutes. During that time, Spencer placed his hands on McCaffrey s back and kissed her on the lips. Spencer then called the police to cancel his earlier call and suggested to McCaffrey that they drive to her nearby apartment to clear the road. The Complaint does not allege that Spencer was driving a police car or wearing a police uniform, nor does the Complaint allege that Spencer attempted to make an arrest or issue a citation at the scene of the accident. At McCaffrey s residence, Spencer removed several items from the glove compartment of his car, including his gun, magazine, and badge, and asked McCaffrey to hold them for him. He then asked to go into McCaffrey s apartment. McCaffrey, who says she felt pressured by the fact that Spencer was a police officer, allowed Spencer into her apartment. Once inside the apartment, Spencer undressed, got into McCaffrey s bed, and asked her if she wanted to have sex. When McCaffrey refused Spencer s initial advance, Spencer straddled her on the bed and asked her again if she wanted to have sex. She again refused. Spencer fell asleep in McCaffrey s bed about five minutes later. McCaffrey went to a neighbor s apartment and called the WPD. Corporal Schifano, Sergeant Bluestein, and Sergeant Murray, all of the WPD, arrived at the neighbor s apartment shortly thereafter. McCaffrey gave the officers Spencer s gun and other items and told them what had happened. The officers remarked that Spencer was so out of it that he probably did not even 2 know where he was and assured McCaffrey that he was harmless and drunk. The officers woke Spencer, who was still asleep in McCaffrey s bed, and took him to the police station, where he initially refused to take a sobriety test or to make a statement about the traffic accident. Spencer later agreed to take a field sobriety test, which he passed. It is not known how much time passed before the field test was administered. No criminal charges were brought against Spencer, but he was disciplined after an internal investigation and hearing. 1 2. Plaintiff amended her complaint on May 24, 2012 removing the City of Wilmington Police Department as a defendant and adding Chief Michael Szcerba as a defendant. She then amended the complaint again on June 5, 2012 to add Master Sergeant Sherri Tull as a defendant. These amendments were sought because of information obtained by Plaintiff in initial discovery. 3. Some months later, on October 9, 2012, Plaintiff filed a motion seeking leave to file a third amended complaint. In this motion, Plaintiff attempted to add Captain Marlyn Dietz as an additional defendant. Captain Dietz filed a response in opposition to the motion for leave to amend. After a hearing on November 19, 2012, the Court issued an Order denying Plaintiff s motion for leave to file a third amended complaint. 4. Plaintiff has now filed the instant Motion for Reargument of the Court s decision denying her motion to file a third amended complaint. This 1 McCaffrey v. City of Wilmington, 2012 WL 1593062 (Del. Super. Apr. 25, 2012). 3 Motion for Reargument contains the same facts set forth by Plaintiff in support of her prior motion for leave to amend. She states that she identified Captain Dietz as a potential defendant after reviewing documents produced by the City of Wilmington on July 17, 2012. She claims the document production was extensive and took several months to review. Captain Dietz opposes the Plaintiff s Motion for Reargument because Plaintiff has not met the standard required for reargument of a prior order. 5. A motion for reargument is the proper device to seek reconsideration by the trial court of findings of fact, conclusions of law, or judgment, but it is not appropriate unless the court has overlooked a controlling precedent or legal principles, or the court has misapprehended the law or facts such that it would have changed the outcome of the underlying decision.2 A motion for reargument is not an opportunity for a party to rehash the arguments already decided by the court, nor should a party present any new argument that could have been previously raised but 2 Super. Ct. Civ. R. 59(e); McKay v. St. Francis Hosp., Inc., 2008 WL 4947652, at *1 (Del. Super. Nov. 18, 2008) (citing Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del.1969)); Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006) (citation omitted). 4 was not. 3 The moving party has the burden to demonstrate newly discovered evidence, a change in the law, or manifest injustice. 4 6. Plaintiff s Motion for Reargument is nothing more than an attempt to repeat the arguments previously presented. The Court was well aware of the fact that motions to amend should be freely granted when it denied the motion. The Court considered the plaintiff s undue delay, repeated failure to cure deficiencies, and her complete disregard of the Court s Scheduling Order to be a sufficient basis to deny the motion. On a motion for reargument, the only issue is whether the Court overlooked either a precedent or evidence that would have changed the outcome of the underlying decision.5 Such motions are not to be used to reassert the arguments already presented to the Court. Plaintiff has not identified any 3 Wilson v. James, 2010 WL 1107301, at *2 (Del. Super. Feb. 25, 2010) (citing Kennedy, 2006 WL 488590, at *1); Plummer v. Sherman, 2004 WL 63414, at *2 (Del. Super. Jan. 14, 2004). 4 Reid v. Hindt, 2008 WL 2943373, at *1 (Del. Super. July 31, 2008) (citing State v. Brooks, 2008 WL 435085, at *2 (Del. Super. Feb. 12, 2008)). 5 Brenner v. Village Green, Inc., 2000 WL 972649, at *1 (Del. Super. May 23, 2000). 5 newly discovered evidence, a change in the law, or manifest injustice. Simply stated, she has not met her burden. Plaintiff s Motion for Reargument is therefore DENIED. IT IS SO ORDERED. /s/ Peggy L. Ableman PEGGY L. ABLEMAN, JUDGE Original to Prothonotary cc: Counsel via File & Serve 6
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