Excuses, Excuses…… And a Lack Of Excusable Neglect In DE: Discovery Violations Lead To a $182K Bond And $23K In Attorney’s Fees

Today we have a guest blogger, the ever-genial Dave Boswell.   I’m not quite sure how to categorize these opinions so I will leave it to Dave to tell you what all went down:

Attached is a triumvirate of decisions in the Hernandez case, in which:

(1)  the IAB entered a default judgment against a purported limited liability company and against its sole member, individually, as a remedy for failure to provide discovery notwithstanding two orders to compel (Crisanto Hernandez v. Kyle Harrigan-Ferro and Allserve, LLC, IAB#1386824 (1/9/13) (ORDER);

(2)  awarded medical expenses and TTD at a subsequent hearing on the merits  (Crisanto Hernandez v. Kyle Harrigan-Ferro and Allserve, LLC, IAB#1386824 (1/25/13); and

(3)  denied the individual respondent's motion to vacate default judgment  (Crisanto Hernandez v. Kyle Harrigan-Ferro and Allserve, LLC, IAB#1386824 (7/31/13) (ORDER).

An appeal was filed with the Superior Court, and stayed while the matter was remanded to the IAB for action on the motion to vacate default judgment, which was pending when the appeal was filed.  I expect that appeal will now proceed.”

Since I think the topic is kind of boring, I don’t have my usual witticisms for this one.  Here are what I think the take-aways should be:

·   Never forget the age-old adage that he who fails to maintain (or produce) records will have all related factual issues resolved against them—in this case it meant no rebuttal for a claimed average weekly wage of $1000.00 (that’s gotta hurt);

·   Dave was awarded two maximum attorney’s fees for the merits hearing and the motion hearing to the tune of $19,350.40 (now that’s an “ouch” if ever I saw one);

·   The third Order in this case presents a glowing depiction of what excusable neglect is not; coupled with an Order to post bond in the amount of $182,000.00 and yet another attorney’s fee of $4000.00 (could this pain rival childbirth?)

Bottom line is this bonanza of attorney’s fee awards.  Way to go, Dave-I am impressed.  That’s the last time I refer to you as being from “Slower Lower” (not). Did you mention appeal?  Keep us in the loop on those appellate attorney’s fees as well—inquiring minds (and Walt Schmittinger) want to know.

Irreverently yours,

Cassandra Roberts

   Visit Delaware Detour & Frolic, a law blog by Cassandra Roberts

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