Shahinv. City of Dover

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
MAZEN AND NINA SHAHIN,
C.A. No. K18C-10-023 WLW
Plaintiffs,

CITY OF DOVER and CHERYL A. :
BUNDEK, City of Dover Tax
Assessor,
Defendants.
Submitted: March l, 2019
Decided: March 14, 2019
ORDER

Plaintiffs’ Motion for Sanctions Against Mr. Pepper
Denied with Prejudice.

Mazen Shahin and Nina Shahin, Plaintiffs, pro se.

William W. Pepper, Sr., Esquire of Schmittinger and Rodriguez, P.A., Dover,
Delaware; attorney for Defendants.

WITHAM, R.J.

Mazen and Nina Shahin v. City of Dover, et al.
C.A. No. K18C-10-023 WLW
March 14, 2019

INTRODUCTION

Currently before the Court is Plaintiffs,’ Dr. Mazen Shahin and Mrs. Nina
Shahin’s (hereinafter “Plaintiffs”), Motion for Sanctions against Mr. William Pepper,
Sr., Esquire, (hereinafter “Mr. Pepper”), of Schmittinger & Rodriguez, P.A. pursuant
to Delaware Superior Court Rule of Civil Procedure Rule 1 1 (hereinafter “Rule 1 1 ").1
After considering the motion and the record regarding this case, it appears to the
Court that:

FACTUAL AND PROCEDURAL HISTORY

l. On October 16, 2018, the Plaintiffs’ case against the Defendants Was
transferred from the Delaware Court of Chancery to this Court pursuant to 10 Del. C.
§ 1902 and 6 Del. C. § 4602(8).2

2. On October 24, 2018, the Plaintiffs filed a complaint in this Court, pro se,
against the Defendants pursuant to 6 Del. C. § 4600 et. seq.3

3. Despite the Plaintiffs’ desire and attempts, they ultimately failed to retain
legal counsel. As a result, the Plaintiffs filed an application in this Court seeking the
Court to appoint an attorney to represent them in their civil cause of action against the

Defendants pursuant to 6 Del. C. § 4613(b).4 The Defendants filed their timely

l Mr. Pepper represents the City of Dover and Cheryl A. Bundek (hereinai°ter "Defendants")
in the captioned civil action.

2 Shahin v. City of Dover & Cheryl Bundek, No. 2018-0352-JRS (Del. Ch. Oct. 16, 2018).

3 Pl. Complaint, Shahin v. City of Dover & Cheryl Bundek, K18C-10-023 (Del. Super. Oct.
24, 2018).

4 Pl. Application for Appointment of Counsel, Nov. 29, 2018.
2

Mazen and Nina Shahl`n v. City of Dover, et al.
C.A. No. K18C-10-023 WLW
March 14, 2019

response, in opposition,5 and on December 17, 2018, the Court denied the Plaintiffs
application.6

4. On December 19, 2`018, Mr. Pepper, acting in his capacity as the
Defendants’ legal counsel, filed an amended answer to the Plaintiffs’ amended
complaint.7

5. The Plaintiffs filed their latest complaint, again pro se, in this Court on
February 22, 2019. Here, the Plaintiffs seek sanctions against Mr. Pepper pursuant to
Rule 11.8 The crux of the Plaintiffs’ argument is that Mr. Pepper “misrepresent[ed]
facts and the standards of applicable and controlling law” in his December 19, 2018
amended answer.9 Mr. Pepper, in opposition, filed a timely response on February 28,

2019.10

5 D. Reply to Pl. Application for Appointment of Counsel, Dec. 7, 2018.

6 Shahin vs. City ofDover & Cheryl Bundek, 2018 WL 6653040, at *1 (Del. Super. Dec. 17,
2018) (the Plaintiffs filed a motion for reargument on December 27, 2018, which was denied by the
Court. Shahin v. City of Dover & Cheryl Bundek, 2019 WL 162571, at *1 (Del. Super. Jan. 9, 2019),
appeal dismissed, Shahin v. City of Dover & Cheryl Bundek, No. 51, 2019, slip op. at 3, 2019 WL
994536, at *1 (Del. Supr. Feb. 28, 2019)).

7 D. Amended Reply, K18C-10-023 WLW (Del. Super. Dec. 19, 2018). The Plaintiffs’
amended complaint is the basis for the Plaintiffs’ current filing against Mr. Pepper, See Pl. Amended
Complaint, K18C-10-023 WLW (Del. Super. Nov. 29, 2018).

8 See Pl. MO‘[. Feb. 22, 2019.
9 Id. at 1.

10 D. Response, Feb. 28, 2019. The Court further notes its receipt of the Plaintiffs’ March 8,
2019 “Objections to Mr. W. W. Pepper’s Response” of February 28, 2019. Pursuant to Superior
Court Civil Rule of Procedure Rule 7, the Court may order a reply to an answer, but if not, no other
pleadings shall be allowed Super. Ct. Civ. R. 7(a) (emphasis added). Here, the Court has not

Mazen and Nina Shahin v. City of Dover, et al.
C.A. No. K18C-10-023 WLW
March 14, 2019

PARTIES’ CONTENTIONS
6. The Plaintiffs specifically take issue with this excerpt from Mr. Pepper’s
amended reply:

[t]he final decision of the Delaware Human Relations Commission was issued
on June 21 , 2017. Pursuant to 6 Del. C. § 4612(I), a petition for judicial review
must be filed not later than 30 days after the entry of the order. Plaintiffs
waited until May 17, 2018, to file an action in the Court of Chancery. The
amended complaint in this action is filed on November 29, 2018. Therefore, to
the extent that this action seeks judicial review of the final order of the
Delaware Human Relations Commission, it must be dismissedll

The Plaintiffs assert that this excerpt is inapplicable to the facts and law of the case
and that Mr. Pepper presented it to harass and intimidate the Plaintifst who are
national minoritiele and were seeking the appointment of professional attorney (sic)
to defend them specifically against such intentional intimidation and harassment.”13

7. In opposition, Mr. Pepper states that the excerpt was added to his amended

pleading properly as a statute of limitations affirmative defense to avoid waiver in the

ordered, nor granted permission, to the Plaintiffs to file a reply to Mr. Pepper’s response. Therefore,
the Court Will not consider this pleading in its decision, but assuming arguendo that it did, the Court
Would find, for reasons forthcoming, that the arguments, some of Which border on outrageous, are
without merit.

ll Pl. Mot. at 1.

12 Id. at 1-2 (emphasis added). The Plaintiffs have consistently made similar discrimination
claims in their experience as Delaware pro se litigants against virtually every level of the Delaware
judiciary system, in some cases, where the particular Court did not find in their favor.

13 Pl. Mot. at 2 (the Plaintiffs appear to take issue With Mr. Pepper’s amended response to
their amended complaint, not with their application for the appointment of counsel.).

Mazen and Nina Shahin v. City of Dover, et al.
C.A. No. K18C-10-023 WLW
March 14, 2019

event the Plaintiffs’ complaint could be construed to be an appeal from the
Commissioned decision,14 He further denies the Plaintiffs’ claim that the excerpt in
any way harasses or intimidates the Plaintiffs.15
LEGAL STANDARD

8. By representing to the Court by signing, filing, submitting, or later
advocating a pleading, written motion, or other paper, an attorney or unrepresented
party is certifying that to the best of the person's knowledge, information, and belief,
formed after an inquiry reasonable under the circumstances, ....16 If, after notice and
a reasonable opportunity to respond, the Court determines that there has been a
violation, the Court may, subject to certain conditions, impose an appropriate sanction
upon the attomeys, law firms, or parties that are responsible for the violation.17

DISCUSSION

9. Here, the Court finds the Plaintiffs’ arguments without merit and agrees
with Mr. Pepper that the contested portion of his amended reply was a cited
affirmative defense pursuant to Superior Court Civil Procedure Rule 8 (hereinafter

¢cRule 811).18

14 D. Reply at 1111 2-3.

15 Id. at 11 3.

16 See Super. Ct. Civ. R. 11(b)(1)-(4).
17 Id. at 1 1(c).

18 See Id. at 8(e) (A party may set forth two or more statements of a defense alternatively or
hypothetically and to state as many separate defenses as the party has, regardless of consistency.).

Mazen and Nina Shahin v. City of Dover, et al.
C.A. No. K18C-10-023 WLW
March 14, 2019

10. Rule 8, in pertinent part, provides:

[i]n pleading to a preceding pleading, a party shall set forth a]j‘irmatively
accord and satisfaction, arbitration and award, assumption of risk, contributory
negligence, discharge in bankruptcy, duress, estoppel, failure of consideration,
fraud, illegality, injury by fellow servant, license, payment, release, res
judicata, statute of frauds, statute of limitations, waiver, and any other matter
constituting an avoidance or affirmative defense.19

Also relevant here is Superior Court Rule of Civil Procedure 8(e)(2), which

provides:

[a] party may set forth two or more statements of a claim or defense alternately

or hypothetically, either in one count or defense or in separate counts or

defenses. When two or more statements are made in the altemative, and one of

them if made independently would be sufficient, the pleading is not made

insufficient by the insufficiency of one or more of the alternative statements.

The party may also state as many separate claims or defenses as the party has

regardless of consistency.20

1 1. In this case, the Court finds that Mr. Pepper, an experienced and respected
attorney in Delaware, stated an affirmative defense, based on his interpretation of the
Plaintiffs’ amended complaint. He clearly did so pursuant to this Court’s rules.

12. As a result, this Court finds that Mr. Pepper’s amended pleading was
proper and not motivated, in part, by the Plaintiffs’ national ethnicity or status as

“national minorities.”21 Mr. Pepper did not harass and/or intimidate the Plaintiffs,

21 Pl. Mot. at 1-2.

Mazen and Nina Shahin v. City of Dover, et al.
C.A. No. Kl 8C-10-023 WLW
March 14, 2019

and the Plaintiffs have failed to produce any evidence that would suggest otherwise.
Likewise, the Plaintiffs have further failed to demonstrate that Mr. Pepper’s
employment of the statute of limitations as an affirmative defense, constituted
harassment and/or intimidation.

13. Assuming arguendo, the Court had found a defect in Mr. Pepper’s reply,
the Court also agrees with Mr. Pepper that the Plaintiffs’ appropriate remedy would
have been to move to strike that portion of the amended response, pursuant to
Superior Court Rules of Civil Procedure l2(f) (hereinafter “Rule 12(f)”).22

14. Rule 12(f) provides that:

[u]pon motion made by a party before responding to a pleading or, if no
responsive pleading is permitted by these Rules, upon motion made by a party
within 20 days after the service of the pleading upon the party or upon the
Court’s own initiative at any time, the Court may order stricken from any
pleading any insufficient defense or any redundant, immaterial, impertinent or
scandalous matter.

15. In this case, even if the Plaintiffs had filed a Rule 12(f) motion on the same
date as they filed their motion to sanction Mr. Pepper, the motion would have been
untimely, and in any event, the Court would have still denied the motion.23

16. In order for the Plaintiffs’ hypothetical l2(f) motion to be timely, the
motion would have had to have been filed on or before January 8, 2019. In this case,

the Plaintiffs did not file a 12(f) motion, or any motion, on January 8, 2019. As a

22 See Super. Ct. Civ. R. 12(f) (emphasis added).

23 See Super. Ct. Civ. R. 12(f).

Mazen and Nina Shahin v. City of Dover, et al.
C.A. No. KlSC-10-023 WLW
March 14, 2019

result, any 12(f) motion to strike now, or in the future regarding this specific issue,
is now untimely.
CONCLUSION
17. Therefore, because the Court finds no grounds to grant sanctions against
Mr. Pepper for the foregoing reasons, the Plaintiffs’ Motion for Sanctions against Mr.
Pepper is hereby DENIED WITH PREJUDICE.
IT IS SO ORDERED.

/s/ William L` Witham. Jr.
Resident Judge

WLW/dmh