Diversified Property Solutions, LLC v. Spectrum Tax Consultants USA, Inc.

lN THE SUPERIOR COURT OF THE STATE OF DELAWARE
Diversified Property Solutions, )
LLC, )
)
Plaintiff, )
)
v§_; ) C.A. No. Nl5C-0l-O39 CEB
)
Spectrum Tax Consultants )
USA, Inc., )
)
Defendant. )
This is a fairly routine commercial dispute in which the plaintiff has moved
for summary judgment. The defense filed an answering brief and I permitted the
plaintiff to file a reply brief and expected to consider the pleadings on the briefs.
But thereafter, the defense requested oral argument on the motion, and in
light of the plaintiffs reply brief, defense counsel requested permission to file a sur
reply. Defense counsel’s request was reiterated when I called the parties together
for routine motions on May l8, 2016. At that time, defense counsel informed the
Court that it filed a motion "to ask [t]he Court to either schedule argument . . . or
submit the motion on briefs." The Court clarified defense counsel’s request as
follows:
The Court: . . . I’m here because you are trying to ring my bell and
tell me either call it for oral argument or file a sur reply
brief, one or the other. ls that right?
Counsel: Your Honor, yes. . . . and l would also like [to] respond
to the waiver argument, whether it’s at oral argument or
in writing.
So, it all seemed clear enough to the Court. But, if there was any doubt, the Court
reiterated the two alternatives throughout the hearing:
The Court: I can do this by paper or l can do it by argument. . . .
>l< >l< >l< >l< >l<
The Court: . . . So it doesn’t really matter to me whether l see a reply
or a sur reply or decide it on the briefs or do this oral
argument.
0ne way or the other l want to hear fully from both
sides.
There was a choice to be made: either oral argument or a sur reply brief, not
both. The two options were always separated by "or," a conjunction which is
"used as a function word to indicate an alternative."l
The Court felt that permitting a sur reply would prompt a request for a sur
sur reply ad infinz'tum. After discussing it with both parties, the Court concluded
that the more prudent option was to schedule oral argument during which both
parties would have the opportunity to fully express their position. We scheduled
argument for Monday, June 13, 2016. Accordingly, defense counsel’s request for
permission to file a sur reply is DENIED.
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C arles E. B'c__._i’f__l_'ii>,Y"‘-§-n
l Or, Merriam-Webster’s Collegiate Dictionary (l0th ed. 1996); _see also Schoolhouse Rock!.'
Conjunction Junction, `` (last visited June 8,
2016) ("And then there’s ‘or.’ O-R, when you have a choice like ‘this or that."’).
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