Background
Vernon Montgomery filed a notice of appeal seeking review of the Delaware Superior Court’s denial of “bellwether cases” addressing claims based on Erlinger v. United States. Montgomery said his own case had been stayed pending the bellwether ruling. He was not a party to those cases, and appeals from the bellwether decision were pending separately.
The Senior Court Clerk directed Montgomery to show cause why his appeal should not be dismissed under Delaware Supreme Court Rule 29(b), identifying his nonparty status and the absence of a final, appealable order on his own pending motion to correct an illegal sentence. Montgomery did not respond within the prescribed period. He also sought permission to file a one-page amicus curiae brief in one of the bellwether appeals.
The Court’s Holding
The Delaware Supreme Court dismissed Montgomery’s appeal under Rules 3(b)(2) and 29(b). Because Montgomery failed to respond to the show-cause notice, dismissal was deemed consented to and therefore unopposed.
The court did not expressly decide the merits of the two potential grounds identified in the show-cause notice. It separately denied Montgomery’s motion for leave to file an amicus brief because the motion did not comply with Delaware Supreme Court Rule 28.
Key Takeaways
- Failing to respond timely to a Rule 29(b) show-cause notice caused dismissal to be deemed consented to under Rule 3(b)(2).
- The order identified Montgomery’s nonparty status and the lack of a final order on his pending motion as proposed grounds for dismissal, but did not expressly adjudicate either ground on the merits.
- A motion for leave to file an amicus curiae brief must comply with Delaware Supreme Court Rule 28.
Why It Matters
The order underscores the procedural consequence of ignoring a Delaware Supreme Court show-cause notice: the resulting dismissal may be treated as consented to and unopposed. It also shows that proposed jurisdictional defects listed in such a notice should not be characterized as holdings when the court ultimately dismisses because the appellant failed to respond.