Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:07-cv-00060-GMS

Document 20

Filed 03/05/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ELAN SUISSE, LTD., Plaintiff, v. ROBERT D. CHRIST, Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 07-00060 (GMS) JURY TRIAL DEMANDED

PLAINTIFF'S MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO CONSOLIDATE ACTIONS Plaintiff Elan Suisse Ltd. Hereby responds to and opposes the Motion to Consolidate Actions of defendant Robert D. Christ, and states as follows: 1. Initially, Mr. Christ's motion is premature. Mr. Christ wishes to consolidate

the present action with Christ v. Cormick, et al., Civil Action No. 06-275-GMS. That action is currently subject to a pending motion to dismiss. Moreover, on March 2, 2007, Mr. Christ filed an Amended Complaint, which will result in a renewed motion to dismiss and supplemental briefing to address the amendment. If that action is dismissed (as it should be), then the present motion will be moot. As there is no demonstrated urgency, this motion should be deferred pending resolution of the motion to dismiss in Civil Action No. 06-275GMS. See Madison v. Vintage Petroleum, Inc., 872 F.Supp. 340, 343-44 (S.D. Miss.1994), aff'd mem., 87 F.3d 1311 (5th Cir. 1996). 2. Beyond this, Mr. Christ has failed to establish that consolidation is warranted.

Mr. Christ claims that there are issues common to both cases. However, "The mere existence of common issues, a prerequisite to consolidation, does not require consolidation. The

Case 1:07-cv-00060-GMS

Document 20

Filed 03/05/2007

Page 2 of 4

savings of time and effort gained through consolidation must be balanced against the inconvenience, delay or expense that might result from simultaneous disposition of the separate actions." Waste Distillation Technology, Inc. v. Pan American Resources, Inc., 775 F.Supp. 759, 761 (D. Del. 1991). The differences between the two actions outweigh any similarities, such that consolidation is inappropriate. 3. First, there is a difference of parties. Although the judge in the Pennsylvania

action indicated that counsel for plaintiff in Pennsylvania "admitted" that Elan Suisse Ltd. and Elan Suisse (Pty.) Ltd. are the same entity, such admission (which was never authorized) is factually in error. Elan Suisse Ltd. is an English private limited company, as evidenced by the Certificate of Incorporation certified by the Registrar of Companies for England and Wales. (Declaration of Brett J. Cormick ¶3 & Ex. A). Elan Suisse (Pty.) Ltd. is a South African company formerly known as Podia Trading 4 (Proprietary) Limited. (Id. ¶4 & Ex.B). 4. As the unauthorized "admission" is factually incorrect, it cannot constitute

a binding judicial admission. See McCaskill v. SCI Management Corp., 298 F.3d 677, 68283 (7th Cir. 2002) (Rovner, J., concurring in the judgment). 5. The causes of action, applicable law and remedies sought are also different.

In Civil Action No. 06-275-GMS, Mr. Christ is pursuing state law claims of breach of contract and fraud, seeking liquidated damages of $250,000, which for the reasons stated in the defendants' brief in support of their motion to dismiss, will likely be decided under Pennsylvania law (as Mr. Christ was a Pennsylvania resident at the time of the alleged conduct). By contrast, in the present action Elan Suisse Ltd. seeks injunctive relief under the federal Lanham Act, and damages for commercial disparagement, which will likely be 2

Case 1:07-cv-00060-GMS

Document 20

Filed 03/05/2007

Page 3 of 4

determined under South African law, as Elan Suisse Ltd.'s domicile. See Dymond v. National Broadcasting Company, Inc., 559 F.Supp. 734 (D. Del. 1983). As such,

consolidation would unnecessarily increase discovery costs dealing with substantial nonoverlapping issues, sacrifice judicial economy and potentially confuse a jury. This militates against consolidation. Aerotel, Inc. v. Verizon Communications, Inc., 234 F.R.D. 64, 67 (S.D.N.Y. 2005). 6. Mr. Christ does not explain how consolidation will result in judicial efficiency

or minimized costs, but only makes a conclusory statement to that effect. In the absence of a showing of a genuine benefit that outweighs the risks and burdens (as described above), Mr. Christ has failed to establish that consolidation is justified or warranted. WHEREFORE, for the foregoing reasons, Elan Suisse Ltd. respectfully requests that the Court deny the Motion to Consolidate Actions.

Respectfully submitted,

/s/ David L. Finger David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766 Attorney for plaintiff Elan Suisse Ltd. Dated: March 5, 2007

3

Case 1:07-cv-00060-GMS

Document 20

Filed 03/05/2007

Page 4 of 4

CERTIFICATE OF SERVICE I, David L. Finger, hereby certify that on this 5th day of March, 2007, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF which will send electronic notification to the following counsel of record:

Thad J. Bracegirdle, Esq. Reed Smith LLP 1201 Market Street, Suite 1500 Wilmington, DE 19801

/s/ David L. Finger David L. Finger (DE Bar ID #2556) Finger & Slanina, LLC One Commerce Center 1201 Orange Street, Suite 725 Wilmington, DE 19801-1155 (302) 884-6766

Case 1:07-cv-00060-GMS

Document 20-2

Filed 03/05/2007

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ELAN SUISSE, LTD., Plaintiff, v. ROBERT D. CHRIST, Defendant. ) ) ) ) ) ) ) ) )

C.A. No. 07-60-GMS

DECLARATION OF BRETT J. CORMICK 1. My name is Brett J. Cormick. I am the sole owner of Elan Suisse, Ltd.

and Elan Suisse (Pty.) Ltd. 2. I have recently learned that in the above-captioned action, my

Pennsylvania lawyers made a representation to the Court that Elan Suisse, Ltd. and Elan Suisse (Pty.) Ltd. That representation was made without my prior knowledge or consent. Indeed, my Pennsylvania lawyers never even told me that they made that representation. Instead, I learned it from my Delaware counsel after this action was transferred to Delaware. 3. The representation made by my Pennsylvania lawyers is false. Elan

Suisse Ltd. is a private limited company organized and existing under the laws of England. A true and correct copy of the Certificate of Incorporation of Elan Suisse Ltd. is attached hereto from Exhibit A. 4. Elan Suisse (Pty.) Ltd. is an entity organized and existing under the laws

of South Africa. Elan Suisse (Pty.) Ltd. was formerly named Podia Trading 4 (Pty.) Ltd. A true and correct copy of the certificate of name change to Elan Suisse (Pty.) Ltd., as

Case 1:07-cv-00060-GMS

Document 20-2

Filed 03/05/2007

Page 2 of 2

registered by the South African Regstrar and Companies and Close Corporations is attached hereto as Exhibit B. 5. I declare under penalty of perjury under the laws of the United States and

the State of Delaware, pursuant to 28 U.S.C. §1748, that the foregoing is true and correct. Executed on this 2nd day of March, 2007 in Zimbabwe

___________________________ Brett J. Cormick

Case 1:07-cv-00060-GMS

Document 20-3

Filed 03/05/2007

Page 1 of 1

Case 1:07-cv-00060-GMS

Document 20-4

Filed 03/05/2007

Page 1 of 6

Case 1:07-cv-00060-GMS

Document 20-4

Filed 03/05/2007

Page 2 of 6

Case 1:07-cv-00060-GMS

Document 20-4

Filed 03/05/2007

Page 3 of 6

Case 1:07-cv-00060-GMS

Document 20-4

Filed 03/05/2007

Page 4 of 6

Case 1:07-cv-00060-GMS

Document 20-4

Filed 03/05/2007

Page 5 of 6

Case 1:07-cv-00060-GMS

Document 20-4

Filed 03/05/2007

Page 6 of 6