Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:04-cv-01530-JJF

Document 40

Filed 08/01/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHN S. SHIPLEY, et al., Plaintiffs, v. B & F TOWING COMPANY and OWNERS, Defendants. ) ) ) ) ) ) ) ) ) )

C.A. No 04-1530 JJF

DEFENDANT B&F TOWING COMPANY'S MOTION TO DISMISS JOHN S. SHIPLEY'S AMENDED COMPLAINT 1. On December 20, 2004, Mr. Shipley ("Shipley") filed his complaint in this

action against B&F Towing Company1 (D.I. 1). On April 10, 2006, Shipley filed a Motion for Time to Leave to Ammend (sic) the Complaint (D.I. 23) (the "Motion to Amend") to add additional party defendants, including New Castle County. B&F opposed the Motion to Amend (D.I. 27) ("Opposition to the Motion to Amend"). 2. On April 17, 2006, B&F filed a Motion for Summary Judgment and an

opening brief in support thereof (D.I. 24 and 25) (the "Motion for Summary Judgment"). 3. On June 13, 2006, this Court issued its Memorandum Opinion and Order

granting B&F's Motion for Summary Judgment (D.I. 31-33) (the "Summary Judgment Order").

In the Complaint, the defendant is identified as "B&F Towing Company, and Owners A business organized and existing under the laws of the United States of America." To defendant's knowledge, no such entity exists. The correct corporate name of the defendant is B&F Towing Company (hereinafter, "B&F").
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Case 1:04-cv-01530-JJF

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4.

On June 28, 2006, Shipley filed a Motion to Reconsider the Summary

Judgment Order (D.I. 34) (the "Motion to Reconsider"). 5. On July 13, 2006, this Court granted Shipley's Motion to Amend (D.I. 36).

On July 18, 2006, this Court denied Shipley's Motion to Reconsider (D.I. 37). 6. On July 28, 2006, Shipley filed his Amended Complaint (D.I. 38) (the

"Amended Complaint"). A copy of the Amended Complaint is attached hereto as Exhibit A. 7. It is abundantly clear from the Summary Judgment Order and the Order

granting the Motion to Amend that B&F is no longer a party to this action. In the first instance, the Summary Judgment Order dismissed each count of Shipley's Complaint against B&F. Nothing has changed. Moreover, in the Order granting the Motion to Amend, this Court explicitly stated that B&F would not be prejudiced by the amendment because B&F's Motion for Summary Judgment had been granted. However, Shipley inappropriately

continues to include B&F in his Amended Complaint. Accordingly, dismissal of B&F as a party to this action with prejudice and an order directing Shipley to pay B&F for its attorney's fees and costs in filing this Motion are appropriate.

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WHEREFORE, B&F requests this Court enter an order substantially in the form attached hereto as Exhibit B dismissing Shipley's Amended Complaint against B&F and awarding B&F reasonable attorney's fees and costs in bringing this Motion. Dated: August 1, 2006 Wilmington, Delaware SMITH, KATZENSTEIN & FURLOW LLP

/s/ Etta R. Wolfe Laurence V. Cronin (Del. ID No. 2385) Etta R. Wolfe (Del. ID No. 4164) 800 Delaware Avenue, 7th Floor P.O. Box 410 Wilmington, DE 19899 (302) 652-8400 Attorneys for Defendant B & F Towing Company

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