Free Reply Brief - District Court of Delaware - Delaware

Case 1:07-cv-00045-SLR-LPS

Document 45

Filed 03/25/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHNNIE M. DuBOSE Plaintiff, v. MICHAEL WALSH, in his official capacity as New Castle County Sheriff; AMERICAN BUSINESS CREDIT (ABC); ROBERT K. BESTE, JR; and MAGGIE CLAUSELL, Esq. Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 07-45-SLR/LPS

DEFENDANT MAGGIE CLAUSELL, ESQ.'S REPLY BRIEF TO PLAINTIFF'S ANSWERING BRIEF IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS, MOTION TO SUPPLEMENT MOTION TO DISMISS, JOINDER MOTION AND IN THE ALTERNATIVE CROSS-MOTION FOR SUMMARY JUDGMENT COMES NOW, Defendant Maggie Clausell, Esq. ("Ms. Clausell"), by and through undersigned Counsel, and respectfully replies to the Answering Brief of Plaintiff in support of his opposition to Defendant Motion to Dismiss. Motion to Supplement Motion to Dismiss, Motion to Joinder in the alternative plaintiff Cross Motion for Summary Judgment. In support thereof Ms. Clausell states to wit: It is Ms. Clausell's position that Plaintiff's Complaint (D.I. #1) should be dismissed for the reasons previously stated in her earlier Motion to Dismiss and Motion to Join. (D.I. #12). In as much as Plaintiff's brief is not responsive to Ms. Clausell's Motion to Dismiss/Motion to Join, and is instead styled as a cross-motion for summary judgment, this brief is premature. Federal Rule of Civil Procedure Rule 56 requires the moving party to prove that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. Pro. 56. As the pleadings stage has not ended and discovery has not

Case 1:07-cv-00045-SLR-LPS

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Filed 03/25/2008

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yet begun, Ms. Clausell has not had the opportunity to respond to the veracity of Plaintiff's Complaint and determine whether there exists material issues of fact. Therefore summary judgment is premature. Ms. Clausell respectfully submits that the Plaintiff's Complaint should be dismissed for insufficiency of service of process as the Plaintiff's own admission contained within his return of service indicates that he did not properly effectuate service of the Summons and Complaint upon Maggie Clausell. Furthermore, the Complaint should be dismissed for lack of subject matter jurisdiction, as argued by the co-defendant Robert K. Beste, Jr. in his Motion to Dismiss, as well as be dismissed for failure to state a claim against Maggie Clausell as required by Fed. R. Civ. P. 12(b)(6). WHEREFORE, Defendant Maggie Clausell, Esq., respectfully requests that this Court dismiss Plaintiff's Complaint as it pertains to Maggie Clausell.

TIGHE & COTTRELL, P.A.

/s/ Paul Cottrell Paul Cottrell, Esq. (DE I.D. # 2391) Patrick M. McGrory Esq. (DE I.D. # 4943) One Custom House, Suite 500 P.O. Box 1031 Wilmington, Delaware 19899 (302) 658-6400 [email protected] Attorneys for Defendant Maggie Clausell, Esq. Dated: March 25, 2008

Case 1:07-cv-00045-SLR-LPS

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Filed 03/25/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JOHNNIE M. DuBOSE Plaintiff, v. MICHAEL WALSH, in his official capacity as New Castle County Sheriff; AMERICAN BUSINESS CREDIT (ABC); ROBERT K. BESTE, JR; and MAGGIE CLAUSELL, Esq. Defendants. ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 07-45-SLR/LPS

CERTIFICATE OF SERVICE I, Paul Cottrell, Esquire, hereby certify that on March 25th, 2008, I caused to be served a true and correct copy of the attached Defendant Maggie Clausell, Esq.'s Reply Brief to Plaintiff's Answering Brief in Opposition to Defendants' Motion to Dismiss, Motion to Supplement Motion to Dismiss, Joinder Motion and in the Alternative Cross-Motion for Summary Judgment upon the following in the manner indicated: Electronic Mail using CM/ECF Robert K. Beste, Jr. Cohen Seglias Pallas Greenhill & Furman PC Nemours Building, Suite 1130 1007 Orange Street Wilmington, DE 19801 (302) 425-5089 First Class, US Mail, Postage Prepaid Johnnie M. DuBose 4 Teakwood Lane Wilmington, DE 19801 American Business Credit, Inc. c/o George L. Miller, Chapter 7 Trustee Miller Coffey Tate LLP 8 Penn Center, Suite 950 Philadelphia, PA 19103 (SIGNATURE ON NEXT PAGE) Donald L. Gouge, Jr. Heiman, Gouge & Kaufman, LLP 800 King Street, Suite 303 P.O. Box 1674 Wilmington, DE 19899 (302) 658-1800

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TIGHE & COTTRELL, P.A.

/s/ Paul Cottrell Paul Cottrell, Esq. (DE I.D. # 2391) Patrick M. McGrory Esq. (DE I.D. # 4943) One Custom House, Suite 500 P.O. Box 1031 Wilmington, Delaware 19899 (302) 658-6400 [email protected] Attorneys for Defendant Maggie Clausell, Esq. Dated: March 25, 2008