Free Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FRANCIS TULLY, Plaintiff, v. ANTHONY COLLICK, Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-0581 (GMS)

TRIAL BY JURY OF SIX DEMANDED

RESPONSE OF DEFENDANT, ANTHONY COLLICK, TO PLAINTIFF'S MOTION TO REOPEN THE CASE 1. Plaintiff initiated the initial Complaint on July 30, 2006 in the United States

District Court for the Eastern District of Pennsylvania, alleging damages from an injury that occurred on August 5, 2004. 2. Defendant filed a motion to dismiss the Complaint for lack of personal

jurisdiction. On September 11, 2006, as an alternative relief, Judge Giles of the United States District Court for the Eastern District of Pennsylvania ordered transfer of venue to the Delaware District Court to resolve the issue of lack of personal jurisdiction. See copy of Order attached as Exhibit "A". 3. On September 15, 2006, Plaintiff filed the same Complaint in the United State

District Court for the District Court of Delaware as they did in the United States District Court for the Eastern District of Pennsylvania. See copy of Complaint attached as Exhibit "B". 4. On September 19, 2006, Plaintiff and Defendant's counsel were sent letters by the Court directing them to obtain association with local counsel on or before October 19, 2006 pursuant to Local Rule 83.5(d) of the Civil Practice for the United States District Court for the District of Delaware. Defendant, through local counsel filed an Answer to the Complaint on

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October 5, 2006 and later filed a Motion to Dismiss on or about October 30, 2006. See Copy of Answer and Motion to Dismiss as Exhibits "C" and "D" respectively. 5. On November 17, 2006, the Court entered an Order to Show Cause due to

Plaintiff's failure to retain local counsel and failure to answer Defendant's Motion to Dismiss. Plaintiff was given 30 days to show cause or the case would be dismissed without further notice pursuant to District of Delaware Local Rule 41.1. See Order attached as Exhibit "E". Contrary to the rules and letter sent to him on September 19, 2006 and without association with local counsel, out of state attorney, Frank J. Marcone filed a Response to Defendant's Motion to Dismiss on November 29, 2006. 6. 7. On December 20, 2006, the case was dismissed by the Court. On February 12, 2006, Albert Greto, a Delaware licensed attorney, finally filed his

entry of appearance for Plaintiff, nearly two months after the case was dismissed. At the time of the entry of appearance, Pennsylvania attorney Frank J. Marcone was admitted pro hac vice for Plaintiff. 8. It was not until March 28, 2007, nearly three months after the dismissal of the

case, that Plaintiff filed its Motion to Reopen the Case. 9. Approving the reinstatement of the case would be futile since it is time-barred by

the Statute of Limitations. The action is time-barred under 10 Del. C. §8119, Delaware's two year statute of limitations for personal injury allegations. The Delaware statute of limitations is not tolled when a Plaintiff files a law suit against the Defendant in a Court which does not have in personam jurisdiction over the Defendant. This similar issue was raised in the United States Court of Appeals for the Third Circuit in Barber Young, Personal Representative of the Estate of

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James Young v. Clantech, Inc., 863 F.2d 300 (3d Cir., 1988). In the case at bar, the District Court for the Eastern District of Pennsylvania specifically held that they did not have personal jurisdiction over the Defendant. The alleged injury occurred on August 5, 2004. See Exhibit "B" at paragraph 4. The Complaint was not filed with the U.S. District Court for the District of Delaware, which had personal jurisdiction over the Defendant, until September 13, 2006. Therefore, this claim is time-barred by the applicable two year statute of limitations for the State of Delaware. 10. Although Plaintiff does not cite any authority in his Motion to Reopen, Rule 60(b) of the Federal Rules of Civil Procedure provides a mechanism for parties to obtain relief from judgment or order. See Fed. R. Civ. P. 60(b). Motions filed under Rule 60(b) are committed to the "sound discretion" of the district court. Ross v. Meagon, 638 F.2d 646, 648 (3d Cir. 1981). However, relief under Rule 60(b) is available only where the "overriding interest in the finality and repose of judgments may properly be overcome." Martinez-McBean v. Government of the Virgin Islands, 562 F.2d 908, 913 (3d Cir. 1977). Relief under Rule 60(b) remedy is "extraordinary, and special circumstances must justify granting relief under it." Page v. Schweiker, 748 F.2d 150, 158 (3d Cir. 1986). It is established law that "a legal error, without more cannot justify granting a Rule 60(b) motion." Smith v. Evans, 853 F.2d 155, 158 (3d Cir. 1988). Plaintiff has failed to establish that there are extraordinary and special circumstances in the instant case that would justify a Rule 60(b) remedy. Plaintiff did not claim that the dismissal should be revoked because of a mistake, inadvertence, surprise, excusable neglect, newly discovered evidence or fraud or misconduct by the Defendant. In fact, Plaintiff's only basis for the Motion to Reopen is that Plaintiff's out of state counsel was unaware that his response, filed

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without association with local counsel against the Rules, would not be sufficient as a response to the Order of Rule to Show Cause. Plaintiff's ignorance of substantial law, the requirement of out of state counsel to associate with local counsel pursuant to Local Rule 83.5(d) of the Civil Practice for the United States District Court for the District of Delaware in order to practice law in the district as a pro vice admitted attorney, is not extraordinary nor a special circumstance for which a Rule 60(b) remedy should be afforded. WHEREFORE, Defendant, Anthony Collick, respectfully requests that this honorable Court enter in an Order denying Plaintiff's Motion to Reinstate the Above-Captioned Case with prejudice. RESPECTFULLY SUBMITTED, REGER RIZZO KAVULICH & DARNALL LLP

Dated: April 12, 2007

/s/Louis J. Rizzo Louis J. Rizzo Delaware State Bar I.D. No.3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FRANCIS TULLY, Plaintiff, v. ANTHONY COLLICK, Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-0581 (GMS)

TRIAL BY JURY OF SIX DEMANDED

ORDER

AND NOW, this _____ day of _____________, 2007, upon consideration of the Response of Defendant, Anthony Collick, to Plaintiff's Motion to Reopen Case, and any response thereto; IT IS HEREBY ORDERED that the Motion of Plaintiff to Reopen Case is DENIED and Plaintiff's Complaint is dismissed with prejudice. BY THE COURT:

The Honorable Gregory M. Sleet

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FRANCIS TULLY, Plaintiff, v. ANTHONY COLLICK, Defendant. ) ) ) ) ) ) ) ) )

C.A. No.: 06-0581 (GMS)

TRIAL BY JURY OF SIX DEMANDED

CERTIFICATE OF SERVICE I, the undersigned, do hereby certify on this 12th day of April, 2007 that a true and correct copy of the Response of Defendant, Anthony Collick, to Plaintiff's Motion to Reopen Case was served electronically and by first class mail, postage prepaid upon the following: Frank Marcone, Esquire 2530 N. Providence Road Media, PA 19063 Albert Greto O'Brien, Belland & Bushinski LLC 1701 Shallcross Avenue, Suite C P.O. Box 756 Wilmington, DE 19899-0756 REGER RIZZO KAVULICH & DARNALL LLP

Dated: April 12, 2007

/s/Louis J. Rizzo Louis J. Rizzo Delaware State Bar I.D. No.3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant

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