Free Motion to Dismiss - District Court of Delaware - Delaware

Case 1:06-cv-00581-GMS

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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

MOTION OF DEFENDANT, ANTHONY COLLICK, TO DISMISS PLAINTIFF'S COMPLAINT DUE TO THE STATUTE OF LIMITATIONS 1. Introduction: Plaintiff's Complaint seeks damages for personal injuries sustained by

Francis Tully while at the residence of Defendant, Collick, who resides in New Castle County, Delaware. The Plaintiff initially filed a suit in the United States District Court for the Eastern District of Pennsylvania on July 30, 2006. Plaintiff's Complaint alleges that the injury occurred on August 5, 2004. The Defendant filed a Motion in the United States District Court for the Eastern District of Pennsylvania seeking to dismiss the Plaintiff's Complaint since that Court did not have jurisdiction over the Defendant. An alternative relief sought by the Defendant was a transfer of venue. See copy of Defendant's Motion to Dismiss attached hereto as Exhibit "A". 2. In its Order dated September 11, 2006, Judge Giles of the United States District Court

for the Eastern District of Pennsylvania concluded that the Court had no personal jurisdiction over the Defendant and ordered transfer of venue to Delaware. See copy of Order attached as Exhibit "B". 3. The same Complaint that Plaintiff had filed in the Eastern District of Pennsylvania was

filed in the United States District Court for the District of Delaware docket on 9/15/2006. Exhibit "C". 4. This is Defendant's Motion to Dismiss the Complaint. 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

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the United States Court of Appeals for the Third Circuit in Barber Young, Personal Representative of the Estate of James Young v. Clantech, Inc., 863 F.2d 300; 1988 U.S. App LEXIS 17517. 5. In that case the United States Court of Appeals through the Third Circuit considered the

same issue, only that law suit was filed in New Jersey. The Court in that matter considered the question of whether New Jersey's statute of limitations is tolled when a Plaintiff files a law suit against a Defendant in a Court which does not have in personam jurisdiction over the Defendant. The Appellant Court concluded that the New Jersey statute of limitations is not tolled by the filing of such a law suit. The Court reasoned that the exception contained in the doctrine of equitable remedy of tolling the statute of limitations could not be extended so far as to encompass this type of matter. The Court further reasoned that personal jurisdiction over a party was a defect that was qualitatively different from filing in a court which had personal jurisdiction over a party but lacked subject matter jurisdiction. 6. 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. 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. WHEREFORE, Defendant, Anthony Collick, respectfully requests that this honorable Court enter in an Order dismissing Plaintiff's Complaint with prejudice. RESPECTFULLY SUBMITTED, REGER RIZZO KAVULICH & DARNALL LLP

Dated: October 30, 2006

/s/ Cynthia G. Beam, Esquire Cynthia G. Beam, Esquire Delaware State Bar I.D. No. 2565 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 _____________, 2006, upon consideration of the Motion of Defendant, Anthony Collick, to Dismiss Plaintiff's Complaint Due to the Statute of Limitations, and any response thereto; IT IS HEREBY ORDERED that the Motion of Defendant, Anthony Collick, to Dismiss Plaintiff's Complaint Due to the Statute of Limitations is GRANTED 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 30th day of October, 2006 that a true and correct copy of the Motion of Defendant, Anthony Collick, to Dismiss Plaintiff's Complaint Due to Statute of Limitations was served electronically and by first class mail, postage prepaid upon the following: Frank Marcone, Esquire 2530 N. Providence Road Media, PA 19063 REGER RIZZO KAVULICH & DARNALL LLP

/s/ Cynthia G. Beam, Esquire Cynthia G. Beam, Esquire Delaware State Bar I.D. No. 2565 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Dated: October 30, 2006

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