Free Remark - District Court of Delaware - Delaware

Case 1 :05-cv-00872-SLB Document 44 Filed 06/19/2006 Page 1 of 2
E-Mail Request for Emergency Relief
1. Case Number:
2. Check the box that applies:
Requesting a teleconference with the parties and the court
Requesting an in-person conference with the parties and the court
{Li Requesting either of the above listed options at the court‘s determination
3, BRIEFLY describe the reason for this emergency request:
§We represent Plaintiff and its counsel, J.R. Julian, Esq. in connection with the i
§Defendants' Motions for Sanctions. The motions were Hled May 11 after final
ijudgment was entered by the Court on April 11 and closed by the Clerk on April 20.
{Because the Defendants' Motions were clearly untimely under the Third Circuit's i
jsupervisory rule established in Pensiero v. Lingle, 847 F.2d 90, 99 (3d Cir. 1988) {
,(requiring " that all motions requesting Rule 11 sanctions be filed in the district court
before the entry of a final judgment") and its progeny e.g. Mellon Bank, 951 F.3d
1399(3d Cir.1991) and because we have an extension to file responsive brief on the .
merits by June 23, we ask the Court to modify that schedule so briefing on the
motions should be stayed pending this Court‘s determination of this dispositive issue}
Pensiero applies to dismissal of a complaint, Simmerman v. Corino 27 F.3d 58 ( 3d 2
Cir. 1994). Defendants in a footnote relied on 7th Cir law for timeliness without g
brim¤in.¤-to.the.lCo11rti.s.auention-control.l.ino.a.o.cl,.conflictil1¤lIhird_Circ1iiLBrecedenLll..§
*Any text added beyond the limits of this space will be disregarded by the court.
4. Name of opposing counsel contacted about this request:lE;j_D_gra_n_;_M_Hg_o£l — __,_;l
5- lE< r;2.$.l.0.s1ls<2y.ns;.<2l..ts>ltb.is».; §Mr, Hood has not responded.
{Mr. Doran wrote to us that he believes an e-mail request to Your Honor is an j
Tnappropriate method to communicate this issue and objects to the substance.
6. Name of local counsel making this
7. Tod ay's Date: "lJ“u°nMe”16W,
For court use only:
[II A teleconference will be held on to be coordinated and
initiated by
I;] An in-person discovery conference will be held on:
w Other:
Either file a motion to stay or include timeliness arguments in
its response; i.e. Court agrees with defendants.

Case 1:05-cv-00872-SLR Document 44 Filed 06/19/2006 Page 2 of 2
Opposing CounseI's Response to E-Mall Request for Emergency Relief
1. Case Number:
2. BR_lEFl.Y state your response to the emergency request made by opposing counsel:
This is not an emergency. Plaintiff seeks to discuss its argument that the Rule 11
Motion is untimely. Plaintiff may raise this in its response. In any event, the
decisions cited by Mr. Scialpa were decided prior to the amendments to Rule 11,
which now provides for prior notice of any potential tiling of the Rule 11 Motion. The
Third Circuit's supervisory rule was adopted before and did not contemplate these -
amendments. Moreover, the underlying rationale for the Third Circuit‘s prior rule -—
the avoidance of multiple appeals -- has been eroded, as reflected. by Dipaolo v.
Moran, 407 F.3d 140 (3d Cir. 2005). In this case, defendants served their Rule 11
Motion on January 18, 2006, long before the dismissal of plaintiffs' Complaint.
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3. Name of local counsel submitting this response: `"E’ri”n"Edwards" H ```` I '
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