Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1:05-cv-00393-GMS

Document 4

Filed 07/01/2005

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE William J. BOARMAN, as President and on behalf of and for the use of the membership of the INTERNATIONAL ALLIED PRINTING TRADES ASSOCIATION, an unincorporated association, et al., Plaintiffs, v. PROFORMA PRINT MARKETING, TOTAL PRINTING SYSTEMS, and DELAWARE TRANSIT CORPORATION, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 05-393-GMS

STATE DEFENDANT DELAWARE TRANSIT CORPORATION'S MOTION TO DISMISS NOW COMES, Delaware Transit Corporation, an instrumentality of the State of Delaware, by and through its undersigned counsel, and hereby moves this Honorable Court to enter an Order dismissing Plaintiffs' complaint pursuant to Fed.R.Civ.Proc. 12(b)(5) and 12(b)(6) for failure to state a claim upon which relief can be granted and failure to sufficiently complete service of process to Delaware Transit Corporation as a State entity. In support of its motion, State Defendant Delaware Transit Corporation presents a Brief in Support of its Motion to Dismiss, which is filed simultaneously herewith.

Case 1:05-cv-00393-GMS

Document 4

Filed 07/01/2005

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STATE OF DELAWARE DEPARTMENT OF JUSTICE _/s/ Laura L. Gerard___________ Laura L. Gerard (DE I.D. #3202) Deputy Attorney General 820 North French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorney for State Defendant Delaware Transit Corporation Dated: July 1, 2005

Case 1:05-cv-00393-GMS

Document 4

Filed 07/01/2005

Page 3 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE William J. BOARMAN, as President and on behalf of and for the use of the membership of the INTERNATIONAL ALLIED PRINTING TRADES ASSOCIATION, an unincorporated association, et al., Plaintiffs, v. PROFORMA PRINT MARKETING, TOTAL PRINTING SYSTEMS, and DELAWARE TRANSIT CORPORATION, Defendants. ORDER WHEREAS State Defendant Delaware Transit Corporation is immune from liability pursuant to the Eleventh Amendment Sovereign Immunity, 18 Del.C. § 6511, and 2 Del.C. § 1329(a); and WHEREAS Plaintiffs have failed to state a claim upon which relief may be granted pursuant to Fed.R.Civ.Proc. 12(b)(6); WHEREAS there was insufficient service of process upon the Attorney General's Office pursuant to Fed.R.Civ.Proc. 4(j) and 10 Del.C. § 3103(c); and IT IS SO ORDERED this ________ and of ____________, 2005, that State Defendant Delaware Transit Corporation's Motion to Dismiss is hereby GRANTED. ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No. 05-393-GMS

___________________________________ Judge Gregory M. Sleet

Case 1:05-cv-00393-GMS

Document 4

Filed 07/01/2005

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CERTIFICATE OF MAILING AND/OR DELIVERY The undersigned certifies that on July 1, 2005, she caused the attached State Defendant Delaware Transit Corporation's Motion to Dismiss and proposed Order, to be electronically filed by CM/ECF and delivered to the following persons in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Joseph J. Rhoades, Esquire 1225 King Street, 12th Floor P.O. Box 874 Wilmington, DE 19801 Attorney for Plaintiffs ProForma Print Marketing 1201 Society Drive Claymont, DE 19703 MANNER OF DELIVERY: ___ _X_ _ __ ___ One true copy by facsimile transmission to each recipient. Two true copies by first class mail, postage prepaid, to each recipient. Two true copies by Federal Express. Two true copies by hand delivery to each recipient. STATE OF DELAWARE DEPARTMENT OF JUSTICE __/s/ Laura L. Gerard Laura L. Gerard (DE I.D. #3202) Deputy Attorney General Carvel State Office Building 820 North French Street, 6th Floor Wilmington, DE 19801 Attorney for State Defendant Delaware Transit Corporation Total Printing Systems P.O. Box 375 Newton, IL 62448