Free Memorandum in Support of Motion - District Court of Connecticut - Connecticut

Case 3:03-cv-01052-DJS

Document 45

Filed 09/08/2005

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UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT ********************************* EMMANUEL SMITH * * Plaintiff * V. * * FLEET BANK * * Defendant * ********************************* CIVIL ACTION NO: 3:03-CV-1052 (DJS)

SEPTEMBER 7, 2005

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT'S MOTION FOR DISMISSAL OF COUNTERCLAIM AND RESPONSE TO COUNTERCLAIM Defendant files this Memorandum of Law in support of its Motion for Voluntary Dismissal of Defendant's Counterclaim and voluntary dismissal of Plaintiff's response to that Counterclaim. FACTS Plaintiff instituted this action seeking millions of dollars in damages as a result of Defendant's alleged violations of Plaintiff's civil rights. By Counterclaim dated March 16, 2005, Defendant sought to recover from Plaintiff $38,230.00 which Plaintiff had wrongfully withdrawn from bank accounts owned by another person and held by Defendant.

Case 3:03-cv-01052-DJS

Document 45

Filed 09/08/2005

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Defendant then filed a Motion for Judgment on the Pleadings as to Plaintiff's Complaint and for dismissal of Plaintiff's Complaint for failure to state a claim upon which relief can be granted. By Order dated June 23, 2005, the Court granted Plaintiff's motion and on June 28, 2005 the Court entered judgment in favor of Defendant and against Plaintiff. Plaintiff filed a Motion for Reconsideration of the Court's judgment, which Motion the Court denied. Defendant no longer wishes to pursue its Counterclaim against Plaintiff. In a pleading dated August 26, 2005, Plaintiff filed what purports to be an "Answer, Special Defense and Counterclaim" to Defendant's Counterclaim. For the reasons more specifically set forth below, Defendant requests that the Court enter an order of voluntary dismissal of Defendant's Counterclaim, including the dismissal of Plaintiff's response to that Counterclaim. ARGUMENT Defendant's Motion is filed pursuant to Rules 41(a)(2) and 41(c) of the Federal Rules of Civil Procedure. As Plaintiff's action against Defendant has been dismissed, Defendant has determined that it no longer wishes to pursue its Counterclaim against Plaintiff. The dismissal of the Counterclaim and the accompanying dismissal of Plaintiff's response to that Counterclaim will not result in any prejudice to Plaintiff. Plaintiff had the opportunity to pursue his claims against Defendant in Plaintiff's Complaint, but that Complaint has already been dismissed by the Court. In addition, Plaintiff's so-called "Counterclaim" to

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Case 3:03-cv-01052-DJS

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Filed 09/08/2005

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Defendant's Counterclaim sets forth the same claims that were already adjudicated in the Court's dismissal of Plaintiff's Complaint, and adds a new claim of double jeopardy which clearly does not apply to this Defendant. For the reasons set forth herein, Defendant respectfully moves that the Court enter a voluntary dismissal of Defendant's Counterclaim and of Plaintiff's "Answer, Special Defense and Counterclaim." DEFENDANT, FLEET BANK

By_________________________________ Gerald L. Garlick, Esq. of Krasow, Garlick & Hadley, LLC One State Street Hartford, CT 06103 Telephone: (860) 549-7100 Facsimile: (860) 728-1651 Email: [email protected] Federal Bar No ct05627

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Case 3:03-cv-01052-DJS

Document 45

Filed 09/08/2005

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CERTIFICATION I hereby certify that a copy of the foregoing was mailed this 7th day of September, 2005 to the following Pro Se Plaintiff: Mr. Emmanuel Smith Inmate No. 232549 Osborne Correctional Institution 335 Bilton Road P.O. Box 100 Somers, CT 06071 ____________________________ Gerald L. Garlick

000233/00054/lib002/25251.1

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