Free MEMORANDUM in Support - District Court of Delaware - Delaware

Case 1:05-cv-00072-JJF

Document 53-7

Filed 02/27/2006

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Ii`

Case 1:05-cv-00072-JJF
15.57 FIIX 9736225314

Document 53-7

Filed 02/27/2006

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~002/003

MCELROY, I)EUTSCH, MULVANEY & CAR~ENTER, LLP
AT~I~ORNEYS AT LAW THREE GATEWAY CENTER

100 MLILBERRY NEWARK. NEWJERSEY

STRSET 07102-4079

(973) 622-7711 FACSIMI1E (973) 622-5314
MICHAEL S. WATERS

Direct Dial: (973) 566-2011 E-mail: mwe~ers~m~mc-lew.com

January 31, 2006
r~A f;ACSIMILE

Veronica E. Rendon, Esq.
Amo~ri 399 Park & Porter Avenue LLP

New York, New York 10022

Re:

Cl~arlt~s· ~lanziale, Jr,, Ci~np~er7 ~2·us~e orSrud~P1IFinancs CorpoPetioPr A.
vs. 1McGlndrOy d Prcllen, ~LP, nnclMichaddquino Adu~vsrrrv Nrcm~~v: 04rS800~ - Civil tf cfi~n IVlrPntier: 05-72-JJF

Dear Veronica:

You were sent a letter dated January 25, 2006 advising you that the Amended Complaint does not seek to reassert claims dismissed by Judge Faman and anticipating that your answer would treat them as dismissed. An additional copy of that letter is enclosed. To the extent that factual allegations in those counts are incorporated in other counts, they need to be answered. The Amen ned Complaint adds a count for malpractice that is consistent with,the certificate of merit filed long ago, and with Judge Farnan's ruling on that issue in the q~n~er matter. The additional counts for a fi-audulentconveyance are consistent with Judge Fa~nan's ruling in this matter. Accordingly,
we have nothing to discuss; please file your Answer.

verH truly y
~T. DE~SCH. M~JL~ANBY & ~RPH~3frP,R. LLP

Michael MSW:dmc Enclosure

S. Waters

NCw ~'ORK NeW YORK

oeNvsrc,

CM.OaAuO

RLDCiBWOOD. NEW IERSEY

MORRISTQWN, NEWJBRSBY

Case 1:05-cv-00072-JJF 17:16 FAX 9736225314

Document 53-7

Filed 02/27/2006

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MCELROY, DEUTSCH,MULVANEY CGTCPENTER, ~r LLP
ATT~ORNEYSATLAW THREE GATEWAY CENTER 100 MULBERRY STREET

NEWARK, NEW JERSEY 071024079 (973) 622-7711 FACSIMILE (873) 6225314
MICnAEL S. WATERS

blrecs Du: (813] 565-2011 small: mwaters~mdm~sw.mm

Februilry 17, 2000

C~TA ~PACSIMILE

Vemnica E. Rendon, Esq.
AmOld 399 l'ark & Porter Avenue LLP

New York, New York 10022

Ra~

Cl~arles Sianzi~ Jr., Ch~pC~r Trus~ee A, 7 ofShrd~ni ~innnc~ Corporation
us. McG~adrey ~ Pulk~n, LLP, and Michasl Aq4ino Adv~rsarv IVumber: 04-58003 - CivUAcbion NumB~r: 05-72JJF

Dear

Veronica:

I have your letter of February 13, 2006. I write to reiterate that I believe we have made perfectlyclear in two prior letters to you, copies of which are attached.
i. The Amended Complaint does not intend to reassert the claims that were dismissed by Ol·der ofthe Court dated December 20, 2005. Those counts remain dismissed. Those counts

are includedbecause they were not changedby the amendmentand the local rule requires that the Amended complaint be one complete document. We have advised you, as we have advised all
counsel, that we expeCtthat in your Answer you will treat those counts that were dismissed by Judge Eiamanas dismissed; all other counsel except you have understood that and have acted accordingly. 2. We note that some factual allegations of dismissed counts are included by reference in counts that ware not dismissed. We believe that those factual allegations need to be answered.

3. Consistent with what we have stated in paragraph number 1 above, we have not assertedany countson behalfofRoyal, nor have we claimedto do so. The only plaintiffin this case
is the trustee, Charles A. Stanziale. We reiterate that to re extent any claims ofMr. Stanziale have been dismissed by Judge Farnan, they remain dismissed.

4. With regard to your claim that we needed your consent to an amendment, we disagree. The general rule is that a party "may amend the party's pleading once as a matter of
NEW YI)KK, vOllC ~Rw DENVER. COLORADO RluCEVJ00D. IERSBY NEW MORiEI:.rOWN, NEW IERSeY

Case 1:05-cv-00072-JJF 17:16 FAX 9736225314

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MCELROY, DEUTSCH,MULVANEY CARPENTER,LLP &
Veronica Rendon, Esq.

February 17, 200(i
Page 2

course at any time before a responsivepleadingis served." Rule 15(a). A motion to dismissdoes not constitutea responsivepleading. Centifantiv. Nix, 865 F2d 1422, 1431(3d Cir. 1o&o). each in

of the casesyou cite,the pleadingwasdismissed its entiretyandthe questionwas whether in the partycouldthenamend, of rightor otherwise. as Thosecasessimplydo not applyin this instance
where the motion to dismiss was only granted in part and the pleading stillstands. Because the pleading itself was not dismissed, the cases you cite do not apply to vary Rule 15(a). The
amendment was filed before any responsive pleading.

5.

At this point, we believe that your Answer is long overdue. We have indicatedthat

we wouldnotobjectto yourfilingan Answer the Amended to Complaint, we believethatyou but mustf~le promptly. one Yourrightto filea motion dismiss failureto statea claimis preserved to for
and may be filed in accordance with the Rules, but that does not allow you to avoid filing an
Answer.

Ci.

Consideringthe differencesin our respectivepositions and your expresseddesireto

file!a motion, we have and continue to believe that our positions are best set forth in writing.

7. With respect to the countsthat were added to the AmendedComplaint,two of them addnlss the fraudulent conveyance claim. The count for malpractice is accompaniedwith the

app"priatecertification. cannot anysurprise yousincea certification a malpractice This be to for claimwasservedwiththeoriginal Complaint. JudgeFarnan already has denieda motion dismiss to
a malpractice claim in the Pepper Hami]ton matter.

8. If. in light of the above, you still insist upon filing a motion, we will respond regarding the schedulewhen we see your motion.
Very wry DEUTS~I. MULVANEY& CARPENTER,LLP

Michael MSW:dme Enclosure

S. Waters