Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1 :04-cv-01416-JJF Document 64 Filed 12/15/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
UNITED STATES OF AMERICA, for )
the Use and Benefit of JERSEY SHORE )
AUTOMATION, INC., a New Jersey )
corporation, )
)
Plaintiff, ) C.A. NO. O4-l4l6 (JJF)
v. )
)
CHUGACH SUPPORT SERVICES, )
INC., an Alaska corporation, and SAFECO )
INSURANCE COMPANY OF AMERICA, )
a Washington corporation, )
)
Defendants. )
AMENDED
REPLY TO DEFENDANTS’ RESPONSE TO CONNOLLY BOVE LODGE & HUTZ
LLP’S MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF
Pursuant to the Local Rules of Civil Practice and Procedure of the United States District
Court for the District of Delaware, Rule 83.7, Connolly Bove Lodge & Hntz LLP and James D.
Heisman and M. Edward Danberg (collectively "CBLH") have moved to withdraw as counsel in
this action for Plaintiff] Jersey Shore Automation, Inc. ("JSA”) pursuant to the Model Rules of
Professional Conduct of the American Bar Association, Rule 1.16 (b). JSA has consented to
CBLH’s withdrawal.
ln their response to the motion, Defendants Chugach Support Services, Inc. and Safeco
Insurance Company of America (collectively ‘°Defendants") have raised three issues which do
not challenge CBLH’s motion to withdraw but rather raise issues concerning the future
prosecution of the case. Accordingly, CBLI~l’s motion should be granted especially since
Defendants have not identified any prejudice flowing from CBLH’s withdraw.

Case 1:04-cv-01416-JJF Document 64 Filed 12/15/2005 Page 2 of 4
Defendants three issues are: (1) the time to be allotted to Plaintiff to find replacement
counsel; (2) the sanctity of the pre—trial schedule; and (3) Plaintiff s financial ability to proceed
with the litigation. None of these issues warrant denying CBLH’s motion.
The law is clear that Plaintiff must be afforded a reasonable time to find replacement
counsel. In federal courts, a corporation must be represented by counsel. 28 U.S.C. § 1654;
MacNeil v. Hearst Corporation, 160 F.Supp. 157, 159 (D.De1. 1953). Accordingly, Plaintiff
should be granted a reasonable time to obtain substitute counsel. Given that the case is in
discovery, with no trial date set, Defendants’ proposed thirty (30) day limit is arbitrary. In the
event that substitute counsel does not appear, Defendants can address that situation with the
Court at that time, altematively, the Court could order JSA to obtain substitute counsel within a
prescribed tirne period subject to the imposition of sanctions if JSA fails to comply with the
Court’s edict.
Defendants next seek to have the Court address the status of the pre-trial schedule. First,
no rnotion is before the Court to amend the schedule. Substitute counsel should be provided the
opportunity to address this issue. At the present time, only one deposition has been held by
Plaintiff and none by Defendants. Counsel for both parties understood and agreed that discovery
would have to be extended, for the convenience of both parties and their counsel although the
agreement was never finalized. Defendants have now become interested in strictly maintaining
the original schedule apparently for unwarranted tactical advantage.; Under these circumstances,
I Plaintiff believes that Defendants purported "dispositive requests for adrnissions" propounded on November 22,
2005 were over six weeks late pursuant to the original scheduiing order. (D1 60 {l 4.) ln addition, deposition
discovery began November 7, 2005 without objection or reservation of rights by either party to propound requests
for admission. Thus, by the express terms of the scheduling order, the requests are untimely. (DI 60 ll ¢$.(d))
(Depositions shall not commence until requests for admissions are complete). Defendants actions in unilateratly
ignoring the pre~trial order when it suits its purposes speaks volumes about the Defendants motive in seeking now to
vigorously enforce the pretrial schedule.

Case 1:04-cv-01416-JJF Document 64 Filed 12/15/2005 Page 3 of 4
the pre—trial schedule should be modified to allow replacement counsel to prepare this action and
avoid prejudice to either party.
Finally, the financial ability of the Plaintiff to proceed is irrelevant to CBLH’s motion to
withdraw or any issue currently before the Court. Further, Plaintiffs counsel has previously
informed Defendant ofthe nauire of the Plaintiffs financial situation. Additional disclosure will
accomplish nothing. imposing a “financial capacity" test on the ability of counsel to withdraw is
unsupported by the Model Rules or any case law Plaintiffs have found. Defendants cite no
authority for such a proposition and it would be manifestly unfair to burden CBLH with the
additional financial obligation associated with prosecuting this case through trial.
CBLI~i’s Motion to Withdraw should be granted for the reasons identified in the Motion
and because Defendants have identified no prejudice flowing from withdraw.
WHEREFORE, Connolly Bove Lodge & Hutz LLP respectfully requests that the Court
grant its Motion to Withdraw as Counsel for Plaintiff
CONNOLLY BOVE LODGE & HUTZ LLP
/s/ James D. Heisman
James D. Heisman (# 2746)
M. Edward Danberg (# 2245)
1007 N. Orange Street
P. O. Box 2207
Wilmington, DE 19899
(302) 658-9141
Attorneys for Plaintw Jersey Shore Automation, Inc.
Dated: December i5, 2005

Case 1:04-cv-01416-JJF Document 64 Filed 12/15/2005 Page 4 of 4
CERTIFICATE O}? SERVICE
I, lfaunes D. Heisman, hereby certify that on this 15*h day of December, 2005, I caused a
true and correct copy of the foregoing Amended Reply to Defendaiits’ Response to Connolly
Bove Lodge & Hutz LLP’s Motion to Withdraw as Counsel for Plaintiff to be served as
foilowsz
Via E—File & Hand-Delivery Via E-File Only
Edmund D. Lyons, Jr., Esquire Harvey A. Levin, Esquire
The Lyons Law Firm Birch, Horton, Bittner and Cherot
1526 Gilpin Avenue 115 Connecticut Ave., NEW.
Wilmington, DE 19806 Suite i200
Washington, DC 20036
Via Certyied Mail
Jersey Shore Automation, inc.
1500 Meeting House Road
See Girt, New Jersey 08750
/s/ James D. Heisman
Eames D. Heisman (# 2746)