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

Case 1 :04-cv-01416-JJF Document 63 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. 04-1416 (HF)
v. )
)
CHUGACH SUPPORT SERVICES, )
INC., an Alaska corporation, and SAF]-ECO )
INSURANCE COMPANY OF AMERICA, )
a Washington corporation, )
)
Defendants. )
REPLY TO DEFEN})ANTS’ RESPONSE TO CONNOLLY BOVE LODGE & HUTZ
LLP’S MOTION TO VVITHDRAW 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. (".lSA") pursuant to the Model Rules of
Professional Conduct of the American Bar Association, Rule 1.16 (b). JSA has consented to
CBLH’s withdrawal.
In 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~i’s rnotion should be granted especially since
Defendants have not identified any prejudice flowing from CBLH’s withdraw.

Case 1:04-cv-01416-JJF Document 63 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 CBL}-I’s motion.
The law is clear that Plaintiff must be afforded a reasonable time to rind replacement
counsel. ln federal courts, a corporation must be represented by counsel. 28 U.S.C. § 1654;
MacNeil v. Hearst Corporation, E60 F.Supp. 157, 159 (D.Del. 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, alternatively, the Court could order E SA to obtain substitute counsel within a
prescribed time 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. Second, Defendants fail to inform the Court of their own
requests at the mediation conference and to counsel for informal extensions of the pre-trial
schedule, while keeping intact the pre-trial conference date of March 8, 2006. (See, e. g., Exhibit
A where Defendants propose to extend the discovery cut-off by five weeks.) 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. Only after Plaintiffs counsel indicated its intention to withdraw did
Defendants become interested in strictly maintaining the original schedule for unwarranted

Case 1:04-cv-01416-JJF Document 63 Filed 12/15/2005 Page 3 of 4
tactical advantage} Under these circumstances, 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 CBLI-1’s motion to
withdraw or any issue currently before the Court. Further, Plaintiff s counsel has previously
informed Defendant ofthe nature of the Plaintiffs financial situation. Additional disclosure will
accomplish nothing. Iinposing 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.
CBLH’s Motion to Withdraw should be granted for the reasons identified in the Motion
and because Defendants have identified no prejudice flowing front 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 l9899
(302) 658-9141
Attorneys for Plczirztyjf Jersey Shore Automation, [nc.
Dated: December 15, 2005
l Defendants also fail to tell the Court that its purported “dispositive requests for admissions" propounded on
November 22, 2005 were over six weeks late pursuant to the original scheduling order. This type of discovery
should have been completed by September 30, 2005 (DI 60). Defendants actions in unilaterally ignoring the pre-
trial order when it suits its purposes speaks volumes about the Defendants inotive in seeking now to vigorously
enforce the pretrial schedule.

Case 1:04-cv-01416-JJF Document 63 Filed 12/15/2005 Page 4 of 4
CERTIFICATE OF SERVICE
I, James D. Heisman, hereby certify that on this 15th day of December, 2005, I caused a
true and conect copy of the foregoing Motion to Withdraw as Counsel for Plaintiff to be
served as follows:
Via E-File & Hand——Delivery Via Email Only
Edmund D. Lyons, Jr., Esquire i—Iarvey A. Levin, Esquire
The Lyons Law Firm Birch, Horton, Bittner and Cherot
1526 Gilpin Avenue H5 Connecticut Ave., N.W.
Wilmington, DE 19806 Suite 1200
Washington, DC 20036
Pia Certyied Mail
Jersey Shore Automation, Inc.
l500 Meeting House Road
Sea Gift, New Jersey 08750
/s/ James D. Heisman
Eames D. Heisman (# 2746)