Free Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-01416-JJF Document 62 Filed 12/08/2005 Paget of 3
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. )
)
Plaintiff, )
) C. A. No. 04-1416 (JJF)
vs. )
I
CHUGACH SUPPORT SERVICES, INC., et al. )
)
Defendants )

RESPONSE OF DEFENDAN TS
TO MOTION TO WITHDRAW AS COUNSEL FOR PLAINTIFF
Defendants Chugach Support Services, Inc. and Safeco Insurance Company of America,
by counsel, hereby respond to the motion of Connolly Bove Lodge and Hutz ("CBLH") to
withdraw as counsel for Plaintiff.
1. As a Condition to Withdrawal, Plaintiff Should Be Required to Find
Replacement Counsel Within a Relatively Short Time
A condition to any allowance of CBLH’s withdrawal should be that Plaintiff have
replacement counsel in this suit in a relatively short time, not to exceed 30 days. As set forth
below in Point 2, this case is substantially deeper into the pretrial requirements, including
substantially deeper into discovery, than the motion suggests and is on track for additional
dispositive motions by the end of January 2006. With less than two months to go until
completion of pretrial matters, the case should not be derailed or if it must be, any delay should
be a reasonable minimum. Also, Plaintiff’s not having paid CBLH and having incurred a
substantial debt to CBLH for this suit indicates that if CBLH withdraws, Plaintiff likely does not
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Case 1:04-cv-01416-JJF Document 62 Filed 12/08/2005 Page 2 of 3
have the wherewithal to engage new counsel, something that Defendants and the Court are
entitled to know within a reasonable time. These concerns support a condition that if CBLH be
permitted to withdraw, Plaintiff must have replacement counsel within 30 days or less, a
condition that aids resolution of this case on the merits by parties represented by counsel.
2. Defendants Have Proceeded and Are Proceeding On the Basis of the
Existing Pretrial Schedule Without Any Extensions and That Schedule
Should Be Maintained With Only Minimal Interruption
This case is far fuither along than the motion indicates. Defendants have a fully briefed
motion to dismiss pending for decision. The parties completed interrogatories and document
production more than two months ago, in accordance with the Scheduling Order. Defendants
served Plaintiff with extensive, dispositive requests for admission on November 22, 2005, and
Plaintiffs responses are clue December 27, 2005. The parties’ deadline for expert reports on
issues on which the parties have the burden of proof expired on November 30, 2005 (with
Defendants’ serving an expert report but Plaintiffs not serving any). Defendants served Plaintiff
with a comprehensive Rule 30(b)(6) Notice of Deposition, setting Plaintiff’s deposition for
January 5, 2005 with the expectation of taking the deposition then, in preparation for meeting the
dispositive motions deadline of January 30, 2006.1
To prevent unfair prejudice to Defendants, any withdrawal allowance should. be
conditioned on (i) there being no reinstatement or revival of pretrial deadlines that have passed,
particularly the November 30, 2005 deadline for Plaintiff to produce an expert repoit on the
I It is correct that Defendants earlier proposed essentially a one month extension of deadlines but
adhering to the March 8, 2006 pretrial conference. Plaintiff, however, never responded,
positively or negatively, and so Defendants proceeded as set foith immediately above, with their
requests for admission, expert repoit and notice of deposition, in accordance with the existing
deadlines in the Scheduling Order.
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Case 1:04-cv-01416-JJF Document 62 Filed 12/08/2005 Page 3 of 3
issues on which Plaintiff bears the burden of proof, and (ii) any extension of future deadlines, if
any, being reasonably limited to no more than 30 days.
3. Plaintiff Should Be Required to Show the Financial Ability to Continue the
Case (
Another condition to granting the motion should be that Plaintiff show that it has the
financial capacity to continue this case in its ordinary course. If Plaintiff does not have that
financial capacity, then withdrawal of counsel is merely postponing the likely result of a
dismissal of Plaintiffs claims and a judgment for Defendants, and for financial and judicial
economy purposes, it would be better to proceed directly to this result.2
Dated: December 8, 2005
Respectfully submitted,
BIRCH, HORTON, BITTNER AND CHEROT
/s/ Harvey A. Levin
Harvey A. Levin
1155 Connecticut Avenue, N.W., Suite 1200
Washington, DC 20036
Phone (202) 659-5800
Fax (202) 659-1027
Email: [email protected]
and
THE LYONS LAW FIRM
Edmund Daniel Lyons (No. 0881)
1526 Gilpin Avenue, P.O. Box 579
Wilmington, DE 19806
Phone (302) 777-5698
Fax (302) 777-5051
Email: [email protected]
2 Respectfully, Defendants believe that the merits as addressed in their pending motion to
dismiss and as Defendants plan to address in a motion for summary judgment on both Plaintiffs
claims and Defendants’ counterclaims should achieve that result even were Plaintiff to find
substitute counsel.
3