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

Case 1 :04-cv-01376-KAJ Document 66 Filed 05/17/2005 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FRANK E. ACIERNO, CHRISTIANA )
TOWN CENTER., LLC, a Delaware limited )
liability company, 395 ASSOCIATES, LLC, )
a Delaware limited liability company, )
ESTATE HOMES, INC., )
a Delaware corporation, )
)
Plaintiffs, )
v. `) CA. No. 04-i376~KAJ
)
GEORGE O. HAGGERTY, individualiy and )
in his official capacity as Assistant General )
Manager of the New Castle County Department )
of Land Use, SCOTT G. WILCOX, )
individually and in his official capacity as a )
First Assistant County Attorney, TIMOTHY P. )
MULLANEY, individually and in his )
capacity as New Castte County Attorney, )
CHARLES L. BAKER, individually and in his )
capacity as General Manager ofthe New Castle )
County Department of Land Use, JAMES H. )
EDWARDS individually and in his capacity as )
Inspections Manager and Licensing Division )
Manager of the New Castle County Department )
of Land Use, and SHERRY L. FREEBERY, )
in her individual capacity as Chief Administrative )
Ofticer of New Castle County, and )
NEW CASTLE COUNTY, a political subdivision )
of the State of Delaware, )
)
Defendants. )
DEFENDANTS’ REPLY IN SUFPORT
OF THEIR MOTION FOR A BRIEFING SCHEDULE
ON PLAINTIFFS’ MOTION FOR LEAVE OF COURT
TO FILE A SECOND AMENDED COMPLAINT
The Defendants, by and through their undersigned counsel, reply to the Plaintiffs
Response (DI. 65) to Det"enda.nts’ Motion for a Briefing Schedule on Piaintit`t`s’ Motion
for Leave of Court to File a Second Amended Complaint (DI. 61) as follows:
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Case 1 :04-cv—01376-KAJ Document 66 Filed 05/17/2005 Page 2 of 4
l. Briefing on the Defendants Motions to Disrniss the First Amended
Complaint (°°l»/lotions to Dismiss") is now complete. During snch briefing, the Plaintiffs
filed a lvlotion for Leave of Court to Pile a Second Amended Complaint ("l\/lotion to
Arnend") (D.l. 50) to cure certain deficiencies in the First Amended Complaint. Bl. 65 1]
2. The Plaintiffs have declined to enter into a briefing schedule on the Motion to Amend.
2. ln their opposition to the Motion for a Briefing Schedule, the Plaintiffs
erroneously contend that briefing on the Motion to Amend will be a "lengthy, extensive,
and expensive undertal concede, "fairly sirnple." Id. The Defendants have proposed that their answering hrief
he tiled ten days after the Plaintiffs opening brief, and the reply brief tive days
thereafter. 1).1. 6l il 9. Such briefing should be done within the normal Local Rule page
liinits.
3. The Plaintiffs also erroneously contend that deferring consideration ofthe
Motion to Amend would promote judicial economy and efficiency. D.l. 65 ll 7. The
Defendants will argue that the Motion to Amend should be denied on grounds of futility.
Therefore, their opposition to the Motion to Amend will be governed by the same Rule
l2 standards that govern their pending Motions to Disrniss. Eg., J. Moore, Moores
Federal Practice §l5.l5{3] (3d ed. 2005). Efficiency would be served by presenting these
Rule l2 issues together for resolution by the Court at the same time.
4. The Plaintiffs believe that their proposed new allegations will "hopefully
obviate the need for the Court to decide sorne ot" the issues raised by the Defendants
Motions to Dismiss. D.l. 65 il 4. However, only by considering the Motion to Amend
and the Motions to Dismiss together may the Court determine whether the proposed
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Case 1 :04-cv—O1376-KAJ Document 66 Filed 05/17/2005 Page 3 of 4
amendments have that effect. Under the Plaintiffs? scenario, the Court could devote
considerable time in ruling on the issues raised in the Motions to Disrniss, and then be
asked to determine, after further briefing, whether the proposed atlegations in the atready—
tiled Motion to Amend would cure the defects in the First Amended Complaint and
thereby render the Courts prior ruling a wasted effort, The goal of efficiency is better
served by placing all the pleading issues before the Court at the same tirne.
5. For these reasons, the Defendants respectfully request that the Court enter
a briefing schedule on the Motion to Amend so that all the Rule 12 issues raised by the
pending Motions to Dismiss and the Motion to Amend may be beard and decided
together.
CONNOLLY BOVE LODGE & HUTZ LLP
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" otlins J. Seitz., Jr. (#2237)
Matthew F. Boyer (#2564)
The Nemours Building
1007 N. Orange Street
P.O. Box 2207
Wilmington, DE 19801 _
Dated: May 17, 2005
BIFFERATO, GENTILOTTI 8; BIDEN MCCARTER & ENGLISH
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lose ‘--‘‘ R. Biden HI (#4203 Michael P. Kelly (#2295) i .-’` `
lan Connor Bifferato (#32 3) Paul A. Bradley (#2156)
1308 Delaware Avenue 919 N. Market Street, Suite 1800
Wilmington, DE 19806 Wilmington, DE l980l
Dated: May 17, 2005 Dated: May 17, 2005
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Case 1 :04-cv—O1376-KAJ Document 66 Filed 05/17/2005 Page 4 of 4
NEW CASTLE COUNTY STRADLEY RONON
DEPARTMENT OF LAW
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Dennis J. Siebo1d(#751) ‘;‘0 J} Claire M. Deiviatteis (#3187) ?
87 Reads Way l 300 Deiavvare Avenue, Suite 800
New Castle, DE 19720 Wilmington, DE 19801
Dated: May 17, 2005 Dated: May 17, 2005
COZ N (TCONNOR
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Jef rey 1. " asek (pro imc vice) ..v--·e‘
David A. Fetiee (#4090)
Chase Manhattan Center
1201 N. Market Street, Suite 1400
Wilmington, DE 19801
Dateéz May 17, 2005
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