Free Motion to Dismiss/Insufficency of Service - District Court of Delaware - Delaware

Case 1:04-cv-01367-GMS

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Filed 09/19/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JULIAN A. MILLER ) ) ) ) ) ) ) ) ) ) )

C.A. No. 04-1367 JURY OF 12 DEMANDED

Plaintiff, v. STANLEY TAYLOR, ET. AL Defendants,

DEFENDANT IHUOMA CHUKS' MOTION TO DISMISS 1. 2. Plaintiff is an inmate in the Delaware correctional system. Defendant First Correctional Medical, hereinafter "FCM", was the health care

provider for the Delaware correctional system from July 1, 2002 through June 30, 2005. Defendant Ihuoma Chuks was an employee of First Correctional Medical. 3. Plaintiff filed his complaint on October 18, 2004, alleging Eighth Amendment

violations that occurred while he was incarcerated. Plaintiff's complaint was not accompanied by an affidavit of merit or a motion to extend the time for filing an affidavit of merit. 4. Plaintiff filed this suit in 2004 while FCM was still the health care provider for the

Delaware correctional system and Defendant Chuks was an employee of FCM. D.I. 2. Defendant Chuks has never been served in this matter. Legal Standards 5. Pursuant to Rule 4(m), an action "shall be dismissed" as to a defendant who was not

served within 120 days of the filing of the complaint when the party on whose behalf such service was made cannot show good cause why service was not effected in the required period.

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6.

Pursuant to 18 Del. C. § 6853 (a)(1), an affidavit of merit must accompany a medical

negligence complaint filed after October 9, 2003, or "the clerk of court shall refuse to file the complaint and it shall not be docketed with the court." 7. Where the Clerk of Court or Prothonotary mistakenly accepts a medical negligence

complaint without an affidavit of merit, the defendant's remedy is a dismissal. Jackson v. First Correctional Medical Services, 380 F. Supp. 2d 387, 392 (D. Del. 2005). 8. Under these legal standards, defendant Ihuoma Chuks submits that dismissal is

warranted because (1) without good cause, more than twenty-three (23) months have passed and service has still not been perfected against defendant Chuks; and (2) plaintiff failed to file an affidavit of merit or motion to extend the time for filing an affidavit of merit. Plaintiff Has Failed to Serve Defendant Chuks Within 120 Days 9. More than twenty-three (23) months transpired from the filing of the Complaint in

this matter to present and defendant Chuks has still not been served. Plaintiff has not demonstrated good cause as to why defendant Chuks was not served within 120 days of the filing of the complaint. Pursuant to F.R.C.P. 4(m), the Court shall dismiss a suit where the time for service has exceeded 120 days and there has been no showing of good cause. Plaintiff has Failed to File an Affidavit of Merit 10. Plaintiff's complaint was filed after October 9, 2003, and was not accompanied by

either an affidavit of merit or a motion to extend the time for filing such affidavit. As such, plaintiff's state law claims must be dismissed as a matter of law. Jackson, 380 F. Supp. 2d at 392. Conclusion 11. For the above reasons, defendant Chuks respectfully requests that all claims against

her be dismissed with prejudice.

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McCULLOUGH & McKENTY, P.A. /s/ Dana Spring Monzo Daniel L. McKenty Del. Bar # 2689 Dana Spring Monzo Del. Bar # 4605 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 (302) 655-6749 Attorneys for defendant Ihuoma Chuks Dated: September 19, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JULIAN A. MILLER ) ) ) ) ) ) ) ) ) ) )

C.A. No. 04-1367 JURY OF 12 DEMANDED

Plaintiff, v. STANLEY TAYLOR, ET. AL Defendants,

CERTIFICATE OF SERVICE I, Dana Spring Monzo, do hereby certify that on this date a copy of Defendant Ihuoma Chuks' Motion to Dismiss was served electronically upon the following individuals: Sean P. Hayes, Esquire Fish & Richardson, P.C. 919 North Market Street, Ste 1100 P.O. Box 1114 Wilmington, DE 19899-1114 Stephani J. Ballard Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 McCULLOUGH & McKENTY, P.A. /s/ Dana Spring Monzo Daniel L. McKenty Del. Bar # 2689 Dana Spring Monzo Del. Bar # 4605 1225 N. King Street, Suite 1100 P.O. Box 397 Wilmington, DE 19899-0397 (302) 655-6749 Attorneys for defendant Ihuoma Chuks Dated: September 19, 2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE JULIAN A. MILLER ) ) ) ) ) ) ) ) ) ) ORDER And now this __________________ day of ________________, 2006, having considered Defendant Ihuoma Chuks' Motion to Dismiss and any opposition thereto, it is HEREBY ORDERED that Defendant Ihuoma Chuks' Motion to Dismiss is granted.

C.A. No. 04-1367 JURY OF 12 DEMANDED

Plaintiff, v. STANLEY TAYLOR, ET. AL

___________________________ J.