Free Letter - District Court of Delaware - Delaware

Case 1 :04-cv-01324-JJF-LPS Document 97 Filed 09/15/2005 Page 1 of 3
Murphy Sp adaro & Landon
ATTORNEYS
1011 CENTRE ROAD, SUITE 210
WILMINGTON. DELAWARE 19805
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FAX 302.4?2.B135 , _
jspadarotrumsllaweom
September 15, 2005
BY ELECTRONIC FILING
The Honorable Kent A. Jordan
United States District Court
844 North King Street, Room 4209
Wilmington, DE 19801
RE: Eames v. Nationwide Mut. Ins. Co.
C.A. No.: 04-CV-1324KAJ
Dear Judge Jordan:
The Eames plaintiffs respectfully join in Nationwide's request for oral argument with respect to
its pending motion to dismiss. In support of that request, we offer the following observations, which
we ask the Court to consider in determining the need for oral argument.
We believe that Nationwide's reply brief converts its motion from a motion to dismiss for
failure to state a claim under Rule l2(b)(6) into a motion for summary judgment under Rule 56. More
specifically, Nationwide's reply says that documents that have eorne to light thus far reflect its
insurance agent's characterization of PIP as "full" only after the placement ofthe Eames's insurance
policy, and not in documents that are contemporaneous with the policy's placement. From this it
argues, not that no claim has been pled, but that no claim can beproved.1
If required to meet Nationwide's argument, we will need to secure discovery from the insurance
agent that sold the policy to Mr. and Mrs. Eames. We may also need to secure deposition testimony
from the insurance agent, and/or affidavit testimony from the Eameses. Of course, none of this is
necessary if the Court adheres to the time-honored standards for deciding a motion to dismiss (because
those standards take the complaint's allegations as true, andthe complaint alleges that the offending
representation was made in the policy itself`). But ifthe Court is inclined to credit Nati0nwide's
arguments, its nrotion becomes one for summary judgment; and the Eames plaintiffs would then seek
to continue the motion under Rule 56(D.2
1 In the Eames plaintiffs answering brief we showed that the complaint directly alleges that the "full"
characterization was employed within the insurance contract itself. Nationwide's reply brief does not
deny that this allegation appears in the complaint.
·‘ Rule 56(f) allows for the continuance of a summary judgment motion where the nonmoving party
demonstrates the need for further discovery on facts needed to oppose the motion.
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Case 1 :04-cv—01324-JJF-LPS Document 97 Filed 09/15/2005 Page 2 of 3
The Hon. Kent A. Jordan
September 15, 2005
Page 2
In short, oral argument would greatly assist in clarifying the nature of Nationwide's motion, and
the possible need for discovery under Rule 56(D. It would also assist in clarifying whether
Nationwide's conversion of its motion to one for summary judgment requires that it be deferred to the
"merits" phase ofthe case.
We appreciate the Court's consideration of this request.
Respectfully,
/s/ John S. Spadaro
John S. Spadaro
J SS/slr
cc: Curtis P. Cheyney, Ill, Esq. (by electronic tiling)
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Case 1 :04-cv—01324-JJF-LPS Document 97 Filed 09/15/2005 Page 3 of 3 A
IN THE UNITED STATES DISTRICT COURT
IN AND FOR THE DISTRICT OF DELAWARE
THOMAS A. EAMES, ROBERTA L. EAMES )
and TAMMY EAMES, on behalf of )
themselves and all others )
similarly situated, )
)
Plaintiffs, ) C.A. No. 04-CV-1324KAJ
)
v. )
)
NATIONWIDE MUTUAL INSURANCE )
COMPANY, )
)
Defendant. )
NOTICE OF SERVICE
I hereby certify that on this date, I electronically filed the foregoing document with the Clerk
of the Court using CM/ECF which will send notification of such fi1ing(s) to the following:
Nicholas E. Skiles, Esq.
Swartz Campbell LLC
300 Delaware Avenue, Suite 1130
P.O. Box 330
Wilmington, DE 19899
MURPHY SPADARO & LANDON
fsf John S. Spadaro
John S. Spadaro, No. 3155
1011 Centre Road, Suite 210
Wilmington, DE 19805
(302) 472-8100
Attorneys for plaintiffs
Thomas A. Eames, Roberta L. Eames and
Tammy Eames (on behalf of themselves and
September 15, 2005 all others similarly situated)
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