Free Motion for Reconsideration - District Court of Delaware - Delaware

Case 1:04-cv—O1278-KAJ Document 313-3 Filed 05/O1/2006 Page1 0f3

Case 1:04-cv—O1278-KAJ Document 313-3 Filed 05/O1/2006 Page 2 of 3
\/\»?est;iaw
Not Reported in F.Supp.2ci Page E
Not Reported in F.Supp.2<:i, 2002 WL 31230813 (D.DcE.)
(Cite as: Not Reported in }<`.Supp.2d)
*1 On August 27, 2002, the court issued zz
Only the Westlaw citation is currently available. Memorandum and Order which denied the
United States District Court, D. Delaware. defendants’ motion to dismiss the complaint and
Michiko Tracy MUI·LASA,P1aintifiQ stayed thc piaintiffs legal malpractice claim until
v. such time that thc plaintiffs underlying action in the
BALICK & BALECK, Attomcys at Law, Sidney Superior Court of New Jersey, Mercer County, has
Balick, John Doc and John Doe, Esquire, Defendants. concluded. Presently before the court is zi "l\/lotion for
No. C.A.02-218 GMS. Reargu1·ne11tfCiarification" filed by the defendants
Bakick & Balick and Sidney Baiick (collectively
Sept. 26, 2002. "BaEick") and regarding the court's August 27, 2002
memorandum and order. The plaintiff does not
Client brought legal maipracticc action against oppose the dcfendants' Motion for
attorney and his firm, arising out of its handling of RcargumcntfCiariiication. The court grants thc
her undeziyiug personal injury action. Following motion for clarification, and will now clarify the
order denying defcndants' motion to dismiss and effect ofthe August 27, 2002 order.
staying legal maipractice action until underlying
action was decided, 2002 WL 197192}, defendants
moved for rcargumcnt/clarification. The District {gh Because thc defendants have offered
Court, §_lgg:_t, J., held that com*t's treatment of factual no support for a motion for rcargumem, the
allegations in context of motion to dismiss ruling did court will treat the "I\/iotion for
not prejudice the parties' right to discovery of those Rcargurnent/C1arification" as a motion for
issues in legal malpractice action, nor did it prevent clarification only.
them from developing related legal arguments if
appropriate, The defendants object to the courts apparent iindings
of fact regarding State Famfs possession of the
Motion granted. plaintiffs vehicle; the avaiiability of thc plaintiffs
vehicle for inspection by experts; and thc ability of
West Headnotcs the Balick defendants to prevent the plaintiffs vehicle
to be sold at auction on March 25, 1999.
Federal Civil Procedure 170A é;°1831
As noted in the oou.rt's August 27, 2002 -
Eg Fgdgyai Pyocgdufg 1T1€ITl0I'HH(i‘LIHl, it is tl'1€ COUHQS ObllgE1{lOH Wh€H Fllllllg
]7()AX; gjismjssal on a motion to dismiss to accept as tmc the factual
woaxigsg InvoEu11taryDismissai aiicgaticns cf rhs complaint See
[7()A)(;(}3}5 Pmccedings l I7 F.3d 723, 726 j3d Cir.1997; Nami v. Femver 82
17();kk]3g7 Dggcyugnatgcn F.3d 63, 65 §3d Cii‘.l996 Q. The court also must view
179,:*3331 k_ Fact ;SSu€S_ MOS; alircasonablcinfcrcnccs thatmay bc drawn fromthc:
Cjtgd Cases _** complaint in thc light most favorable to thc non-
Déstrict c0uz"t's treatment of factual allegations in moVl¤E PRTYY- S6'?
context of motion to dismiss ruling did not prejudice
the parties' right to discovery of those issues in legal
malpractice action, nor did it prevent them from Tho Com`? did just that in its AUQUSY 27,
developing rclatcd legal arguments if appropriate; in 2002 mcmvrandum ooo moor- Af this Siogo in thc
ruling on motion, court accepted facts in light most iitigaticmi tho oouft wvuid not and old not adolot
fgvgfghlg [Q HQH—mQViHg pgyty} but g()u{[ Wguld H()[’ flI}dl1'1gS of f3Ct, ACCOfdlHgly, to lik? €Xt€H[ ll'1€ p3.1'll€S
gud {tgt, adgpt findingg of f`ag{_ may h&V€ l1HSI`pl`€t€d the COl11't'S H'1€H`k0K`3.1'lClUTE'} Elfld
order as containing Endings of fact, the parties may
be assured that the coun merely accepted as Hue the
ORDER plaintiffs allegations for purposes of dctcmnining the
motion to dismiss. The courts treatment of factual
SLEET, pggqict _§_ allegations in the context of the motion to dismiss
© 2006 Thonison/West. No Claim to Orig. U.S. Govt. Works.

Case 1:04-ov—O1278-KAJ Document 313-3 Filed 05/O1/2006 Page 3 of 3
Not Reported in F.Supp.2d Page 2
_ Not Reported in F.Supp.2d, 2002 WL 312308}3 (D.DeE.)
(Cite as: Not Reported in F.Supp.2d)
ruling shall not prejudice the parties' right to
discovery of those issues, nor shell it prevent them
from developing related lege} arguments if
appropriate.
For the foregoing reasons IT IS HEREBY
ORDERED that:
I. The Defendarzts Motion for Clarification (D.I.E5)
is GRANTED.
D.Dei.,2002.
Mukesa v. Bsiick & Batick
Not Reported in F.Supp.2d, 2002 WL 312308iB
(D.Dei.)
END OF DOCUMENT
© 2006 ThomsonNVest. No Ciaim to Orig. U.S. Govt. Works.