Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-00339-JJF

Document 160

Filed 10/14/2005

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE FEDERAL INSURANCE COMPANY a/s/o EZIBA.COM, INC./AVACET, INC., EZIBA SECURITIES CORP., and MILLERS CAPITAL INSURANCE COMPANY a/s/o DEL-HOMES CATALOG GROUP, LLC, : : : : : : Plaintiffs, : : vs. : : LIGHTHOUSE CONSTRUCTION, INC., : BECKER MORGAN GROUP, INC., O'DONNELL, : NACCARATO & MACINTOSH, INC. and : EAST COAST ERECTORS, INC. : : Defendants. : : and : : LIGHTHOUSE CONSTRUCTION, INC. : : Defendant and Third-Party Plaintiff, : : vs. : : EAST COAST ERECTORS, INC. : : Third-Party Defendant. :

CIVIL ACTION NO.: 04-339 / 04-1322 JJF (Consolidated)

JURY TRIAL DEMANDED

DEFENDANT BECKER MORGAN GROUP, INC.'S RESPONSE IN OPPOSITION TO PLAINTIFF FEDERAL INSURANCE COMPANY'S MOTION FOR LEAVE TO FILE AN AMENDED COMPLAINT COMES NOW, Defendant Becker Morgan Group, Inc. ("BMG") and responds to Plaintiff Federal Insurance Company's ("Federal") Motion for Leave to File an Amended Complaint and offers the following, to wit: 1. On September 30, 2005 Federal filed its Motion for Leave to File an Amended

Complaint ("Motion for Leave") (D.I. #156).

Case 1:04-cv-00339-JJF

Document 160

Filed 10/14/2005

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2.

In its Motion for Leave, Federal states that discovery has revealed certain

information regarding the actions of Defendants Lighthouse Construction, Inc. ("Lighthouse"), O'Donnell Naccarato & MacIntosh, Inc. ("ONM") and East Coast Erectors, Inc. ("ECE"). (Motion for Leave, ¶14 et seq.). On that basis, Federal seeks to add a claim of gross negligence against Defendants Lighthouse, ONM and ECE. 4. In its Motion for Leave, Federal does not seek to add a claim of gross negligence

against Defendant BMG. 5. The proposed blacklined Amended Complaint attached to Federal's Motion for

Leave sets forth the added claim of gross negligence in Count II, however, the allegations refer to all Defendants instead of just Defendants Lighthouse, ONM and ECE. If filed as written, Count II of the Amended Complaint would therefore improperly include a claim against BMG. 6. The Motion for Leave should be denied on the basis that the proposed Amended

Complaint improperly includes a claim against BMG. WHEREFORE, Defendant Becker Morgan Group, Inc. respectfully requests that the Court deny Federal Insurance Company's Motion for Leave to File an Amended Complaint. TIGHE, COTTRELL & LOGAN, P.A. /s/ Victoria K. Petrone Paul Cottrell, Esquire Delaware I.D. # 2391 Victoria K. Petrone, Esquire Delaware I.D. #4210 First Federal Plaza, Suite 500 P.O. Box 1031 Wilmington, Delaware 19899 (302) 658-6400 [email protected] [email protected] Dated: October 14, 2005