Free Opening Brief in Support - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NINA SHAHIN, Plaintiff; v. LIGUORI, MORRIS & YIENGST, et al, Defendants. DEFENDANT LIGUORI, MORRIS & YIENGST'S OPENING BRIEF AND APPENDIX IN SUPPORT OF ITS MOTION TO DISMISS PLAINTIFF'S COMPLAINT C. A. No. 08-295 GMS

MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. /s/ Theodore J. Segletes, III . Norman H. Brooks, Jr., Esq. (#2568) Theodore J. Segletes, III, Esq. (#4456) 913 North Market Street, Suite 800 Wilmington, DE 19801 (302) 658-6538 F: (302) 658-6537 Attorneys for Defendant Liguori, Morris & Yiengst Dated: July 24, 2008

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TABLE OF CONTENTS TABLE OF AUTHORITIES ............................................................................... ii NATURE AND STATE OF THE PROCEEDING ....................................................................... 1 SUMMARY OF ARGUMENT ..................................................................................................... 3 STATEMENT OF FACTS .................................................................................. 5 ARGUMENT ................................................................................................. 7 PLAINTIFF FAILS TO ALLEGE FACTS ESSENTIAL TO ESTABLISH ANY CLAIM UPON WHICH RELIEF CAN BE GRANTED .............................. 7 A. B. Standard of Review ........................................................................ 7 Violations of Federal Criminal Statutes ................................................. 7 1. 2. 3. 4. C. Violations of Racketeer Influenced Corrupt Organizations (RICO) Act ............................................. 8 Violations of 18 U.S.C. §§ 241 & 242 ........................................ 10 Violations of 18 U.S.C. §§ 1506, 1512, and 1513 ........................... 10 Potential Action under 42 U.S.C. § 1983 ..................................... 12

Violations of Local Rules of Procedure and Professional Conduct ................ 13 1. 2. Violations of the Delaware Lawyers' Rules of Professional Conduct ................................................. 13 Violations of the Civil Rules of Procedure ................................... 14

D. E.

Collateral Estopple & Res Juticata ..................................................... 14 Conclusory Statements ................................................................... 16

CONCLUSION ............................................................................................. 17

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TABLE OF AUTHORITIES CASES Bell Atl. Corp. v. Twombly, 550 U.S. 127 S. Ct. 1955 (2007) .......................................... 7 Boddie v. Schnieder, 105 F.3d 857, 862 (2d Circ. 1997) .............................................. 16 Del Elmer v. Metzger, 967 F. Supp. 398 (S.D. Ca. 1997) .............................................. 7 Gipson v. Callahan, 18 F. Supp. 2d 662 (W.D. Tex. 1997); dismissed w/o opinion, 157 F.3d 903 (5th Circ. 1998) .................................... 3, 11 Hamilton v. Reed, 29 F. Appx. 2d 202 (6th Circ. 2002); cert. denied, 536 U.S. 971 ..................................................................... 3, 10 In re Appeal of Infotechnology, Inc., 582 A.2d 215 (Del. 1990). .................................... 13 Lum v. Bank of Am., 361 F.3d 217 (3d Cir. 2004) ...................................................... 8 Maldonado v. Flynn, 417 A. 2d 378, 382 (Del. Ch. 1980) ............................................ 15 Marcus Hook Development Park, Inc. v. Lampl, Sable & Makoroff, 153 B.R. 693 (Bankr. W.D. Pa. 1993) ....................................................... 3, 14 Marino v. Richards Layton & Finger, 160 Fed. Appx. 268 (3rd Circ. 2005) .................... 3, 13 McCauley v. Computer Aid, Inc., 447 F. Supp. 2d 469 (E.D. Pa. 2006); aff'd, 242 Fed. Appx. 810 (3rd Circ. 2007) ................................................. 3, 10 Messick v. Star Enterprises, 655 A.2d 1209, 1211 (Del. 1995) ...................................... 14 Morse v. Lower Merion Sch. Dist., 132 F.3d 902 (3d Cir. 1997) ...................................... 7 O'Malley v. N.Y.C. Transit Auth., 896 F.2d 704 (2d Cir. 1990) ...................................... 10 Polk v. Dodson, 454 U.S. 312 (1981) .................................................................... 12 Port Drum Company v. Umphry, 852 F.2d 148 (5th Circ. 1988) ..................................... 14 Rocks v. City of Phila., 868 F.2d 644 (3d Cir. 1989). ................................................... 7 Rojas v. Debevoise & Plimpton, 1994 U.S. Dist. LEXIS 9382 (S.D.N.Y. 1994) ............... 3, 12 (Ex. 1) Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479 (1985) ................................................... 8 ii
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Shahin v. Del-One Delaware Fed. Credit Union, C.A. No. 06C-10-027 RBY (Del. Super. Ct. Mar. 16, 2007), aff'd 2008 Del. LEXIS 259 (June 9, 2008) ............................................. 2, 10, 15 (Ex. 2) Shahin v. State, C.A. No. 07-373-GMS (D. Del. Nov. 13, 2007) (Mem. Op.) ....................... 2 (Ex. 3) Shahin v. Delaware, 2008 U.S. App. LEXIS 6843 (3d Cir. Mar. 31, 2008) ..................... 2, 16 (Ex. 4) Shahin v. Del-One Delaware Fed. Credit Union, C.A. No. 06A-01-004 RBY (Del. Super. Ct. Aug.3, 2006) (Opinion), aff'd, No. 472, 2006 (Del. January 24, 2007) (ORDER) cert. denied 127 S. Ct. 2440 (2007) ................................................. 5, 10, 14, 15 (Ex 5) Simpson v. Chicago Pneumatic Tool Company, 693 N.W. 2d 612 (N.D. 2005) ................... 14 Thorpe v. Newell, 2005 U.S. Dist. LEXIS 19591 (D. Del. 2005) .................................... 16 (Ex 6) United States v. City of Philadelphia, 482 F. Supp. 1248 (E.D. Pa. 1979) ......................... 10 West v. Atkins, 487 U.S. 42 (1988) ....................................................................... 12 Weiszmann v. Kirkland and Ellis, 732 F. Supp. 1540 (D. Colo. 1990) .............................. 14 Wilmington Trust Company, v. Connor, 415 A.2d 773 (Del. 1980). ................................ 15 STATUTES & RULES 18 U.S.C. § 241 .............................................................................................. 3 18 U.S.C. § 242 .............................................................................................. 3 18 U.S.C. §1503 ......................................................................................... 9, 10 18 U.S.C. § 1506 .................................................................................... 3, 10, 11 18 U.S.C. § 1512 ......................................................................................... 3, 11 18 U.S.C. § 1513 ......................................................................................... 3, 12 18 U.S.C. § 1961 .......................................................................................... 8, 9

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42 U.S.C. § 1983 ....................................................................................... 12, 13 Fed. R. Civ. P. 9(b) ......................................................................................... 11 Fed. R. Civ. P. 12(b)(6) ............................................................................... 2, 5, 7

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NATURE AND STATE OF THE PROCEEDING The Complaint in this matter was filed on May 20th, 2008 by Nina Shahin against thirteen different Defendants, among them the law firm of Liguori, Morris & Yiengst ("LMY"). Plaintiff alleges that LMY was part of a conspiracy involving four Justices on the Delaware Supreme Court, two Delaware Superior Court Judges, two Kent County Court of Common Pleas Judges, one Kent County Justice of the Peace, two Court reporters, and the law firm of Young, Conaway, Stargatt & Taylor, LLP ("Young Conaway"). Complaint at pgs. 1-3. The alleged object of this conspiracy was to obstruct justice, commit fraud and racketeering offenses in violation of the Racketeer-Influenced Corrupt Organizations Act ("RICO"), and to deprive Plaintiff of her Constitutional rights. Complaint at pgs. 1, 5. Plaintiff alleges that her civil rights were violated during the course of three civil cases, all of which were filed in various Courts in the State of Delaware. Id. at 1. These three civil cases relate to actions brought by the Plaintiff against the Delaware Federal Credit Union (hereafter, "Del-One") in which Plaintiff sought to recover a $35 overdraft fee on an account held jointly by her and her husband. (The $35 has since been refunded by Del-One.) LMY represented Del-One in two of these three actions. The first of these was dismissed by the Kent County Justice of the Peace and was subsequently affirmed by the Court of Common Pleas for Kent County, the Superior Court of the State of Delaware, and the Delaware Supreme Court. Id. at 2-3. The second of these was also dismissed by the Kent County Justice of the Peace and affirmed by the Court of Common Pleas for Kent County, but its appeal is currently pending before the Superior Court. Id. at 3. The third action, in which LMY was replaced as counsel for Del-One by Young Conaway, was dismissed by Delaware Superior Court Judge Robert B. Young (also named as a 1
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Defendant in this matter), who subsequently awarded Del-One attorneys' fees due to the frivolous nature of the lawsuit. The Delaware Supreme Court affirmed the award of attorneys' fees in that case, finding the award proper in light of the pattern of "repeated, unwarranted litigation" in which Shahin had engaged and finding that "a monetary sanction may be the only means of deterring Shahin from filing future baseless claims." Shahin v. Del-One Delaware Fed. Credit Union, C.A. No. 06C-10-027 RBY (Del. Super. Cr. Mar. 16, 2007) (ORDER), aff'd, No. 93, 207 (Del. June 9, 2008) (ORDER) pg. 3. This is the second attempt by the Plaintiff to seek relief before this Court because she was unhappy with the State Court proceedings. On November 13th, 2007, this Court dismissed a lawsuit filed by the Plaintiff against the State of Delaware and its judiciary alleging, as she does here, collusion between judges and attorneys in violation of her constitutional rights. Shahin v. State, C.A. No. 07-373-GMS (D. Del. Nov. 13, 2007) (Mem. Op.) at 2. This Court dismissed Plaintiff's claims as frivolous pursuant to 28 U.S.C. §1915(e)(2)(B), holding that they had "no arguable basis in law or fact." Id. at 4. On appeal, the Third Circuit affirmed this decision. Shahin v. Delaware, 2008 U.S. App. LEXIS 6843, *3 (3d Cir. Mar. 31, 2008). LMY has filed the instant motion to dismiss this claim pursuant to Fed. R. Civ. P. 12(b)(6), and this brief is being filed to support that motion.

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SUMMARY OF ARGUMENT Defendant LMY submits that Plaintiff's claims against them should be dismissed for the following reasons: · Plaintiff fails to allege facts essential to establish any claim upon which relief can be granted. · Plaintiff has failed to allege two or more predicate acts which are sufficiently related so as to infer a pattern of racketeering activity upon which a civil claim under RICO may be based. · Plaintiff has no private cause of action under 18 U.S.C. § 241 or § 242 (McCauley v. Computer Aid, Inc., 447 F. Supp. 2d 469, 477 (E.D. Pa. 2006; aff'd, 242 Fed. Appx. 810, 813 (3rd Circ. 2007) (dismissal affirmed; 18 U.S.C. §§ 241 & 242 do not create a private cause of action). · Plaintiff has no private cause of action under 18 U.S.C. § 1506 (Hamilton v. Reed, 29 F. Appx. 2d 202, 204 (6th Circ. 2002); cert. denied, 536 U.S. 971 (dismissal affirmed; 18 U.S.C. § 1506 does not create a private cause of action)). · Plaintiff has no private cause of action under 18 U.S.C. § 1512 (Gipson v. Callahan, 18 F. Supp. 2d 662, 668 (W.D. Tex. 1997); dismissed w/o opinion, 157 F.3d 903 (5th Circ. 1998)). · Plaintiff has no private cause of action under 18 U.S.C. § 1513 (Rojas v. Debevoise & Plimpton, 1994 U.S. Dist. LEXIS 9382 (S.D.N.Y. 1994)). · Even if a private cause of action were to exist under these criminal statutes, Plaintiff has failed to allege any facts supporting any colorable claim against LMY for violations of 18 U.S.C. § 241, § 242, § 1506; § 1512; or § 1513.

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·

Alleged violations of the Delaware Lawyers' Rules of Professional Conduct do not create a basis for civil liability (Marino v. Richards Layton & Finger, 160 Fed. Appx. 268, 269 (3rd Circ. 2005).

·

Alleged violations of the judicial rules of civil procedure do not create a basis for civil liability (See e.g. Marcus Hook Dev. Park, Inc. v. Lampl, Sable & Makoroff, 153 B.R. 693, 704 (Bankr. W.D. Pa. 1993)).

·

Plaintiff is collaterally estopped by adverse rulings by the Delaware Supreme Court and Third Circuit Court of Appeals from proving certain elements which are central to her claims against LMY.

·

Plaintiff's Complaint consists of conclusory statements and speculative allegations against LMY.

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STATEMENT OF FACTS Because LMY is seeking dismissal under Rule 12(b)(6) of the Federal Rules of Civil Procedure, this Court must consider only the facts alleged in the Plaintiff's Complaint. Plaintiff's claims against LMY are based upon the following alleged facts1: · "The [First] case was appealed to the Court of Common Pleas of the [sic] Kent County and was docketed under #05-09-0074AP. During hearing on the Attorney's Motion for Summary Judgment held on 12/21/2005 the presiding judge, Merrill C. Trader, mocked and dismissed the Plaintiff's responses, while allowing false statements made by the attorney to stand and eventually ruled against the Plaintiff in violation of the terms on which the [sic] Summary Judgment can be granted. The transcript of that hearing was modified to change the nature of the Plaintiff's claims as well as the scope and character of the proceedings." Complaint, pg. 2. · "The [First] case was appealed [after its dismissal was affirmed by the Superior Court] to the Supreme Court of Delaware and was docketed under #472, 2006. In violation of the provisions of Rule 25 of the Supreme Court Rules of Civil Procedure the Attorney filed a Motion to Affirm which the panel of thee [sic] Judges [sic] (Berger, Jacobs, and Ridgely) affirmed thus providing a cover up for violations in all courts." Id. · "The [Second] case was appealed [after its dismissal by the Justice of the Peace] to the Court of Common Pleas of the [sic] Kent Country [sic], [and] was docketed under
1

The portions of Plaintiff's Complaint quoted herein come from the Plaintiff's allegations with regard to the first two cases. In the third case, Plaintiff erroneously alleges that "[t]he original attorney, Gregory Morris (from the defendant's firm of Liguori, Morris and Yiengst) was substituted in violation of the provision of the [sic] rule 90(b) of the Superior Court Rules of Civil Procedure...." Complaint, pg. 4. However, neither Mr. Morris nor his firm ever represented Del-One with regard to the third case. Young, Conaway, Stargatt & Taylor was retained by DelOne's insurance carrier to represent Del-One in that matter, since their insurance carrier agreed to provide coverage for that particular lawsuit, but not the first two.

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#05-10-0113 AP. The hearing on the appeal was held in private chambers of the judge, Merrill C. Trader, on 01/17/2007 with ex parte communications of attorney and the defendant with the presiding judge, Rosemary Betts Beauregard, who rules in favor of the Defendant based on facts never proven in the courtroom. The transcript of the hearing was falsified in such a way as to change the essence of witness and Plaintiff testimonies, and the attorney's closing words. Access to the transcript was denied by the Court of Common Pleas and the Superior Court providing further cover up for the obstruction of justice and collusion committed by the judges, attorney, and the court reporter. The transcript of the hearing on the Plaintiff's motion for the [sic] access to the tape of hearing at CCP court held at the Superior Court in September of 2007 was also falsified to change the character, scope and the nature of that hearing." Id. at 3.

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ARGUMENT PLAINTIFF FAILS TO ALLEGE FACTS ESSENTIAL TO ESTABLISH ANY CLAIM UPON WHICH RELIEF CAN BE GRANTED. A. Standard of Review In reviewing a Fed. R. Civ. P. 12(b)(6) motion, this Court should "accept as true all the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party." Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989). However, the court "need not credit a complaint's 'bald assertions' or 'legal conclusions when deciding a motion to dismiss." Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)(citations omitted). The court will not accept unsupported conclusions, unwarranted inferences, or sweeping legal conclusions cast in the form of factual allegations. Id. Rather, factual allegations must be enough to raise a right of relief above the speculative level. Bell Atl. Corp. v. Twombly, 550 U.S. 127 S. Ct. 1955, 1965 (2007). Plaintiff asserts she has causes of action under "the RICO Act, Obstruction of Justice (sections 1506, 1512, 1513) [and] Civil Rights sections 241 and 242 of Title 18 of the U.S. Code." Complaint, pg. 5. However, she has failed as a matter of law to establish a claim upon which relief can be granted under any of these statutory provisions. B. Violations of Federal Criminal Statutes "Civil causes of action ... do not generally lie under the criminal statutes contained in Title 18 of the United States Code." Del Elmer v. Metzger, 967 F. Supp. 398, 403 (S.D. Ca. 1997).

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1. Violations of Racketeer Influenced Corrupt Organizations (RICO) Act. To state a RICO cause of action, a plaintiff must plead "(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity." Lum v. Bank of Am., 361 F.3d 217, 223 (3d Cir. 2004) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). However, to establish a "pattern" of racketeering activity, the Plaintiff must plead two predicate acts of racketeering activity. Id., citing 18 U.S.C. § 1961(5). Plaintiff's RICO claim must fail because she has not sufficiently pled those two predicate acts. The very language of the RICO statute defines "racketeering activity" as any act that is indictable under the various criminal statutes cited in 18 U.S.C. §1961. Section 1961 goes on to list several statutes whose violation would constitute "racketeering activity."2
2

With the

Section 1961(1) provides:

(1) "racketeering activity" means (A) any act or threat involving murder, kidnapping, gambling, arson, robbery, bribery, extortion, dealing in obscene matter, or dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), which is chargeable under State law and punishable by imprisonment for more than one year; (B) any act which is indictable under any of the following provisions of title 18, United States Code: Section 201 (relating to bribery), section 224 (relating to sports bribery), sections 471, 472, and 473 (relating to counterfeiting), section 659 (relating to theft from interstate shipment) if the act indictable under section 659 is felonious, section 664 (relating to embezzlement from pension and welfare funds), sections 891-894 (relating to extortionate credit transactions), section 1028 (relating to fraud and related activity in connection with identification documents), section 1029 (relating to fraud and related activity in connection with access devices), section 1084 (relating to the transmission of gambling information), section 1341 (relating to mail fraud), section 1343 (relating to wire fraud), section 1344 (relating to financial institution fraud), section 1425 (relating to the procurement of citizenship or nationalization unlawfully), section 1426 (relating to the reproduction of naturalization or citizenship papers), section 1427 (relating to the sale of naturalization or citizenship papers), sections 1461-1465 (relating to obscene matter), section 1503 (relating to obstruction of justice), section 1510 (relating to obstruction of criminal investigations), section 1511 (relating to the obstruction of State or local law enforcement), section 1512 (relating to tampering with a witness, victim, or an informant), section 1513 (relating to retaliating against a witness, victim, or an informant), section 1542 (relating to false statement in application and use of passport), section 1543 (relating to forgery or false use of passport), section 1544 (relating to misuse of passport), section 1546 (relating to fraud and misuse of visas, permits, and other documents), sections 1581-1592 (relating to peonage, slavery, and trafficking in persons)[.], section 1951 (relating to interference with commerce, robbery, or extortion), section 1952 (relating to racketeering), section 1953 (relating to interstate transportation of wagering paraphernalia), section 1954 (relating to unlawful welfare fund payments), section 1955 (relating to the prohibition of illegal gambling businesses), section 1956 (relating to the laundering of monetary instruments), section 1957 (relating to engaging in monetary transactions in property derived from specified unlawful activity), section 1958 (relating to use of interstate commerce facilities in the commission of murder-for-hire), section 1960 (relating to illegal money transmitters), sections 2251, 2251A, 2252, and 2260 (relating to sexual exploitation of children), sections 2312 and 2313 (relating to interstate transportation of stolen motor vehicles), sections 2314 and 2315 (relating to interstate transportation of stolen property), section 2318 (relating to trafficking in counterfeit labels for phonorecords, computer programs or computer program documentation or packaging and copies of motion pictures

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exception of obstruction of justice (18 U.S.C. §1503), none of the criminal acts listed in 18 U.S.C. §1961 are pled to any degree in the Plaintiff's Complaint. The sum total of Plaintiff's allegations against LMY are that LMY participated in a hearing whose transcript was allegedly later altered to change the nature of the proceedings that took place, that LMY moved the Delaware Supreme Court to affirm a Superior Court ruling in violation of Rule 25 of that Court's Rules of Civil Procedure, and that LMY colluded with the court reporter and the judge to deny her access to a transcript in a second case. None of these so-called "facts" fit within the violations of criminal law identified in 18 U.S.C. §1961, so they cannot be considered "predicate acts" that would enable the Plaintiff to establish a pattern of racketeering activity necessary to state a RICO claim. Furthermore, even though obstruction of justice under 18 U.S.C. §1503 can be pled to establish a pattern of racketeering activity, the Plaintiff has not sufficiently alleged violations of this section against LMY because her claims are based upon events that occurred in state court, and the plain language of §1503 applies only to intimidating or tampering with "any grand or petit juror, or officer in or of any court of the United States." This language is a bright-line rule;

or other audiovisual works), section 2319 (relating to criminal infringement of a copyright), section 2319A (relating to unauthorized fixation of and trafficking in sound recordings and music videos of live musical performances), section 2320 (relating to trafficking in goods or services bearing counterfeit marks), section 2321 (relating to trafficking in certain motor vehicles or motor vehicle parts), sections 2341-2346 (relating to trafficking in contraband cigarettes), sections 2421-24 (relating to white slave traffic), sections 175-178 (relating to biological weapons), sections 229-229F (relating to chemical weapons), section 831 (relating to nuclear materials), (C) an act which is indictable under title 29, United States Code, section 186 (dealing with restrictions on payments and loans to labor organizations) or section 501(c) (relating to embezzlement from union funds), (D) any offense involving fraud connected with a case under title 11 (except a case under section 157 of this title), fraud in the sale of securities, or the felonious manufacture, importation, receiving, concealment, buying, selling, or otherwise dealing in a controlled substance or listed chemical (as defined in section 102 of the Controlled Substances Act), punishable under any law of the United States, (E) any act which is indictable under the Currency and Foreign Transactions Reporting Act, (F) any act which is indictable under the Immigration and Nationality Act, section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose) if the act indictable under such section of such Act was committed for the purpose of financial gain, or (G) any act that is indictable under any provision listed in section 2332b(g)(5)(B)[.]"

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offenses under 18 U.S.C. §1503 can only apply to actions relating to proceedings in a federal court of the United States. O'Malley v. N.Y.C. Transit Auth., 896 F.2d 704, 707 (2d Cir. 1990). 2. Violations of 18 U.S.C. §§ 241 & 242. It is well settled that no private cause of action exists under 18 U.S.C. § 241 or § 242 (McCauley v. Computer Aid, Inc., 447 F. Supp. 2d 469, 477 (E.D. Pa. 2006; aff'd, 242 Fed. Appx. 810, 813 (3rd Circ. 2007) (dismissal affirmed; 18 U.S.C. §§ 241 & 242 do not create a private cause of action). Mindful that pro se litigants are held to less stringent standards for pleadings than are attorneys, (Id. at 471) the Court in McCauley nonetheless found that "[t]hese statutes create criminal penalties for deprivations of constitutional rights, effected by means of conspiracy or under color of state law" Id. citing United States v. City of Philadelphia, 482 F. Supp. 1248, 1260 (E.D. Pa. 1979). Even had a civil cause of action existed, Plaintiff has simply failed to allege facts upon which this Court could hold that LMY participated in any conspiracy or acted under the color of state law to deprive Plaintiff of any of her constitutional rights. In fact, just the opposite is true. As Plaintiff notes in her Complaint, the underlying alleged violations associated with her "FIRST CASE" were reviewed and ruled upon by the Supreme Court of Delaware (2007 Del. LEXIS 30) and certiori for their consideration by the United States Supreme Court was ultimately denied (127 S. Ct. 2440 (May 21, 2007)). Those associated with her "SECOND CASE" were likewise submitted for consideration, and subsequently disposed of, by the Delaware Supreme Court (2008 Del. LEXIS 259). 3. Violations of 18 U.S.C. §§ 1506, 1512, and 1513. It is equally well settled that no private cause of action exists under 18 U.S.C. § 1506 (Hamilton v. Reed, 29 F. Appx. 2d 202, 204 (6th Circ. 2002); cert. denied, 536 U.S. 971 (dismissal affirmed; 18 U.S.C. § 1506 does not create a private cause of action)). This statute

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governs the theft or alteration of a record or process upon which a judgment is reversed, voided, or otherwise rendered ineffective, and the procurement of false bail. See 18 U.S.C. § 1506. Plaintiff never received a judgment in her favor in any of the underlying actions that could have been reversed, made void, or made not to take effect as a result of any act of LMY. Moreover, Plaintiff alleges that LMY attorney Morris made "false statements" to the Court of Common Please in and for Kent County (Complaint at pg. 2) and that attorney Morris had ex parte communications with Her Honor, Judge Rosemary B. Beauregard. Accusations of this nature must be made with particularity (Fed. R. Civ. P. 9(b)) and Plaintiff has offered nothing but vague comments about attorney Morris' alleged activity. Thus, even if this court were to recognize a cause of action under the statute, which it should not, it would still be faced with a Complaint that fails to allege any set of facts upon which LMY could be found to have feloniously stolen, took away, altered, falsified, or otherwise avoid any record, writ, process, or other proceeding (id.) of any Court, or that any Court's any judgment was reversed, made void, or did not take effect (id.) as a result. It is equally well settled that no private cause of action exists under 18 U.S.C. § 1512 (Gipson v. Callahan, 18 F. Supp. 2d 662, 668 (W.D. Tex. 1997); dismissed w/o opinion, 157 F.3d 903 (5th Circ. 1998)). This statute governs tampering with a witness, victim, or an

informant. In particular it is directed at acts of an one person designed to prevent the testimony of another whereby the first person kills, uses physical force, or the threat of physical force against the second (or attempts any of these). See 18 U.S.C. § 1512. Plaintiff has alleged no facts that implicate attribute any of these acts on any party to this case, let alone implicate such conduct to LMY. Thus, even if the Court were to recognize a cause of action under the statute,

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which it should not, it would still be faced with a Complaint that fails to allege any set of facts upon which LMY could be found to have committed any of the acts governed by the statute. Finally, no private cause of action exists under 18 U.S.C. § 1513 (Rojas v. Debevoise & Plimpton, 1994 U.S. Dist. LEXIS 9382 (S.D.N.Y. 1994)). This statute governs retaliations against witnesses, victims and informants for testimony or similar assistance given in "official proceedings". 18 U.S.C. § 1513. Specifically, it governs persons who kill or attempt to kill a witness, victim or informant (§ 1513(a)); and persons who knowingly engage in any conduct and thereby cause bodily injury to a witness, victim or informant or damages the tangible property of a witness, victim or informant (§ 1513(b)). Again, Plaintiff has alleged nothing of the sort and again, even if the Court were to recognize a cause of action under the statute, which it should not, it would still be faced with a Complaint that fails to allege any set of facts upon which LMY could be found to have committed any of the acts governed by the statute. 4. Potential Action under 42 U.S.C. § 1983. Even if, under the generous pleading guidelines afforded pro se plaintiffs, the Court would consider the Complaint as having attempted to state a claim under 42 U.S.C. § 1983, such a claim would ultimately fail. Plaintiff here has not alleged any direct, supervisory, or

responsible relationship whereby the acts of LMY in defending Del-One in two of the three cases upon which Plaintiff bases her Complaint can be found to be actions taken "under the color of state law." West v. Atkins, 487 U.S. 42, 48 (1988). Plaintiff has alleged, in the most general terms, that LMY acted improperly in representing Del-One in first two cases she cites in her Complaint. Actions taken by LMY in furtherance of such representation are not actions taken under the color of state law. See Polk v. Dodson, 454 U.S. 312, 318 (1981)(A lawyer

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representing a client is not, by virtue of being an officer of the court, a state actor under the color of state law within the meaning of § 1983). C. Violations of Local Rules of Procedure and Professional Conduct. 1. Violations of the Delaware Lawyers' Rules of Professional Conduct Alleged violations of the Delaware Lawyers' Rules of Professional Conduct do not create a basis for civil liability (Marino v. Richards Layton & Finger, 160 Fed. Appx. 268, 269 (3rd Circ. 2005). Plaintiff has alleged certain facts that, were they to be considered true, could be viewed as independent violations of Delaware Lawyers' Rules of Professional Conduct. However matters of Professional Conduct of a Delaware attorney are the exclusive purview of the Delaware Supreme Court. In re Appeal of Infotechnology, Inc., 582 A.2d 215, 218 (Del. 1990). In addressing the potential for civil liability founded on an alleged violation of the Rules of Professional Conduct, the Infotechnology Court said Violation of a Rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The Rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the Rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a Rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the Rules. Accordingly, nothing in the Rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such a duty. 582 A.2d at 220. The Third Circuit dismissed the Marino case using the same logic. 160 Fed. Appx. at 269.

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2. Violations of the Civil Rules of Procedure Like alleged violations of Rules of Professional Conduct, alleged violations of judicial rules of civil procedure do not create a basis for civil liability (See e.g. Marcus Hook Development Park, Inc. v. Lampl, Sable & Makoroff, 153 B.R. 693, 704 (Bankr. W.D. Pa. 1993)). Although not yet addressed in terms of the Rules of Civil Procedure governing the several state courts as alleged in Plaintiff's Complaint, there is abundant authority for the position that civil rules do not create independent causes of action. (See e.g. Weiszmann v. Kirkland and Ellis, 732 F. Supp. 1540 (D. Colo. 1990) (violations of civil rules of procedure do not create a private cause of action); see also Simpson v. Chicago Pneumatic Tool Company, 693 N.W. 2d 612 (N.D. 2005) (violations of rules of civil procedure do not create a cause of action against opposing counsel). Ultimately, allegations of the nature presented by Plaintiff could have been considered under separate motions for Rule 11 sanctions brought within the original actions wherein the allegedly occurred, and it is well settled that Rule 11 cannot be used as the basis for civil liability in a separate litigation. Port Drum Company v. Umphry, 852 F.2d 148, 150 (5th Circ. 1988). D. Collateral Estopple & Res Judicata Under the doctrine of collateral estoppel, if a court has decided an issue of fact that is necessary to its judgment, then that decision precludes relitigation in another lawsuit on a different cause of action involving a party in the first case. Messick v. Star Enterprises, 655 A.2d 1209, 1211 (Del. 1995). Plaintiff alleges impropriety of judicial procedures, and the conduct of LMY attorney Morris, in the various State courts that have heard the actions referenced in the Complaint. Here, in action 06A-01-004, heard by Judge Young, he noted that Plaintiff failed to raise arguments concerning these improprieties to the Court of Common Pleas.

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(Shahin v. Del-One Delaware Fed. Credit Union, C.A. No. 06A-01-004 RBY (Del. Super. Ct. Aug.3, 2006) (Opinion), aff'd, No. 472, 2006 (Del. January 24, 2007) (ORDER), cert. denied 127 S. Ct. 2440.3 Moreover, the Court addressed Plaintiff's claims that her constitutional rights had been violated, finding the argument without merit because the violation complained of, i.e. lack of a de novo review of the J.P. Court decision, was granted. Shahin, C.A. No. 06A-01-004 RBY, at 6-7. The Delaware Supreme Court found that Superior Court decision "well-reasoned" and that no legally reversible error was committed. Shahin, 472, 2006, at 1. Thus, Plaintiff estopped from complaining that she did not receive her constitutional rights to due process in the state courts surrounding this claim either because she failed to argue the merits of such claims while before them, or was found to have received the process she alleges was lacking. Moreover, earlier this year, when considering whether to award of attorneys fees to Defendant Attorney for having to defend "repeated, unwarranted litigation," Delaware's Supreme Court found that "[t]he Superior Court correctly determined that Shahin's claims were barred by the doctrine of res judicata and the rule against claim splitting because she had previously raised, or could have raised, the same claims in her previous lawsuits." Shahin v. Del-One Del. Fed. Credit Union, 2008 Del. LEXIS 259 (June 9, 2008). "The rule against claim splitting is an aspect of the doctrine of res judicata and is based on the belief that it is fairer to require a plaintiff to present in one action all of his theories of recovery relating to a transaction, and all of the evidence relating to those theories, than to permit him to prosecute overlapping or repetitive actions in different courts or at different times." Maldonado v. Flynn, 417 A. 2d 378, 382 (Del. Ch. 1980). Here, Plaintiff has alleged a variety of civil claims for alleged violations of federal statutes as well as those based in violations of state judicial rules of procedure or state

3

It is axiomatic that an appellate Court will not hear issues the parties failed to raise and address in a lower court. See Wilmington Trust Company, v. Connor, 415 A.2d 773 (Del. 1980).

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Rules of Professional Conduct. To the extent Plaintiff failed to raise these issues in State Court, it appears the rule against claim splitting applies. In the alternative, to the extent Plaintiff has already raised them in State court, she is barred by the doctrines of collateral estoppel and res judicata from raising them here. Finally, it should be noted that Plaintiff has also brought federal claims alleging virtually the same facts present in the Complaint. In ruling on Plaintiff's appeal of the District Courts dismissal of the Complaint there on the basis of sovereign immunity, the Circuit Court agreed that "Shahin's complaint was frivolous, and that amendment would be futile, for the reasons explained by the District Court." Shahin v. Delaware, 2008 U.S. App. LEXIS 6843, *3 (3rd Circ., March 31, 2008), emphasis added. To the extent Plaintiff could have amended her Complaint in that action to raise the claims set out in her Complaint in this action, the Circuit Court has already ruled that such claims are frivolous. E. Conclusory Statements Of note, Plaintiff's complaint is riddled with conclusory statements and vague claims about alleged collusion and ex parte communication between and among LMY attorney Morris and the various judges named in the Complaint. Such speculation is inappropriate and insufficient to overcome a motion to dismiss. Morse, supra., at 906. Such "allegation of conspiracy that are vague, conclusory and present no overt acts must be dismissed." Thorpe v. Newell, 2005 U.S. Dist. LEXIS 19591 at *7 (D. Del. 2005); citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Circ. 1997).

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CONCLUSION For the reasons stated herein above, Defendant Liguori, Morris & Yiengst respectfully requests that Plaintiff's Complaint be DISMISSED as to it, with prejudice. Respectfully submitted, MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. /s/ Theodore J. Segletes, III . Norman H. Brooks, Jr., Esq. (#2568) Theodore J. Segletes, III, Esq. (#4456) 913 North Market Street, Suite 800 Wilmington, DE 19801 (302) 658-6538 F: (302) 658-6537 Attorneys for Defendant Liguori, Morris & Yiengst Dated: July 24, 2008

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CERTIFICATE OF SERVICE I, Theodore J. Segletes, III, hereby certify that on this 24th day of July, 2008, I caused to be electronically filed with the Clerk of the Court a true and correct copy of Defendant Liguori, Morris & Yiengst's Opening Brief and Appendix in Support of its Motion to Dismiss using CM/ECF, which will send notification to all counsel of record that such filing is available for viewing and downloading. I further certify that on this 24th day of July, 2008, I caused a true and correct copy of Defendant Liguori, Morris & Yiengst's Opening Brief and Appendix in Support of its Motion to Dismiss to be served upon the Plaintiff via First Class Mail at the following address: Ms. Nina Shahin 103 Shinecock Road Dover, DE 19904 MARKS, O'NEILL, O'BRIEN & COURTNEY, P.C. /s/ Theodore J. Segletes, III . Theodore J. Segletes, III, Esq. (# 4456) 913 North Market Street, Suite 800 Wilmington, DE 19801 (302) 658-6538 F: (302) 658-6537 [email protected]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE NINA SHAHIN, Plaintiff; v. LIGUORI, MORRIS & YIENGST, et al, Defendants. ORDER C. A. No. 08-295 GMS

AND NOW TO WIT, on this ______ day of ________________, 2008, having considered Defendant Liguori, Morris & Yiengst's Motion to Dismiss for Failure to State a Claim, brought before the Court pursuant to Fed. R. Civ. P. 12(b)(6), and all responses and matters relating thereto, and finding the Motion to be meritorious; IT IS SO ORDERED that Plaintiff's Complaint against Defendant Liguori, Morris & Yiengst is hereby DISMISSED, with prejudice.

. United States District Court Chief Judge Gregory M. Sleet

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