Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv—00363-G|\/IS Document6 Filed 11/16/2007 Page1 of2
UNITED STATES DISTRICT COURT
DISTRICT OF DELAWARE
PAUL MARTIN, III
TRAVELERS INDEMNITY CO. OF
AMERICA
Plaintiffs _
Civil Action 110. 07-363 2
v. ¤
ANDREAS STIHL AG & CO., KG
ST IHL, INC
UNITED RENTALS Q
Defendants i
PLAINTIFFS' RESPONSE TO O
DEFENDANTS STIHL, INC. and ANDREAS STIHL AG & CO., KG I
MOTION TO DISMISS PURSUANT TO RULE 12 b 1 j
Plaintiffs, by and through their counsel, hereby respond to Defendants' Motion to
Dismiss.
Based upon the afiidavits provided by defendant Stihl, Inc., plaintiffs concede that the
parties in this case are not diverse in that one defendant, Stihl, Inc., is a Delaware corporation
with its principal place of business located in Virginia Beach, Virginia. In this situation, the
court has the discretion to either dismiss the action for lack of jurisdiction entirely, or to
segregate the non-diverse parties and allow the action to be maintained solely against the
remaining diverse parties.
Segregation of this case is neither practical nor necessary, since it will result in the
plaintiffs having to pursue two separate cases, one in federal court and one in Kent County,
Delaware, against separate defendants, arising out ofthe same cause of action. If the case is
dismissed for lack ofjurisdiction in its entirety, plaintiffs will be permitted to refile the entire
action in state court in Kent County, Delaware, pursuant to 10 Del. C. § 8118, which allows an

Case 1:07-cv—00363-G|\/IS Document 6 Filed 11/16/2007 Page 2 of 2
action that has been dismissed for lack ofjurisdiction to be reiiled in state court within one year
ofthe dismissal.
In order to avoid a multiplicity of actions, plaintiffs do not oppose the dismissal of this
case in its entirety, pursuant to 28 U..S .C. § 1332, which will thereby allow plaintiffs to refile the _
entire action in Kent County, Delaware.
Respectfully submitted, f
REILLY, JANICZEK & McDEVITT, P..C. I
BY: /s./ R. Stokes Nolte
R STOKES NOLTE, ESQUIRE .
DE BAR NO. 2301
ATTORNEYS FOR PLAIN TIFPS -
1010 NORTH BAN CROF T PARKWAY -
SUITE 21 _
WILMINGTON, DE 19805
(302) 777-1700