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

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant/Third Party Plaintiff, ) v. MIKE WALKER AND NDT EQUIPMENT SERVICES LTD., Third Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 07-346 SLR JURY TRIAL DEMANDED

MECHANICAL INTEGRITY INC.'S OPENING BRIEF IN RESPONSE TO NDT'S EQUIPMENT SERVICES LTD. AND MIKE WALKER'S MOTION TO DISMISS THIRD PARTY COMPLAINT

REGER RIZZO & DARNALL LLP /s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant/Third Party Plaintiff Mechanical Integrity, Inc. Dated: March 5, 2008

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TABLE OF CONTENTS Pages
TABLE OF AUTHORITIES............................................................................................ I. II. III. IV. STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDINGS. SUMMARY OF ARGUMENT........................................................................ STATEMENT OF FACTS............................................................................... ARGUMENT.................................................................................................... A. ii, iii 1 3 3 5

ANY AND ALL ARGUMENTS RELATING TO THIRD PARTY DEFENDANT WALKER AS AN INDIVIDUAL IS MOOT. .....................................................................................
DELAWARE HAS JURISDICTION OVER NDT............................

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6

B.

1.

NDT is bound by the forum selection clause because they are closely related to the contract and the claims arise from such contract............................................. a.
b. c. The Forum Selection Clause is valid...................... 8 NDT is closely related to the Contract.................... The claims arise from their standing to the Contract.........................................................

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2. B.

NDT should be equitably estopped from denying jurisdiction......................................................................

10 11 13

THE THIRD PARTY COMPLAINT HAS BEEN PROPERLY SERVED.....................................................................................

V. CONCLUSION..............................................................................................

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TABLE OF AUTHORITIES Pages

Federal Cases Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349 (3d Cir. 1999)............................................................... 10

Bell Helicopter Textron, Inc. v. C & C Helicopter Sales, Inc., 295 F. Supp. 2d 400 (D. Del. 2002)........................................................... 6 Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir. 1983)....................................................................... 7 E.I. Dupont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 D.3d 187 (3d Cir. 2001)........................... Hadley v. Shaffer, 2003 U.S. Dist. LEXIS 14106, (D. Del. Aug. 12, 2003).............................................................................. Jeffreys v. Exten, 784 F. Supp. 146 (D. Del. 1992)................................................ 6 Jordan v. SEI Corp., 1996 U.S. Dist. LEXIS 7627, (E.D. Pa. June 4, 1996)............................................................................ 9 Lauro Lines v. Chasser, 490 U.S. 495 (1989)........................................................ 7 M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972).................................... 7 Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, (1987)....................................................................................................... 11 Physician Endorsed LLC v. Clark, 374 F. Supp. 2d 395 (D. Del. 2005)................ 6, 10 Process and Storage Vessels, Inc., v. Tank Servs., Inc., 541 F.Supp. 725 (D. Del. 1982).............................................................. 8 10 7, 9

Res. Ventures, Inc. v. Res. Mgmt Int'l, Inc., 42 F. Supp. 2d 423 D. Del. 1999)........................................................................................... 7 State Cases Capital Group Cos. v. Armour, 2004 Del. Ch. LEXIS 159, (Del. Ch. Oct. 29, 2004)........................................................................ 7, 10

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Pages Coston v. Brown, 2004 Del. Super. LEXIS 345 at *3 (Del. Super. Ct. Sept. 10, 2004)................................................................. 12 Harmon v. Eudaily, 420 A.2d 1175 (Del. 1980).................................................... 6 Hart Holding Co., Inc. v. Drexel Burnham Lamber, Inc., 593 A.2d 535 (Del. Ch. 1991).................................................................... 6 Quinn v. Keinicke, 700 A.2d 147 (Del. Super. 1996).................................... Sternberg v. O'Neil, 550 A.2d 1105 (Del. 1987).............................................. 12 7

Waters v. Deultz Corp., 460 A.2d 1332 (Del. Super. 1983)................................... 6 Statutes 10 Del.C. § 3104..................................................................................................... 10 Del.C. § 3112..................................................................................................... Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T361.................... 11,12 Other Authorities Federal Rules of Civil Procedure Rule 4................................................................ 12,13 1,2,3,6 ,12 2

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COMES NOW, Defendant/Third Party Plaintiff, Mechanical Integrity Inc., through its counsel, respectfully moves this Court to DENY Third Party Defendants NDT Equipment Services LTD. and Mike Walker's Motion to Dismiss the Third Party Complaint. In support of its Motion, Defendant avers the following: I. STATEMENT OF THE NATURE AND STAGE OF THE PROCEEDINGS On or about June 1, 2007, E.I. du Pont Nemours and Company (herein after referred to as "DuPont") filed a suit against Mechanical Integrity alleging that they breached the contract, and committed fraud, intentional misrepresentation, and/or negligent misrepresentation. See D.I. 1. DuPont alleged upon reliance of Mechanical Integrity's report, essentially NDT's report, they suffered damages due to not being able to repair the area of the pipe where the leak occurred. See D.I. 1. On or about October 1, 2007, Mechanical Integrity filed a Motion for Leave to File a Third Party Complaint against NDT Equipment Services LTD. (hereinafter referred to as "NDT") and Mike Walker individually. See D.I. 16. On or about October 19, 2007, the Court granted leave to Mechanical Integrity to File the Third Party Complaint. See D.I.20. Mechanical Integrity has attempted to complete service upon Third Party Defendant in three different ways: 1) request for waiver of service, 2) long arm statute, and 3) through the Hague Convention. As stated in Third Party Defendants' Motion to Dismiss, both Walker and NDT have received such request for waiver of service and have refused such service. See D.I. 29 at page 4. As prescribed by 10 Del. C. § 3104 and specifically within 7 days of return of service from the Secretary of State, Mechanical Integrity sent NDT and Walker, respectively, via registered mail, 1

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a copy of the process and complaint served upon the Secretary of the State and the statement that service of the original such process has been made upon the Secretary of the State, and that under this section such service is effectual to all intents and purposes as if it had been made upon them personally within the State. See Rizzo letter, attached hereto as Exhibit "A". It is not disputed by NDT that Mechanical Integrity sent the registered mail to NDT and Walker within 7 days as prescribed by statute. See D.I. 29 at page 15, stating that return of service was filed on December 10, 2007 and Mechanical Integrity sent the notices via registered mail on December 14, 2007. Due to a typographical error, the letter states that service has been performed under 10 Del. C. § 3112 rather than § 3104 but has all other necessary language within the letter. See Exhibit "A". Obviously Third Party Defendants received such notice as it was mentioned in their Motion to Dismiss. See D.I. 29, page 4. As to the Hague service, on or about December 6, 2007, six copies of the Complaint and Request for Service Abroad of Judicial or Extrajudicial Documents were sent to England's Central Authority for service on NDT. See Gumapac Letter, attached hereto as Exhibit "B". Upon a conversation with the Queens Bench Division, the United Kingdom authorities responsible for service through the Hague Convention is still in the process of serving the named Third Defendants. See affidavit of Rochelle Gumapac, Esq., attached hereto as Exhibit "C". The Queens Bench, the England's designated central authority, confirmed that once service is completed, it will file the receipt of service directly to the District Court of Delaware. See Exhibit "C". Third Party Plaintiff offered to voluntarily dismiss Walker as a party upon written confirmation that all actions taken in relation to this matter were performed in his capacity as agent of NDT and not in his individual capacity. On January 30, 2008, Third Party Plaintiff received written 2

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confirmation. See Rostocki Letter, attached here to as Exhibit "D". On February 1, 2008, Third Party Plaintiff voluntarily dismissed Mike Walker. See D.I. 27. Later that same day, NDT and Mike Walker filed a Motion to Dismiss and an Opening Brief in Support of Motion to Dismiss. See D.I. 28 & 29. II. SUMMARY OF ARGUMENT A. ANY AND ALL ARGUMENTS RELATING TO THIRD PARTY DEFENDANT WALKER AS AN INDIVIDUAL IS MOOT. Prior to the filing of NDT and Mike Walker's Motion to Dismiss, Mike Walker was voluntarily dismissed therefore making any arguments regarding Mike Walker moot. B. DELAWARE HAS JURISDICTION OVER NDT.

NDT is bound by the valid forum selection clause selecting Delaware jurisdiction because they are closely related to the contract and the claims arise from such contract. Alternatively, NDT should be equitably estopped from denying jurisdiction because they directly benefitted from the DuPont and Mechanical Integrity contract. C. NDT HAS BEEN PROPERLY SERVED.

NDT has been properly served through Delaware's Long Arm Statute, 10 Del. C. § 3104, and is pending additional proper service through the Hague Convention. III. STATEMENT OF FACTS On or about February 2, 2004, DuPont and Mechanical Integrity Inc. entered into a contract, Purchase Order No. 4500104098, whereby Mechanical Integrity was to perform a "guided wave" ultrasound inspection on DuPont's chloroform pipeline supplying their Louisville, Kentucky plant. See Purchase Order, attached hereto as Exhibit "E". The Purchase Order expressly incorporates 3

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DuPont's General Conditions. See General Conditions, originally attached to the Purchase Order, attached hereto as Exhibit "F". The parties' contract contained a forum selection clause, whereby signing the contract, Mechanical Integrity consented and submitted exclusively to the jurisdiction and service of process of the courts of the State of Delaware or to the courts of the United States located in Delaware. See Exhibits "E", "F", and D.I. 1. Because of the sophistication and relative newness of the technology needed to perform a "guided wave" ultrasound inspection, Mechanical Integrity orally contracted with NDT Services LTD., specifically through NDT's agent and/or director Mike Walker, to perform the DuPont inspection. See Mike Sens' Affidavit, attached hereto as Exhibit "G". NDT and/or Mike Walker, as a director and/or agent of NDT, had previous contractual relationships with Mechanical Integrity. See Exhibit "G". All contractual agreements between Mechanical Integrity and NDT were undertaken by Mechanical Integrity's late founder, John McMillian. See Exhibit "G". It is unknown whether NDT and/or Mike Walker, as a director and/or employee of NDT, was ever given a copy of the contract between DuPont and Mechanical Integrity. See Exhibit "G". In fact at the time of the inspection, Mechanical Integrity believed that NDT Services LTD was one of the highest recommended companies in the world performing such "guided wave" ultra sound inspection on a regular basis. See Exhibit "G". On or about March 31, 2004 to April 1, 2004, an inspection of the chloroform pipeline was conducted at the DuPont Louisville plant. See D.I. 1. Mike Walker performed the actual "guided wave" ultra sound inspection. See Exhibit "G". Mike Walker was being assisted by Mechanical Integrity employee Mike Sens while DuPont employees and/or agents observed. See Exhibit "G". During the inspection, Walker used his own tools and/or technology and performed all the duties set 4

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forth in the Mechanical Integrity and DuPont contract. See Exhibit "G". During the inspection, Mike Walker was unable to deploy the equipment and/or test multiple sections of the pipe due to the pipe being emerged under water and/or off its support. See Exhibit "G". Shortly after the inspection, Mike Walker, as a director and/or agent of NDT Services LTD., drafted a report containing all his observations and/or recommendations as to the DuPont chloroform pipeline. See NDT's report, attached hereto as Exhibit "H". Mechanical Integrity adopted all of Mike Walker's findings and submitted such findings to DuPont. See Mechanical Integrity's report, attached hereto as Exhibit "I". Subsequent to the March 31, 2004 to April 1, 2004 inspection, DuPont contracted again with Mechanical Integrity, Purchase Order No. 450045916, to conduct a subsequent inspection of the pipeline. See Purchase Order, attached hereto as Exhibit "J". The inspection was to be conducted from November 17, 2005 to November 19, 2005. See Plaintiff's Complaint (D.I. 1), paragraph 15. During such inspection on November 18, 2005, a chloroform leak was detected at the DuPont Louisville pipeline near an area designated by DuPont as T9 of the pipeline. See D.I. 1, paragraph 16. IV. ARGUMENT A. ANY AND ALL ARGUMENTS RELATING TO THIRD PARTY DEFENDANT WALKER AS AN INDIVIDUAL IS MOOT.

On or about February 1, 2008, prior to the filing of the Motion to Dismiss, Mechanical Integrity voluntarily dismissed Third Party Defendant Walker in his individual capacity. See D.I. 27. Thus since Third Party Defendant Walker in his individual capacity has already been dismissed, any arguments pertaining to Walker is moot. B. DELAWARE HAS JURISDICTION OVER NDT.

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When reviewing a Motion to Dismiss based on lack of personal jurisdiction, a Court must accept all of Plaintiff's allegations of jurisdictional fact and resolve all factual disputes in favor of the Plaintiff. Physician Endorsed LLC v. Clark, 374 F. Supp. 2d 395 (D. Del. 2005). A federal district court can assert personal jurisdiction over a non-resident of the state in which the court sits to the extent authorized by that state's law. Bell Helicopter Textron, Inc. v. C & C Helicopter Sales, Inc., 295 F. Supp. 2d 400 (D. Del. 2002). It is a two-step process to determine if Delaware has personal jurisdiction over the Defendant; first, the Defendant's asserted conduct must fall within an enumerated category under 10 Del.C. § 3104; and second, service must comport with the traditional notions of fair play and substantial justice under the due process clause. Jeffreys v. Exten, 784 F. Supp. 146 (D. Del. 1992). Delaware's long arm statute subsection © is to be construed liberally, favoring the exercise of jurisdiction. See Waters v. Deultz Corp., 460 A.2d 1332 (Del. Super. 1983). The Plaintiff having the evidentiary burden in a challenge to personal jurisdiction may not ordinarily be precluded from reasonable discovery in meeting his or her burden. See Hart Holding Co., Inc. v. Drexel Burnham Lamber, Inc., 593 A.2d 535 (Del. Ch. 1991). When an in personam jurisdiction is challenged, the record is construed most strongly against the moving party. See Harmon v. Eudaily, 420 A.2d 1175 (Del. 1980). The Court cannot grant a Motion for Lack of Personal Jurisdiction by simply accepting that the well pleaded facts in the Complaint as true "because the pleader has no obligation to plead facts that show the amenability of the defendant to service of process." Hart Holding Co. Inc., 593 A.2d at 538.

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1.

NDT is bound by the valid forum selection clause because they are closely related to the contract and the claims arise from such contract.

A party may expressly consent to jurisdiction by contract. See Capital Group Cos. v. Armour, 2004 Del. Ch. LEXIS 159, at *2 (Del. Ch. Oct. 29, 2004). When there is a valid forum selection clause in a contract, the parties to the contract are considered having expressly consented to jurisdiction. Res. Ventures, Inc. v. Res. Mgmt Int'l, Inc., 42 F. Supp. 2d 423, 431 (D. Del. 1999). Express consent to jurisdiction, in and of itself, satisfies the requirements of Due Process. See Sternberg v. O'Neil, 550 A.2d 1105, 1116 (Del. 1987). Therefore, if consent is found as to personal jurisdiction through contract, no minimum contracts analysis is required. See Capital Group, 2004 WL 2521295, at *2. Forum selection clauses and/or consent to jurisdiction clauses are "presumptively valid" and should be "specifically" enforced unless a party can "clearly show that enforcement would be unreasonable and unjust, or that the clause was invalid" for other reasons such as fraud or against public policy. M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972). In Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir. 1983), the Court held that Coastal, a non signatory to a contract, was bound by the Farmer Norton and Tilghman contract containing a forum selection clause. Coastal Steel Corp. v. Tilghman Wheelabrator Ltd., 709 F.2d 190 (3d Cir. 1983), overruled on other grounds by Lauro Lines v. Chasser, 490 U.S. 495 (1989). In Coastal, Coastal had contracted with Farmer Norton and in turn Farmer Norton contracted with Tilghman to fulfill its contract with Coastal. Id. The Farmer Norton and Tilghman contract contained a forum selection clause, which was enforced upon the nonsignatory party, Coastal. Id. Similarly, in Hadley v. Shaffer, 2003 U.S. Dist. LEXIS 14106, (D. Del. Aug. 12, 2003), the 7

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Court also enforced a forum selection clause upon a non-signatory. Id. In coming to its conclusion, the Court followed a three-part inquiry into whether a party who does not sign a contract can be bound by the forum selection clause contained therein. Id. The following is the three-part inquiry: First, is the forum selection clause valid? Second, are the defendants third party beneficiaries, or closely related to, the contract? Third, does the claim arise from their standing relating to the [merger] agreement? Id. at *10. Although NDT was a non-signatory to DuPont and Mechanical Integrity's contract containing a forum selection clause, they should be held as expressly consenting jurisdiction like in Hadley and Coastal. As in Hadley, the forum selection clause is valid, NDT is closely related to the contract, and claim arises from such agreement. a. The Forum Selection Clause is valid.

Generally, forum clauses are enforced as long as at the time of litigation, it would not place any parties at a substantial and unfair disadvantage or otherwise deny a litigant his day in court. See Process and Storage Vessels, Inc., v. Tank Servs., Inc., 541 F.Supp. 725, 733 (D. Del. 1982). A forum selection clause is presumptively valid. See Coastal, F.2d at 202. In order to make it invalid, the objecting party has to establish "1) that it is the result of fraud or overreaching, 2) that enforcement would violate a strong public policy of the forum, or 3) that enforcement would in the particular circumstances of the case result in litigation in a jurisdiction so seriously inconvenient as to be unreasonable. Id. Both Delaware and federal jurisdictions have supported the general principal that private parties can agree to litigate actions arising out of a contract in a single jurisdiction. See Process, 541 F.Supp. at 733. Thus "defendant bears a heavy burden in claiming that the forum selection clause is invalid". Capital Group, 2004 Del. Ch. LEXIS 159 at * 23 (Del. Ch. 2004). 8

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In the instant case, there are no facts to support that forum selection clause was due to fraud or overreaching and that the enforcement would violate a strong policy of the forum. Additionally, litigating in Delaware is not so inconvenient when faced with the fact that if this action was dismissed, suit against NDT would be filed in either Texas or Kentucky, where jurisdiction would clearly exist. Should this case be brought elsewhere, NDT would be at a disadvantage since the case would continue in Delaware and NDT would not have an opportunity to actively participate in discovery and would be faced with defending the same suit in another jurisdiction, which would simply result in increased costs and expenses related to coordinating discovery in two related cases. Therefore, the forum selection clause is valid. b. NDT is closely related to the Contract.

Should the defendant be found by the Court as a party, third party beneficiary, or closely related to the contract, they will be bound by the forum selection clause. Hadley, 2003 U.S. Dist. LEXIS 14106 at *12. "Forum selection clauses bind nonsignatories that are closely related to the contractual relation or that should have foreseen governance by the clause." Id. at *18, citing Jordan v. SEI Corp., 1996 U.S. Dist. LEXIS 7627, at *18-19 (E.D. Pa. June 4, 1996). In the instant case, NDT is closely related to the contractual relation. NDT performed all the obligations under the DuPont and Mechanical Integrity contract and received a direct benefit from the contract, compensation. Additionally, prior to undertaking the inspection, NDT was or at the very least should have been aware that a contractual relationship existed between DuPont and Mechanical Integrity and that their services on behalf of Mechanical Integrity were dictated by such contract. Indeed, NDT performed the inspection enumerated in the DuPont contract, which confirms NDT's familiarity with its terms. Thus NDT was closely related to the contractual relationship and should 9

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have foreseen such governance by the clause. c. The claims arise from their standing to the Contract.

In the instant matter, the claim obviously arises from the Contract. The Contract was drafted and directs activities relating to the inspection of DuPont's Kentucky pipeline. The claims of DuPont and subsequent claims from Mechanical Integrity arise from such inspection of DuPont's Kentucky pipeline. NDT performed the actual inspection and directly benefitted from the contract, therefore making the claim arise from the Contract. In sum, the Court should conclude that NDT is bound by the forum selection clause because the contract contains a valid clause, NDT is closely related to the Contract, and the claim arises from such contract. 2. NDT should be equitably estopped from denying jurisdiction.

Should the Court hold that NDT is not bound by the contract, jurisdiction is still proper under the doctrine of equitable estoppel. Non-signatories are prevented from embracing portions of the contract and then turning their back on other portions of the contract, such as a forum selection clause, that they find distasteful through the doctrine of equitable estoppel. E.I. Dupont de Nemours & Co. v. Rhone Poulenc Fiber & Resin Intermediates, S.A.S., 269 D.3d 187, 200 (3d Cir. 2001). Generally, the cases applying the doctrine of equitable estoppel in this context involve non-signatories who, despite never signing the contract, embrace the contract during performance and then, during litigation, attempt to discard portions of the contract such as a forum selection or arbitration clause. See Capital Group, 2004 Del. Ch. LEXIS 159 at *27, referencing Am. Bureau of Shipping v. Tencara Shipyard S.P.A., 170 F.3d 349, 353 (3d Cir. 1999). In Capital Group, the Court held that generally a non-signatory should be "estopped from refusing to comply with a forum selection clause 10

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when she receives a "direct benefit" from a contract containing a forum selection clause". Id. In the instant case, NDT embraced the contract between DuPont and Mechanical Integrity by performing all the duties within the Contract and following DuPont's inspection guidelines and cannot now discard the portions of the contract it finds unwanted. Additionally, NDT received direct benefits from DuPont and Mechanical Integrity's contract. Firstly, NDT received compensation for the inspection. Without such contract, there would have been no reason for Mechanical Integrity to compensate NDT. Secondly, NDT received the benefit of further testing its new ultra sound technology by performing the inspection at DuPont. The inspection gave NDT another chance to use the new technology. Lastly, NDT received an opportunity to strengthen its relationship with Mechanical Integrity and expand its business relations. The contract between DuPont and Mechanical Integrity provided an opportunity for NDT to showcase its new technology and possibly obtain more business in America, which would in turn expand their client base and raise more compensation. Since NDT embraced the DuPont and NDT contract and received a direct benefit from such contract, it should be estopped from denying the forum selection clause contained within such contract. C. THE THIRD PARTY COMPLAINT HAS BEEN PROPERLY SERVED.

Effective service of process is necessary before a Court may exercise personal jurisdiction over a defendant. See Omni Capital Int'l Ltd. v. Rudolf Wolff & Co., Ltd., 484 U.S. 97, 104 (1987). Under Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T361, service can be effectuated on those abroad in signatory countries to the Convention, including the United States and the United Kingdom, through

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either the designated Central Authority of that country and/or through registered mail. See Convention of the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, Nov. 15, 1965, 20 U.S.T361. Delaware Courts have held that service is accomplished via the Convention through mail when the requirements under the Delaware long arm statute are satisfied. See Quinn v. Keinicke, 700 A.2d 147, 155-156 (Del. Super. 1996). Service to a foreign corporation is prescribed by Federal Rules of Civil Procedure Rule 4(f) and (h). See Federal Rules of Civil Procedure Rule 4(f) and (h). Federal Rules of Civil Procedure Rule 4(m), which prescribes 120 days as the time limit for service, does not apply to service under Rule 4(f). See Federal Rules of Civil Procedure Rule 4(m). In the instant case, there was effective service of process. Mechanical Integrity attempted to accomplish service to NDT in three different manners. Admittedly, the waiver of service did not effectuate service because NDT refused to sign such waiver. Service through the long arm statute on NDT was proper. Mechanical Integrity complied with the requirements of 10 Del. C. § 3104 in that it served the Secretary of the State and sent the prescribed contents to Third Party Defendants via registered mail within 7 days as required by statute. See 10 Del. C. § 3104. Upon reasonable research, no Delaware case law was found where a Court held that service was improper under 10 Del. C. § 3104 due to referencing the wrong statue section. The case presented by NDT, Coston v. Brown, 2004 Del. Super. LEXIS 345 at *3 (Del. Super. Ct. Sept. 10, 2004), holding that strict compliance with 10 Del. C. § 3104 deals with a Plaintiff who did not send registered mail to the Defendant within the prescribed 7 days. Id. Therefore, since Mechanical Integrity complied with 10 Del. C. § 3104, service was proper. Should the Court find that the long arm service was improperly performed, Mechanical Integrity may have properly served NDT through the Hague Convention. The Hague Convention personal service through England's designated Central Authority is still in the process of being served

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and once performed will be proper service upon NDT. Since service through the Hague Convention is not limited to 120 days as prescribed in Federal Rules of Civil Procedure Rule 4(m), timing of service is still appropriate. IV. CONCLUSION For the above stated reasons, NDT's Motion to Dismiss should be DENIED. Should the Court grant NDT's Motion to Dismiss, Mechanical Integrity requests that the Court dismiss the action without prejudice so that suit can be brought in another jurisdiction.
REGER RIZZO & DARNALL LLP /s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire (Bar I.D. No. 3374) 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant/Third Party Plaintiff Mechanical Integrity, Inc.

Dated: March 5, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant/Third Party Plaintiff, ) v. MIKE WALKER AND NDT EQUIPMENT SERVICES LTD., Third Party Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

C.A. No.: 07-346 SLR JURY TRIAL DEMANDED

ORDER AND NOW, TO WIT this ________ day of ________________, 2008 having considered Third Party Defendants' Motion to Dismiss Third Party Complaint and Opening Brief in Support of Motion to Dismiss Third Party Complaint, and Defendant/Third Party Plaintiff Mechanical Integrity, Inc.'s Opening Brief in Response to NDT'S Equipment Services LTD and Mike Walker's Motion to Dismiss Third Party Complaint; IT IS HEREBY ORDERED that Third Party Defendant NDT Equipment Services, LTD and Mike Walker's Motion to Dismiss Third Party Complaint is DENIED. BY THE COURT:

THE HONORABLE SUE L. ROBINSON

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE E.I. DU PONT DE NEMOURS AND COMPANY, Plaintiff, v. MECHANICAL INTEGRITY, INC., Defendant/Third Party Plaintiff, ) v. MIKE WALKER AND NDT EQUIPMENT SERVICES LTD., Third Party Defendant. ) ) ) ) ) ) ) CERTIFICATE OF SERVICE I, the undersigned, do hereby certify on this 5th day of March, 2008 that a true and correct copy of Mechanical Integrity Inc.'s Opening Brief in Response to NDT Services Ltd. and Mike Walker's Motion to Dismiss Third Party Complaint and has been served electronically and/or by first class mail, postage ) ) ) ) ) ) ) ) )

C.A. No.: 07-346 SLR JURY TRIAL DEMANDED

prepaid, to the following: Kathleen Furey McDonough, Esquire Sarah E. DiLuzio, Esquire Potter Anderson & Corroon LLP Hercules Plaza, 6th Floor 1313 N. Market Street P.O. Box 951 Wilmington, DE 19899 William J. Marsden, Jr., Esquire Brian M. Rostocki, Esquire Fish & Richardson P.C. 919 North Market Street P.O. Box 1114 Wilmington, DE 19899

REGER RIZZO & DARNALL LLP /s/ Louis J. Rizzo, Jr., Esquire Louis J. Rizzo, Jr., Esquire Delaware State Bar I.D. No. 3374 1001 Jefferson Plaza, Suite 202 Wilmington, DE 19801 (302) 652-3611 Attorney for Defendant Mechanical Integrity, Inc. Dated: March 5, 2008

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