Free Motion to Continue - District Court of Delaware - Delaware

Case 1:07-cv-00248-SLR

Document 36

Filed 03/14/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
)

The American Legacy Foundation
Plaintiff,
v.

)

)Civil Action No. 07-248 (SLR)
)

) )
) )

National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendant.

) ) )

PLAINTIFF AMERICAN LEGACY FOUNDATION'S MOTION TO CONTINUE ORAL ARGUMENT ON DEFENDANT'S MOTION FOR PARTIAL DISMISSAL
Plaintiff American Legacy Foundation ("Foundation"), hereby moves to continue oral
argument on the Motion of Defendant National Union Fire Insurance Company of

Pittsburgh, Pa.

("National Union") for Partial Dismissal until such time as briefing has been completed on the
Foundation's Motion for Summary Judgment filed on March 12,2008.
1. On May 4, 2007, the Foundation filed its complaint in this matter seeking

insurance coverage for legal fees and costs it had incurred in litigation with Lorillard Tobacco
Company.

2. On November 30,2007, National Union filed its Motion for Partial
Dismissal of the Plaintiffs Complaint with respect to one type of

policy (the directors and

officers or "D&O" liability policy) that it had issued to the Foundation (the "Motion for Partial
Dismissal").

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3. The Motion for Partial Dismissal has been fully briefed by the parties and

set by this Court for oral argument on March 28,2008.
4. On March 12,2008, the Foundation filed its Motion for Summary

Judgment (the "Summary Judgment Motion") seeking an Order that, as a matter oflaw, National
Union is obligated, under both types of insurance policy it sold to the Foundation, the D&O
Policy and two comprehensive general liability policies, to pay the full amount of

the legal fees

and costs the Foundation incurred in the litigation with Lorillard.
5. The issues raised by the Motion for Partial Dismissal and the Summary

Judgment Motion (collectively, the "Motions") overlap in significant respects.
6. For example, the Motions each address the applicability of

the "eight

comers rule" and the standards for determining an insurer's obligation to pay defense costs under
Delaware law. See, e.g., Memorandum in Support of

National Union's Motion for Partial

Dismissal ("National Union's Partial Dismissal Brief'), p.8; Memorandum in Support of
American Legacy Foundation's Opposition to Defendant National Union's Motion for Partial

Dismissal (the "Foundation's Opposition Brief') at 13.; Memorandum in Support of American
Legacy Foundation's Motion for Summary Judgment ("Foundation's Summary Judgment
Brief') at 10.

7. The Motions also each address whether the allegations in the underlying

actions are within the scope of the specific grant of coverage for "libel, slander and defamation"

under the D&O policy. See, e.g., Foundation's Opposition Brief at 20-23; Memorandum in
Support of National Union's Reply in Support of

its Motion for Partial Dismissal ("National
at 18.

Union's Reply Brief') at 14-16; Foundation's Summary Judgment Brief

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8. The Motions also each address the standard applicable to determining the
obligation of an insurer to pay defense costs under insurance policies which require the insurer to
"advance defense costs" prior to the disposition of

the underlying matter. See, e.g., National

Union's Partial Dismissal Brief, p. 10; Foundation's Opposition Brief at 24-25; National Union's
Reply Brief at 2-3; Foundation's Summary Judgment Brief at 18.
9. National Union may, in its response to the Summary Judgment Motion,

raise additional issues that are also addressed in the briefing ofthe Motion for Partial DismissaL.
10. This Court may, in its discretion, postpone the oral argument because

"(mJatters of docket control and scheduling are within the sound discretion of

the district court."

Alaska v. Boise Cascade Corp., 685 F.2d 810,817 (3d Cir. 1982).
1 1 . The interests of judicial economy and efficiency will be furthered by

combining the oral arguments with respect to the Motion for Partial Dismissal and the Summary
Judgment Motion.
12. The Foundation has sought National Union's consent to continue oral

argument on the Motion for Partial Dismissal, but National Union has not consented.
13. National Union will not be prejudiced by a brief

postponement of oral

argument on its Motion for Partial DismissaL.

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WHEREFORE, Plaintiff American Legacy Foundation prays that this Motion to

Continue Oral Argument on Defendant's Motion for Partial Dismissal be granted and that the
Court postpone the oral argument currently scheduled for March 28, 2008, on National Union's

Motion for Partial Dismissal until such time as the briefing in connection with the Motion for
Summary Judgment has been completed.

Date: March 14, 2008

PACHULSKI, STANG, ZIEHL & JONES LLP

Laura Davis Jones (Bar No. 2436) Timothy P. Cairns (Bar No. 4228) 919 North Market Street, 17th Floor Wilmington, DE 19899-8705
Telephone: (302) 652-4100

Ifv r iL_

Facsimile: (302) 652-4400
and
Richard Shore

August J. Matteis, Jr. Kami E. Quinn GILBERT RANDOLPH LLP 1100 New York Avenue, NW Washington, DC 20005
Telephone: (202) 772-2200

Attorneys for Plaintiff American Legacy Foundation

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
)

The American Legacy Foundation
Plaintiff,
v.

)

)Civil Action No. 07-248 (SLR)
) )

) )
) ) ) )

National Union Fire Insurance Company of Pittsburgh, Pennsylvania, Defendant.

STATEMENT PURSUANT TO D. DEL. LR 7.1.1 I am counsel for American Legacy Foundation, plaintiff in the above captioned action.
Prior to filing American Legacy Foundation's Motion to Continue Oral Argument, I contacted

counsel for the Defendant National Union and requested a consensual continuance of the
argument on Defendant's Motion for Partial DismissaL. I spoke with counsel telephonically on

March 13, 2008 and attempted to reach counsel again on March 14, 2008 to seek such an
continuance. National Union has not consented to such requests.

~
BR.533181.1

~

GILBERT RANDOLPH LLP i i 00 New York A venue, NW Suite 700 Washington, DC 20005
(202) 772-2200

Attorney for Plaintiff American Legacy Foundation

-:SSI';.II95/001/287816.k:/SSF;.

Case 1:07-cv-00248-SLR

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWAR

THE AMERICAN LEGACY FOUNATION )

) )
) )

Plaintiff, )

~ )
manner indicated thereon:

CASE NO: 07-248 (SLR)

NATIONAL UNION FIR INSURCE COMPANY )

OF PITTSBURGH, PENNSYLVANIA, )

Defendant )
I, Timothy P. Cairns, hereby certify that on 14th day of

)
)

CERTIFICATE OF SERVICE
March, 2008, I caused a

copy ofthe following document to be served on the individuals on the attached service list in the

PLAINTIFF AMERICAN LEGACY FOUNDATION'S MOTION TO CONTINUE ORAL ARGUMENT ON DEFENDANT'S MOTION FOR PARTIAL DISMISSAL

Timothy P. Cairns (Bar No. 4228)

'\Ndl ~

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American Legacy Foundation Service List
Document No. 130442

02 - Hand Delivery
01 -First Class

Hand Delivery Richards Layton & Finger, P.A. John A. Parkins, Jr. Chad M. Shandler Todd A. Coomes
One Rodney Square, P.O. Box 551

Wilmington, DE 19899
Hand Delivery
Fox Rothschild, LLP

Neal J. Levitsky, Esquire 919 N. Market Street, Suite 1300 Wilmington, DE 198014

First Class Mail
Kramon & Graham, P.A. Lee H. Ogburn, Esquire
One South Street, Suite 2600

Baltimore, MD 21202-3201