Free Motion to Stay - District Court of Delaware - Delaware

Case 1:07-cv-00239-JJF

Document 74

Filed 05/09/2008

Page 1 of 3

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., : : Plaintiff, : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNON : : Defendants. :

C.A. No. 07-239 JJF

DEFENDANT DR. BINNON'S MOTION TO STAY OR STRIKE DISCOVERY PENDING DECISION ON MOTION TO DISMISS Defendant Dr. Binnon ("Movant") hereby moves for entry of an order in the form attached hereto staying or striking discovery pending the Court's decision on his Motion to Dismiss the Plaintiff's claims against him for failure timely to serve process. (D.I. 57) In support of this Motion, Movant states as follows: 1. On May 2, 2007 Plaintiff filed his Complaint alleging civil rights violations against

Raphael Williams, Lt. Sheets, and Mr. Smith. (D.I. 2) Movant was not a named defendant. (Id.) On June 25, 2007 Plaintiff filed his Amended Complaint which added as defendants Dr. McDonald and Jim Welch and dismissing Raphael Williams. (D.I. 8) The Amended Complaint did not name Movant, either. (Id.) On July 31, 2007 Plaintiff filed his Second Amended Complaint, this time purporting to add Movant as a defendant. (D.I. 11) 2. On March 13, 2008, Movant filed his Motion to Dismiss for failure timely to serve

process pursuant to Rule 4(m). (D.I. 57) No Entry of Appearance was filed, and Movant reserved the right to raise all defenses. (Id.) The basis of the Motion was that more than 180

Case 1:07-cv-00239-JJF

Document 74

Filed 05/09/2008

Page 2 of 3

days had passed without service. (Id.) As of the date of the instant Motion, service still has not been perfected according to the Rules, and 244 days have passed since the filing of the Second Amended Complaint purporting to add Dr. Binnon as a defendant. 3. On May 8, 2008, the undersigned counsel received from Plaintiff a letter dated May 1,

2008 claiming, in essence, that service had been effected by virtue of the filing of Dr. Binnon's Motion to Dismiss. (Exhibit "A") Included with the May 1 letter were Plaintiff's putative return of service and some discovery requests, including requests for admission and interrogatories. (Id.) The Plaintiff's Requests for Admission and Interrogatories were filed with the Court on May 8, 2008. (D.I. 70, 71) 4. As set forth in the Motion to Dismiss (D.I. 57), Movant continues to believe that he has

not been made a party to the above-captioned action either through service of process, and also believes that he has not waived that defense merely by filing his Motion to Dismiss. Waiver of personal jurisdiction via the latter method would violate due process concerns. Therefore, Movant is not a party to the case. Because non-parties are not subject to compulsory discovery, the discovery requests filed by Plaintiff should either be stayed until the Motion to dismiss is decided, or stricken in its entirety until Movant's Motion to Dismiss is decided or until service is properly perfected, thus rendering Movant a proper party subject to compulsory discovery under the Rules. 5. Pursuant to Rules 33, 36, and 37, failure timely to respond to requests for admission and

interrogatories carries potential penalties ranging from matters being deemed admitted, to loss of the opportunity to object, to default judgment (Id.) Movant could be prejudiced if it these requests are not stayed and it is later determined that Movant had an obligation to respond and failed timely to do so.

Case 1:07-cv-00239-JJF

Document 74

Filed 05/09/2008

Page 3 of 3

6.

Accordingly, Movant respectfully requests this Court stay or strike the discovery

propounded by Plaintiff until such time as the Court determines whether to grant the Motion to Dismiss, or until such time as service is properly perfected. WHEREFORE, for the foregoing reasons, Movant Peter Binnon, M.D. respectfully requests entry of an order in the form attached hereto staying or striking Plaintiff's discovery requests directed to Binnon until Binnon's Motion to Dismiss has been decided, or until service has been properly perfected. BALICK & BALICK, LLC

/s/ James E. Drnec James E. Drnec, Esquire (#3789) 711 King Street Wilmington, Delaware 19801 302.658.4265 Attorneys for Defendant Dr. Binnon Date: May 9, 2008

Case 1:07-cv-00239-JJF

Document 74-2

Filed 05/09/2008

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : Plaintiff, : : v. : : WARDEN RAPHAEL WILLIAMS, : LT. SHEETS, JIM WELCH, : and DR. BINNON : : Defendants. : RICHARD E. CLARK, JR.,

C.A. No. 07-239 JJF

ORDER AND NOW, this day of , 2008, the Court

having considered Defendant Dr. Binnon's Motion to Stay or Strike Discovery, it is hereby ordered that the Motion is GRANTED.

J.

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 1 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 2 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 3 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 4 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 5 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 6 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 7 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 8 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 9 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 10 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 11 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 12 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 13 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 14 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 15 of 16

Case 1:07-cv-00239-JJF

Document 74-3

Filed 05/09/2008

Page 16 of 16

Case 1:07-cv-00239-JJF

Document 74-4

Filed 05/09/2008

Page 1 of 1

CERTIFICATE OF SERVICE I, James Drnec, hereby certify that on the 13th day of March 2008, the foregoing Defendant's Motion to Stay or Strike Discovery Pending Decision on Motion to Dismiss was filed via CM/ECF and served upon the following via the manner indicated:

FIRST CLASS MAIL Richard E. Clark Jr. SBI# 477726 Howard R. Young Correctional Institution P.O. Box 9561 Wilmington, DE 19809 CM/ECF FILING Erika Yvonne Tross, Esquire Department of Justice 820 N. French Street, 8th Floor Carvel Office Building Wilmington, DE 19801

/s/ James E. Drnec James E. Drnec, Esquire (#3789)