Free Response to Motion - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE WILLIAM JOSEPH WEBB, JR., Plaintiff, v. FIRST CORRECTIONAL MEDICAL, et al., Defendants. ) ) ) ) ) ) ) ) ) )

C. A. No. 07-31-GMS JURY TRIAL REQUESTED

STATE DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION TO STRIKE State Defendants Ruth Ann Minner and Stanley W. Taylor ("State Defendants") hereby oppose Plaintiff's Motion to Strike [D.I. 28], and in support thereof, state as follows: 1. [D.I. 2]. 2. On June 25, 2007, Megan T. Mantzavinos, Esquire of Marks, O'Neill, This pro se prisoner civil rights action was filed on January 16, 2007.

O'Brien & Courtney, P.C., entered her appearance on behalf of Correctional Medical Services. [D.I. 22]. On July 9, 2007, undersigned counsel entered her appearance on behalf of State Defendants and also filed an Answer to the Complaint on State Defendants' behalf. [D.I. 23, 24]. On July 11, 2007, Patrick G. Rock of Marks, O'Neill, O'Brien & Courtney, P.C., entered his appearance on behalf of Correctional Medical Services. [D.I. 25]. On July 18, 2007, Ms. Mantzavinos and Mr. Rock filed an Answer to the Complaint on behalf of Correctional Medical Services, Gina Wolken and Dr. Niaz. The only remaining named defendant, Dr. Ali, has not been served with the Complaint.

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[D.I. 14]. Plaintiff has also named several John Doe defendants, who have not been served. [D.I. 15, 16]. 3. Plaintiff has moved to strike State Defendants' Answer to the Complaint

on the grounds that the document was not properly served. Plaintiff also asks for entry of default against State Defendants and several other items of relief. 4. The Certificate of Service to the State Defendants' Answer indicates that

the Answer was filed electronically on July 9, 2007 using CM/ECF. See D.I. 24 attached hereto as Exhibit A. In addition, the document was mailed by U.S. mail to Plaintiff. The Certificate of Service does not explicitly state that service was made upon Ms. Mantzavinos, counsel who entered her appearance for Correctional Medical Systems prior to July 9, 2007. 5. However, as set forth in this Court's Revised Administrative Procedures

Governing Filing and Service by Electronic Means, whenever a pleading is filed electronically, a Notice of Electronic Filing ("NEF") is automatically generated and sent to all other parties of record. Transmission of the NEF constitutes service of the filed document. CM/ECF Administrative Procedures at E(1) and E(2) (attached hereto as Exhibit B). Thus, by virtue of the electronic filing of the document, counsel of record for Correctional Medical Systems was served with State Defendants' Answer to the Complaint. 6. Plaintiff argues that the relief he seeks is warranted because State

Defendants failed to serve First Correctional Medical, Dr. Niaz, Gina Wolken and Dr. Ali. However, the docket indicates that First Correctional Medical has been terminated as a defendant. See Docket attached hereto as Exhibit C. Further, the docket does not

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reflect service, or entry of appearance, as to any of these named defendants prior to July 9, 2007. Thus, as of July 9, 2007, these defendants could not be considered parties to this action, and State Defendants were not required to make service upon them. See Fed. R. Civ. P. 5(a). 7. any relief. WHEREFORE, State Defendants respectfully request that this Court deny Plaintiff's Motion to Strike. STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Eileen Kelly Eileen Kelly, I.D. No. 2884 Deputy Attorney General Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for State Defendants Plaintiff's Motion to Strike is without merit, and Plaintiff is not entitled to

Date: July 30, 2007

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CERTIFICATE OF SERVICE I hereby certify that on July 30, 2007, I electronically filed State Defendants' Response to Plaintiff's Motion to Strike with the Clerk of Court using CM/ECF, which will send notification to Megan T. Mantzavinos, Esquire and Patrick G. Rock, Esquire. I hereby certify that on July 30, 2007, I have mailed by United States Postal Service, the document to the following non-registered party: William Joseph Webb, Jr.

/s/ Eileen Kelly Deputy Attorney General Department of Justice 820 N. French St., 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected]

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