Free Motion to Dismiss for Failure to State a Claim - District Court of Delaware - Delaware

Case 1 :06-cv-00046-JJF Document 41 Filed O4/O9/2007 Page 1 of 2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICARDO A. DE LOS SANTOS MORA, * _ C.A. No. 06-46 JJF
Plaintiff,
v. MOTION FOR
* SUMMARY JUDGMENT
M. JANE BRADY, A. SCOTT DAVIS, *
and HARRINGTON POLICE *
DEPARTMENT, ;
Defendants. *
COMES NOW defendant Harrington Police Department, by and through its
attorneys, Schmittinger and Rodriguez, P.A., and moves this Court pursuant to Fed. R. `
Civ. Pro. 12(b) (6) to dismiss plaintiff’s claim against the Harrington Police Department
on grounds as follows:
l. This action was filed on January 20, 2006. The claim against the —
Harrington Police Department was not made until October 2, 2006, when plaintiff moved
to amend his complaint. Docket Item 27. This Court granted the motion to amend on
October 30, 2006. Docket Item 30.
2. Plaintiff filed this action pursuant to the Alien Tort Claims Act, 28 U.S.C.
§l350. Plaintiff, a citizen of the Dominican Republic, alleges that, when he was arrested,
he was not advised of his rights under Article 36 of the Vienna Convention.
3. This Court has already ruled that plaintiff’s complaint fails to state a claim
upon which relief may be granted against former Attorney General Brady. Docket Item

Case 1 :06-cv-00046-JJF Document 41 Filed O4/O9/2007 Page 2 of 2
39. Plaintiff’s claim against the Harrington Police Department fares no better as it also
fails to allege causation or damages, two elements necessary to state a tort claim.
4. Plaintiffs claim against the Harrington Police Department is also barred
by the applicable statute of limitations. The Alien Tort Claim Act is subject to a ten—year
statute of limitations. Plaintiff’s claim, if he had one, arose not later than March 28,
1996, when he was acquitted of the criminal charges for which he was arrested. His
claim against the Harrington Police Department was not filed until October 2006, more
than ten years after his acquittal. Plaintiff’s claim against the Harrington Police
Department does not relate back to the date of original filing under Rule 15(c) because
the Harrington Police Department did not receive notice of the institution of this action
within 120 days of the filing of this action.
WHEREFORE, defendant Harrington Police Department prays this Court to enter
an Order dismissing plaintiff’s claim against it.
SCHMITTINGER AND RODRIGUEZ, P.A.
fs! William W. Pepper Sr.
VVILLIAM W. PEPPER SR., ESQUIRE
BAR ID #2400
414 South State Street
P.O. Box 497
Dover DE 19903-0497
302.674.0140
Attorney for Defendant Harrington
Police Department
DATED: April 9, 2007

Case 1 :06-cv-00046-JJF Document 41 -2 Filed O4/O9/2007 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICARDO A. DE LOS SANTOS l\/IORA, * C.A. No. 06-46 HF

Plaintiff, *

v. * ORDER y

M. JANE BRADY, A. SCOTT DAVIS, * I
and HARRINGTON POLICE *
DEPARTMENT, * I
Defendants.
AND NOW this _______ day of A.D. 2007,
the motion to dismiss filed by defendant Harrington Police Department having been read
and considered and it appearing to the Court that
1. the plaintiff’s complaint fails to state a claim against the Harrington Police I
Department because it fails to allege causation or damages; and
2. the plaintiffs claims are barred by the applicable ten-year statute of
limitations; and
IT IS ORDERED that plaintiffs claim against the Harrington Police Department 3
is dismissed.


Case 1:06-cv-00046-JJF Document 41-3 Filed O4/O9/2007 Page 1 of 1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
RICARDO A. DE LOS SANTOS MORA, * C.A. N0. 06-46 JJF
2k .
riaaarr, »== j
* 1
v. * CERTIFICATE OF
* SERVICE
M. JANE BRADY, A. SCOTT DAVIS, ’*‘
and HARRINGTON POLICE *
DEPARTMENT, *
Defendants. *
I hereby certify that I have caused two (2) copies of Motion For Summary
Judgment and Proposed Form of Order be served upon:
Ricardo A. De Los Santos Mora
27615083
United States Penitentiary
P.O. Box 150160
Atlanta GA 30315
Linda M. Carmichael, Esquire p
Department of Justice 1
820 North French Street, Sixth Floor
Wilmington DE 19801
by mailing copies to the addresses shown above, postage prepaid, on April 9, 2007.
SCHMITTINGER AND RODRIGUEZ, P.A.
fs! William W. Pepper Sr. l
WILLIAM W. PEPPER SR., ESQUIRE
BAR ID #2400
414 South State Street
1¤·.o. Box 497
Dover DE 19903-0497
3026740140
Attorney for Defendants Harrington
DATED: April 9, 2007 Police Department €