Free Motion to Vacate - District Court of Delaware - Delaware

Case 1:04-cv—01402—KAJ Document 28 Filed 03/07/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ENGINE DYNAMICS INC., et al., CIVIL ACTION
: NO. 04-CV-l402(KA.l)
M/Y LONG ISLAND LADY
MOTION TO VACATE ARREST, POST SECURITY AND
TO SET BRIEFING SCHEDULE
Anthony C. Morelli, HI ("Mr. Morelli"), by and through his undersigned attorneys, The
Bayard Firm, hereby tiles this motion to vacate arrest, post security and to set briefing schedule, and
in support thereof offers the following:
1. As indicated in our letter to the Court on February 3, 2005, the parties had
been engaging in settlement discussions and hoped to resolve the issues in this case. Mr. Morelli
diligently and in good faith has tried to settle this matter with either or both Plaintiffs.
Unfortunately settlement negotiations have proven unsuccessful.
2. Mr. Morelli, through counsel, has repeatedly requested that Summit submit
an invoice that states the accurate amount of Summit’s bill and claim, but Summit has
inexplicably failed to produce such an invoice. Mr. Morelli is willing to pay Su1nmit’s accurate
invoice in full if presented leaving only the EDI claim for resolution by this Court.
Alternatively, Mr. Morelli is willing to post security to cover Summit’s accurate invoice.
3. By this Motion, Mr. Morelli seeks an order pursuant to Supplemental
Admiralty Rule E(5) vacating the arrest of the vessel and allowing him to post cash, a suitable

Case 1:04-cv—01402—KAJ Document 28 Filed 03/07/2005 Page 2 of 3
bond or other instrument of credit ("Security") that can provide relief to the Plaintiffs in the
event that this Court ultimately mles that Plaintiffs are entitled to monetary recovery.
4. By this Motion, Mr. Morelli also seeks an order requiring EDI to post cash,
a suitable bond or other instrument of credit as counter—security ("Counter—Security") pursuant to
Supplemental Admiralty Rule E(7) to ensure that Mr. Morelli can be compensated, should he
prevail on his Counterclaims, for any damages sustained to the Vessel as a result of the conduct
of the Plaintiffs—»—including unnecessary movement of the Vessel from Angler’s Marina to
Summit Marina.
5. By this Motion, Mr. Morelli also seeks an order setting a schedule for the
submission of the findings of fact and conclusions of law requested by the Court. In the event
the Court allows for the posting of security and the concurrent vacation of the Vessel’s arrest,
Mr. Morelli requests a briefing schedule in accordance with the Court’s usual practice. In the
event that the Court disallows the vacation of the arrest, Mr. Morelli requests expedited
scheduling.
6. The relief sought by this motion is quite reasonable under the circumstances.
As shown at trial, Mr. Morelli has a reasonable basis to assert that the services EDI provided to
the Vessel were not provided in a workmanlike manner and therefore, did not entitle EDI to
payment and thus, had no lawful basis to assert a maritime lien. Also, as shown at trial, Summit
has no proof that it ever presented Mr. Morelli with a bill and the December 5, 2004 invoice
Summit provided in discovery was wrong.
7. Mr. Morelli has been deprived of his Vessel for many months now. Equity
demands that Mr. Morelli be permitted to post security that would compensate Plaintiffs in the
event they are found to be entitled to a monetary judgment.
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Case 1:04-cv—01402—KAJ Document 28 Filed 03/07/2005 Page 3 of 3
8. Because this motion presents no novel issues of law beyond the Admiralty
Rules, Mr. Morelli respectfully requests that the Court waive the requirements of Local District
Court Rule 7. l .2(a).
9. Given that Mr. Morelli is willing to pay Summit in full and post adequate
security to fully compensate EDI, neither would be prejudiced by granting the relief requested in
this Motion.
WHEREAS, Mr. Morelli respectfully requests that this Motion be granted and that the
attached proposed Order be entered by the Court.
Dated: March 7, 2005 THE BAY ARD FIRM
By: ( S Q
Gary F. e1tz.(No. 4457)
Cheryl Siskin (No. 3437)
222 Delaware Avenue, Suite 900
P.O. Box 25130
Wilmington, DE l9899—5l30
(302) 655-5000
Attoemys for Anthony C. Morelli, HI
578578vl 3