Free Motion for Miscellaneous Relief - District Court of Delaware - Delaware

Case 1 :04-cv—O1376-KAJ Document 61 Filed 04/26/2005 Page 1 of 4
IN THE UNITED STATED DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FRANK E. ACIERNO, CHRTSTIANA 1
TOWN CENTER, LLC, a Delaware limited 1
liability company, 395 ASSOCIATES, LLC,: _ Q
a Delaware limited liability company, : `.
ESTATE HOMES, INC., a Delaware 1
corporation, 1
Plaintiffs, C.A. No. 04-1376 (RAI)
v.
GEORGE O. HAGGERTY, individually and-1
in his official capacity as Assistant General :
Manager of the New Castle County :
Department of Land Use, TIMOTHY P. :
MULLANEY, individually and in his 1
capacity as New Castle County Attorney, 1
CHARLES L. BAKER, individually and 1
in his capacity as General Manager of the 1
New Castle County Department of Land :
Use, JAMES H. EDWARDS, individually 1
and in his capacity As Inspections Manager :
and Licensing Division Manager ofthe New :
Castle County Department of Land Use, and 1
SHERRY L. FREEBERY, in her individual 1
capacity as Chief Adniinistrative Office of 1
New Castle County, and NEW CASTLE 1
COUNTY, a political subdivision ofthe 1
State of Delaware, 1
Defendants. JURY TRIAL DEMANDED
MOTION FOR BRIEFING SCHEDULE ON
PL.AINTIFFS’ MOTION FOR LEAVE OF COURT TO FILE
A SECOND AMENDED COMPLAINT
The Defendants, by and through their undersigned counsel, hereby move the
Court to enter a briefing schedule on Plaintiffs’ Motion for Leave of Court to File a
Second Amended Complaint ("Motion to Amend") for the following reasons:

Case 1 :04-cv—O1376-KAJ Document 61 Filed 04/26/2005 Page 2 of 4
l. On March 13, 2005, the lilaintiffs filed the Motion to Amend without an
opening brief or a Rule 7.i.1 Statement. DI. 50. The Motion to Arnend stated that "a
briefing schedule will be arranged if needed, but was not possible at the time of the filing
ofthis Motio·n." D1. 50 at 2.
2. On March l4, 2005, the Court issued a Deficiency Notice noting that the
Motion was filed without a Rule 7.1.1 Statement. D1. 51.
3. At the time the Motion was filed, the parties were in the process of
briefing the Defendants’ Motions to Dismiss the Amended Complaint ("`l\/lotions to
Disniiss"). Di. 37; 40, The Defendants had fiied opening briefs in support of the
Motions to Disiniss on December 30, 2004 and January 12, 2005. D.l. 38; 41. The
Defendants had also agreed to two stipulations allowing the Plaintiffs to extend the time
to file their answering briefs nntil March E6, 2005. D1. 46; 49.
4. On March 28, 2005, the Plaintiffs fiied a Rule 7.1.1 Statement indicating
that counsel for Plaintiffs had written to opposing counsel in an attempt to resolve the
`i\/lotion to Amend by stipulation. D.t. 55.
5. On April 13, 2005, counsel for the Defendants advised counsel for the
Plaintiffs that the Defendants intended to oppose the Motion to Amend rather than
stipulate to a Second Amended Complaint and then renew and re—brief the Motions to
Disntiiss. The Defendants proposed a schedule aliowing for completion of the briefing on
the Motion to Amend by May 27, 2005.
6. On April 22, 2005, the Defendants filed their reply briefs in support of
their Motions to Dismiss. D.l. 57; 59. The Defendants indicated in their reply briefs that
they would be separatety addressing the Motion to Amend. E. g., D.1. 59 at 29 n. 15.
2

Case 1 :04-cv—O1376-KAJ Document 61 Filed 04/26/2005 Page 3 of 4 .
7. Ori April 22, 2005, the Plaintiffs advised the Defendants that the Plaintiffs
would not agree to a briefing schedule on the Motion to Amend until the Court had ruled
on the Defendants Motions to Dismiss. _
8. After failing to file an opening brief with the Motion to Amend and
representing that they would agree to a briefing schedule if necessary, the Plaintiffs may
not now refuse to brief the Motion to Amend in a timely manner. The Defendants
respectfully submit that the Motion to Amend should be briefed promptly so that it may
be resolved together with the pending Motions to Dismiss.
9. The Defendants propose the following briefing schedule on the Motion to
Amend:
The Plaintiffs’ opening brief(s): due May 6, 2005
The Defendants answering brief(s): due May 20, 2005
The Plaintiffs reply brief(s); due May 27, 2005
CONNOLLY BOVE LODGE & HUTZ LLP
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atthew F. Boyer, Esqu (#25 4)
The Nemours Building
l007 N. Orange Street
RO. Box 2207
Wilmington, DE 19801
Dated: April 26, 2005
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Case 1 :04-cv—O1376-KAJ Document 61 Filed 04/26/2005 Page 4 of 4
BIFFERATO, OENTILOTTI & BIDEN McCARTER 8; ENGLISH
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ivan =_a_ ··e·· é eel} =_; a_a_a . . ..a. .- {
ian Conner Bifteiate, Esquir (#3273) Michael P. Kelly, Esquire ( 95)
1308 Delaware Avenue 919 N. Market Street, Suiie 1800
Wilmington, DE 19806 Wilmington, DE 19801
Dated: April 26, 2005 Dated: April 26, 2005
NEW CASTLE COUNTY STRADLEY RONON
DEPARTMENT OF LAW
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,.-Ai; i ii -=3* new -:5‘- e-3¤‘ E,._____ E -i-‘ 5*-. éléir *‘ ..,.,.,. ·i=i E`:* ( ‘5‘55 ..—eE é K0 =‘` ii-. %
Dennis J. Siebold, Esquire (# E) ‘ 5‘‘i`55' Claire M. Del\/latteis, Esquire (?#3l87)
87 Reads Way 300 Delaware Avenue, Suite 1018
New Castle, DE 19720 Wilmington, DE 19801
Dated: April 26, 2005 Dated: April 26, 2005
COZEN CYCONNOR
i it `ir· ( ‘i`=` 5·5=7``7·*=·5‘ A- ’5: { la,
leffr =`` Pase Esquire (jam imc; ice) We
Shelley A. Kinsella, Esquire (#4023)
Chase Manhattan Center
1201 N. Market Street, Suite 1500
Wiliningten, DE l980l
Dated: April 26, 2005
SO ORDERED this day ef , 2005.
U.S. District Judge Kent A. Jordan
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