Free Reply to Response to Motion - District Court of Delaware - Delaware

Case 1:04-cv-00910-G|\/IS Document 194 Filed 08/15/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
INTEGRATED HEALTH SERVICES OF )
CLIFF MANOR, INC., INTEGRATED )
HEALTH SERVICES AT RIVERBEND, ) Civil Action No, O4~9l0 (GMS)
INTEGRATED HEALTH SERVICES AT )
SOMERSET VALLEY, INC., ALPINE )
MANOR, INC., BRIARCLIFF NURSING )
HOME, INC, INTEGRATED HEALTH GROUP, )
SPRBQG CREEK OF IHS, INC., ) Rc; nam: Nos. 183, 184, 186 ana 191
FIRELANDS OF IHS, INC., ELM CREEK OE )
IHS, INC., and IHS LONG TERM CARE )
SERVICES, INC., )
)
Plaintiffs, )
)
v, )
)
THCI COMPANY LLC, )
)
Defendant, )
)
v, )
)
ABE BRIARWOOD CORPORATION and )
JOHN DOES t~IO, )
)
Additional Couiiterclaizn )
Defendants, )

I’LAINTIFFS’ REPLY ON ITS MOTION TO AMEND SCHEDULING ORDER
Plaintiffs herein and additional counterclairn defendant Abe Briarwood
Corporation (collectively, “Plaintiffs”), for their reply on their Motion to Amend
Scheduiing Order, submit as follows:
I, Defendant has chosen to assert that this motion is an impermissibie
discovery protective order motion, and, purportedly for that reason, has elected not to
respond on the merits, The contention is without nrerit, and defendant is iett with no
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Case 1:04-cv-00910-G|\/IS Document 194 Filed 08/15/2006 Page 2 of 4
excuse for failure to assert any defense to the motion, if it had one, Accordingly, the
motion should be granted.
2. Even assuming this motion is to be treated at this time as a
discovery motion (but see @), the prior oral directives ofthe Court, that discovery
proceed, are subject to change if circumstances warrant, and here such circumstances do
warrant. Plaintiffs are therefore entitied to ask the Court to change those directives.
Thus, as noted in defendanfs Opposition to this motion, those oral directives ofthe Court
were expressed during teleconferences on January 1.3 and February 28, 2006.. Since those
teieconferences, however, there have been developments which, it is respectfuiiy
submitted, warrant such change: (i) On March 2l, 2006, this Court decided the
supposedly related appeal pending from an Order of the Bankruptcy Court (Docket No.
03~6l.0). That removed any possibie argument that this Court had jurisdiction over this
case because ofthe pendency ofthe “related" appeal. (ii) On March 30, 2.006, Plaintiffs
moved to remand this action to the State Court from which it was initially removed,
which motion is now under advisement. Fer the reasons stated in Plaintiffs moving
papers, it is inappropriate to continue with this case, for the Court to decide substantive
motions or the discovery motions presently before it, or for the parties to continue with
discovery, until the Court decides the motion to remand. (iii) As is documented in the
moving papers herein, defendant’s discovery requests have not been directed to the issues
in the case, and have been abusive, in an attempt to force a settlement on their meritless
counterclaim. This Court’s earlier directives regarding discovery in general do not give
defendant gmagtde to proceed with discovery in an abusive manner, impervious to
protective order motions.
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Case 1:04-cv-00910-Gl\/IS Document 194 Filed 08/15/2006 Page 3 of 4
.3. It should also be noted that, while this motion to amend the
Scheduling Order could also he considered a motion for a discovery protective order (and
Plaintiffs have requested a conference with the Court for that very reason), neither
Plaintiffs nor defendants have treated the motion in that light, pending the conference
with the Court. Thus, discovery by defendant has indeed continued.
4. Finally, as the Court is aware, Plaintiffs have offered to turn over
the nursing home facilities to defendant, as defendant has repeatedly claimed that it
seeks. The Court should be aware that counsel will be meeting this week to discuss the
matter, and it is anticipated that the turnover will proceed ainicably.
5. The motion should therefore be in all respects granted.
Dated: August 15, 2006
Wilmington, Delaware
Daniel J. Dellranceschi (No. 2732)
Jason M. Madron (No. 4431)
RICHARDS, LAYTON & FINGER, P.A.
One Rodney Square
920 North King Street
Wilmington, Delaware 19801
Telephone: (302) 651-7700
Facsimile: (302) 651-7701
Email: defranceschi@rltTconi
[email protected]
- and —
Michael R. Lastowski (No. 3892)
Richard W. Riley (No. 4052)
DUANE MORRIS LLP
ll00 North Market Street, Suite 1200
Wilmington, Delaware l9801-1246
Telephone: (302) 657-4900
Facsimile: (302) 657-490l
Email: [email protected]
[email protected]
— and -—
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Case 1:04-cv-00910-G|\/IS Document 194 Filed 08/15/2006 Page 4 of 4
Amos Alter, Esq,
TROUTMAN SANDERS LLP
The Clnysler Building
405 Lexington Avenue
New York, New York 10174
Telephone: (212) 7046000
Facsimile: (212) 704-6288
Email: amos:alte1"@trout111a11sanders.c0m
Attorneys for Plc1irztg7I12.teg:¢czzed Health
Services 0fClw’Mcmor, Inc: et al. and
countezrcdczim Defendant Abe Briarwood
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