Free Motion to Vacate - District Court of Delaware - Delaware

Case 1:04-cv—00865-Gl\/IS Document 10 Filed 04/05/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT _
FOR THE DISTRICT OF DELAWARE
CAPITOL CLEANERS AND :
LAUNDERERS, INC. a : C. A. N0. 04-0865—(GMS) `
Delaware Corporation : _
Piarmirr, Z
v. :
CNA INSURANCE COMPANIES, INC., JURY TRIAL DEMANDED
CNA INSURANCE GROUP, INC. and : /
TRANSCONTINENTAL INSURANCE :
COMPANY, a CNA COMPANY : ,
Defendants. Q
PLAINTIFF’S MOTION TO VACATE ORDER AND TO j
REMAND OR, IN THE ALTERNATIVE, TO REARGUE
Plaintiff, Capitol Cleaners and Launderers, Inc., a Delaware Corporation
("Capitol" or "Plaintiff’), hereby moves this Honorable Court to vacate its March 24,
2005 Order and to remand this matter to State court pursuant to 28 U.S.C. § l447(c), or
in the alternative, to reargue pursuant to D. Del. LR 7.1.5. In support of its requests, the
Plaintiff states the following:
l. On March 24, 2005, this Court entered an Order (the "Order") dismissing A
the CNA Defendantsl, without prejudice, for lack of service of process. These
Defendants were unserved because the Delaware Secretary of State initially had declined
to accept service on their behalf. In the Order the Court also denied the Plaintiffs motion
to remand, on the grounds that diversity jurisdiction exists in this matter because the
CNA entities had not yet been served.
1 All terms not described herein will have the same meaning as in previous Court filings in this case. I

Case 1 :04-cv—00865-GIVIS Document 10 Filed 04/05/2005 Page 2 of 3 .
2. Continuing counsel’s previous efforts and due diligence to effectuate .
service upon the CNA entities, on March 31, 2005, the CNA entities, which the Court I
recognized in its Order are Delaware citizens, were effectively served with the Complaint .
in this matter, pursuant to 8 Del. C. § 321(b). The Delaware Secretary of State, Division .
of Corporations, who previously rejected service, on March 31, 2005, did accept service
on behalf of these entities, and in accordance with Delaware law. See affidavits of
personal service, attached hereto as Exhibit A. .
3. The Court has recognized that the CNA entities are in fact Delaware
citizens. Perfection of service of process on these entities has destroyed complete
diversity in this case under 28 U.S.C. § 1332. The Court thus is deprived of subject (
matter jurisdiction over this matter. As a result, Plaintiff respectfully suggests the Court 3
must remand this case to the State court for final and proper adjudication, and in order to p
avoid the necessity for joining to this action additional parties.
WHEREFORE, for the above reasons, Plaintiff respectfully requests that the
Court (1) vacate its Order dismissing the CNA entities from this action; and (2) remand A
this matter to State court. In the altemative, Plaintiff respectfully requests reargument of
these issues. (
Dated: Awgé 5 , 2005 _
Mc` TER & I , LP I
Jennifer M. Zelvin (DE ID # 4325)
919 N. Market St., Suite 1800 i
Wilmington, Delaware 19801 e
(302) 984-6300 j
Attorneys for Plaintiff j

Case 1 :04-cv—00865-GIVIS Document 10 Filed 04/05/2005 Page 3 of 3
CERTIFICATE OF SERVICE
I Jennifer M. Zelvin, Esq. hereby certify that on the 5th day of April, 2005, two copies of
the attached Plaintyfs Motion to Vaeate Order and to Remand or, in the Alternative, to
Reargue were served by hand delivery upon:
Daniel A. Griffith, Esq.
Marshall, Dennehey, Wamer, Coleman & Goggin
1220 N. Market Street Y
5th Floor
P. O. Box 8888 .
Wilmington, DE 19899
Under penalty of perjury, I declare that the foregoing is true and correct.
DATED: April 5, 2005 _ {
J ifer M. Ze 11, Esq. (Del. 325)
WLI: 104651.01