Free Reply Brief - District Court of Delaware - Delaware

Case 1:04-cv-00415-SLR

Document 77

Filed 03/07/2006

Page 1 of 2

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE ERIC A. CHAMBERS, Plaintiff, v. JOHN DOES 1-7, DONALD J. BOWMAN, JR., CITY OF WILMINGTON DELAWARE, DELAWARE S.P.C.A., and SGT. ELLIOTT, Defendants. ) ) ) ) ) ) ) ) ) ) )

C.A. No. 04-415(SLR)

DEFENDANT DELAWARE SPCA' S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF THEIR MOTION TO DISMISS PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(B)(6), OR IN THE ALTERNATIVE, ITS MOTION FOR SUMMARY JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56 COMES NOW, Defendant Delaware SPCA ("SPCA"), by and through the undersigned counsel, and hereby moves this Honorable Court to enter an Order dismissing Plaintiff Eric A. Chambers' ("Chambers") Complaint pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim for which relief may be granted. In the alternative, SPCA requests that the Court grant summary judgment in favor of the SPCA and dismiss Plaintiff's Complaint. The "reply" brief submitted by Chambers fails to address the issues raised by the SPCA in its opening brief. Chambers fails to cite the record or in any way support his unfounded allegations. Chambers has cited no law or case that supports his assertion that his dog is property within the meaning of the U.S. Constitution. As a practical matter, it is undisputed that the SPCA simply retrieved the dead dog. Certainly there is no property right in a dead animal. The case against the SPCA must be dismissed with prejudice. The SPCA also cites and incorporates the City defendants' reply brief in support of its motion.

Case 1:04-cv-00415-SLR

Document 77

Filed 03/07/2006

Page 2 of 2

WHEREFORE, since there is no cause of action in Delaware for spoliation of evidence, the Plaintiff's claim must be dismissed with prejudice, or in the alternative summary judgment granted for defendant Delaware SPCA.

/s/ Donald L. Gouge, Jr. #2234 DONALD L. GOUGE, JR. (#2234) 800 N. King Street, Suite 303 Wilmington, DE 19801 (302) 658-1800 Attorney for Delaware SPCA

Dated: March 7, 2006