Free Answering Brief in Opposition - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

L.C. 1 et al., Plaintiffs, VS. STATE OF DELAWARE, et al., Defendants

: : : : : : : : :

Case No.: 07-675 GMS JURY TRIAL DEMANDED

ANSWER OF THE PLAINTIFFS TO DEFENDANT, ANDREW LIPSTONE'S MOTION TO DISMISS COMPLAINT PURSUANT TO FED. R. CIV. P. 12(b)(6) AND NOW, come the Plaintiffs herein, L.C.1. (f.k.a. S.W.), a Minor, by and through her legal guardians, Sherman Catchings and Gladys Cathings; and L.C.2 (f.k.a. L.W.), a Minor by and through his legal guardians, Sherman Catchings and Gladys Catchings, by and through their undersigned counsel, and hereby respond to the Motion of Defendant Andrew Lipstone, Esquire for dismissal of the Plaintiffs' Complaint and request that this Honorable Court deny this Motion for the reasons set forth in the accompanying answering Brief in Opposition to Defendant Lipstone's Motion to Dismiss.

SCHMIDT, KIRIFIDES, PEARSON, KOUTCHER & FRIDKIN /s/_____________________________ Matthew H. Osborne, Esq. Bar #4630 1301 N. Harrison Street, Unit 105 Wilmington, DE 198806 (302) 836-3900 Attorneys for Plaintiffs Dated: June 16, 2008

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CERTIFICATE OF MAILING AND/OR DELIVERY

The undersigned certifies that on the 16 th day of June, 2008, he caused the attached Answer of the Plaintiffs to Defendant, Andrew Lipstone's Motion to Dismiss Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) to be filed with the Clerk of Court using CM/ECF which will send notification of such filing(s) to the following: Name and Address of Recipient(s): Stephani J. Ballard, Esquire Deputy Attorney General Carvel State Office Building 820 N. French Street, 6 th Floor Wilmington, DE 19801 William J. Cattie, III, Esquire Rawle & Henderson, LLP 300 Delaware Avenue, Suit 1015 P.O. Box 588 Wilmington, DE 19899-0588 Kevin J. Connors, Esquire Marshall, Dennehey, Warner, Coleman & Goggin P.O. Box 8888 Wilmington, DE 19801 Collins J. Seitz, Jr., Esquire Connolly, Bove, Lodge & Hutz, LLP 1007 North Orange Street PO Box 2207 Wilmington, DE 19899 Ralph Durstein, Esquire Deputy Attorney General Carvel State Office Building 820 North French Street Wilmington, DE 19801

SCHMIDT, KIRIFIDES, PEARSON, KOUTCHER & FRIDKIN

Date: June 16, 2008 By

_/s/____________________________________________ Matthew H. Osborne, Esquire 1301 N. Harrison Street, Unit #105 Wilmington, DE 19806 (302) 836-3900 I.D. No.: 4630 [email protected]

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

L.C. 1 et al., Plaintiffs, VS. STATE OF DELAWARE, et al., Defendants

: : : : : : : : :

Case No.: 07-675 GMS JURY TRIAL DEMANDED

ANSWERING BRIEF OF THE PLAINTIFFS IN OPPOSITION TO THE MOTION TO DISMISS OF DEFENDANT, ANDREW LIPPSTONE

SCHMIDT, KIRIFIDES, PEARSON, KOUTCHER & FRIDKIN /s/_____________________________ Matthew H. Osborne, Esq. Bar #4630 1301 N. Harrison Street, Unit 105 Wilmington, DE 198806 (302) 836-3900 Attorneys for Plaintiffs

Dated: June 16, 2008

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TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES............................................................................................. NATURE AND STAGE OF THE PROCEEDINGS....................................................... ii 1

SUMMARY OF ARGUMENT.......................................................................................... 2 CONCISE COUNTER STATEMENT OF FACTS......................................................... 3 ARGUMENT: The claim of Defendant Lippstone, that he has both Federal and State immunity from suit and that his defense of immunity is so abundantly clear that it should be properly determined on a Motion to Dismiss, is simply erroneous..................................................................................................... A. Not all of Lippstone's actions were an integral part of the judicial process for which absolute immunity from federal claims may be sustained......................................................................................................

6

9

B.

Defendant Lippstone is not immune from suit under the Eleventh Amendment of the United States Constitution........................................ 12 The question of whether Lippstone is entitled to immunity under Delaware State law pursuant to Delaware Code §29 Del. C. §9008A is a question of law which cannot be resolved within the present Motion.................................................................................... 13 Defendant Lippstone's claims for the dismissal of state law claims based on 31 Del. C. §304 and 29 Del. C. §9007A are premature............. 14

C.

D.

CONCLUSION.................................................................................................................... 14

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TABLE OF AUTHORITIES

CASES PAGE 11 10,11 11 11 4

Forrester v. White, 484 U.S. 219, 224 (1988) Gardner v. Parson, 874 F. 2d 131, 144 (3d Cir. 1989) Hughes v. Long, 242 F. 3d 121, 125 (3d Cir. 2001) Imbler v. Pachtman, 424 U.S. 409, 430 (1976) Witham v. Bowersock, 1991 WL 89825 (Del. Super.1991)

STATUTES 10 Del. C. §8119 29 Del. C. §9007A 4 1,2,3,6 7,8,9,10,14 12 4, 12 9, 10 10 13 14 9, 13

29 Del. C. §9007A(a) 29 Del. C. §9007A(b)(2) 29 Del. C. §9007A(c) 29 Del. C. §9007A(c)(2) 29 Del. C. §9008A 31 Del. C. §304 42 U.S.C. §1983

RULES F.R.C.P. 12(b)(6) F.R.C.P. 26(d) ii 1 4

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STATEMENT OF THE NATURE AND STAGE OF PROCEEDINGS This case arises out of the alleged intentional and severe scalding of the hand of a three year old female foster child (L.C.1) on October 28, 2005 by one or both of the foster parent Defendants (Dequan and Kimberly Haynes), witnessed by her 4 year old brother (LC2). By Order dated May 28, 2003, a Delaware State Court removed both children from the custody of their biological parents and placed them within the care, custody, and control of the State and non-state Defendants who ultimately placed them in the hands of the Defendant Haynes as foster parents. During this process the moving Defendant, Andrew Lippstone, Esquire, was serving as the children's guardian pursuant to 29 Del. C.§9007A. The Plaintiffs' Complaint alleges violations of the minor Plaintiffs' rights under the United States and Delaware State Constitutions and laws and requests relief pursuant to, inter alia, 42 U.S.C. §1983. This is the minor Plaintiffs' Answering Brief to Defendant Andrew Lippstone's Motion to Dismiss their claims against him pursuant to F.R.C.P. Rule 12(b)(6).

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SUMMARY OF ARGUMENT It is entirely premature to consider the Motion to Dismiss the Plaintiffs' Complaint filed by Defendant, Andrew Lippstone based upon the fact that he has failed and refused to provide the Plaintiffs' current adoptive parents with the investigation and documentation that he was charged by law to obtain on behalf of the minor children as part of his role as their guardian ad litem pursuant to 29 Del. C. §9007A, and because any finding of immunity based upon the "judicial" nature of the functions that Defendant, Lippstone performed cannot be fully ascertained without a full examination of his records and explanation of his activities on behalf of these children. Based upon the express terms of 29 Del. C. §9007A it would appear clear that the role and conduct of Defendant, Lippstone do not afford him judicial immunity under the circumstances of this case.

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CONCISE COUNTER STATEMENT OF FACTS The minor Plaintiffs were removed from the care of their biological parents by Order of the Delaware State Court on or about May 28, 2003. (Complaint at ¶22). At some time prior thereto and at all times subsequent to the initial removal of the minor Plaintiffs from the custody of their biological parents, the Delaware State foster care agencies were tasked with the obligation to protect the minor Plaintiffs from physical and emotional harm and to secure for them all of their rights under the laws and Constitution of the State of Delaware as well as the laws and Constitution of the United States of America. (See Complaint generally). Subsequent to the removal of the minor children from the custody of their biological parents, the Delaware Family Court, in conjunction with the Office of the Child Advocate, ordered the appointment of Defendant Lippstone to fulfill the duties and responsibilities provided for pursuant to 29 Del. C. §9007A under the designation guardian ad litem. (See Complaint at ¶24). The minor Plaintiffs' Complaint was filed on their behalf by their current legal guardians, Sherman and Gladys Catchings, a couple who subsequently adopted the minor Plaintiffs after the events alleged in their Complaint. (See Complaint at ¶¶3-4). In spite of the fact that the Plaintiffs are minors and spent substantially all of their lives in the care, custody, control and "protection" of a multitude of agencies and appointed "guardians," the State of Delaware affords no statutory protection and preservation of their rights, requiring that any lawful claims be brought on their behalf within two (2) years of the date of the occurrence of any wrongful event without the benefit of a

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minority tolling provision 10 Del. C. §8119; Witham v. Bowersock, 1991 WL 89825 (Del. Super.).1 The minor Plaintiffs' adoptive parents now bring this action without any of the knowledge of the facts and circumstances of the minor Plaintiffs' previous lives, during the time that they were in the care, custody, control, and under the protection of the Defendants. These adoptive parents cobble together the allegations of the Complaint without the benefit of some or all of the state mandated reports of investigations, evaluations, medical care, education, and other events in these children's lives, including the names and positions of the persons who are charged and/or tasked with protecting the interests of these children while they were in the care, custody, control, and protection of the State, including while they were being allegedly severely injured at the hands of the Haynes Defendants. Further, as will be discussed infra, the one person charged with collecting and maintaining all of the information necessary to protect these children's rights, Defendant Lippstone, conditioned his cooperation and the fulfillment of his duties to the Plaintiffs on their execution of a General Release of any claims against him. (A true and correct copy of the letter from Matthew Osborne, Esquire dated February 8, 2007, requesting Lippstone's cooperation and files together with Lippstone's responsive letter of February 29, 2007, with enclosed General Release are attached hereto and made a part hereof as Exhibit "A"-"C" respectively. Against this background, the Plaintiffs have filed Plaintiffs' Motion for Rule 16 Conference and Discovery in Aid of Filing Amended Complaint Pursuant to F.R.C.P. 26(d) requesting that this Honorable Court set dates for the Defendants to meet their disclosure obligations under Fed. R. Civ.

1

In the instant case it is not of record, nor do the Plaintiff adoptive parents even know, whether the guardian ad litem responsibilities of Defendant, Lippstone have ended by the required Court Order. See: e.g.: 29 Del. C. §9007A(b)(2). 4

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P. Rule 26 and to permit a certain amount of discovery so that the Plaintiffs may file an Amended Complaint wherein the individuals and/or entities acting under color of law responsible for the injuries caused to the minor Plaintiffs may be properly named and/or joined to this action and the legal theories associated therewith be fully pled. It is also against this backdrop that the Defendant, Andrew Lippstone, Esquire, refusing to provide even the documents that he had been charged with obtaining on the minor Plaintiffs' behalf, moves this Court to dismiss the claims against him based upon immunity from suit and deficiencies in the allegations of the Plaintiffs' current Complaint.

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ARGUMENT The claim of Defendant Lippstone, that he has both Federal and State immunity from suit and that his defense of immunity is so abundantly clear that it should be properly determined on a Motion to Dismiss, is simply erroneous.

I.

INTRODUCTION: The facts surrounding Defendant Lippstone's "representation" of the minor Plaintiffs

following their removal from the custody of their biological parents is far from clear. Lippstone himself has concealed from the Plaintiffs what duties or tasks he performed, and he has refused to turn over or disclose any of his records (the records of the Plaintiffs' lives under his watch) to representatives who now seek to protect the rights of these children. It is difficult to imagine what standard should be applied to the performance of his "guardian ad litem" duties or the legal role he served for these children. It is simply not clearly established whether Lippstone's representation in these circumstances merits immunity. Lippstone's role in the lives of these children in part derives from Delaware State law which provides as follows: (a) Purpose.--(1) The General Assembly has recognized the need to safeguard the welfare of abused, neglected and dependent children in this State. As such, it has charged the Office of the Child Advocate and the Court-Appointed Special Advocate Program with ensuring representation of children's best interests in child welfare proceedings through appointment of guardians ad litem. To this end, the Office shall coordinate with the Family Court and the Court-Appointed Special Advocate program to implement and administer a program for guardian ad litem representation of children. (2) In determining whether to represent an abused, neglected or dependent child, the Office may communicate with any child at issue and may have access to all information relating to that child held or maintained by the Department and/or the Family Court. If the Office determines that a child needs guardian ad litem representation, the Court shall sign an order appointing the designated attorney as 6

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attorney guardian ad litem. (3) This section shall be liberally construed so that these purposes may be realized. (b) Appointment of attorney guardian ad litem.--(1) In the event that the Family Court Judge determines, pursuant to the conditions set forth in § 701© of Title 13 that an attorney guardian ad litem should be appointed, the Family Court Judge shall sign an order appointing the attorney guardian ad litem. That order shall impose on the attorney guardian ad litem all the duties, rights and responsibilities set forth in this section. Upon entry of the order, the attorney guardian ad litem shall have the authority to review all documents and interview all pertinent persons having significant information relating to the child and the child's life circumstances. (2) The appointment shall last until the attorney guardian ad litem is released from responsibility by order of the Court, or until the attorney guardian ad litem's commitment to the Court ends. (3) The attorney guardian ad litem shall be a party to any child welfare proceeding in which the child is the subject, and shall possess all the procedural and substantive rights of a party including those set forth in § 732 of Title 13. (4) Upon presentation of the order of appointment by the attorney guardian ad litem, any agency, hospital, school, organization, division or department of the State, doctor, nurse or other health care provider, treatment facility, psychologist, psychiatrist, police department or mental health clinic shall permit the attorney guardian ad litem to inspect and copy any records relating to the child and parents involved in the case of appointment without consent of the child or parents. (c) Duties and rights.--The attorney guardian ad litem's duty is to the child. The scope of the representation of the child is the child's best interests. The attorney guardian ad litem shall have the duty of confidentiality to the child unless disclosure is necessary to protect the child's best interests. As such, the attorney guardian ad litem shall: (1) Represent the best interests of the child in all child welfare proceedings, and explain to the child, taking into account the child's ability to understand the proceedings, the duties of the guardian ad litem; (2) Be trained by the Office of the Child Advocate or a course approved by the Office prior to representing any child before the Court. The attorney guardian ad litem shall be required to participate in ongoing training regarding child welfare. The attorney shall be employed, contracted and/or appointed by the Office; 7

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(3) Conduct an independent investigation of the circumstances of a case of appointment, which shall include but not be limited to interviews and/or observations of the child and relevant individuals, as well as a review of all relevant records and reports; (4) Present evidence to the Court in support of his or her position; (5) Be provided with notice of every Court proceeding and receive copies of every pleading; (6) Participate in all depositions, negotiations, discovery, pretrial conferences, hearings and appeals; (7) Have access to all records regarding the child and his or her family maintained by the Division; (8) Monitor cases to which they are appointed to assure that the terms of the Court's orders are fulfilled and permanency for the child is achieved; (9) Receive reasonable notice from the Division of changes in placement, school or any other change of circumstances affecting the child; (10) Receive reasonable notice from the Division of any founded complaint involving: (1) the child, where the child is the alleged victim; (2) the residence in which the child lives; and/or (3) the home-based daycare which the child attends; (11) Request a hearing before the Court when the plan on behalf of the child is not implemented, is not meeting the child's needs, or upon completion of a Division investigation; (12) Request any appropriate relief from the Court on behalf of the child; (13) Appear, when appropriate, on behalf of a child before the Violent Crimes Compensation Board, to pursue a claim on behalf of the child, as set forth in Chapter 90 of Title 11; and (14) Ascertain the wishes of the child and make the child's wishes known to the Court. If the attorney guardian ad litem concludes that the child's wishes differ from the position of the attorney guardian ad litem, he or she will notify the Court of the conflict. (d) Criminal investigations and/or prosecutions.--Notwithstanding any provision of this chapter to the contrary, the Office of the Child Advocate shall in no way 8

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intervene in any pending criminal investigation or prosecution, and shall provide no legal representation or advice to any suspect, defendant or respondent in any open criminal investigation or prosecution. 29 Del C §9007A. Although the title given to the attorney appointed under this law is "guardian ad litem," it is clear that the duties, rights, and responsibilities provided for in this law far exceed the scope of any functionary who has heretofor been granted judicial immunity in any case in the Federal Courts wherein liability is based upon 42 U.S.C. §1983. What is clear from this statute is that the functionary's primary duty is to the child or children for whom the appointment is made. 29 Del. C. §9007A(c). In each of the sections of Lippstone's Brief, wherein he alleges the basis of his immunity from the claims made by the Plaintiff, his analysis is flawed. Lippstone relies upon the nomenclature used by the courts generally when discussing services provided by attorneys during certain phases of litigation or the judicial process, and in cases discussing attorneys appointed by courts to perform judicial functions. Lippstone fails to consider that it is the duties and

responsibilities for which he was tasked in the Delaware statute by the Delaware legislature which bears upon and provides the distinctions that are relevant to the limited situations in which individuals are afforded immunity for acts performed on behalf of children by the courts. The majority of the acts, duties, and obligations for which Lippstone was charged by the Delaware statute do not afford him immunity if not performed with the requisite diligence. A. Not all of Lippstone's actions were an integral part of the judicial process for which absolute immunity from federal claims may be sustained.

While Lippstone asserts that he is a "pro bono" volunteer, that fact is not alleged in the Plaintiffs' Complaint and it appears in the relevant statute that he may in fact be "employed, 9

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contracted and/or appointed" by the Office of the Child Advocate under the court-appointed special advocate program. See: 29 Del. C. §9007A(c)(2). In spite of the assertions of Defendant Lippstone regarding his "judicial capacity" it is clear from the statute that a substantial number of his duties are not to the Court but instead are duties owed directly to the children he was appointed to serve, and the scope of that representation was to protect the child's best interests. 29 Del. C. §9007A(c). In fact, the statute providing for the services of the Defendant requires the Defendant to conduct independent investigations, monitor cases... to assure the terms of the Court's Orders are fulfilled, respond to complaints wherein the child is an alleged victim..., request a hearing before the Court when the plan on behalf of the child is not implemented or is not meeting the child's needs, request other appropriate relief from the Court on behalf of the child, appear on behalf of the child before the Violent Crimes Compensation Board, ascertain the wishes of the child and advise the Court. Most importantly, the guardian ad litem is tasked and given the power to obtain from "any agency, hospital, school, organization, division or department of the state, doctor, nurse, or other healthcare provider, treatment facility, psychologist, psychiatrist, police department or mental health clinic..., any records relating to the child and parents involved in the case of appointment without consent of the child or parents. See, e.g.: 29 Del. C. 9007A. These are the functions that a responsible parent would perform for or on behalf of a child. They are not the services required of the court nor a delegation thereof. The United States Supreme Court has not issued a ruling on point for the instant case nor setting forth the immunity to be afforded to that broad class of persons which might fall within the description "guardian ad litem." See: Gardner v. Parson, 874 F. 2d 131, 144 (3d Cir. 1989). The Third Circuit has adopted a "functional approach" which looks to the nature of the functions being 10

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performed and not the identity or nomenclature used to describe the actor who performs the function. Hughes v. Long, 242 F. 3d 121, 125 (3d Cir. 2001); citing: Forrester v. White, 484 U.S. 219, 224 (1988)2. The Supreme Court has addressed the issue of absolute immunity in other contexts, including that afforded to prosecutors, and has therein differentiated between activities "intimately associated with the judicial process" as are initiating and pursuing criminal prosecution, and those that are tangential of those direct judicial roles, such as investigative and administrative duties, for which no immunity is granted. Imbler v. Pachtman, 424 U.S. 409, 430 (1976). Where clearly judicial duties are delegated or ordered by the Court to be performed immunity may be recognized. See: Gardner v. Parson, 874 F. 2d 131, 145 (3d Cir. 1989)("[a] guardian ad litem would be immune in exercising such functions as... making reports and recommendations to the court in which the guardian acts as an actual functionary or arm of the court"). Where; however, the role of the guardian goes beyond the performance of service to the court and into the area of administration and investigation for other purposes, as outlined in the Delaware statute's duties, rights, responsibilities and obligations provisions established by the Delaware legislature, blanket immunity is simply not supported in any existing formulation of the doctrine of judicial immunity. While the guardian's duties in the present case may involve, in certain circumstances, reporting to the Court and participating in its adjudication of matters involving the custody of the children, there are many more duties and obligations primarily directed to serving the interests of the children themselves, who, once removed from the custody of their parents and brought within the judicial process stripped of parental oversight in all areas of their lives and are being shuttled through the

2

As is noted in the Forrester supra case, "the official seeking immunity bears the burden of showing that it is justified by the function in question.". Id. at 224 11

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state foster child system with no oversight absent the guardian. See: 29 Del. C. §9007A(a). (The general assembly has recognized the need to safeguard the welfare of abused, neglected and dependent children of this state. As such, it has charged the Office of the Child Advocate and the Court-Appointed Special Advocate Program with ensuring representation of children's best interests in child welfare proceedings...). The allegations of the Plaintiffs' Complaint in the instant case aver actions on the part of Defendant Lippstone that fall outside of any judicial role that he was performing for the Court and focus, inter alia, on his alleged failure to protect the children in the selection process of the Defendants Haynes, who physically injured them, and in overseeing them while in those Defendants physical custody. A simple reading of 29 Del. C. §9007A(b)(1)-(4) & (c)(1)-(14) makes it clear that the blanket immunity sought by the Defendant is untenable. While the facts of this case may ultimately exonerate the Defendant, one can only wonder why, if the facts were such that his statutory obligations to these children were met, he would require the execution of a General Release before honoring his obligation to submit to the parents and attorneys representing the children the information and file materials in his possession for which he was charged with accumulating. (See Exhibits "A"-"C" and discussion infra at pp. 4-5 ). B. Defendant Lippstone is not immune from suit under the Eleventh Amendment of the United States Constitution.

The argument that Defendant Lippstone is immune from suit under the Eleventh Amendment is misplaced. Although the Plaintiffs' Complaint does require amendment to more fully outline and allege the facts and the capacity upon which Lippstone's liability rests, it is clear that he was sued in both his individual and official capacities. (Plaintiffs' Complaint ¶14). Whether or not Lippstone

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acted in his official capacity as the "guardian ad litem" appointed pursuant to the Delaware State Code as cited supra, or whether his conduct was in an individual capacity, not in accordance with the custom, policy, or practice of other such guardians ad litem appointed pursuant to this statutory provision, he is and will continue to remain an individual subject to liability under 42 U.S.C. §1983 liability and will not be afforded the protections of a state, state agency, or state officer under the Eleventh Amendment. C. The question of whether Lippstone is entitled to immunity under Delaware State law pursuant to Delaware Code §29 Del. C. §9008A is a question of law which cannot be resolved within the present Motion.

The indemnification provision of the Delaware Code for attorneys and other persons working for the Office of the Child Advocate provides protection for such persons: resulting from any act or omission performed during or in connection with the discharge of his or her duties with the office within the scope of his or her employment or appointment, unless the act or omission is done with gross or want negligence, or maliciously, or in bad faith. 29 Del. C. 9008A (emphasis added). As has been discuss supra, the Plaintiffs have asked to amend their Complaint following the disclosure of the Defendants' files including those of Defendant Lippstone. Unless and until Defendant Lippstone's files have been produced, without the obligation of signing the General Release that he sought to impose upon the Plaintiffs, there is no basis upon which to apply this indemnification from liability statute with respect to the claim for civil damages under the laws of Delaware. This provision bears no applicability to the claims arising out of the Constitution and laws of the United States.

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D.

Defendant Lippstone's claims for the dismissal of state law claims based on 31 Del. C. §304 and 29 Del. C. §9007A are premature.

For the reasons discussed supra, the request for summary dismissal of the Plaintiffs' Complaint as it is currently plead is premature. The standards to be applied to the Defendant must be weighed against his actual conduct, which is something that he has failed and refused to disclose pursuant to his obligations to the minor Plaintiffs. Unless and until those actions are fully disclosed, the Defendant's liability to the Plaintiffs cannot be adjudged reasonably nor in the interest of justice. CONCLUSION For the reasons set forth herein the minor Plaintiffs respectfully request that this Honorable Court deny Defendant, Lippstone's Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6). It is further respectfully requested that this Honorable Court consider the Plaintiffs' Motion for Rule 16 Conference and Discovery in Aid of Filing Amended Complaint Pursuant to F.R.C.P. 26(d) and enter an Order setting forth a time period within which the Defendants must honor their disclosure obligations pursuant to Rule 26, providing for limited discovery by the Plaintiffs so that they may file an Amended Complaint.

SCHMIDT, KIRIFIDES, PEARSON, KOUTCHER & FRIDKIN /s/_____________________________ Matthew H. Osborne, Esq. Bar #4630 1301 N. Harrison Street, Unit 105 Wilmington, DE 198806 (302) 836-3900 Attorneys for Plaintiffs

Dated: June 16, 2008 14

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