Free Case Transferred In - District Transfer - District Court of Delaware - Delaware

Case 1:07-cv-00426-GMS

Document 19

Filed 07/05/2007

Page 1 of 4

Case 1:07-cv-00426-GMS

Document 19

Filed 07/05/2007

Page 2 of 4

Case 1:07-cv-00426-GMS

Document 19

Filed 07/05/2007

Page 3 of 4

Case 1:07-cv-00426-GMS

Document 19

Filed 07/05/2007

Page 4 of 4

Case 1:07-cv-00426-GMS

Document 19-2

Filed 07/05/2007

Page 1 of 5

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO, Plaintiff, v. CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., Defendants.

: : : : : : : : : : : : :

CIVIL ACTION NO. 07-

NOTICE OF REMOVAL To the Judges of the United States District Court for the Eastern District of Pennsylvania: This Notice of Removal on behalf of defendants, CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., respectfully alleges the following: 1. On or about December 1, 2006, plaintiff commenced an action in the Court of Common

Pleas of Delaware County captioned Kenneth J. Marino v. Cross Country Bank and Applied Card Systems, Inc., Docket No. 06-16898, alleging a claim against the defendants for personal injuries arising from an alleged wrongful use of civil proceedings also know as a Dragonetti claim. allegedly occurring on or about January 5, 2004. A copy of plaintiff's Complaint filed on or about December 1, 2006, is attached hereto as Exhibit "A." 2. It is defendants' position that plaintiff's initial attempts at service were ineffective. On April

5, 2007, counsel for defendants executed and filed an Acceptance of Service, a copy of which is attached hereto as Exhibit "B." 3. This Notice of Removal is timely filed pursuant to 28 U.S.C. §1446(b).

1

Case 1:07-cv-00426-GMS

Document 19-2

Filed 07/05/2007

Page 2 of 5

4.

At all times relevant, Cross Country Bank is a Delaware corporation with its principal place

of business located in Wilmington, Delaware. 5. At all times relevant, Applied Card Systems, Inc., is a Delaware Corporation with its

principal place of business located in Wilmington, Delaware. 6. Plaintiff Kenneth J. Marino is a resident of the State of North Carolina, residing at 1005

Baltusrol Lane, Waxhaw, North Carolina, 28173. (Exhibit A, ¶ 1). 7. While state law and rules of procedure do not require an amount of monetary relief to be set

forth in a Complaint, plaintiff prayed for relief in an amount in excess of $75,000 (Exhibit A). The amount in controversy in this action is no doubt significant, as the case involves an alleged wrongful use of process and alleges that Defendants acted "wantonly and grossly" thereby justifying the award of punitive damages. Exhibit A ¶ 21. 8. Plaintiff also claims that Defendants initiated the alleged improper action "for the improper

purpose of preventing Plaintiff from testifying to certain Attorneys General" (Exhibit A ¶ 18). 9. Therefore, the amount in controversy is in excess of $75,000.00.

10. In light of the foregoing, the federal jurisdiction has been established pursuant to 28 U.S.C. § 1332, satisfying both diversity and amount in controversy requirements. 11. Written notice of the filing of the within Notice of Removal has been served by defendants' counsel, and a copy of this Notice of Removal has been forwarded by mail to the Court of Common Pleas of Delaware County.

2

Case 1:07-cv-00426-GMS

Document 19-2

Filed 07/05/2007

Page 3 of 5

WHEREFORE, defendants, CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., pray that the matter be removed from the Court of Common Pleas of Delaware County to this Honorable Court.

Dated: April 4, 2007

Respectfully submitted, LAMB McERLANE PC

By: __________________________________ Guy A. Donatelli, Esquire Validation No.: GAD2504 Attorney I.D. No. 44205 24 E. Market Street ­ P.O. Box 565 West Chester, PA 19381-0565 (610) 430-8000

Attorneys for Defendants Cross Country Bank and Applied Card Systems, Inc.

3

Case 1:07-cv-00426-GMS

Document 19-2

Filed 07/05/2007

Page 4 of 5

CERTIFICATE OF SERVICE

This is to certify that in this case complete copies of all papers contained in the foregoing Notice of Removal have been served upon the following persons, by the following means and on the date(s) stated: Name: Kevin W. Gibson, Esquire Gibson & Perkins, P.C. Suite 105 200 East State Street Media, PA 19063 Means of Service: First Class Mail Date of Service: April 5, 2007

LAMB McERLANE PC

By: ____________________________________ Guy A. Donatelli, Esquire Validation No.: GAD2504 Attorney I.D. No. 44205 24 E. Market Street ­ P.O. Box 565 West Chester, PA 19381-0565 (610) 430-8000 Attorneys for Defendants Cross Country Bank and Applied Card Systems, Inc.

4

Case 1:07-cv-00426-GMS

Document 19-2

Filed 07/05/2007

Page 5 of 5

5

Case 1:07-cv-00426-GMS

Document 19-3

Filed 07/05/2007

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KENNETH J. MARINO v. CROSS COUNTY BANK and APPLIED CARD SYSTEMS, INC. : : : : : : ORDER AND NOW, this 11th day of April, 2007, it is ordered that a hearing on a rule to show cause why this action should not be remanded for failure to meet the jurisdictional amount in controversy shall be held on April 23, 2007 at 10:00 a.m.. CIVIL ACTION

NO. 07-1389

/s/ Norma L. Shapiro Norma L. Shapiro, S.J.

Case 1:07-cv-00426-GMS

Document 19-4

Filed 07/05/2007

Page 1 of 1

Case 1:07-cv-00426-GMS

Document 19-5

Filed 07/05/2007

Page 1 of 1

Case 1:07-cv-00426-GMS

Document 19-6

Filed 07/05/2007

Page 1 of 5

Case 1:07-cv-00426-GMS

Document 19-6

Filed 07/05/2007

Page 2 of 5

Case 1:07-cv-00426-GMS

Document 19-6

Filed 07/05/2007

Page 3 of 5

Case 1:07-cv-00426-GMS

Document 19-6

Filed 07/05/2007

Page 4 of 5

Case 1:07-cv-00426-GMS

Document 19-6

Filed 07/05/2007

Page 5 of 5

Case 1:07-cv-00426-GMS

Document 19-7

Filed 07/05/2007

Page 1 of 1

Case 1:07-cv-00426-GMS

Document 19-8

Filed 07/05/2007

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KENNETH J. MARINO v. CROSS COUNTY BANK and APPLIED CARD SYSTEMS, INC. : : : : : : ORDER AND NOW, this 20th day of April, 2007, it is ordered that the hearing on a rule to show cause why this action should not be remanded for failure to meet the jurisdictional amount in controversy, previously noticed for April 23, 2007, shall be continued to June 25, 2007 at 10:00 a.m. to allow for discovery on the amount in controversy. If the rule to show cause is discharged, a Fed.R.Civ.P. 16 pretrial conference will also be held that date. The attached form1 is to be completed and returned to Chambers one week prior to the conference. Counsel are expected to comply with Fed.R.Civ.P. 16 and 26, as amended December 1, 2000, the Code of Civility adopted by the Pennsylvania Supreme Court on December 6, 2000, and the Working Rules of Professionalism, adopted by the Philadelphia Bar Association on June 28, 1990. CIVIL ACTION

NO. 07-1389

/s/ Norma L. Shapiro Norma L. Shapiro, S.J.

This form, together with the other items attached to this Order, is also available from our website: www.paed.uscourts.gov.

1

Case 1:07-cv-00426-GMS

Document 19-9

Filed 07/05/2007

Page 1 of 2

Case 1:07-cv-00426-GMS

Document 19-9

Filed 07/05/2007

Page 2 of 2

Case 1:07-cv-00426-GMS

Document 19-10

Filed 07/05/2007

Page 1 of 2

Case 1:07-cv-00426-GMS

Document 19-10

Filed 07/05/2007

Page 2 of 2

Case 1:07-cv-00426-GMS

Document 19-11

Filed 07/05/2007

Page 1 of 2

Case 1:07-cv-00426-GMS

Document 19-11

Filed 07/05/2007

Page 2 of 2

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 1 of 55

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

EXHIBIT A TO PLAINTIFF MARINO'S MOTION TO AMEND HIS COMPLAINT

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 2 of 55

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO 1005 Baltusrol Lane Waxhaw, NC 28173 V CROSS COUNTRY BANK 50 Applied Card Way Glen Mills PA 19342

And APPLIED CARD SYSTEMS, INC. 50 Applied Card Way Glen Mills, PA 19342 And Rocco Abessinio 50 Applied Card Way Glen Mills, PA 19342

: : : : : : No. 07-1389 : : : : : JURY TRIAL DEMANDED : : : : : : : : : : : : :

Deleted: 101 Beverly Square Deleted: Kennett Square Deleted: PA Deleted: 19348

Deleted:

AMENDED COMPLAINT 1. Plaintiff is Kenneth J. Marino is a resident and citizen of North Carolina residing
Deleted: the Commonwealth of Pennsylvania

at the address first above written. 2. Defendant Cross Country Bank [CCB] is a Delaware banking corporation, with a

place of business at 800 Delaware Avenue, Wilmington, Delaware. 3. Defendant Applied Card Systems, Inc. [ACS]is a Delaware banking corporation,

offices located at 50 Applied Card Way, Glen Mills, Pennsylvania. Upon information and

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 3 of 55

belief Defendant Abessinio is the President and/or CEO of Defendants CCB and/or ACS and can be served with judicial process at the offices of CCB and/or ACS.1 4. Plaintiff is an attorney licensed to practice law in the Commonwealth of

Pennsylvania. 5. Plaintiff was employed by Defendants as their general counsel. From October 1,

200o until February 14, 2001. 6. Plaintiff and Defendants entered into an employment contract on or about

September 11, 2000. 7. Plaintiff was terminated without cause by defendants for his efforts to change

Defendants predatory lending practices. 8. On or about September 4, 2003, plaintiff submitted an affidavit to the Attorney

General of the State of New York in response to a duly executed subpoena issued in accordance with a then on-going criminal investigation into Defendants lending practices. 9. On or about January 5, 2004, plaintiff brought an action for wrongful termination

against Defendants in the United States District Court for the District Court of Delaware. 10. Plaintiff and Defendant agreed to settle plaintiff's wrongful termination claim and plaintiff was released from all obligations of his employment contract with Defendants. 11. On April 26, 2004, Defendants instituted a civil action against plaintiff in the Court of Commons Pleas of Chester County, Pennsylvania.[hereinafter sometimes called the "Chesco Complaint" said Complaint being attached hereto as Exhibit "A" and incorporated herein by reference]

1

Mr. Abessinio also has homes in Delaware and Florida and Plaintiff is therefore unsure of Abessinio/s domicile/residency. However given Plaintiff's residence in North Carolina there is diversity jurisdiction as between Plaintiff and Mr. Abessinio regardless of whether he resides in Delaware, Florida or Pennsylvania.

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 4 of 55

12. Defendants asserted three claims against plaintiff for breach of contract, breach of fiduciary duty and injunctive relief. 13. On August 24, 2005, the Court of Common Pleas of Chester County dismissed all three claims made by Defendants against plaintiff. 14. In dismissing defendants complaint, Judge Cody of the Court of Common Pleas of Chester County issued a bench opinion dated August 24, 2004 wherein she made the following findings of fact: (a). Plaintiff was released from his obligations under his employment contract with Defendants and therefore was not liable for breach of contract; (b). Plaintiff did not breach his fiduciary duty to plaintiffs or any Delaware Rule of Professional Conduct in his giving an affidavit to the Attorney General of the State of New York; and (c). Defendants were not entitled to an injunction to restrain plaintiff from responding to the requests for information from law enforcement officials regarding Defendants predatory lending practices. [The Bench Opinion is attached as Exhibit "B" hereto which was followed by an Order of the same date which is the last page of Exhibit "B"]
Formatted: Centered

COUNT ONE Plaintiff v CCB and ACS
Deleted: ¶

15. An action for wrongful use of proceedings, known also as Pennsylvania's Dragonetti Act, is described in pertinent part by statute as follows: § 8351. Wrongful use of civil proceedings (a) Elements of action.--A person who takes part in the procurement, initiation or

Formatted: Bullets and Numbering

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 5 of 55

continuation of civil proceedings against another is subject to liability to the other for wrongful use of civil proceedings: (1) He acts in a grossly negligent manner or without probable cause and primarily for a purpose other than that of securing proper discovery, joinder of parties or adjudication of the claim which the proceedings are based; and (2) The proceedings have terminated in favor of the person against whom they are brought. 16. In the case at bar Defendants procured, initiated and continued a civil proceeding against Plaintiff herein. 17. In the case at bar Defendants procuring, initiating and continuing the action against Plaintiff herein Defendants acted grossly and without probable cause in that Defendants adduced no facts of record that demonstrated that the action was initiated with probable cause where they knew that plaintiff had been released from his duties under the employment contract, and were aware that plaintiff was merely complying with a subpoena of the Attorney of New York pursuant to an on-going criminal investigation. 18. Upon, information and belief, Defendants procured, initiated and continued the action against Plaintiff herein Defendants without probable cause for the improper purpose of preventing Plaintiff from testifying to certain Attorneys General regarding Defendants predatory lending practices. 19. As a direct and proximate cause of the Defendants filing an improper civil action Plaintiff has been damaged by agreeing to pay instant counsel a sum in excess of $80,000 in the nature of attorneys fees incurred in defending against the action filed in Chester

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 6 of 55

County and then defending against the improvident appeals taken in that action all the way to the Pennsylvania Supreme Court. 20. As a direct and proximate cause of the Defendants filing an improper civil action Plaintiff has been damaged by suffering harm to his reputation. 21. The defendants have acted so wantonly and grossly especially with due regard to trying to use a civil action to prevent Plaintiff's testimony, that Plaintiff is entitled to an award of punitive damages to deter such reprehensible conduct in the future. WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally, for an amount in excess of $75,000, exclusive of costs and interest together with an award of pre and post judgment interest and such other relief deemed appropriate by court or jury.
Formatted: Centered
Deleted: having to pay attorneys fees to defend himself

COUNT TWO Plaintiff v CCB ACS and Rocco Abessinio
Formatted: Bullets and Numbering

22. Plaintiff repeats and re-alleges paragraphs 1 through 21 above as if the same were set forth at length herein. 23. The termination of Plaintiff's employment as described above caused Plaintiff to file a wrongful employment termination case against these same defendants said case having been filed in the United States District Court for the State of Delaware said case being filed on January 25, 2002. 24. The parties hereto entered into a settlement agreement of the wrongful termination case said settlement agreement being dated May 21, 2003. [The Settlement Agreement is attached hereto as Exhibit "C" and the Agreement is incorporated herein by reference]

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 7 of 55

25. In paragraph 11 of the parties' settlement agreement the defendants undertook the explicit duty and obligation to refrain from disparaging Plaintiff in any fashion. 26. Paragraph 11 of the settlement agreement states in pertinent part: "Defendants and those acting at defendants' direction, shall not disparage, either by written or spoken word, Kenneth J. Marino, via any medium whatsoever, including but not limited to, email and communications over the internet, either in their own names or under assumed names, identities or aliases. A violation of this paragraph shall be considered a breach of this Agreement entitling the violating party to equitable relief and attorneys' fees and expenses as more fully set forth in paragraph 15 below. Additionally, violation of this paragraph shall constitute breach of this Agreement requiring the violating party to disgorge any and all benefits received under this Agreement, including but not limited to the Settlement Sum if applicable. 27. Paragraph 15 of the Settlement Agreement requires the violating party to pay all the fees and expenses of counsel for the party who is the victim of any violation of the Agreement. 28. Defendants CCB, ACS and Mr. Abessinio are parties and signatories to the subject matter Settlement Agreement. 29. At all times relevant, the lawsuit filed against Plaintiff as alleged above was filed at the behest and/or direction of Defendant Abessinio and at a point in time after the parties entered into the Settlement Agreement containing the Non Disparagement Clause described above.

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 8 of 55

30. In paragraph 9 of the Complaint Defendants filed in the Chester County Court of Common Pleas ["Chesco Complaint" Exhibit "A" hereto] the Defendants contended that Plaintiff was a "disruptive" individual. 31. In paragraph 21 through 29 of Chesco Complaint Defendants accused Plaintiff of being an unethical lawyer. 32. As stated above Judge Cody in a Bench Opinion found that Plaintiff acted ethically at all times in discharging his duties as prior counsel for CCB and/or ACS. 33. On page 9 of Judge Cody's Bench Opinion which is attached hereto she made a finding that the predatory lending practices of CCB and/or ACS was an ongoing "fraud". 34. Defendants appealed Judge Cody's ruling to the Pennsylvania Superior Court and to the Pennsylvania State Supreme Court without success and thus Judge Cody's ruling is the "law of the case". 35. In addition to disparaging Plaintiff in the particulars of the Chesco Complaint, on February 27, 2004 Defendant Abessinio provided an Affidavit in connection with legal proceedings taking place in West Virginia wherein Abessinio accused Plaintiff of extorting funds from CCB. [See Exhibit "D" hereto which is incorporated herein by reference] 36. In paragraph 5 of said Affidavit which Plaintiff never saw or heard of until June 17, 2004, which is incorporated herein by reference, Abessinio made the following statement about Plaintiff "In my entire business experience I have never encountered anyone who manifested the level of anger, hostility and total disregard for ethical standards shown by Mr. Marino following his termination".

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 9 of 55

37. In paragraph 9 of the Affidavit Abessinio claims that Plaintiff "was in breach of his fundamental duties as a lawyer" because Mr. Marino communicated with the New York Attorney Generals Office pursuant to a validly issued subpoena. 38. The Defendants are without any privilege to make the disparaging comments they made in both the Chesco Complaint and the Abessinio Affidavit. 39. Case law provides that the litigation privilege is inapplicable to shield parties who make disparaging remarks when those same parties have contractually undertaken a duty to refrain from making disparaging remarks. See Generally Eichelkraut v Camp 513 SE2d 267 (Ga. App 1999). 40. The legal fees and expenses incurred by instant counsel for Plaintiff in defending against the Chesco Complaint up through and including the briefing and oral arguments necessitated by the Defendants improvident appeal of Judge Cody's ruling stand in excess of $80,000 and are recoverable as damages under the Dragonetti laws as well as provided for in paragraphs 11 and 15 of the subject matter Settlement Agreement. 41. In addition to disparaging Plaintiff as set forth above, the Defendants CCB/ACS are presently engaged in a campaign to thwart Plaintiff's application to be admitted as a member of the bar of and for the State of North Carolina by suggesting Plaintiff lacks the required fitness and integrity to become a member of that Bar. 42. Plaintiff has incurred additional attorneys fees in defending against CCB/ACS improper attempts to thwart Plaintiff's admission to the North Carolina Bar. WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally, for an amount in excess of $75,000, exclusive of costs and interest together

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 10 of 55

with an award of pre and post judgment interest and such other relief deemed appropriate by court or jury. Respectfully submitted, GIBSON & PERKINS P.C.
Deleted: WHEREFORE, Plaintiff demands judgment against Defendants jointly and severally, for an amount in excess of $75,000 together with an award of pre and post judgment interest and such other relief deemed appropriate by court or jury.¶ ¶ R

_______________________________ BY: KEVIN WILLIAM GIBSON Gibson & Perkins PC 200 East State Street Media PA 19063 610.565.1708 [email protected]

Formatted: Line spacing: single

Deleted: VERIFICATION¶ ¶ ¶ I, Kenneth J. Marino, Plaintiff, herein, verify that he has personal knowledge of this matter and that the facts set forth in the foregoing Complaint are true and correct to the best of my knowledge, information and belief.¶ I understand that the statements made herein are subject to the penalties of 18 Pa. C.S. Section 4904 relating to unsworn falsification to authorities.¶ ¶ ¶ ¶ ¶ ________________________ ___________¶ Kenneth J. Marino¶ ¶ ¶

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 11 of 55

EXHIBIT "A"

EXHIBIT "A"

EXHIBIT "A"

EXHIBIT "A"

EXHIBIT "A"

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 12 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 13 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 14 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 15 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 16 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 17 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 18 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 19 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 20 of 55

EXHIBIT "B"

EXHIBIT "B"

EXHIBIT "B"

EXHIBIT "B"

EXHIBIT "B"

EXHIBIT "B"

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 21 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 22 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 23 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 24 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 25 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 26 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 27 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 28 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 29 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 30 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 31 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 32 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 33 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 34 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 35 of 55

EXHIBIT "C"

EXHIBIT "C"

EXHIBIT "C"

EXHIBIT "C"

EXHIBIT "C"

EXHIBIT "C"

EXHIBIT "C"

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 36 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 37 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 38 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 39 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 40 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 41 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 42 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 43 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 44 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 45 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 46 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 47 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 48 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 49 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 50 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 51 of 55

EXHIBIT "D"

EXHIBIT "D"

EXHIBIT "D"

EXHIBIT "D"

EXHIBIT "D"

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 52 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 53 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 54 of 55

Case 1:07-cv-00426-GMS

Document 19-12

Filed 07/05/2007

Page 55 of 55

Case 1:07-cv-00426-GMS

Document 19-13

Filed 07/05/2007

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO V CROSS COUNTRY BANK and APPLIED CARD SYSTEMS

: : : : : :

No. 07-1389

ORDER And now this day of 2007, upon review of the Plaintiff's

Motion to Amend his Complaint and the Defendant's response thereto, and oral argument if any , it is hereby ORDERED AND DECREED that the Motion is GRANTED.

_______________________________ J

Case 1:07-cv-00426-GMS

Document 19-14

Filed 07/05/2007

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KENNETH J. MARINO v. CROSS COUNTY BANK and APPLIED CARD SYSTEMS, INC. : : : : : : ORDER AND NOW, this 5th day of June, 2007, it is ordered that in addition to a hearing on a rule to show cause why this action should not be remanded for failure to meet the jurisdictional amount in controversy on June 25, 2007 at 10:00 a.m., the court will also hear argument on why this case should not be transferred to the District of Delaware under the Stipulation of Dismissal, United States District Court for the District of Delaware, CA 02-065 GMS, and Paragraph 14 of the Settlement Agreement file therewith. Argument on plaintiff's motion to amend his complaint will also be heard. CIVIL ACTION

NO. 07-1389

/s/ Norma L. Shapiro S.J.

Case 1:07-cv-00426-GMS

Document 19-15

Filed 07/05/2007

Page 1 of 1

Case 1:07-cv-00426-GMS

Document 19-16

Filed 07/05/2007

Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO, Plaintiff, v. CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., Defendants.

: : : : : : : : : : : : :

CIVIL ACTION NO. 07-1389

ORDER AND NOW, this ____ day of ____________, 2007, upon consideration of Plaintiff's Motion to Amend his Complaint, and the response of Defendants, Cross Country Bank and Applied Card Systems, Inc. and after argument, it is hereby

ORDERED that Plaintiff's Motion is DENIED.

BY THE COURT:

___________________________ , J.

1

Case 1:07-cv-00426-GMS

Document 19-16

Filed 07/05/2007

Page 2 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO, Plaintiff, vi. CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., Defendants.

: : : : : : : : : : : : :

CIVIL ACTION NO. 07-1389

RESPONSE OF CROSS COUNTRY BANK AND APPLIED CARD SYSTEMS, INC. IN OPPOSITION TO PLAINTIFF'S MOTION TO AMEND COMPLAINT Defendants, Cross Country Bank and Applied Card Systems, Inc., file this response to Plaintiff's Motion to Amend Complaint.1 Plaintiff's request to amend should be denied.

Defendants recognize that Rule 15(a) of the Federal Rules of Civil Procedure advises that leave to amend should be freely given when "justice so requires". However, the policy favoring liberal amendments is "not unbounded". Schofield v. Trustees of Univ. of Pennsylvania, 894 F. Supp. 194, 196 (E.D. Pa. 1995). This Court may exercise its discretion and deny leave to amend when such an amendment would be futile, or would cause undue prejudice to the other party. Arthur v. Maersk, Inc., 434 F.3d 196, 204 (3d Cir. 2006); Hill v. City of Scranton, 411 F.3d 118, 125 (3d Cir. 2005); Berkshire Fashions, Inc. v. M.V. Hakusan II, 954 F.2d 874, 886 (3d Cir. 1992). In the instant case, Plaintiff seeks to add an entirely unrelated cause of action and a new individual party when such an amendment would have the effect of unnecessarily and unfairly
1

Plaintiff's motion was not accompanied by a brief as required by Eastern District Local Rule of Civil Procedure 7.1. Accordingly, Defendants submit this response without the benefit of Plaintiffs' legal argument and reserve the right to supplement should Plaintiff ultimately file a brief.

2

Case 1:07-cv-00426-GMS

Document 19-16

Filed 07/05/2007

Page 3 of 4

prejudicing Defendants in their defense of the action initially filed. This action involves a one count claim by Plaintiff against his former employer under Pennsylvania's Dragonetti Act for alleged wrongful use of civil proceedings. The amended complaint adds a second count which seeks to impose liability upon Defendants and a new individual party for allegedly making privileged and protected remarks in the context of a judicial proceeding ­ a cause of action utterly prohibited by Pennsylvania law. See, e.g., General Refractories Co. v. Fireman's Fund Ins. Co., 337 F.3d 297 (3d Cir. 2003) (judicial privilege protects litigants against claims for relevant statements made during the course of judicial proceedings); Joyner v. School Dist. of Philadelphia, 313 F. Supp. 495 (E.D. Pa. 2004) (communications relevant to any stage of a judicial proceeding are accorded absolute privilege). To permit Plaintiff to amend his complaint to assert a cause of action that could not be successful is futile and requires Defendants and this Court to expend resources wastefully. Accordingly Defendants, Cross Country Bank and Applied Card Systems, Inc., respectfully request that Plaintiff's motion to amend be denied.

Dated: June 19, 2007

Respectfully submitted, LAMB McERLANE PC

By: __________________________________ William H. Lamb, Esquire Guy A. Donatelli, Esquire Validation No.: GAD2504 Attorney I.D. No. 44205 24 E. Market Street ­ P.O. Box 565 West Chester, PA 19381-0565 (610) 430-8000

Attorneys for Defendants Cross Country Bank and Applied Card Systems, Inc.

3

Case 1:07-cv-00426-GMS

Document 19-16

Filed 07/05/2007

Page 4 of 4

CERTIFICATE OF SERVICE

This is to certify that in this case complete copies of all papers contained in the foregoing Answer to Plaintiff's Motion to Amend Complaint have been served upon the following persons, by the following means and on the date(s) stated: Name: Kevin W. Gibson, Esquire Gibson & Perkins, P.C. Suite 105 200 East State Street Media, PA 19063 Means of Service: First Class Mail Date of Service: June 19, 2007

LAMB McERLANE PC

By: ____________________________________ Guy A. Donatelli, Esquire Validation No.: GAD2504 Attorney I.D. No. 44205 24 E. Market Street ­ P.O. Box 565 West Chester, PA 19381-0565 (610) 430-8000 Attorneys for Defendants Cross Country Bank and Applied Card Systems, Inc.

4

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO, Plaintiff, v. CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., Defendants.

: : : : : : : : : : : : :

CIVIL ACTION NO. 07-1389

ORDER AND NOW, this ____ day of ____________, 2007, upon consideration of Defendants, Cross Country Bank's and Applied Card Systems, Inc.'s Motion to Compel Answers to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories and Plaintiff's Response thereto, it is hereby ORDERED that Plaintiff's Motion is GRANTED, and Plaintiff shall provide full and complete answers and a full and complete production of documents in response to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories prior to the hearing scheduled in this matter on June 25, 2007.

BY THE COURT:

___________________________ , J.

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 2 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO, Plaintiff, v. CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., Defendants.

: : : : : : : : : : : : :

CIVIL ACTION NO. 07-1389

MOTION OF DEFENDANTS CROSS COUNTRY BANK AND APPLIED CARD SYSTEMS, INC. TO COMPEL ANSWERS TO DEFENDANTS' FIRST SET OF DOCUMENT REQUESTS ADDRESSED TO PLAINTIFF AND DEFENDANTS' FIRST SET OF INTERROGATORIES Defendants, Cross Country Bank and Applied Card Systems, Inc., file this motion to compel Plaintiff to provide full and complete answers and a full and complete production of documents in response to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories prior to the hearing scheduled in this matter on June 25, 2007, and more particularly allege as follows: 1. This matter was removed by Defendants to this Court from the Court of Common

Pleas of Delaware County on April 5, 2007, based upon diversity of citizenship and amount in controversy pursuant to 28 U.S.C. § 1332. 2. Plaintiff did not seek to remand the matter back to state court. However, the Court

issued an Order dated April 11, 2007 (Document 2) scheduling a hearing on a rule to show cause why the action should not be remanded for failure to meet the jurisdictional amount in controversy for April 23, 2007.

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 3 of 9

3.

After a telephone conference between counsel for the parties and the Court, the

Court issued an Order dated April 20, 2007 (Document 8) continuing the hearing on the rule to show cause why the action should not be remanded for failure to meet the jurisdictional amount in controversy for June 25, 2007. In that Order, the Court ordered that the continuance was "to allow for discovery on the amount in controversy". 4. Accordingly, on May 18, 2007, Defendants counsel served narrowly tailored

discovery to address the issue of the amount in controversy. Copies of this discovery, which entail Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories, are attached hereto as Exhibit "A". 5. Plaintiff's answers to Defendants' discovery were due on June 17, 2007 (a Sunday)

and therefore Defendants expected responses to the discovery by Monday June 18, 2007. F.R.C.P. 33(b) and 34(b). 6. By Order dated June 5, 2007, (Document 13) the Court, inter alia, confirmed the

necessity for a hearing on the rule to show cause why the action should not be remanded for failure to meet the jurisdictional amount in controversy for June 25, 2007. 7. On Friday, June 15, 2007, Defendants served upon the Court, with a faxed copy to

Plaintiff's counsel, Defendants' Scheduling/Status Conference Report. Defendants' Report, in the Special Comments section advised, "In anticipation of the conference on June 25, 2007, Defendants served discovery, the responses thereto due on June 18, 2007". 8. Plaintiff has failed to provide any responses to Defendants' First Set of Document

Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories and did not request an extension of time to do so. 9. Accordingly, by email dated June 20, 2007, counsel for Defendants requested the

overdue discovery responses as follows "Your client's answers to and responsive production to my clients' discovery were due on Monday. Please have them delivered to me no later than noon tomorrow, June 21, 2007".

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 4 of 9

10.

By email dated June 20, 2007, Plaintiff's counsel responded "it is my opinion that I

vitiated any need to answer the discovery by filing the amended complaint. You can consider all requests objected to on this basis. I am in sf [San Francisco] as your client well knows. Call my cell guy if we need to speak. 6102913544 Kwg". 11. Prior to this email, Plaintiff had never questioned his obligation under the Court's

April 20, 2007 Order to respond to Defendants' discovery, and Plaintiff's belated excuses for not doing so are ineffectual. 12. On June 21, 2007, at approximately 9:30 a.m., EST, counsel for the parties conferred

by telephone on the outstanding discovery dispute. Defendants' counsel maintained the obligation of Plaintiff's obligation to respond to the discovery; Plaintiff's counsel's position is that the filing of the motion to amend the complaint relieves Plaintiff of that obligation. 13. Without the discovery, Defendants' ability to support the jurisdictional amount in

controversy is severely prejudiced. 14. 15. Plaintiff is in violation of the Court's Orders of April 20, 2007 and June 5, 2007. Plaintiff should be ordered to provide full and complete answers and a full and

complete production of documents in response to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories prior to the hearing scheduled in this matter on June 25, 2007.

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 5 of 9

WHEREFORE, Defendants respectfully request that this Court issue and order requiring that Plaintiff serve full and complete answers and a full and complete production of documents in response to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories prior to the hearing scheduled in this matter on June 25, 2007.

Dated: June 21, 2007

Respectfully submitted, LAMB McERLANE PC

By: __________________________________ William H. Lamb, Esquire Guy A. Donatelli, Esquire Validation No.: GAD2504 Attorney I.D. No. 44205 24 E. Market Street ­ P.O. Box 565 West Chester, PA 19381-0565 (610) 430-8000 Attorneys for Defendants Cross Country Bank and Applied Card Systems, Inc.

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 6 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

KENNETH J. MARINO, Plaintiff, v. CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC., Defendants.

: : : : : : : : : : : : :

CIVIL ACTION NO. 07-1389

MEMORANDUM OF LAW IN SUPPORT OF MOTION OF DEFENDANTS CROSS COUNTRY BANK AND APPLIED CARD SYSTEMS, INC. TO COMPEL ANSWERS TO DEFENDANTS' FIRST SET OF DOCUMENT REQUESTS ADDRESSED TO PLAINTIFF AND DEFENDANTS' FIRST SET OF INTERROGATORIES

Defendants, Cross Country Bank and Applied Card Systems, Inc., seek full and complete answers and a full and complete production of documents in response to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories prior to the hearing scheduled in this matter on June 25, 2007. This matter was removed by Defendants to this Court from the Court of Common Pleas of Delaware County on April 5, 2007, based upon diversity of citizenship and amount in controversy pursuant to 28 U.S.C. § 1332. This Court has issued an Order dated April 20, 2007 (Document 8) scheduling the hearing on the rule to show cause why the action should not be remanded for failure to meet the jurisdictional amount in controversy for June 25, 2007. In that Order, the Court ordered that the continuance was "to allow for discovery on the amount in controversy". Based upon this Order, on

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 7 of 9

May 18, 2007, Defendants' counsel served narrowly tailored discovery to address the issue of the amount in controversy. Plaintiff's answers to Defendants' discovery were due on June 17, 2007 (a Sunday) and therefore Defendants expected responses to the discovery by Monday June 18, 2007. F.R.C.P. 33(b) and 34(b). By Order dated June 5, 2007, (Document 13) this Court, inter alia, confirmed the necessity for a hearing on the rule to show cause why the action should not be remanded for failure to meet the jurisdictional amount in controversy for June 25, 2007. In anticipation of the hearing, on June 15, 2007, Defendants served upon the Court, with a faxed copy to Plaintiffs' counsel, Defendants' Scheduling/Status Conference Report. Defendants' Report, in the Special Comments section

advised, "In anticipation of the conference on June 25, 2007, Defendants served discovery, the responses thereto due on June 18, 2007". Plaintiff, however, has failed to provide any responses to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories and did not request an extension of time to do so. Therefore, by email dated June 20, 2007, counsel for Defendants requested the overdue discovery responses from Plaintiff as follows. "Your client's answers to and responsive production to my clients' discovery were due on Monday. Please have them delivered to me no later than noon tomorrow, June 21, 2007". By email dated June 20, 2007, Plaintiff's counsel responded "it is my opinion that I vitiated any need to answer the discovery by filing the amended complaint. You can consider all requests objected to on this basis. I am in sf [San Francisco] as your client well knows. Call my cell guy if we need to speak. 6102913544 Kwg". Prior to this email, Plaintiff had never questioned his obligation under the Court's April 20, 2007 Order to respond to Defendants' discovery, and Plaintiff's belated excuses for not doing so are

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 8 of 9

ineffectual. On June 21, 2007, at approximately 9:30 a.m., EST, counsel for the parties conferred by telephone on the outstanding discovery dispute. Defendants' counsel maintained the obligation of Plaintiff's obligation to respond to the discovery; Plaintiff's counsel's position is that the filing of the motion to amend the complaint relieves Plaintiff of that obligation. Without the discovery, however, Defendants' ability to support the jurisdictional amount in controversy is severely prejudiced and Plaintiff's failure to object to them constitute a waiver of any argument that he has been some how relieved of that obligation. Plaintiff is in violation of the Court's Orders of April 20, 2007 and June 5, 2007. Plaintiff should be ordered to provide full and complete answers and a full and complete production of documents in response to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories prior to the hearing scheduled in this matter on June 25, 2007.

Dated: June 21, 2007

Respectfully submitted, LAMB McERLANE PC

By: __________________________________ William H. Lamb, Esquire Guy A. Donatelli, Esquire Validation No.: GAD2504 Attorney I.D. No. 44205 24 E. Market Street ­ P.O. Box 565 West Chester, PA 19381-0565 (610) 430-8000 Attorneys for Defendants Cross Country Bank and Applied Card Systems, Inc.

Case 1:07-cv-00426-GMS

Document 19-17

Filed 07/05/2007

Page 9 of 9

CERTIFICATE OF SERVICE

This is to certify that in this case complete copies of all papers contained in the foregoing Motion to Compel full and complete answers and a full and complete production of documents in response to Defendants' First Set of Document Requests Addressed to Plaintiff and Defendants' First Set of Interrogatories prior to the hearing scheduled in this matter on June 25, 2007, and Memorandum in Support thereof have been served upon the following persons, by the following means and on the date(s) stated: Name: Kevin W. Gibson, Esquire Gibson & Perkins, P.C. Suite 105 200 East State Street Media, PA 19063 Means of Service: First Class Mail (full copy); and Email (word document of motion only) Date of Service: June 21, 2007

LAMB McERLANE PC

By: ____________________________________ Guy A. Donatelli, Esquire Validation No.: GAD2504 Attorney I.D. No. 44205 24 E. Market Street ­ P.O. Box 565 West Chester, PA 19381-0565 (610) 430-8000 Attorneys for Defendants Cross Country Bank and Applied Card Systems, Inc.

Case 1:07-cv-00426-GMS

Document 19-18

Filed 07/05/2007

Page 1 of 1

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KENNETH J. MARINO v. CROSS COUNTY BANK and APPLIED CARD SYSTEMS, INC. : : : : : : ORDER AND NOW, this 25th day of June, 2007, upon consideration of defendants' motion to compel, following a hearing this date at which counsel for all parties were heard, it is ORDERED that defendants' motion to compel answers to first set of document requests and first set of interrogatories addressed to plaintiff (paper no. 16) is GRANTED in part and DENIED in part. Plaintiff shall answer defendants' interrogatories number 1 and number 2 on or before June 29, 2007. CIVIL ACTION

NO. 07-1389

/s/ Norma L. Shapiro Norma L. Shapiro, S.J.

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA KENNETH J. MARINO v. CROSS COUNTRY BANK and APPLIED CARD SYSTEMS, INC. : : : : : : CIVIL ACTION

NO. 07-1389

MEMORANDUM AND ORDER NORMA L. SHAPIRO, S.J. JUNE 29, 2007

Plaintiff, Kenneth J. Marino ("Marino"), filed a complaint in Pennsylvania state court; it alleged wrongful use of civil proceedings and claimed damages under the Dragonetti Act, 42 Pa. C.S.A. § 8351. Defendants Cross Country Bank ("CCB") and Applied Card Systems, Inc. ("ACS"), removed the action to federal court on the basis of diversity jurisdiction. Subsequent to removal, Marino filed a motion to amend his complaint to add a breach of contract claim and join an additional defendant, Rocco Abessinio ("Abessinio"). On June 25, 2007, this court held a hearing on a rule to show cause why the action should not be remanded for failure to meet the amount in controversy, and argument on why the action should not be transferred to the District of Delaware. For the following reasons, the rule to show cause will be discharged, and the action will be transferred forthwith to the District of Delaware. I. FACTS & PROCEDURAL HISTORY This action arises from a series of actions among the parties. On October 1, 2000, Marino entered an employment agreement to serve as general counsel for defendants. (Compl. ¶ 5.) He was terminated on February 14, 2001, according to Marino, for his efforts to change the predatory lending practices of CCB and ACS. (Compl. ¶ 7.) On July 11, 2001, CCB, ACS, and Abessinio initiated against Marino an

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 2 of 12

arbitration proceeding arising out of the employment agreement among the parties; Marino filed a counterclaim. (Mot. to Amend Compl., Ex. C at 2.) On January 25, 2002, Marino filed an action in the United States District Court for the District of Delaware; he asserted claims arising out of the employment relationship against CCB, ACS, and Abessinio. (Mot. to Amend Compl., Ex. C at 2.) The two actions were consolidated into the federal litigation in the District of Delaware, and Marino subsequently filed an amended complaint asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, defamation, injurious falsehood, interference with prospective business relations, and conspiracy. (Mot. to Amend Compl., Ex. C at 2.) CCB, ACS, and Abessinio asserted counterclaims for breach of contract, breach of fiduciary duty, and an intentional tort arising out of the employment relationship. (Mot. to Amend Compl., Ex. C at 2.) By order dated February 14, 2003, the United States District Court for the District of Delaware dismissed some of Marino's claims with prejudice. (Mot. to Amend Compl., Ex. C at 3.) The parties settled the remaining claims arising out of their employment relationship on May 21, 2003. (Mot. to Amend Compl., Ex. C.) The settlement agreement ("2003 Settlement") reads, in pertinent part: "Recital I This Agreement is a bona fide good faith settlement of Plaintiff's claims against Defendants and Defendants' claims against Plaintiff arising out of, or in any way related to, Plaintiff's Employment Agreement and/or employment relationship with Defendants . . . "Recital K This release is intended to be a General Release. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties, intending to be legally bound, agree as follows: . . . 2

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 3 of 12

"2. VOLUNTARY DISMISSAL "The parties hereby stipulate to the voluntary dismissal of all claims in the Federal Litigation, except for the Plaintiff's claim for defamation . . . Specifically, Plaintiff shall voluntarily dismiss all claims for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, injurious falsehood, interference with prospective business relations and conspiracy against all Defendants in the Federal Litigation, with prejudice. "Plaintiff hereby releases, acquits and forever discharges Defendants from any and all past, present or future claims, damages, causes of action, liens, demands, debts, liabilities, controversies or expenses, known or unknown, asserted or unasserted, liquidated or unliquidated, fixed or contingent, of any nature whatsoever which Plaintiff has or claims to have, or in any manner growing out of Plaintiff's claims as alleged in the Amended Complaint or any allegations related thereto, from the beginning of time to the date of this Agreement, including, but not limited to, any claims for attorneys fees, claims for benefits under the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), and any claims whatsoever arising out of Plaintiff's Employment Agreement and/or employment relationship with the Defendants. "Plaintiff covenants and agrees not to sue or otherwise bring any suit or claim in any court or other forum against Defendants, or any of them, arising out of or relating to any of the claims voluntarily dismissed hereunder. Plaintiff further agrees that Plaintiff shall be liable to Defendants for damages, including attorneys' fees and expenses (whether or not allowed by law), as a result of any violation by Plaintiff of the covenant not to sue contained in this paragraph." Marino similarly released CCB, ACS, and Abessinio from any liability for his defamation claim; the agreement also included a non-disparagement clause. The 2003 Settlement further provides: "14. EXCLUSIVE JURISDICTION The parties hereto irrevocably consent to the exclusive jurisdiction of the United States District Court for the District of Delaware for any claims or disputes between or among the parties arising out of, or relating to, this Agreement, and said court shall reserve jurisdiction to enforce the provisions of this agreement." (Mot. to Amend, Ex. C at 3-10.) On September 4, 2003, Marino submitted an affidavit, purportedly in response to a New York Attorney General subpoena issued in connection with a criminal investigation into the lending practices of CCB and ACS. (Compl. ¶ 8.)

3

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 4 of 12

On January 5, 2004, Marino brought a wrongful termination action against CCB and ACS in the United States District Court for the District of Delaware. (Compl. ¶ 9.) The parties settled the wrongful termination claim, and Marino alleges that as a result of the settlement ("2004 Settlement"), he was released from all obligations under his employment contract with CCB and ACS. (Compl. ¶ 10.) On April 26, 2004, CCB and ACS filed suit against Marino in the Court of Common Pleas of Chester County, Pennsylvania, for breach of contract, breach of fiduciary duty and injunctive relief. (Compl. ¶ 12.) These claims were based on Marino's alleged violation of the confidentiality clause of his employment agreement with CCB and ACS, and Marino's alleged breach of the duty of confidentiality. (Mot. to Amend, Ex. B.) On August 24, 2005, the Court of Common Pleas dismissed all claims against Marino. (Mot. to Amend, Ex. B.) Marino avers the court found: Marino was not liable for breach of contract because, pursuant to the settlement agreement between the parties,1 Marino had been released from his obligations under the employment contract with CCB and ACS; Marino did not breach his fiduciary duty in submitting an affidavit to the New York Attorney General; and CCB and ACS were not entitled to an injunction against Marino. (Compl. ¶ 14.) Marino filed the instant wrongful use of proceedings action against CCB and ACS in the Delaware County Court of Common Pleas in Pennsylvania. He alleged that CCB and ACS procured, initiated, and continued the April 26, 2004, suit against Marino without probable cause,

It is unclear from the record whether the Court of Common Pleas judge was referring to the 2003 Settlement or the 2004 Settlement; however, according to Marino, it was the 2004 Settlement that released him from all obligations of his employment contract with CCB and ACS (Compl. ¶ 10). 4

1

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 5 of 12

when they knew Marino had been released from his duties under the employment contract, and Marino was complying with a subpoena of the New York Attorney General when he submitted an affidavit regarding the practices of CCB and ACS. (Compl. 17.) CCB and ACS removed the action to federal court. On June 1, 2007, Marino filed a motion to amend his complaint to add a claim for breach of the non-disparagement clause in the 2003 Settlement, and to join Abessinio as a defendant. On June 25, 2007, this court held a hearing on a rule to show cause why the case should not be remanded for failure to meet the amount in controversy, and heard the parties on whether the case should be transferred to the United States District Court for the District of Delaware under Paragraph 14 of the 2003 Settlement. II. DISCUSSION A. Jurisdiction Under 28 U.S.C. § 1332(a), the court has jurisdiction over all actions where the amount in controversy exceeds $75,000, and is between citizens of different states. A corporation is deemed a citizen of any state where it has been incorporated and of the state where it has its principal place of business. 28 U.S.C. § 1332(c). At the hearing on June 25, 2007, Marino's counsel averred that Marino had a North Carolina driver's license and a home in Pennsylvania. Defense counsel averred that both CCB and ACS are Delaware corporations with principal places of business in Delaware. Diversity of citizenship exists between Marino, CCB and ACS. With respect to the amount in controversy requirement, "[i]n removal cases, determining the amount in controversy begins with a reading of the complaint filed in state court." Samuel-Bassett v. Kia Motors America, Inc., 357 F.3d 392, 398 (2004). The complaint 5

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 6 of 12

alleges wrongful use of civil proceedings under the Dragonetti Act, 42 Pa. C.S.A. § 8351. Section 8353 of the Dragonetti Act describes the various categories of allowable damages for wrongful use of civil proceedings. See Hart v. O'Malley, 544 Pa. 315, 321 (1996). It provides that when the essential elements of wrongful use of civil proceedings have been established, the plaintiff is entitled to recover the expense, including any reasonable attorney fees, that he has reasonably incurred in defending himself against the proceedings. 42 Pa. C.S.A. § 8353(3). At the hearing on June 25, 2007, Marino's counsel averred that he billed his client in excess of $80,000 as a result of the allegedly wrongful civil proceedings; this statement was corroborated by defense counsel's correspondence of June 28, 2007, after he conducted limited discovery into the amount in controversy. The court finds that the amount in controversy requirement is met, and the rule to show cause will be discharged. B. Transfer 28 U.S.C. § 1404(a) provides: "For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought." In addition to the enumerated factors in § 1404(a) ­ convenience of parties, convenience of witnesses, and interest of justice ­ courts have considered additional private and public interests when contemplating transfer. Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995). The private interests include: plaintiff's forum preference as manifested in the original choice; defendant's preference; whether the claim arose elsewhere; the convenience of the parties as indicated by their relative physical and financial condition; convenience of the witnesses, to the extent the witnesses may actually be unavailable for trial in one of the fora; and the location of books and records, to the extent the files could not be 6

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 7 of 12

produced in the alternative forum. Id. The public interests include: enforceability of the judgment; practical considerations that could make the trial easy, expeditious, or inexpensive; relative administrative difficulty in the two fora resulting from court congestion; local interest in deciding local controversies at home; public policies of the fora; and the familiarity of the trial judge with the applicable state law in diversity cases. Id. at 879-80. 1. Forum selection clause

The parties have agreed to a forum selection clause providing "exclusive jurisdiction of the United States District Court for the District of Delaware for any claims or disputes between or among the parties arising out of, or relating to" the 2003 Settlement. The court uses federal law to determine the effect of forum selection clauses because questions of venue and forum selection clauses are procedural rather than substantive. Jumara, 55 F.3d at 877. Forum selection clauses are presumptively valid. Coastal Steel Corp. v. Tilghman Wheelabrator, Ltd., 709 F.2d 190, 202 (3d Cir. 1983), overruled on other grounds by Lauro Lines v. Chasser, 490 U.S. 495 (1989). They have been upheld absent some showing that their enforcement would be "unreasonable, unfair, or unjust." Deolalikar v. Murlas Commodities, Inc., 602 F. Supp. 12, 15 (E.D. Pa. 1984). Within the framework of § 1404(a), a forum selection clause is treated as an expression of the parties' preferences. Jumara, 55 F.3d at 880. "[W]hile courts normally defer to a plaintiff's choice of forum, such deference is inappropriate where the plaintiff has already freely contractually chosen an appropriate venue." Id. Though the forum selection clause is not dispositive, it receives substantial consideration. Id.; see also Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988) (presence of a forum-selection clause figures centrally in the district 7

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 8 of 12

court's calculus whether to transfer case under § 1404(a)). At the hearing on June 25, 2007, Marino argued that the forum selection clause does not govern his claim for wrongful use of civil proceedings, because his claim is based upon the 2004 Settlement releasing him from his employment obligations, and not upon the 2003 Settlement. However, Marino requested that the case be transferred to the District of Delaware because his proposed amended complaint, alleging breach of the non-disparagement clause of the 2003 Settlement, does arise out of the 2003 Settlement. The question is whether the forum selection clause in the 2003 Settlement, granting "exclusive jurisdiction of the United States District Court for the District of Delaware for any claims or disputes between or among the parties arising out of, or relating to" the agreement (Mot. to Amend, Ex. C at 10.), governs Marino's claim for wrongful use of civil proceedings. The scope of a forum selection clause is a question of contract interpretation. John Wyeth & Brother Ltd. v. Cigna Int'l Corp., 119 F.3d 1070, 1073 (3d Cir. 1997). Under general contract law principles, "we first look to the text of the contract to determine whether it unambiguously states the parties' intentions." Id. at 1074. "To be `unambiguous,' a contract clause must be reasonably capable of only one construction." Id. The forum selection clause here governs claims or disputes "relating to" the 2003 Settlement. A claim or dispute "relat[es] to" the 2003 Settlement if the claim or dispute has "some connection or relation" to the 2003 Settlement. Webster's New World Dictionary: Third College Edition, 1132 (Victoria Neufeldt & David B. Guralnik eds., 3d ed. 1988); see also John Wyeth & Brother Ltd., 119 F.3d at 1074 (to say the origin of a dispute is "related" to an agreement is to say that the origin of the dispute has some "logical or causal connection" to the agreement) (citing Webster's Third New International 8

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 9 of 12

Dictionary, 1916 (1971)). The 2003 Settlement purported to settle "[Marino's] claims against [CCB and ACS] and [CCB's and ACS's] claims against [Marino] arising out of, or in any way related to, [Marino]'s Employment Agreement and/or employment relationship with [CCB and ACS]." (Mot. to Amend, Ex. C at 3.) Paragraph 3 of the 2003 Settlement states that CCB and ACS released Marino from all claims "growing out of" the "negotiation, operation or termination" of the employment relationship between Marino, and CCB and ACS. (Mot. to Amend, Ex. C at 5.) The 2003 Settlement also states that it "extinguish[ed] any and all claims the Plaintiff or Defendants have, or may have, against each other arising out of, or . . . relating to the Employment Agreement and the employment relationship which existed between the parties." (Mot. to Amend, Ex. C at 5.) In this wrongful use of civil proceedings action, Marino claims the lawsuit filed by CCB and ACS, alleging breach of employment contract and breach of fiduciary duty as general counsel for CCB and ACS, was frivolous because the employment relationship among Marino, CCB and ACS, had already been terminated by the 2004 Settlement. Simply put, Marino argues he should not have been subject to suit on the basis of his employment relationship with CCB and ACS, because said relationship no longer existed. Notwithstanding that Marino alleges his wrongful use of civil proceedings claim is based upon the terms of the 2004 Settlement, this dispute also bears some connection or relation to the 2003 Settlement because the settlement released Marino from all claims "growing out of" the "negotiation, operation, or termination" of the employment relationship with CCB and ACS, and extinguished all claims the parties may have "arising out of" or "relating to" their employment relationship. 9

Case 1:07-cv-00426-GMS

Document 19-19

Filed 07/05/2007

Page 10 of 12

The sweeping language of the 2003 Settlement, along with its forum selection clause granting "exclusive jurisdiction of the United States District Court for the District of Delaware for any claims or disputes between or among the parties arising out of, or relating to" the settlement, reveals the parties' intent to have any claims relating to their former employment relationship adjudicated in the District of Delaware. Marino's wrongful use of civil proceedings claim relates to the 2003 Settlement. The forum selection clause in Paragraph 14 of the 2003 Settlement governs this action, and the court gives substantial weight to the clause as a manifestation of the parties' forum preference under § 1404(a). 2. Balancing of the § 1404(a) factors

The parties agreed at the hearing on June 25, 2007, that they prefer the action transferred to the United States District Court for the District of Delaware, and this preference was expressed in their forum selection clause. The preference of the parties clearly weighs in favor of transfer. Although Marino's claim for wrongful use of civil proceedings arises directly from the allegedly frivolous lawsuit filed by CCB and ACS in Pennsylvania state court on April 26, 2004, it also relates to the series of litigation and settlements in the District of Delaware. Arguably, the April 26, 2004, action that forms the basis for Marino's claim should have been brought in the District of Delaware under the forum selection clause of the 2003 Agreement. Although this action alleges violation of the Pennsylvania Dragonetti Act, this fact is counterbalanced by the substantial weight afforded to the parties' forum preferences and the forum selection clause that governs this action. The convenience of the parties and witnesses, location of evidence, practical considerations, and rela