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1
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PLAINTIFFS BRIEF IN SUPPORT OF MOTION FOR DEFAULT JUDGMENT
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EXTRACTED KEY WORDS
PLAINTIFF JUDGEMENT COUNSEL DEFENDANTS REGISTERED AGENT TELEAMERICA BOOKS REGISTERED MAIL MOTION CHANCERY TAB YORK DELAWARE COMPLAINT TELEAMERICA ENTERTAINMENT DENIES RECEIVING PRESUMPTION DELIVERY JACK ASHKENASY MEYERS TERSIGNI FELDMAN GRAY BIFFERATO SILVERMAN DERIVATIVE ACTION REGISTER RAMPASTURE CREDIBLE EVIDENCE MULTIPLE TRANSMITTALS LITIGATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
POLYMUSE, INC., >
Plaintiff,
V.
>
LAWRENCE P. O'DALY, C.A. No. 16597NC
i
Defendant,
i
and
1
TELEAMERICA ENTERTAINMENT,
INC., ;>
Nominal Defendant. )
PLAINTIFF'S BRIEF IN SUPPORT OF
MOTION FOR DEFAULT JUDGMENT
Rosenthal, Monhait , Gross
& Goddess, P.A.
P. 0. Box 1070
Wilmington, DE 19899-1070
(302) 656-4433
Attorneys for Plaintiff
OF COUNSEL:
Jack Ashkenasy, Esquire
MEYERS TERSIGNI FELDMAN & GRAY
630 Third Avenue
New York, NY 10017
(212) 953-9000
DATED: June 19, 2001
TABLE OF CONTENTS
PAGE:
TABLE OF CITATIONS ii
NATURE AND STAGE OF THE PROCEEDINGS 1
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2
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LETTER
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EXTRACTED KEY WORDS
JUDGEMENT COURT PLAINTIFF DEL MOTION MATTER APPEARANCE COMPLAINT SLIP EXTREME CONSCIOUS DISREGARD LAWRENCE JACOBS RESPONSE MERITS COUNSEL SUPR CHANCELLOR DEFENSES PREJUDICE CHANDLER DELAWARE HONORABLE JACK REMEDY SUNDOR ELEC DURHAM ENTRY ULTIMATE SANCTION |
BY HANI)DELIVERY
The Honorable Jack B. Jacobs . .
Vice Chancellor _."
Court of Chancery i,..
1020 North King Street :f i,, ;
Wilmington, DE 1980 1 /ii
-_ .. .;-\
RE: Polymuse, Inc. v. Lawrence P. O'Dalv et al. C.A. No. 16597-NC
Dear Vice Chancellor Jacobs:
Defendant Lawrence P. O'Daly (the "Defendant") respectfully submits this response to Your
Honor's request for an outline of Defendant's legal arguments in opposition to the motion for
judgment which is currently set for a hearing on August 28,200O.
ARGUMENT 1.
----.2 The case should proceed forward on its merits.
On March 1, 1999, Defendant's counsel filed his appearance in this action on behalf of
Defendant, thereby consenting to the jurisdiction of this Court and indicating Defendant's desire to
litigate this matter. On March 3 1, 1999, after counsel was able to ascertain appropriate responses
and defenses 10 the allegations in Plaintiff's complaint, Defendant filed his Answer with this
On December 2,1999, after the remand of the appeal of this matter, Defendant again filed his answer
to the complaint. On February 9,200O Plaintiff propounded discovery to Defendant, and Defendant
responded accordingly.
Since his appearance in this action, Defendant has vigorously pursued his defense, including
protecting his rights in the appeal of this matter, and will continue to do so. There has been m
prejudice to Plaintiff from Defendant's actions, nor has there been any claim of prejudice. The
policy of our law is to permit claims to be decided on their merits. Doritv v. vansweden, Del. Ch.,
C.A. No. 16X3-Sussex, Chandler, V.C., slip op. at 1. (Jan. 17, 1995); Delaware Medical Serv&
Corp. v. maware Ambulance Service, Inc., Del. Ch., C.A. No. 6339, Brown, V.C., slip op. at 2
(Feb. 17, 198 1). Accordingly, because the parties are before this court and the issues have been
joined, this matter should proceed toward a decision on the merits.
The Honorable Jack B. Jacobs
August 14: 2000
Page Two
ARGUME:NT 2.
-2 Default judgment is inappropriate in these circumstances.
Default judgment is an "extreme remedy." Sundor Elec., Inc. v. E.V.T. Constr. Co., Del.
Supr., 337 A.2d 651, 652 (1975); Durham v. Wilmington Trust Co., Del. Supr., No. 57, 1988,
Hermann, C.J. (retired), Order at 6 (July 7, 1988); In the Matter of: Hybrilonics. Inc., Del. Ch.,
No. 8035, Hartnett, V.C., slip op at 3 (July 28, 1986) ("The entry of a default judgment is the
ultimate sanction which is granted only under extreme circumstances.") Due to the extreme nature
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3
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ANSWER OF DEFENDANT L. ODALY
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EXTRACTED KEY WORDS
PRODUCTION PLAINTIFF DEFENDANT AGREEMENT TELE-AMERICA ENTERTAINMENT CORPORATE VEIL IMPROV FINANCING AFFIRMATIVE DEFENSE PROSECUTING DELAWARE POLYMUSE EPISODES RIGHTS JOINT VENTURE DEFENDANT LAWRENCE COMPLAINT CERTIFICATE SHAREHOLDERS ACCORDING REMAINDER PARAGRAPH DELIVERING PROTECTION ASSIGNMENT RNADE LITIGATION COST DEFICIT |
,. .* : ,
q ;a
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
POLYMUSE, INC.,
PLAINTIFF, ))
V. ) Civil Action No. 16597NC . .
1
LAWRENCE P. O'DALY >1
DEFENDANT. )1
and B1 L. .
TELE-AMERICA ENTERTAINMENT, INC. 11
NOMINAL DEFENDANT. 1
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4
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PLAINTIFFS RESPONSE TO DEFENDANT ODALYS RULE 60(B) MOTION
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EXTRACTED KEY WORDS
COURT PLAINTIFF MOTION DEFENDANT COUNSEL DELAWARE FACTS RENEWED MOTION FIRST CLASS CLASS MAIL RESPONSE WILLFUL CERTIFICATE CONTEMPT DISOBEDIENCE FAILURE TELEAMERICA ENTERTAINMENT VACATE ENTRY ORDER DIRECTING DEL DELIVERY MORTON LAWRENCE LEGAL PRINCIPLES UNITED STATES AUHLL COMPLAINT EXPIRATION |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE lP
IN AND FOR NEW CASTLE COUNTY
POLYMUSE, INC.,
Plaintiff,
v.
LAWRENCE P. O'DALY,
Defendant,
and
TELEAMERICA ENTERTAINMENT,
INC.,
Nominal Defendant.
PLAINTIFF'S RESPONSE TO
DEFENDANT O'DALY'S RULE 60(b) MOTION
1. On March 19, 1999, the Court entered judgment by default against
defendant Lawrence P. O'Daly ("O'Daly").
2. Defendant O'Daly has moved pursuant to Rule 60(b) to vacate the default
judgment. The motion is based on unexceptionable legal principles that default
judgments are not favored in Delaware, and applications to open default judgments
should be liberally entertained. Tellingly, O'Daly makes no effort whatsoever to
contradict, refute or even comment on the undisputed facts of record demonstrating that
he has been guilty of "wilful [and] conscious disregard for the rules of the Court . .."
United States Surqical Corp. v. Auhll, Del.Ch., C.A. No. 15223, Chandler, C. (May 28,
1998), deserving of the most severe of sanctions -- a default judgment.
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5
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RENEWED MOTION
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EXTRACTED KEY WORDS
JUDGEMENT PLAINTIFF COURT CHANCERY COUNSEL PURSUANT EXHIBIT MORTON DEFENDANT MICHAEL REGISTER MAILINGS RESPONSIVE PLEADING HAMPTON BAYS YORK DELAWARE RENEWED MOTION ENTRY PACKAGE CERTIFICATE SOWERS DELIVERY INVESTIGATOR HERETO APPEARANCE ESQUIRE COMPLAINT CIVIL ACTION POST OFFICE |
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
------------------------------------------------------------- X
POLYMUSE, INC., >
Plaintiff, ;
v. ; C.A. No. 16597NC
>
LAWRENCE P. O'DALY, )
Defendant, 11
and >>
TELEAMERICA ENTERTAINMENT, INC., )
('
L.
Nominal Defendant.
; -
------------------------------------------------------------- X
NOTICE OF RENEWED MOTION
TO: Michael P. Morton, Esquire
Michael P. Morton, P.A.
1203 N. Orange Street
Wilmington, DE 19801
PLEASE TAKE NOTICE that the within Renewed Motion for default judgment will
be presented at the earliest time convenient to the Court and counsel.
ROSENTHAL, MONHAIT, GROSS
& GRESS, P.A.
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