THIRD-PARTY DEFENDANTS' MOTION TO VACATE ORDER OF SEPTEMBER 16, 1998

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
THIRD-PARTY DEFENDANTS' MOTION TO VACATE ORDER OF SEPTEMBER 16, 1998

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT
ORLANDO DIVISION
CASE NO.: 97-1197-CV-ORL-19

MEREDITH T. RANEY, JR.,
Plaintiff,
v.
AWARE WOMAN CENTER FOR CHOICE, INC., et al.
Defendant,

AWARE WOMAN CENTER FOR CHOICE, INC., a Florida Corporation, EDWARD WINDLE, and PATRICIA BAIRD-WINDLE, Citizens of Florida,
Third-Party Plaintiffs,
v.
SPHERE DRAKE INSURANCE COMPANY PLC., and WESTCO CLAIMS MANAGEMENT SERVICES, INC., foreign business entities,
Third-Party Defendants.

THIRD-PARTY DEFENDANTS' MOTION TO VACATE OR FOR RELIEF FROM ORDER OF SEPTEMBER 16, 1998

Third Party Defendants, SPHERE DRAKE INSURANCE COMPANY PLC, n/k/a ODYSSEY RE (LONDON) LIMITED, and WESTCO CLAIMS MANAGEMENT SERVICES, INC., by and through the undersigned counsel, pursuant to Fed. R.Civ.P. 60(b)(1), move to vacate the Order of September 16, 1998, requiring a response to Defendants/Third Party Plaintiffs' Motion for Partial Summary Judgment, or alternatively for relief from the Order, and in support thereof state as follows:

1. The September 16, 1998 Order requires Third Party Defendants to respond to the Motion for Partial Summary Judgment by October 13, 1998, or suffer a possible judgment for the movants without further proceedings. While the Order was sent to all counsel of record, the Third Party Defendants had no counsel of record until now (as the undersigned counsel has filed contemporaneously herewith a Motion to Dismiss the Third Party Complaint). Accordingly, the Order was entered without notice to the Third Party Defendants.

2. The Motion for Partial Summary Judgment was served on counsel for the Third Party Defendants on September 14, 1998, without having obtained service of process on the Third Party Defendants for the Third Party Complaint. On September 18, 1998, four days after the Motion for Partial Summary Judgment was mailed and two days after the entry of the Order, the undersigned agreed to waive service of process, notwithstanding the Defendants/Third Party Plaintiffs' failure to comply with all of the requirements of Fed. R. Civ. P. 4(d). As a result of the undersigned's agreement to waive service, a response to the Third Party Complaint is not due until sixty (60) days after the waiver, i.e., November 16, 1998. See, Fed. R. Civ.P. 4(d)(3).

3. It is patently unfair to require the Third Party Defendants to respond to a Motion for Partial Summary Judgment more than a month prior to responding to the Third Party Complaint, and even more unfair to impose such a requirement without notice.

4. Moreover, the Motion for Partial Summary Judgment is premature. While the Defendants/Third Party Plaintiffs allege that the issue of indemnification is ripe for decision, the statement is based upon the erroneous conclusion that "[r]ipeness occurs when the bills are due and the transcripts are on (sic) order." See, Motion for Partial Summary Judgment at p. 10. While this may establish when the controversy becomes ripe for purposes of establishing justiciability, the issue of indemnification clearly was not ripe for decision by this Court on September 14, 1998, when the motion was served. It is axiomatic that the Court must have jurisdiction over the parties before it can decide a controversy, and the Motion for Summary Judgment and Order of September 16, 1998 were rendered prior to the undersigned agreeing to waive service of process. See, generally, Hunt v. Dept. of Air Force, 77 F. Supp. 197 (M.D. Fla. 1992) (federal court is without jurisdiction to render personal judgment against defendant if process not properly served, unless defendant voluntarily appears or waives defect).

5. Additionally, the Third Party Defendants have moved to dismiss the Third Party Complaint, contemporaneously herewith, for lack of subject matter jurisdiction and for failure to state a cause of action. Thus, the Motion for Partial Summary Judgment may well become moot, in whole or in part, depending on the resolution of these issues.

6. Finally, the Third Party Defendants have had no opportunity to conduct any discovery whatsoever, given the fact that they have not appeared of record until this filing. Accordingly, pursuant to Rule 56(f), the issue of summary judgment should be continued until resolution of the Motion to Dismiss and subsequent opportunity to conduct discovery on any remaining claims.

WHEREFORE, Third Party Defendants, SPHERE DRAKE INSURANCE COMPANY PLC, n/k/a ODYSSEY RE (LONDON) LIMITED, and WESTCO CLAIMS MANAGEMENT SERVICES, INC., respectfully request this Honorable Court vacate the Order of September 16, 1998, until after resolution of the Motion to Dismiss and an opportunity to conduct discovery, should any claims remain, and for such other and further relief as the Court deems appropriate.

Rule 3.01 Certificate

Movants have conferred with opposing counsel regarding the relief requested herein, but were unable to resolve the issues addressed herein.

Respectfully submitted,
O'CONNOR & MEYERS, P.A.
Attorneys for SPHERE DRAKE & WESTCO
2801 Ponce de Leon Blvd., 9th Floor
Coral Gables, Florida 33134
(305) 445-4090 Phone
(305) 445-7728 Fax

DAVID R. CASSETTY, ESQ. <signed>
FBN 991023
LAWRENCE M. SIFF, ESQ.
FBN 0002860

CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that a true and correct copy of the forgoing was served by U.S. Mail this 16 day of November, 1998, on: Roy Lucas, Esq., P.O. Box 1433, Melbourne, FL 32902; and Christopher Sapp, Esq., P.O. Box 1012, Lehigh Acres, FL 33970.

DAVID R. CASSETTY,ESQ. <signed>
FBN 991023