THIRD PARTY DEFENDANTS' RESPONSE TO SUGGESTION OF DEFAULT

ABORTION INDUSTRY IN MELBOURNE, FLORIDA
LAWSUITS
RANEY V AWARE WOMAN
DOCKET / CHRONOLOGICAL FILE
THIRD PARTY DEFENDANTS' RESPONSE TO SUGGESTION OF DEFAULT

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' RESPONSE TO SUGGESTION OF DEFAULT

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, hereby respond to the Suggestion of Default filed by Third Party Plaintiffs, AWARE WOMAN CENTER FOR CHOICE, INC. (AWCC), PATRICIA BAIRD-WINDLE and EDWARD WINDLE, and state as follows:

1. On or about November 16, 1998, AWCC served its Suggestion of Default, based upon the Court's Order of September 16, 1998, requiring a response to AWCC's Motion for Partial Summary Judgment. However, on November 16, 1998, the Third Party Defendants served their Motion to Vacate or for Relief from the Order of September 16, 1998, thereby rendering default inappropriate. See, e.g., Florida Physician's Ins. Co. v. Ehlers, 8 F.3d 780, 783 (11th Cir. 1993) ("We note that defaults are seen with disfavor because of the strong policy of determining cases on their merits.) (citations omitted).

2. Moreover, AWCC makes material misrepresentations in its Suggestion of Default, which require a response.

3. First, AWCC states that it sent a copy of the Third Party Complaint by certified mail, return receipt requested, to the principal individual handling the claim against the insurance companies on August 11, 1998, implying that this mailing constitutes valid service of process. However, AWCC fails to inform the Court that the recipient of the certified mail is not an officer or managing or general agent, as required by Rule 4(d)(2)(A); failed to include a notice conforming to Rule 4(d)(2)(D); failed to allow the Defendants a reasonable time to return the waiver, as required by Rule 4(d)(2)(F); and failed to provide the Defendants with an extra copy of the notice and request, as well as a prepaid means of compliance in writing, as required by Rule 4(d)(2)(G). Accordingly, the purported service on August 11, 1998, is defective for at least four reasons.

4. Nevertheless, the undersigned law firm agreed to accept service for the Third Party Defendants, as alleged by AWCC in paragraph 3 of its Suggestion of Default. However, AWCC fails to inform the Court that this acceptance did not occur until September 18, 1998, two days after the Order requiring a response to the Motion for Partial Summary Judgment was entered (which Order was not served upon the undersigned counsel, who did not enter an appearance until November 16, 1998.

5. Thus, AWCC never properly effected service of process on the Third Party Defendants, and this Court only has personal jurisdiction over the Third Party Defendants because the Third Party Defendants voluntarily have appeared in this action based upon the professional courtesy of the undersigned counsel towards counsel for AWCC, which courtesy AWCC now seeks to abuse.

6. A default is inappropriate, as more fully set forth in the Third Party Defendants' Motion to Vacate or for Relief from the Order of September 16, 1998. Essentially, AWCC seeks to achieve through improper means that which they cannot achieve substantively. The Third Party Defendants respectfully requests this Honorable Court overrule the Suggestion of Default, grant the Motion to Vacate or for Relief from the Order of September 16, 1998, and permit this matter to be addressed on its merits.

Respectfully submitted,
O'CONNOR & MEYERS, P.A.
Attomeys for SPHERE DRAKE & WESTCO
2801 Ponce de Leon Blvd., 9th Floor
Coral Gables, Florida 33134
(305) 445-4090 Phone
(305) 445-7728 Fax
By: 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 24 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.

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