IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

 :

MICHELE RICCI, : CIVIL ACTION

 Plaintiff, :

 VS. :

:

AETNA, INC., D/B/A :

AETNA U.S. HEALTHCARE AND :

AETNA LIFE INSURANCE COMPANY, : NO. 02-CV-4330

 Defendants. :

_________________________________________ :

ORDER

AND NOW, this day of , 2003, upon consideration

of Defendant Aetna Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance Company’s Motion

for Enlargement of Time to File an Answer to Plaintiff’s Amended Complaint and Plaintiff’s

Response thereto, it is hereby ORDERED and DECREED that Defendants’ Motion is DENIED

with prejudice.

BY THE COURT:

__________________________________

 J.

Case 2:02-cv-04330-TJS Document 38 Filed 09/12/2003 Page 1 of 7
 IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

 :

MICHELE RICCI, : CIVIL ACTION

 Plaintiff, :

 VS. :

:

AETNA, INC., D/B/A :

AETNA U.S. HEALTHCARE AND :

AETNA LIFE INSURANCE COMPANY, : NO. 02-CV-4330

 Defendants. :

_________________________________________ :

 PLAINTIFF, MICHELE RICCI’S RESPONSE TO DEFENDANTS, AETNA, INC.,

 D/B/A AETNA U.S. HEALTHCARE AND AETNA LIFE INSURANCE COMPANY’S

 MOTION FOR ENLARGEMENT OF TIME TO FILE AN ANSWER TO

 PLAINTIFF’S AMENDED COMPLAINT

Plaintiff, Michele Ricci, by and through her attorneys, M. Mark Mendel, Ltd., hereby files

this Response which incorporates in full the accompanying Memorandum of Law in response to

Defendant Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life Insurance Company’s

(hereinafter referred to as “Aetna”) Motion for Enlargement of Time to File an Answer to Plaintiff’s

Amended Complaint.

WHEREFORE, plaintiff, Michele Ricci, requests this Court to enter the Order attached

hereto and to grant such further relief as the Court deems just and appropriate.

Respectfully Submitted:

 M. MARK MENDEL, LTD.

 BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 Attorney I.D. No 09256

 KENNETH B. GREAR, ESQUIRE

 Attorney I.D. No. 81608

 Attorneys for Plaintiff

 1620 Locust Street

 Philadelphia, PA 19103-6392

 Telephone No. (215) 732-7200

 Fax No. (215) 546-3277

DATED: ____________________

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Case 2:02-cv-04330-TJS Document 38 Filed 09/12/2003 Page 2 of 7
 IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

 :

MICHELE RICCI, : CIVIL ACTION

 Plaintiff, :

 VS. :

:

AETNA, INC., D/B/A :

AETNA U.S. HEALTHCARE AND :

AETNA LIFE INSURANCE COMPANY, : NO. 02-CV-4330

 Defendants. :

_________________________________________ :

 PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S

 RESPONSE TO DEFENDANTS, AETNA, INC., D/B/A AETNA U.S. HEALTHCARE

 AND AETNA LIFE INSURANCE COMPANY’S MOTION FOR ENLARGEMENT

 OF TIME TO FILE AN ANSWER TO PLAINTIFF’S AMENDED COMPLAINT

Plaintiff, Michele Ricci, by and through her counsel, submits this Memorandum of Law in

support of her Response to Defendant, Aetna, Inc., d/b/a Aetna U.S. Healthcare and Aetna Life

Insurance Company’s (hereinafter referred to as “Aetna”) Motion for Enlargement of Time to File

an Answer to Plaintiff’s Amended Complaint.

I. FACTS

The facts as recited by the defendant in its Memorandum of Law are essentially correct and

do not need to be restated here. 

II. LEGAL ARGUMENT

Defendant Aetna claims that it should now be allowed to file its Answer to Plaintiff’s

Amended Complaint because there is no prejudice to the plaintiff, it will not delay the proceedings

and its reason for delay was excusable. For the following reasons the plaintiff disagrees with

defendant Aetna’s position as should this Court.

First, there is prejudice to the plaintiff as a result of defendant Aetna’s failure to file a timely

Answer to plaintiff’s Amended Complaint. Plaintiff’s Amended Complaint which was filed on

Case 2:02-cv-04330-TJS Document 38 Filed 09/12/2003 Page 3 of 7
2

September 13, 2002 contains twenty-seven (27) numbered paragraphs, three (3) claims for relief and

seven (7) multi document exhibits. It is absurd for defendant Aetna to conclude that there is no

prejudice to the plaintiff as a result of defendant Aetna’s failure to file an Answer to Plaintiff’s

Amended Complaint when it is plaintiff’s right to know specifically defendant Aetna’s position as

to each allegation of plaintiff’s Complaint. Otherwise, Federal Rule of CivilProcedure 8 specifically

8 (d) would in be meaningless. That particular Federal Rule provides that the averments in a

pleading to which a responsive pleading is required other than those as to the amount of damage, are

admitted when not denied in a responsive pleading. The plaintiff’s Amended Complaint is a

pleading to which a responsive pleading, an answer, is required. Defendant Aetna never responded

in the form of an answer to plaintiff’s Amended Complaint, therefore, the averments of plaintiff’s

Amended Complaint should be deemed admitted especially those averments regarding defendant

Aetna’s liability. The fact that F. R. C. P. 8 deems admitted the averments in a pleading to which

a responsive pleading is required when not denied prevents the defendant from surprising the

plaintiff with denials on the eve of Trial or as in the present case, on the eve of the Court’s

consideration of Cross-Motions for Summary Judgment. In the present case, the plaintiff has no idea

how the defendant will respond to the specific averments of the plaintiff’s Amended Complaint.

Therefore, at this late date the plaintiff is prejudiced by the defendants’ attempt to now answer the

Amended Complaint.

Second, defendant Aetna’s delay in filing its answer to plaintiff’s Amended Complaint will

delay the proceedings. One of the arguments in plaintiff’s Motion for Summary Judgment is that

since the defendant has not answered at least the liability averments of plaintiff’s Amended

Complaint under F. R. C. P. 8 (d), these averments are deemed admitted. Thus, the plaintiff in its

Case 2:02-cv-04330-TJS Document 38 Filed 09/12/2003 Page 4 of 7
3

Motion for Summary Judgment requests that this Court enter Summary Judgment as a matter of law

since all the averments of at least as to liability are admitted by defendant Aetna. Allowing

defendant Aetna to now file its answer to plaintiff’s Amended Complaint would potentially delay

the proceedings since the plaintiff will have to have an opportunity to review the answer and respond

accordingly under the Federal Rules of Civil Procedure, if necessary. Thus, instead of being at the

end of the litigation and beginning the process of waiting for Your Honor’s decision on the CrossMotions for Summary Judgment and responses thereto, there is the potential that further Motions

will be filed thus further delaying the conclusion of this litigation. Therefore, defendant Aetna’s

delay in filing its answer will have the effect of prolonging the proceedings in this case.

Third, Aetna admits that the reason for the delay in filing its answer to plaintiff’s Amended

Complaint was completely within Aetna’s control. However, at the same time defendant Aetna asks

for mercy by arguing that its minor “misstep” was reasonable because of extensive Motion practice

in this case accompanied by the filing of plaintiff’s Amended Complaint as well as the scheduling

of deadlines for dispositive Motions and meeting those deadlines. Defendant Aetna’s counsel does

not claim that any major event either personal or business in nature outside of its control, created a

situation in which defendant Aetna’s counsel was unable to file a timely answer. In fact, Aetna’s

counsel admits that it prepared an Answer and thought it had been mailed to the Court but used the

excuse that it was compiling evidence to file the Motion for Summary Judgment and Statement of

Undisputed Facts and counsel simply did not check the Court’s file to make sure the Answer had

been actually filed. This type of neglect is not excusable.

III. CONCLUSION

Case 2:02-cv-04330-TJS Document 38 Filed 09/12/2003 Page 5 of 7
4

Therefore, for all of the foregoing reasons, plaintiff, Michele Ricci, requests that this

Honorable Court enter the attached Order denying defendant’s Motion for Enlargement of Time to

file an Answer to plaintiff’s Amended Complaint.

Respectfully Submitted:

 M. MARK MENDEL, LTD.

 BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 Attorney I.D. No 09256

 KENNETH B. GREAR, ESQUIRE

 Attorney I.D. No. 81608

 Attorneys for Plaintiff

 1620 Locust Street

 Philadelphia, PA 19103-6392

 Telephone No. (215) 732-7200

 Fax No. (215) 546-3277

DATED: ____________________

Case 2:02-cv-04330-TJS Document 38 Filed 09/12/2003 Page 6 of 7
 IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

 :

MICHELE RICCI, : CIVIL ACTION

 Plaintiff, :

 VS. :

:

AETNA, INC., D/B/A :

AETNA U.S. HEALTHCARE AND :

AETNA LIFE INSURANCE COMPANY, : NO. 02-CV-4330

 Defendants. :

_________________________________________ :

CERTIFICATE OF SERVICE

This is to certify that a true and correct copy of Plaintiff’s Response to Defendant Aetna’s

Motion for Enlargement of Time to File an Answer to Plaintiff’s Amended Complaint was filed with

the Court and forwarded to the below referenced counsel via First Class United States Mail, postage

prepaid on September 12, 2003:

Patricia C. Collins, Esquire

Elliott, Reihner, Siedzikowski & Egan, P.C.

Union Meeting Corporate Center V

P.O. Box 3010

925 Harvest Drive

Blue Bell, PA 19422

 M. MARK MENDEL, LTD.

 BY: ____________________________________

 THEODORE A. SCHWARTZ, ESQUIRE

 Attorney I.D. No 09256

 KENNETH B. GREAR, ESQUIRE

 Attorney I.D. No. 81608

 Attorneys for Plaintiff

 1620 Locust Street

 Philadelphia, PA 19103-6392

 Telephone No. (215) 732-7200

 Fax No. (215) 546-3277

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Case 2:02-cv-04330-TJS Document 38 Filed 09/12/2003 Page 7 of 7