When Mr. Star withdrew, why didn’t Mr. Trachtman take up the case himself, or
assign it to another associate? Here is the plaintiffs’ only explanation: “other economic issues
relating to his firm, and the delegation of his responsibility for the file to Mr. Star, rendered him
unwilling or unable to continue service in this case.” Renewed Motion §17. In fact, after Mr.
Star’s departure, Attorney Trachtman did “continue service” in this case until November 20,
2008. See Docket #141. However, the plaintiffs have not shown cause why Mr. Trachtman (nor
anyone else) prosecuted this case during this additional period of a year and eight months.

Moreover, if Mr. Trachtman was genuinely “unwilling or unable” to prosecute
this case without his associate Mr. Star, then why didn’t the plaintiffs obtain new counsel as soon
as Gregory Star withdrew? Once again, the plaintiffs have no explanation for the Court.

B. The Defendants Have Been Prejudiced by More than Six Years of the

Plaintiffs’ Inactivity.

The plaintiffs’ delays have prejudiced the defendants in several ways. Important
witnesses have left MetLife, including one mentioned by the plaintiffs, see Renewed Motion {27,
and other important witnesses who have left the company even since this case was finally
dismissed in January, 2009. These witnesses are now outside of the defendants’ employ and
believed to be outside the subpoena power of this Court. Another of the defendants’ witnesses
died in a tragic airplane crash after the close of discovery. See Docket #124. Moreover, the

passage of time is likely to have faded the memories of witnesses for all the parties.

Cc. Even Now, the Plaintiffs Have Set Forth No Viable Plan to Proceed.
The plaintiffs have no viable plan to proceed with this litigation. Because Judge
Kauffman specifically required them to show “how Plaintiffs intend to proceed with or without

counsel,” Docket #146 at n.1, their Renewed Motion should be denied for this reason alone.

13
13520403


new discovery schedule for the litigation. See Docket #135. Later that day,
Defendant MetLife moved for reconsideration. See Docket #136. (The
plaintiffs never proposed a plan or schedule, nor even contacted the defendants.)

Nov. 18, 2008: The Woodcock attorneys withdrew their appearances for the plaintiffs. See
Docket ## 138-39.

Nov. 20, 2008: Attorney Trachtman withdrew his appearance for the plaintiffs. See
Docket #141.

Dec. 18,2008: The Court issued a “show cause” Order why the case should not be dismissed.
See Docket #142. Neither the plaintiffs nor their remaining counsel of record,
Jeanne Bonney from Mr. Koresko’s law firm, responded.

Jan. 06, 2009: The Court dismissed this case, with prejudice. See Docket #143.

Feb. 20, 2009: The plaintiffs moved to vacate the dismissal. See Docket #144. MetLife
opposed the motion. See Docket #145.

Jul. 17, 2009: The Court denied the plaintiffs’ motion to vacate the dismissal, see Docket
#146, after which the plaintiffs filed the instant motion, see Docket #147.

I. ARGUMENT

Although this case is over seven and one-half years old, it was active for less than
14 months: from the day that the defendants forced the plaintiffs to finally file a complaint
(January 23, 2004) until the end of discovery (March 21, 2005). During the remainder of that
time—more than six years (including the first two years after the suit was filed, and the last four
years and five months, and running)—the plaintiffs have done nothing except add different
lawyers and ask the Court to keep their lawsuit alive. The plaintiffs have no legitimate excuse
for their inaction, and it would be unfair to the defendants to reverse the Court’s dismissal.

The plaintiffs’ inaction does not itself run afoul of the statute of limitations, but it
is notable that the period of inactivity after the close of discovery has been more than double the

longest (two year’) limitations period for any of the torts alleged. The same policy reasons that

2 See Bealer v. Mut. Fire, Marine & Inland Ins. Co., 242 Fed. Appx. 802, 805 (3d Cir.
2007) (“{U]nder Pennsylvania law, the statute of limitations for a claim of intentional

4

13520403


C.

ANDERSON KILL & OLICK, P.C.

C

1600 MARKET STREET ® SUITE 2500 @ PHILADELPHIA, PA 19103
TELEPHONE: 215-568-4202 @ FAX: 215-568-4573

eww andersonkill.com

By Mail

The Honorable Bruce W. Kauffman
United States District Court for the Eastern
District of Pennsylvania

601 Market Street, Room 5613
Philadelphia, PA 19106-1776

‘Attorneys and Counselors at Law

Virginia 1. Miller, Esq.
Jersonkall.com
(215) 568-4712

November 22, 2005

Re:  Koresko, et al v. Bleiweis, et al (Civ. 04-cv-769)

Client/Matter No. 053946-KRK09
Dear Judge Kauffman:

T am writing to notify you that I will be out of the country for the next four

months on a tour of duty with the Air National Guard commencing December 7, 2005.

However, my firm is prepared to continue with this matter with no delays or extensions. As

such, three attorneys from my firm are making an appearance in this matter (copies of their

entries of appearance are enclosed) and will serve as counsel, including trial counsel, if

necessary, during my absence.

VIM: whp

Enclosures

cc: Honorable Jacob P. Hart Craig R. Tractenberg
Renee F. Bergmann Diane Siegel Danoff
Robert W. Ashbrook, Jr. David N, Sontag

New York @ Chicago # Greenwich # Newark m Philadelphia = Washington, D.C. .


© Roberto G. Truax of El Paso, Texas, et. al.
(no. 04-15675, filed June 9, 2004);

¢ Barry J. Haskell of Huntingdon, New
York, et al. (no. 04-16218, filed June 16,
2004);

¢ Dorothy P. Elkner, Inc. of Palm City,
Florida, et al. (no. 04-20446, filed July 15,
2004);

e Conrad Nadeau of Worcester,
Massachusetts, et al. (no. 04-20447, filed
July 15, 2004);

« Thomas Crosswhite of Lake Oswego,
Oregon, et al. (no. 05-13551, filed May
12, 2005);

e AmeriGas of King of Prussia,
Pennsylvania (no. 05-16576, filed June
17, 2005),

Nationwide Life Insurance Co. (no. 05-
16899, filed June 23, 2005);

American International Group, Inc.,
American General Corp., et al. (no. 05-
19645, filed July 29, 2005);

« J. Bryan Ray of Baton Rouge, Louisiana,
et al. (no. 05-23594, filed September 26,
2005);

.

Dales Estes of Sidney, Ohio, et al. (no. 05-
24019, filed October 3, 2005);

¢ Ed Murphy of Pelham, Alabama, et al.
(no. 05-24804, filed October 14, 2005);

Martin Schlossberg of Farmingdale, New
York, et al. (no. 05-25581, filed October
25, 2005);

¢ Jerry Bryan Ray of Opelika, Alabama, et
al. (no. 06-00403, filed January 10, 2006);

¢ Pauline T. Sanders of Anderson, South
Carolina, et al. (no. 06-12979, filed May
24, 2006);

© Capitas Financial, LLC of Minneapolis,
Minnesota, et al. (no. 06-22396, filed
September 1, 2006);

¢ McGlinchey Stafford PLLC of Baton
Rouge, Louisiana (no. 08-13829, filed
May 22, 2008);

¢ Lyle J. Micheli M.D., P.C. of Boston,
Massachusetts, et. al. (no. 08-15524, filed
June 9, 2008);

e ACT Management Co., Inc. of Lynn,
Massachusetts, et al. (no. 08-15526, filed
June 9, 2008);

¢ Kenneth Fowler Drywall, Inc. of Duncan,
South Carolina, et al. (no. 08-19656, filed
July 15, 2008);

Jay Steer of Virginia Beach, Virginia, et al.
(no. 08-25501, filed September 10, 2008);

e Emergency Medicine Resources, Inc. of El
Paso, Texas, et al. (no. 08-33105, filed
November 11, 2008);

« Wuest Estate Company, Inc. of San Diego,
California, et al. (no. 09-01407, filed
January 21, 2009); and

e John Sharratt Associates, Inc. of Boston,
Massachusetts, et al. (no. 09-09970, filed
April 8, 2009).

In each of these suits, either Mr. Koresko, or PennMont, or both, was one of the plaintiffs.

Moreover, either Mr. Koresko or his law firm was counsel for the plaintiffs in each of these suits.

13520403


of that time.’ Moreover, Ms. Miller herself told the Court before her departure that her

colleagues would handle all aspects of the case, including trial, during her absence:
[M]y firm is prepared to continue with this matter with no delays or
extensions. As such, three attorneys from my firm are making an
appearance in this matter (copies of their entries of appearance are

enclosed) and will serve as counsel, including trial counsel, if necessary,
during my absence.

Ex. A (emphasis added).

The plaintiffs never relied solely on Ms. Miller to prosecute this case, anyway.
When the case began, Ms. Miller was counsel of record with a more senior Anderson Kill
attorney, Timothy P. Law, as well as Attorney Koresko’s own law firm. See Docket #1 at Exs.
A, D, & E. Other Anderson Kill attorneys subsequently entered appearances for the plaintiffs,
including Pamela Hans, Jocelyn Gabrynowicz, William Pillsbury, Robert Frankel, and Mark
Gottlieb. See Docket ## 6, 115, 125-27. The managing partner of Anderson Kill’s Philadelphia
office was also familiar with this case. See Docket #144 96. Furthermore, Attorney Jeanne
Bonney of Attorney Koresko’s own law firm has been of record for plaintiffs in this case ever
since its first pleading. See e.g. Docket #1 Ex. D; Docket #44.

Finally, Ms. Miller’s leaving the country does nothing to explain why the
plaintiffs did not prosecute their case while Ms. Miller was here, either before Ms. Miller left the

country, after she returned, or after she withdrew her appearance.

Ms. Miller left the country on December 7, 2005, see Ex. A, but she (along with the other
five Anderson Kill attorneys representing the plaintiffs) withdrew their appearances on
August 14, 2006, the day that the Powell Trachtman firm took over the case. See Docket
## 128-29. Thus, even if the Anderson Kill firm could not have prosecuted this case
without Ms. Miller, her absence could not have delayed the case by more than about eight
months (and even that figure is probably exaggerated, because she evidently returned to
the country after only four months. See Ex. A.).

13520403


underlie those pre-filing limitations—witnesses becoming unavailable, memories fading, and not
subjecting defendants (including the individual defendants) to perpetually unresolved claims—
make it inequitable for the plaintiffs to be allowed to proceed with this case after having failed to

prosecute it for more than four years since the close of discovery back in March, 2005.

A. None of the Plaintiffs’ Excuses Justify Their Ignoring this Case.

In their motion, the plaintiffs offer a boatload of excuses for why they have not
prosecuted this case. The plaintiffs say the inactivity is not their fault, and they would instead
shift responsibility to their lawyers. But it is respectfully submitted that the inactivity is the
plaintiffs’ fault and that they have been given more than enough second chances. The plaintiffs’

tales of woe do not justify the Court’s vacating the dismissal which it entered in January.

1. Attorney Miller’s Absence Cannot Justify the Plaintiffs’ Failure to
Prosecute This Case.

The plaintiffs’ leading excuse for why they have not prosecuted this case is that
one of their former lawyers, an associate at Anderson Kill & Olick named Virginia Miller, “was
out the country [for] nearly three years, accounting for much of the period of dormancy noted by
the [C]ourt in this case.” Renewed Motion 48. This argument is disingenuous for many reasons.

Although the plaintiffs blame three years of delay on Ms. Miller’s absence, the

fact is that she and her firm were representing the plaintiffs for, at most, only about eight months

interference with a contract is two years.”); Harry Miller Corp. v. Mancuso Chems. Ltd.,
469 F. Supp. 2d 303, 312 (E.D. Pa. 2007) (“The statute of limitations for
misappropriation of a trade secret in Pennsylvania [predating the Penna. Uniform Trade
Secrets Act] is two years.”); M&M Stone Co. v. Pa., n0. 07-cv-4785, 2008 U.S. Dist.
LEXIS 76050, at *12 (“[P]laintiff’s [Pennsylvania] state-law claim for commercial
disparagement is governed by a one-year statute of limitations.”); Callahan v. A.E.V., 182
F.3d 237 (3d. Cir. 1999) (“Claims for common-law . . . conspiracy are governed by a
two-year statute of limitations [under Pennsylvania law].”).

13520403


CERTIFICATE OF SERVICE

I certify that today that in

Koresko et al. v. Bleiweis et al., E.D. Pa. 04-cv-769
hat the following documents have been filed electronically and is available for viewing and
downloading from the Court’s Electronic Case Filing (ECF) system:

[Proposed] Order

Defendant MetLife’s Opposition to Plaintiffs’ Renewed Motion to Vacate

Exhibit A

Certificate of Service

and that service on the following parties was accomplished by the electronic service of a Notice
of Electronic Case Filing to the following parties, who have consented to electronic service:

CJA & Associates, Inc., John J. Koresko, V, and
Raymond G. Ankner, and PennMont Benefit Services, Inc.
Jeffrey I. Bleiweis

c/o Jeanne D. Bonney, Esq.
c/oCraig R. Tractenberg, Esq. Koresko & Associates, P.C.
Nixon Peabody LLP jbonney@pennmont.com
ctractenberg@nixonpeabody.com

Dated: _ 08/11/09 s/ Robert W_Ashbrook, Jr..
Robert W. Ashbrook, Jr.

13520403


litigation while the other case was pending.”). It is respectfully submitted that there are three
fatal problems with this argument.

First, this excuse does not explain why Mr. Koresko did not prosecute this case
during the past year. By his own admission, Mr. Koresko had counsel provided by an insurance
carrier in the (unnamed) litigation. This Court warned the plaintiffs back in October 2008 that
their case was about to be dismissed for non-prosecution, see Docket #131, and the next month
the Court ordered the parties to prepare a new discovery plan and schedule. See Docket #135.
Inexcusably, the plaintiffs did nothing.

Second, a plaintiff's being too busy is no excuse under Local Civil Rule 41.1(a).
Mr. Koresko is not some typical pro se plaintiff who might be unfamiliar with litigation—he is
an Officer of this Court. He knows that a plaintiff has obligations: to follow the rules; to
monitor the docket, to comply with deadlines, and to obey the Court’s Orders. If these plaintiffs
were truly too busy to fulfill their obligations throughout all “the past several years,” they could
have hired counsel to prosecute this case, or to defend the (unnamed) litigation. After all, the
plaintiffs admit they are “capable of paying fees and expenses necessary to bring the matter to a
conclusion, after trial if necessary.” Renewed Motion 430.

Third, and most importantly, it is untrue that it was “literally impossible” for
plaintiffs to proceed because they were too busy with the (unnamed) litigation. To the contrary,
the plaintiffs in this case have initiated numerous other litigations as plaintiffs during this period,
and they offer no explanation why they pursued all these other cases instead of this one. Since
the close of discovery in this case, in the Montgomery County Court of Common Pleas alone,

either or both of the plaintiffs have found time to sue all of the following defendants:

13520403


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

John J. Koresko, V and
PennMont Benefit Services, Inc.,

Plaintiffs,

v. Civil Action No. 04-cv-769

Jeff Bleiweis,

Raymond Ankner,

CJA and Associates, Inc., and

MetLife Insurance Company of Connecticut,

Defendants.

[PROPOSED] ORDER

AND NOW, this day of , 2009, upon consideration of

Plaintiffs’ “Renewed Motion to Vacate Order of Dismissal and Application Pursuant to Local
Rule of Civil Procedure 41.1(a),” and Defendants’ opposition thereto, it is hereby ORDERED

that the motion is DENIED. This case remains dismissed with prejudice.

BY THE COURT:

Juan R. Sanchez, J.

13520403


Nationwide case is another trade secret case which the plaintiffs filed three months after
discovery closed in this case. In contrast to this case, however, the plaintiffs have prosecuted
their case against Nationwide very aggressively. Back in October 2006 (while the plaintiffs were
allegedly too busy to pursue this litigation against MetLife), the plaintiffs hired intellectual
property boutique Woodcock Washburn of Philadelphia to represent them in the Nationwide
case. Although that case is currently stayed pending an appeal of a dispositive issue to the
Supreme Court in an unrelated case, the plaintiffs have pursued the Nationwide case with
particular vigor during much of the period of inactivity in this lawsuit.

Even though this case was filed almost three and one-half years before the
Nationwide case, the plaintiffs treated this case very differently. Instead of hiring the Woodcock
firm to pursue this case years ago, they waited to do so until after Judge Kauffman put them on
notice that he intended to dismiss this case for non-prosecution in October 2008. See Docket
## 132, 133, 137, 138. Based on the plaintiffs’ representation that they would have counsel, the
Court declined to dismiss this case in November 2008. See Docket #135. However, only five
days later, the Woodcock firm suddenly withdrew its appearance. See Docket ## 138, 139. That
sudden withdrawal prompted Judge Kauffman to order the plaintiffs to “show cause why this
action should not be dismissed . . . with prejudice” within ten days. See Docket #142. Seven
months ago, when the plaintiffs had failed to comply with the Court’s Order (or to even monitor

the docket), the Court dismissed this case with prejudice. See Docket #143.

companies, Mr. Koresko had already sued them on essentially the same subject matter
before they, too, sought declaratory judgments of non-infringment. See Koresko v.
Nationwide Life Ins. Co., Montgomery Co. C.C.P. no 05-16899 (filed June 23, 2005);
Koresko v. American General Corp., Montgomery Co. C.C.P. no. 05-19645 (filed July
29, 2005).

13520403


The plaintiffs have also found time to sue people in ¢his Court during the same
period. Not counting cases removed from Montgomery County, here they have sued the

following defendants:

© Tobacco Road Associates LP, of Landisville, Pennsylvania, et al.
(no. 06-cv-2637, filed June 19, 2006)
(no. 06-cv-2640, filed June 19, 2006),
(no. 06-cv-3299, filed July 26, 2006),
(no. 06-cv-3318, filed July 27, 2006), and
(no. 06-cv-3322, filed July 27, 2006); and

e Secretary of Labor Hilda Solis, et al.
(no. 09-cv-3152, filed July 16, 2009).

Once again, in every one of these suits, Mr. Koresko is personally a plaintiff, and he is
representing himself. It strains credulity to believe that Mr. Koresko had time to litigate the
(unnamed) case, and to act as a plaintiff and lawyer in all these other litigations, yet did not have
time to pursue the instant litigation after the close of discovery.

Among all these other cases brought by the plaintiffs on their own behalf, two are
particularly notable. First, in PennMont Benefit Services, Inc. v. Internal Revenue Service,
D.D.C. no. 07-cv-67 (filed Jan. 12, 2007), the plaintiffs sued the IRS to obtain, among other
things, evidence for this case under the Freedom of Information Act. It is hard to imagine how it
could have been “literally impossible” for the plaintiffs to pursue this case in this Court, when at
the same time they were able to pursue a new federal case to obtain evidence for this case.

The second is Koresko v. Nationwide Life Insurance Co., Montgomery Co. C.C.P.
no 05-16899, removed as E.D. Pa. no. 05-cv-3800; transferred as S.D. Ohio no. 06-cv-66.° The
The Renewed Motion contains a vague allegation that MetLife, Nationwide, and
American General wanted to “impose extraordinary financial and personal stress on
Plaintiff’ by suing Mr. Koresko for declaratory judgments of non-infringement of a
patent. Renewed Motion 414. To the contrary, MetLife sought a declaratory judgment
only after Mr. Koresko (1) made allegations of infringement in this case and then (2)

threatened to sue MetLife for patent infringement. With respect to the other insurance

10
13520403


2. Plaintiffs Cannot Shift the Blame to Anderson Kill & Olick.

The plaintiffs do not just blame Ms. Miller; they also blame the entire Anderson
Kill & Olick firm, including her firm’s “reticence to continue in zealous representation.”
Renewed Motion §{10-11. The crux of this argument seems to be that the Anderson Kill firm
“either did nothing or decided that it did not have to do anything on Plaintiffs’ affairs while Ms.
Miller was away,” because Mr. Koresko and Ms. Miller were co-defendants in some another
(unnamed) litigation. Renewed Motion ff{10-11. This is a disingenuous and irrelevant
argument.

First, the plaintiffs’ story is internally inconsistent. * It cannot be that plaintiffs
would have prosecuted this matter had Ms. Miller been in the country, yet she and her firm
would not prosecute this case because of their joint defense arrangement with Mr. Koresko.

Second, even were this story true, it can account for only about eight months of
delay, as explained above. The plaintiffs’ story does not account for why they failed to prosecute
this case either before Ms. Miller left the country in December, 2005, nor after the Anderson Kill

firm withdrew from the case in August, 2006.

3. “P’ve Been Too Busy” Is Not a Valid Excuse.

The plaintiffs’ next excuse is that Mr. Koresko was so busy with the (unnamed)
litigation that it was “literally impossible” for him to pursue this litigation. See Renewed Motion
49 (“A majority of Plaintiff's time in the past several years was devoted to representing his
affiliates in that other case, until less than one year ago when an insurance carrier finally agreed
to provide representation. It was literally impossible for Plaintiff to proceed to trial in this

‘ We note also that the plaintiffs never offered this excuse in their first motion to vacate the

Court’s dismissal. See Docket #144 {7 (outlining the plaintiffs other excuses but failing
to mention this one).

13520403


Aug. 10, 2004:

Oct. 26, 2004:

Mar. 09, 2005:

Mar. 21, 2005:
Nov. 22, 2005:

Aug. 14, 2006:

Mar. 30, 2007:

Oct. 08, 2008:

Nov. 05, 2008:

Nov. 13, 2008:

extension over the defendants’ opposition and set the close of party discovery
for October 18, 2004. See Docket #43.

The plaintiffs filed an amended complaint. They were again represented by
Anderson Kill & Olick and by Jeanne Bonney from Mr. Koresko’s law firm.
(Ms. Bonney filed another entry of appearance on Feb. 22, 2005, which was
mis-docketed as an entry by Virginia Miller.) The defendants have never filed
any counterclaims.

“More than a week after that deadline expired, Plaintiffs filed [a] motion
requesting an additional 90 day extension.” Memorandum and Order (Docket
#88) at 1. In ruling on the plaintiffs’ motion, “The Court [found] that Plaintiffs
are primarily responsible for the lack of progress in discovery. However, the
Court [was] also mindful of the effect that denying further discovery would have
on Plaintiffs’ case. . . . Thus, in the interest of justice, the Court grant[ed]
Plaintiffs an additional 30 days in which to conduct oral depositions.” Id. at 5
(emphasis added).

Following the plaintiffs’ motion for reconsideration of the extension given them,
see Docket #90, the Court granted the plaintiffs yet another extension so they
could depose one of the individual defendants.

Discovery closed. Nothing substantive has occurred since then.

One of the plaintiffs’ attorneys, Virginia Miller from Anderson Kill & Olick,
wrote the Court to explain that although she was leaving the country, “my firm is
prepared to continue with this matter with no delays or extensions. As such,
three [additional] attorneys from my firm are making an appearance in this
matter . . . and will serve as counsel, including trial counsel, if necessary, during
my absence.” See Ex. A (emphasis added); Docket ## 125-27. Those
appearances brought to seven the number of lawyers from Anderson Kill &
Olick and from Mr. Koresko’s law firm who were then representing plaintiffs.

The Anderson Kill attorneys withdrew their appearances for the plaintiffs, and
two attorneys from Powell Trachtman Logan Carrle Bowman & Lombardo
entered theirs: name partner Michael Trachtman and associate Gregory Starr.
See Docket ## 128-29.

Gregory Star withdrew his appearance for the plaintiffs. See Docket #130.

The Court gave the plaintiffs notice that it intended to dismiss this case for non-
prosecution. See Docket #131.

Two attorneys from Woodcock Washburn entered their appearances for the
plaintiffs and applied to keep the case open. See Docket ## 132-34.

Before the Defendants could be heard in opposition, the Court granted the
plaintiffs’ application to keep the case open and ordered the parties to prepare a

3
13520403


First, the plaintiffs say they “sought the representation of Ms. Ellen Brotman, a
partner at Montgomery McCracken et al.” Renewed Motion 430. However, they made that
claim six months ago, see Docket #144 (2, and Ms. Brotman has yet to enter her appearance.

Second, the plaintiffs admit that they are prepared to move forward with this case
only if an appeal affirms the (unnamed) litigation in which Mr. Koresko is himself a defendant.
Renewed Motion 9. If that appeal results in a reversal or remand of the (unnamed) case, or
perhaps even if there is simply a long delay before the appellate court rules, apparently the
plaintiffs would not be willing to move forward until a trial is held in the (unnamed) case. Id.
The plaintiffs give no indication when that appeal might be heard, or if it results in a reversal,
how close the unnamed case is to trial. “[H]opefully [sic] in early 2010” is the only schedule
that the plaintiffs can offer the Court in response to Judge Kauffman’s Order. Jd. §22.

Third, the plaintiffs claim that “witnesses necessary to Plaintiff's [sic] case are
readily available,” id. 27, but the only witness they name, Mark “Teitlebaum” [sic; should be
“Teitelbaum’”] is a former MetLife employee who was never deposed, left the company during
the long stretch of plaintiffs’ inactivity on this case, and is believed to live in Hartford,
Connecticut, outside the subpoena power of this Court.

Fourth, the plaintiffs state that “[iJn the unlikely event that Plaintiff could not
secure outside counsel, Plaintiff has the staff and competency to proceed to trial and would do
so.” Renewed Motion 431. If the plaintiffs mean that Mr. Koresko would act pro se on behalf of
himself and as the attorney for his co-plaintiff, PennMont (as he did when filing the Renewed
Motion), then the plaintiffs’ plan does not comport with Pennsylvania Rule of Professional
Conduct 3.7, which prohibits an attorney from testifying in a civil case that he is prosecuting as

trial counsel. Attorney Koresko is a named plaintiff and central witness in this case.

14
13520403


Exhibit A

to MetLife’s Opposition to Korekso’s Renewed Motion to Vacate

Letter from Virginia I. Miller to the Court dated November 22, 2005

13520403


Meanwhile, the defendants have been prejudiced by the plaintiffs’ inaction, as witnesses have
died or left the employ of the defendant companies, and memories of all the parties’ witnesses
have undoubtedly faded.

The plaintiffs’ Renewed Motion is primarily a series of tales of woe about how
their various lawyers each failed to prosecute this case for one reason or another. The plaintiffs’
excuses are inaccurate (at best). But even if their excuses were true, none would justify the
plaintiffs’ failure over all these years to find other litigation counsel who would actually work on
the case. Indeed, Mr. Koresko is an experienced litigator himself who knows the rules, but has
ignored this case anyway.

Even now, the plaintiffs have no viable plan to proceed. The Court should not
enable them to manipulate the process any longer. The Court should not reverse Judge

Kauffman’s dismissal.

L PROCEDURAL HISTORY

Because this case was recently reassigned, the Court may benefit from a brief
review of the relevant procedural history:

Jan, 24, 2002: The plaintiffs began this litigation by filing a praecipe for a writ of summons in
Montgomery County Court of Common Pleas. See Docket #1 (Notice of
Removal) at Ex. A. Counsel of record were Anderson Kill & Olick and Mr.
Koresko himself. Jd.

Jan. 23, 2004: The plaintiffs were forced to file a complaint after Defendant CJA and
Associates obtained a Rule to File a Complaint. See Docket #1 at Exs. B-D.
Plaintiffs were again represented by Anderson Kill & Olick and also by another
lawyer at Mr. Koresko’s law firm, Jeanne Bonney, Esq. Id.

Feb. 23, 2004: The defendants removed this case to this Court. See Docket #1.
May 13, 2004: The parties submitted an agreed discovery plan setting the close of party

discovery by August 18, 2004. See Docket #14. The next month, the plaintiffs
sought to delay discovery by 60 days. See Docket #29. The Court granted the

13520403


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

John J. Koresko, V and
PennMont Benefit Services, Inc.,

Plaintiffs,
v. Civil Action No. 04-cv-769
Jeff Bleiweis,
Raymond Ankner,
CJA and Associates, Inc., and

MetLife Insurance Company of Connecticut,’

Defendants.

DEFENDANTS’ OPPOSITION TO PLAINTIFFS’ RENEWED
MOTION TO VACATE THE COURT’S ORDER DISMISSING THIS ACTION

MOTION TO VACATE THE COURT'S ORDER DISMISSING Ths 20s
It is respectfully submitted that this case was correctly dismissed seven months
ago. Nothing in the plaintiffs’ “Renewed Motion to Vacate Order of Dismissal and Application
Pursuant to Local Rule of Civil Procedure 41.1(a)” justifies vacating Judge Kauffman’s Order.
This case has dragged on for seven and one-half years, and the plaintiffs frittered
away more than six of those years doing nothing substantive on the case. Throughout it all,
plaintiffs John J. Koresko, V—who is himself a trial attorney admitted to this Court—and his
company, PennMont Benefit Services, Inc., have acted only when the Court has forced them to,
and even then they have done only the bare minimum to stave off dismissal until the next time.

Last October, Judge Kauffman finally said “enough!” and put the plaintiffs on notice of the

impending dismissal, but even with that warning, the plaintiffs continued to ignore this case.

' After this case was filed, the name of original defendant The Travelers Life and Annuity
Company became MetLife Insurance Company of Connecticut. This brief refers to this

defendant as “MetLife” throughout.

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The plaintiffs have had ample time to initiate and pursue many other lawsuits over

the years while ignoring this one. It was not “literally impossible” for them to litigate this case.

4, The Move by Certain Lawyers to Reed Smith Is Irrelevant.

The plaintiffs have previously told this Court that the departure of several
Anderson Kill attorneys to Reed Smith, including one named John Ellison, was to blame for their
failure to pursue this case. See Docket #144. MetLife has previously shown, in detail, how the
plaintiffs’ contentions are a complete fabrication, because the Reed Smith departure did not
occur until a year and a half after Anderson Kill stopped representing the plaintiffs in this case.
See Docket #145 at 3-4 & Exs, 2-3. Moreover, John Ellison never entered an appearance for the
plaintiffs, and the lawyers who did appear were not the lawyers who went to Reed Smith. Id.
The Court has rejected this frivolous argument in the past and should do so again.

5. The Plaintiffs Cannot Blame Michael Trachtman or Gregory Star for
Their Problems.

The plaintiffs’ final unfounded excuse concerns two more of his former attorneys,
Michael Trachtman and Gregory Star. In addition to being Mr. Koresko’s “old friend,” Mr.
Trachtman is a partner in the firm of Powell Trachtman Logan Carrle Bowman & Lombardo
who entered his appearance along with his associate Gregory Star on August 14, 2006 (when the
Anderson Kill attorneys withdrew theirs). See Docket #129. During the seven and one-half
months before Mr. Star withdrew his appearance on March 30, 2007, see Docket #130t, neither
Mr. Star nor Mr. Trachtman ever contacted the defendants nor the Court about pursuing this
case. The plaintiffs do not even try to explain this period of inactivity, which stands in stark
contrast to the similar Nationwide litigation in Ohio, in which Mr. Star filed several motions for
the plaintiffs during the same period.

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In short, the plaintiffs have no viable plan to proceed.

Tl. CONCLUSION

The Court warned the plaintiffs ten months ago that a dismissal for non-
prosecution was imminent. See Docket #131. During that period, the plaintiffs have fought the
dismissal with applications, motions, and several different sets of lawyers. Still, even after they
were put on notice about the Court’s intent to dismiss this case, they have never tried to advance
the case on its merits. Even today, they have not approached the defendants about a schedule,
nor asked the Court for a trial date, nor prepared any of the Court’s requested pretrial
submissions, nor even retained a lawyer.

It is respectfully submitted that Judge Kauffman correctly dismissed this case.

This Court should reject the plaintiffs’ Renewed Motion to vacate the dismissal.

Respectfully submitted,

s/ Craig R. Trachtenberg Date:_08/11/09 s/ Robert W. Ashbrook, Jr._ Date:_08/11/09
Craig R. Trachtenberg Diane Siegel Danoff

Nixon Peabody LLP Robert W. Ashbrook, Jr.

Two Penn Center Dechert LLP

1500 JFK Boulevard, Suite 200 Cira Centre, 2929 Arch Street

Philadelphia, PA 19102 Philadelphia, PA 19104-2808

telephone 212.940.3722 telephone 215.994.4000

facsimile 866.852.2714 facsimile 215.994.2222

Attorneys for Defendants Attorneys for Defendant
Jeff Bleiweis, Raymond Ankner, and MetLife Insurance Company of Connecticut

CJA & Associates, Inc.

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