IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT S. CHEATLE, JR. and :

NANCY A. CHEATLE, h/w :

:

 v. :

:

DAVID A. KATZ and DAWN KATZ :

and :

PARADISE CONTRACTORS, INC. : CIVIL ACTION NO. 02-CV-4405

and :

PARADISE PINES HOMEOWNERS :

ASSOCIATION :

and :

PARADISE MANAGEMENT GROUP, :

INC. :

and :

PARADISE DEVELOPMENT GROUP, :

INC. :

DEFENDANTS“ REPLY MEMORANDUM OF LAW

WITH REGARD TO THEIR MOTION TO STRIKE LIS PENDENS

Although plaintiffs see the need to open every brief

with assertions of how greatly they claim to have suffered at the

hands of the defendants, defendants will not engage in similar

conduct and speculate why plaintiffs have chosen to index this

action as a lis pendens. We only note they cited no case or

statute which allows this.

Plaintiffs make no efforts to distinguish any of the

cases cited in support of the motion to strike the lis pendens. 

Instead, they begin with an assertion that somehow the provisions

of F.R.C.P. 12 bar the present Motion.

Case 2:02-cv-04405-HH Document 9 Filed 09/18/2002 Page 1 of 5
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Federal Rule of Civil Procedure 12 addresses pleadings

and motions directed to them. Pleadings are defined in F.R.C.P.

7(a):

 ”(a) Pleadings. There shall be a complaint and an answer; a reply to a counterclaim denominated as such; an answer to a

cross-claim, if the answer contains a crossclaim; a third-party complaint, if a person

who was not an original party is summoned

under the provisions of Rule 14; and a thirdparty answer, if a third-party complaint is

served. No other pleading shall be allowed,

except that the court may order a reply to an

answer or a third-party answer.

A lis pendens is not listed as a pleading. Plaintiffs cite no

authority for the proposition that the rules governing pleadings

apply to the indexing of an action as a lis pendens and a motion

to strike it.

Plaintiffs rely on F.R.C.P. 12(g) to assert that filing

a motion to dismiss without a motion to strike lis pendens is a

waiver of the right to strike it. That rule provides:

 ”Consolidation of Defenses in Motion. A

party who makes a motion under this rule may

join with it any other motions herein provided for and then available to the party. 

If a party makes a motion under this rule but

omits therefrom any defense or objection then

available to the party which this rule permits to be raised by motion, the party shall

not thereafter make a motion based on the

defense or objection so omitted, except a

motion as provided in subdivision (h)(2)

hereof on any of the grounds there stated.

[emphasis added]

Case 2:02-cv-04405-HH Document 9 Filed 09/18/2002 Page 2 of 5
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A motion to strike a lis pendens is not listed as a motion under

Rule 12. The fact that a Rule 12(f) motion directed to insufficient defenses or scandalous or impertinent matters also happens

to be called a ”motion to strike does not make a motion to

strike a lis pendens a Rule 12 motion. It is simply a motion

under F.R.C.P. 7(b), an application to the Court for an order.

There are no time limitations on such a motion, nor do

plaintiffs cite any state or federal case holding that there is a

particular time limit or joinder requirement concerning a motion

to strike lis pendens. There is no such authority.

Under state court practice, the proper procedure to

seek to strike a lis pendens is petition and rule to show cause. 

P. S. Stauffer & Sons, Inc. v. Kromez, Inc., 24 Bucks 13, 62 D.&

C.2d 413 (C.P. Bucks Cty. 1973). The Rule 7(b) motion is the

federal equivalent.

Plaintiffs rely on vague claims that the relief they

seek may require the individual defendants to cede land, notwithstanding their acceptance of the deed. They cite no case that

stands for the proposition that any of the claims they make would

require that property be ceded. There was no requirement in the

Agreement of Sale for a survey, nor would this affect title to

land. There are no allegations concerning the alleged failure of

the property to conform to zoning requirements that could not be

Case 2:02-cv-04405-HH Document 9 Filed 09/18/2002 Page 3 of 5
remedied at law.

Plaintiffs cite no case supporting the indexing of an

action of a lis pendens under these circumstances. They make no

effort to find an analogy. There is none. Instead, plaintiffs

want this Court to take an unprecedented action that will deprive

the Katzes of the right to convey land they own pending this

litigation.

CONCLUSION

For the foregoing reasons and the reasons set forth in

the Memorandum of Law in Support of Defendants“ Motion to Strike

Lis Pendens, plaintiffs should be directed to take immediate

action to withdraw and release the indexing of this action as a

lis pendens in the Court of Common Pleas of Montgomery County.

VANGROSSI AND RECCHUITI

By_________________________________

Francis Recchuiti, Esquire

Attorney I. D. No. 09284

319 Swede Street

Norristown PA 19401-4801

(610) 279-4306

(Attorneys for Defendants)

Case 2:02-cv-04405-HH Document 9 Filed 09/18/2002 Page 4 of 5
CERTIFICATE OF SERVICE

I, FRANCIS RECCHUITI, Esquire, hereby certify that on

the date set forth below a true and correct copy of the foregoing

document was served upon the following counsel in the manner

indicated below.

Service by first class mail, as follows:

John C. Fenningham, Esquire

Maura F. Ratigan, Esquire

Corr, Stevens & Fenningham

Suite 315, 5 Neshaminy Interplex

Trevose PA 19053

(Attorneys for Plaintiffs)

___________________________________

Francis Recchuiti, Esquire

Attorney for Defendants

Date: September 18, 2002

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