STILLWAGON v. INNSBROOK GOLF & MARINA, LLC et al

Filing 72

MEMORANDUM. Signed by Judge Mark R. Hornak on 3/22/13. (bdb)

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WILLIAM C. STILLWAGON,
Plaintiff,

v.
INNSBROOK GOLF & MARINA,
LLC, et aI.,
Defendants.

)

)
) Civil Action No. 2:11-cv-1338
)
)
) Judge Mark R. Hornak
)

)

)

)

MEMORANDUM
Mark R. Hornak, United States District Judge

In its March 20, 2013 Order, as to Defendants Rial Corporation and Innsbrook Golf &
Marina, LLC's counterclaim for breach of fiduciary duty as an attorney (Count I), the Court
dismissed that count without prejudice due to what the Court believed to be a failure to file a
Certificate of Merit. ECF No. 71. It has come to the Court's attention that Defendants had filed a
Certificate of Merit on July 16,2012. ECF No. 58. Thus, the failure to file a Certificate of Merit
is not an appropriate basis for granting the motion.
Because the Court cannot say that the counterclaim is facially deficient and should
otherwise be dismissed, in light of the transfer of this action and the anticipated consideration by
that Court of the remaining claims and counterclaims, we will stay our hand as to this claim in
Count I of the counterclaim. For all of the other reasons that the case is being transferred, this
counterclaim is better left for examination on the merits by the transferee Court. Therefore, the
Court will file an amended order.

Is Mark R. Hornak
Mark R. Hornak
United States District Judge
Dated: March 22, 2013
cc: All counsel of record