AXACT (PVT.), LTD. v. STUDENT NETWORK RESOURCES, INC. et al

Filing 22

Letter from Peter L. Skolnik. (SKOLNIK, PETER)

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AXACT (PVT.), LTD. v. STUDENT NETWORK RESOURCES, INC. et al Doc. 2 Peter L. Skolnik Member of the Firm Tel 973 597 2508 Fax 973 597 2509 pskolnik@lowenstein.com March 31, 2008 VIA ECF AND FEDEX Hon. Freda L. Wolfson, U.S.D.J. Clarkson S. Fisher Federal Bldg. & U.S. Courthouse 402 E. State Street Trenton, NJ 08608 Re: Axact (PVT.), Ltd. v. Student Network Resources, Inc., et al.; 3:07-cv-05491 Dear Judge Wolfson: As the Court is aware, I represent the defendants in the referenced matter. I write in response to the March 18, 2008 motion o f plaint iff's counsel to withdraw as counsel of record pursuant to Loc. Civ. R. 102.1, and voluntarily to dismiss the complaint pursuant to Fed. R. Civ. P. 41(a)(2). Wit hdrawal under Rule 102.1 requires leave of court where, as here, other counsel is not substituted simultaneously. During the telephone conference with the Court on March 25, 2008, Mr. Sacks acknowledged that leave to withdraw could appropriately be condit io ned upon a requirement that plaintiff obtain new counsel within 30 days. He acknowledged, as well, that plaintiff was aware of his application to withdraw, and was act ively seeking substitute counsel. Pursuant to Fed. R. Civ. P. 41(a)(2), where, as here, counterclaims have been pled prior to service of plaintiff's motion to dismiss, a complaint may be dismissed absent defendants' consent only if the counterclaims remain pending for independent adjudication. Plaintiff is currently in default with respect to filing its answer to defendants' February 25, 2008 counterclaims; pursuant to Fed. R. Civ. P. 12(a)(1)(B), plaintiff's answer was due on March 17, 2008. Defendants hereby respectfully advise the Court that they do not oppose the immediate entry o f the form of Order submitted by Mr. Sacks, including the provision for voluntary dismissal without prejudice pursuant to Fed. R. Civ. P. 41(a)(2), so long as the Order is modified (i) to specify that defendants' counterclaims remain pending, and (ii) to include a date certain by which substitute counsel for plaintiff must appear in the action. Defendants respectfully submit that the outside date for such appearance should be set at April 18, 2008 31 days after the filing Lowenstein Sandler PC www.lowenstein.com Reply: 6 5 Livingston Avenue Roseland, New Jersey 07068 Tel 973 597 2500 Fax 973 597 2400 1 2 5 1 Avenue of the Americas New York, New York 10020 Tel 212 262 6700 Fax 212 262 7402 Dockets.Justia.com Hon. Freda L. Wolfson, U.S.D.J. Page 2 March 31, 2008 of plaint iff's motion, and 32 days after plaintiff's default in answering defendants' counterclaims. Respect fully submitted, /s/ Peter L. Skolnik Peter L. Skolnik PLS:nvl 21332/2 03/31/08 5737047.2 cc: Hon. Tonianne J. Bongiovanni, U.S.M.J. (via Fedex) Andrew P. Napolitano, Esq. (via ECF and electronic mail) Ira S. Sacks, Esq. (via electronic mail)