International Strategies Group, LTD v. Greenberg Traurig, LLP et al

Filing 18

International Strategies Group, LTD v. Greenberg Traurig, LLP et al

Doc. 18

Case 1:04-cv-12000-RWZ

Document 18

Filed 01/11/2005

Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS ) INTERNATIONAL STRATEGIES GROUP, ) LTD., ) ) Plaintiff, ) ) v. ) ) GREENBERG TRAURIG, LLP., A. JOHN ) PAPPALARDO, AND ECKERT, SEAMANS, ) CHERIN AND MELLOTT, LLC, ) ) Defendants ) )

CIVIL ACTION No.: 04-12000 RWZ

MOTION TO STRIKE AFFIDAVIT OF PHILIP G. CLARK Defendants Greenberg Traurig, LLP ("GT") and A. John Pappalardo ("AJP") hereby move to strike the affidavit by Phillip G. Clark submitted by International Strategies Group, Ltd ("ISG") in opposition to their Motion to Dismiss, pursuant to Fed. R. Civ. P. 12(b)(6). 1 In considering a motion to dismiss, a court must look solely to the facts alleged in the complaint, and may not consider facts alleged by the plaintiff in its briefs or other sources. See Glaros v. Perse, 628 F.2d 679, 681 (1st Cir. 1980). In the affidavit submitted by ISG, Mr. Clark purports to make statements "[i]n addition to the allegations of the complaint." Clark Aff. at ¶2. ISG explained in its Opposition that it submitted this affidavit "to explain in greater detail the harm occasioned by GT and AJP in connection with [ISG's] claims against third parties." Pl. Resp. to GT and AJP at 6. Because the putative facts to which Mr. Clark attests are not alleged in the complaint, his affidavit should be stricken.

1

As GT and AJP were preparing to file this motion, they received an amended complaint from ISG, which they will analyze and reply to in due course.

Dockets.Justia.com

Case 1:04-cv-12000-RWZ

Document 18

Filed 01/11/2005

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For these reasons, also detailed in their accompanying Memorandum of Law, GT and AJP respectfully request that the Court strike the Affidavit of Philip G. Clark. Respectfully submitted, GREENBERG TRAURIG, LLP AND A. JOHN PAPPALARDO, By their attorneys,

/s/ Paul B. Galvani Paul B. Galvani (BBO # 183800) Matthew P. Garvey (BBO # 655419) Ropes & Gray LLP One International Place Boston, MA 02110 Tel.: [phone]

Dated: January 11, 2005

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Case 1:04-cv-12000-RWZ

Document 18

Filed 01/11/2005

Page 3 of 4

Certification of Consultation Pursuant to Local Rule 7.1, I, the undersigned counsel for defendants Greenberg Traurig, LLP. and A. John Pappalardo, certify that I have conferred with plaintiff's counsel regarding this motion in good faith to resolve or narrow the issues presented by this motion. /s/ Matthew P. Garvey Matthew P. Garvey

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Case 1:04-cv-12000-RWZ

Document 18

Filed 01/11/2005

Page 4 of 4

CERTIFICATE OF SERVICE I, Matthew P. Garvey, a member of the Bar of this Court, hereby certify that on this day, January 11, 2005, the above motion to strike was served on the plaintiff by causing a copy of the same to be hand delivered to its counsel, Jessica Block, Esq., Block & Roos, LLP, 60 State Street, Suite 3800, Boston, MA 02109, and was served on defendant Eckert, Seamans, Cherin and Mellott, LLC by caus ing a copy of the same to be hand delivered to its counsel, Devorah Levine, Esq., Eckert, Seamans, Cherin and Mellott, LLC, One International Place, 18t h Fl., Boston, MA 02110. /s/ Matthew P. Garvey Matthew P. Garvey

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