Meyer, Suozzi, English & Klein, P.C. v. Higbee et al

Filing 29

RESPONSE to Motion re 28 MOTION for Hearing re 18 Clerk's Entry of Default, 14 Letter, 15 Affidavit, 12 Reply in Support, 9 Motion to Dismiss for Failure to State a Claim , 20 Notice of Appearance, 11 Memorandum in Opposition, 10 Affidavit in filed by Mathew K. Higbee, Higbee & Associates. (Ngo, Rayminh)

HIGBEE & ASSOCIATES
605 W. Genesee Street, Ste. 101
Syracuse, NY 13204
Ray L. Ngo, Esq. (Of Counsel)
NY Attorney Registration #4780706
715 East 3900 South, Ste. 209
Salt Lake City, UT 8410

48 Wall St., Ste. 1100
New York, NY 10005
Ph: 801-268-2982
Fax: [phone]
[e-mail]

Mar. 18, 2019
FILED VIA ECF
Hon. Honorable Arthur D. Spatt
United States District Judge
United States District Court
Eastern District of New York
P.O. Box 9014
Central Islip, NY 11722-9014
Re:
Docket #:
Title:

Response to Plaintiff’s Letter Motion of 3-15-19 (ECF 28)
18-cv-3353
Meyer, Suozzi, English & Klein, P.C. v. Mathew K. Higbee, Esq;
Higbee & Associates; Nick Youngson; & RM Media, Ltd.

Dear Judge Spatt:
On behalf of the Higbee Defendants (Mathew K. Higbee, Esq., and Higbee &
Associates), I request that the Plaintiff’s most recent letter submission filed 3-15-19 (ECF 28) be
stricken and disregarded.
The Plaintiff’s latest 25-page submission is inappropriate on many levels. For one, Your
Honor’s individual rules specifically state that: “Parties may request oral argument by letter at
the time their motion papers are filed.” Here, Plaintiff neglected to request oral arguments or a
conference until after the close of all briefs.
Even more inappropriate is that Plaintiff is now attempting to make further substantive
arguments and submit further exhibits to support its positions—which it had the opportunity to
do at the time it filed its opposition. As the movant, the Higbee Defendants were entitled to
submit a reply on their own motion. The Plaintiff, on the other hand, is not entitled to a
surreply. Nor is the Plaintiff entitled to oral arguments, especially where it neglected to request
oral arguments in a timely manner. This in addition to the fact that the Plaintiff has now filed
three separate letter motion since the beginning of this action, in violation of the Court’s rules.
See Rule IV(B)(“No letter motions will be accepted.”)(emphasis in original). If the rules are to
be enforced, they should be equally enforced against all parties.

This Court previously required the Higbee Defendants to comply with its rules regarding
page length, and permitted us to submit a revised reply. In response, we have submitted a timely
Reply that complies with the Court’s requirements.
The Plaintiff’s argument that the Higbee Defendants have relied on further “extraneous
information” in our latest Reply (ECF 27) is without merit. Our latest Reply is an even more
truncated version of our prior Reply, and the declaration and exhibits submitted with our latest
Reply (ECF 27-1 to 27-3) are identical to those we submitted with last Reply (ECF 25-1). In
requesting the Court to strike our last Reply (ECF 25), the Plaintiff merely complained about line
spacing/page length but did not raise any issues regarding the Reply containing extraneous
information (see ECF 26).
In any event, the arguments, declaration and exhibits we have submitted are all matters
which are directly related to and integral to the allegations in the Plaintiff’s Complaint. See
Chambers v. Time Warner, Inc., 282 F.3d 147, 152-53 (2d Cir. 2002); Brass v. Am Film Techs,
Inc., 987 F.2d 142, 150 (2d Cir. 2002); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48
(2d Cir. 1991)(“Where plaintiff has actual notice of all the information in the movant’s papers
and has relied upon these documents in framing the complaint the necessity of translating a Rule
12(b)(6) motion into one under Rule 56 is largely dissipated.”).
For those reasons, and to reduce unnecessary court time and resources, I ask that the
Plaintiff’s latest submission (ECF 28) be stricken and disregarded in the entirety and the motion
be submitted for decision on the papers1.
Respectfully,
/s/ Rayminh L. Ngo
______________________
Rayminh L. Ngo, Esq.
Attorney for Defendants Mathew K. Higbee, Esq. and Higbee & Associates
CC:
Kevin Schlosser (Counsel for Plaintiff)
via ECF
Jeanne Weisneck (Counsel for Defendants RM Media and Nick Youngson)
via ECF

1

I also note that pending before the Court is a separate motion to quash service and dismiss filed
by our co-defendants, RM Media and Nick Youngson (ECF 24). RM Media and Nick Youngson
are necessary party defendants to this action. Thus, in addition to the reasons provided in the
Higbee Defendants’ own motion, the claims against the Higbee Defendants could not possibly be
sustained should RM Media and Nick Youngson be dismissed.