Gordon v. Impulse Marketing Group Inc

Filing 319

MEMORANDUM in Opposition re 307 MOTION for Preliminary Injunction, 311 MOTION for Preliminary Injunction, 305 MOTION for Preliminary Injunction, 309 MOTION for Preliminary Injunction, 302 MOTION for Preliminary Injunction REPLY AND OBJECTION TO SETTING FOR HEARING ON SHORTENED TIME filed by Impulse Marketing Group Inc. (Ivey, Floyd)

Gordon v. Impulse Marketing Group Inc

Doc. 319

Case 2:04-cv-05125-FVS

Document 319

Filed 03/30/2006

FLOYD E. IVEY Liebler, Ivey, Connor, Berry & St. Hilaire 2 P. O. Box 6125 Kennewick, WA 99336-0125 3 5 0 9 -7 3 5 -3 5 8 1 Attorneys for Defendant 4 Impulse Marketing Group, Inc. and Third Party Plaintiff
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Klein, Zelman, Rothermel, & Dichter, L.L.P. By: Sean Moynihan, Esq.; Peter Glantz 485 Madison Avenue 7 New York, New York 10022 Telephone Number [phone] 8 Facsimile Number [phone] Attorneys for Defendant 9 Impulse Marketing Group, Inc. and Third Party Plaintiff
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON ) ) ) Pl a i n t i f f , ) vs. ) ) IMPULSE MARKETING GROUP, ) INC., ) ) Defendant ______________________________ ) ) ) IMPULSE MARKETING GROUP, ) INC., ) ) Third-Party Plaintiff, ) vs. ) ) BONNIE GORDON, et al., ) Third-Party Defendants. ) JAMES S. GORDON, JR., No. CV-04-5125-FVS DEFENDANT AND THIRD PARTY PLAINTIFF'S REPLY AND OBJECTION TO THIRD PARTY DEFENDANTS' SCHEDULING OF MOTION FOR TEMPORARY INJUNCTION ON SHORTENED TIME

DEFENDANT AND THIRD PARTY PLAINTIFF'S REPLY AND OBJECTION TO THIRD PARTY DEFENDANTS' SETTING OF HEARING FOR TEMPORARY INJUNCTION ON SHORTENED TIME
Defendant/ThirdPtyPlaintiff Reply/Objection to Setting Motion for Temporary Injunction on Shortened Time Page 1 of 5
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Dockets.Justia.com

Case 2:04-cv-05125-FVS

Document 319

Filed 03/30/2006

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Third Party Defendants have filed and noted for hearing Motions for Temporary Injunction. The Motions have been filed and noted for hearing as follows:

1. Emily H. Abbey, filed March 28, 2006 for hearing March 29, 2006; 2. Bonnie Gordon, filed March 27, 2006 for hearing March 27, 2006; 3. James Gordon III, filed March 27, 2006 with hearing date uncertain. 4. Jamila Gordon, filed March 27, 2006 for hearing March 27, 2006; 5. Jonathan Gordon, filed March 27, 2006 for hearing March 27, 2006. INTRODUCTION This case was filed by Plaintiff in 2004. Third Party Defendants were joined in 2005. The court has recently denied Third Party Defendants' Motions to Dismiss. The Third Party Defendants, indicated above, have now filed Motions for Temporary Injunction. Fed. R. Civ. P. 65(b) provides for the granting of a temporary restraining order, without oral notice to the adverse party or that party's attorney only if (1) it clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have

Defendant/ThirdPtyPlaintiff Reply/Objection to Setting Motion for Temporary Injunction on Shortened Time Page 2 of 5

LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Case 2:04-cv-05125-FVS

Document 319

Filed 03/30/2006

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been made to give the notice and the reasons supporting the claim that notice should not be required. The Third Party Defendants' have noted Motions for hearing on the same day as the date of noting of the Motions for Temporary Injunctions. This Motion practice is essentially without notice to the opposing party. Declarations have been filed by Third Party Defendant Emily H. Abbey, Bonnie Gordon, James Gordon III, Jamila Gordon and Jonathan Gordon. The Declarations appear identical with the exception of reciting email received by each individual Third Party Defendant. The Declarations are wholly without substance relative to the requirements of supporting a request for a Temporary Injunction as required by Fed. R. Civ. P. 65(b). None of the Declarations assert elements required by FRCP 65(b) namely "specific facts...[showing]...that immediate and irreparable injury, loss, or damage will result to the applicant before the adverse party or that party's attorney can be heard in opposition, and (2) the applicant's attorney certifies to the court in writing the efforts, if any, which have been made to give the notice and the reasons supporting the claim that notice should not be required. " The Declarations are replete with statements not meeting evidentiary standards. With the exception of these filings and notice to Defendant and Third Party Plaintiff

Defendant/ThirdPtyPlaintiff Reply/Objection to Setting Motion for Temporary Injunction on Shortened Time Page 3 of 5

LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Case 2:04-cv-05125-FVS

Document 319

Filed 03/30/2006

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being received by ECF, there has been no other attempted communication with counsel for the Defendant. Defendant and Third Party Plaintiff hereby Object to the shortened notice and the failure of Third Party Defendants to meet the requirements of Fed. R. Civ. P. 65(b) and hereby request the Court to either strike the Third Party Defendant's hearing scheduling or to set these Motions for hearing in accord with the requirements of LR 7.1.

DATED this 30th day of March, 2006. LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

By s/ FLOYD E. IVEY FLOYD E. IVEY, WSBA#6888 Attorneys for Defendant 1141 N. Edison, Suite C P.O. Box 6125 Kennewick, Washington 99336 Local Counsel for Defendant Impulse Marketing Group, Inc.

S/ SEAN MOYNIHAN & PETER J. GLANTZ Sean A. Moynihan & Peter J. Glantz Klein, Zelman, Rothermel & Dichter, LLP 485 Madison Avenue, 15th Floor New York, New York 10022 [phone] [phone] (fax)

Defendant/ThirdPtyPlaintiff Reply/Objection to Setting Motion for Temporary Injunction on Shortened Time Page 4 of 5

LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Case 2:04-cv-05125-FVS

Document 319

Filed 03/30/2006

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I hereby certify that on March 30, 2006, I electronically filed DEFENDANT AND THIRD PARTY PLAINTIFF'S REPLY AND OBJECTION TO THIRD PARTY DEFENDANTS' SCHEDULING OF MOTIONS FOR TEMPORARY INJUNCTION ON SHORTENED TIME with the Clerk of the Court using the CM/ECF System which will send notification of such filing to Robert Siegel, Peter J. Glantz and Sean A. Moynihan. I hereby certify that I have served the foregoing to the following non-CM/ECF participants by other means: Bonnie Gordon, Jonathan Gordon, James S. Gordon, III, Robert Pritchett, Jamila Gordon and Emily Abbey. S/ FLOYD E. IVEY FLOYD E. IVEY

Defendant/ThirdPtyPlaintiff Reply/Objection to Setting Motion for Temporary Injunction on Shortened Time Page 5 of 5

LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE

Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]