Gordon v. Impulse Marketing Group Inc

Filing 69

MEMORANDUM in Opposition re 65 MOTION to Strike Plaintiff's Motion to Dismiss and in the Alternative for Clarification of the Pleading which is Subject to Plaintiff's Motion including stipulation that pending motion applies to Defendant's amended answer filed by James S Gordon, Jr. (McKinley, Douglas)

Gordon v. Impulse Marketing Group Inc

Doc. 69

Case 2:04-cv-05125-FVS

Document 69

Filed 09/08/2005

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DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

THE HONORABLE FRED VAN SICKLE

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON AT RICHLAND JAMES S. GORDON, JR, Plaintiff, v. IMPULSE MARKETING GROUP, INC., Defendant IMPULSE MARKETING GROUP, INC., Third Party Plaintiff v. BONNIE GORDON, JAMES S. GORDON, III, JONATHAN GORDON, JAMILA GORDON, ROBERT PRITCHETT, EMILY ABBEY, and LEW REED Third Party Defendants NO. CV-04-5125-FVS MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE AND PLAINTIFF'S STIPULATION THAT THE PLAINTIFF'S MOTION TO DISMISS SHOULD BE APPLIED TO THE DEFENDANT'S AMENDED ANSWER Jury Trial Demanded

COMES NOW the Plaintiff, James S. Gordon, Jr., and hereby stipulates that
MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE AND PLAINTIFF'S STIPULATION THAT THE PLAINTIFF'S MOTION TO DISMISS SHOULD BE APPLIED TO THE DEFENDANT'S AMENDED ANSWER ­ No. CV-04-5125-FVS Page 1 of 3
DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

Dockets.Justia.com

Case 2:04-cv-05125-FVS

Document 69

Filed 09/08/2005

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its' pending motion to dismiss counterclaims and third party defendants under FRCP 12(b) (6) or in the alternative for summary judgment under FRCP 56 or in the alternative to dismiss under FRCP (9) (b)), currently set for oral argument in Richland on October 12, 2005 at 2 pm, should be applied to the Defendant's amended answer. Based on this stipulation, the Court should deny the Defendant's motion to strike, and should clarify to the Defendant that the Plaintiff's pending motion to dismiss applies to the Defendant's amended answer. The Plaintiff notes for the Court that the Defendant's original answer and its amended answer allege identical counterclaims against the Plaintiff and identical third party claims against the Third Party Defendants. All the Defendant has changed by amending its' answer are tangential factual allegations that have no bearing on the issues set for hearing before the Court. If the Defendant believes amending their answer defeated the basis of the Plaintiff's motion to dismiss, they are of course free to argue as such in their brief due September 23, 2005, or in oral argument set for October 12, 2005. CONCLUSION The Plaintiff respectfully requests that the Court deny the Defendant's request to strike the Plaintiff's pending motion to dismiss, and clarify to the
MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE AND PLAINTIFF'S STIPULATION THAT THE PLAINTIFF'S MOTION TO DISMISS SHOULD BE APPLIED TO THE DEFENDANT'S AMENDED ANSWER
­ No. CV-04-5125-FVS

Page 2 of 3

DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]

Case 2:04-cv-05125-FVS

Document 69

Filed 09/08/2005

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Defendant that the Plaintiff's pending motion to dismiss applies to the Defendant's amended answer. DATED this 8th day of September, 2005 . S/ DOUGLAS E. MCKINLEY, JR. WSBA# 20806 Attorney for Plaintiff P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone] Email: [e-mail] Certificate of Service I hereby certify that on September 8, 2005, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF System which will send notification of such filing to the following: Floyd Ivey, and I hereby certify that I have mailed by United States Postal Service the documents to the following non-CM/ECF participants: Peter J. Glantz, Sean A. Moynihan, David O. Klein. . S/ DOUGLAS E. MCKINLEY, JR. WSBA# 20806 Attorney for Plaintiff P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone] Email: [e-mail]

MEMORANDUM IN OPPOSITION TO DEFENDANT'S MOTION TO STRIKE AND PLAINTIFF'S STIPULATION THAT THE PLAINTIFF'S MOTION TO DISMISS SHOULD BE APPLIED TO THE DEFENDANT'S AMENDED ANSWER
­ No. CV-04-5125-FVS

Page 3 of 3

DOUGLAS E. MCKINLEY, JR. Attorney At Law P.O. Box 202 Richland, Washington 99352 Phone [phone] Fax [phone]