Gordon v. Impulse Marketing Group Inc

Filing 78

MEMORANDUM in Opposition re 77 MOTION Telephonic Oral Argument on Plaintiff's Motion to Dismiss and in the alternative for Terms filed by Impulse Marketing Group Inc. (Ivey, Floyd)

Gordon v. Impulse Marketing Group Inc

Doc. 78

Case 2:04-cv-05125-FVS

Document 78

Filed 09/13/2005

1

Floyd E. Ivey Liebler, Ivey & Connor, P.S. 3 1141 N. Edison, Suite C P.O. Box 6125 4 Kennewick, WA 99336 Telephone [phone] Fax [phone]
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON ) ) ) Pl a i n t i f f s ) ) vs. ) ) IMPULSE MARKETING GROUP, INC., ) a Nevada Corporation, ) ) Defendants ) ___________________________________ ) JAMES S. GORDON, JR., an individual residing in Benton County, Washington, NO. CV-04-5125-FVS DEFENDANT'S MEMORANDUM OPPOSING PLAINTIFF'S REQUEST FOR PERSONAL APPEARANCE FOR ARGUMENT OF PLAINTIFF'S MOTION TO DISMISS

Defendant Impulse Marketing Group, Inc. opposes Plaintiff's request for other than telephonic hearing of Plaintiff's Motion to Dismiss. This Defendant's Memorandum was previously submitted in support of Defendant's request, in March, 2005, to limit argument to telephonic relative to Defendant's Motion to Dismiss. The request for the personal appearance of counsel for argument imposes increased costs on the party with such of particular significance where counsel, as in this matter, will travel from New York state. This memorandum, with the exception of this first paragraph and the Date Line, is identical to that submitted by Defendant in March 2005. It will be judicially efficient and economically prudent for the parties for Defendant's Motion to Dismiss to be heard telephonically. Requiring the presence
LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

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Dockets.Justia.com

Case 2:04-cv-05125-FVS

Document 78

Filed 09/13/2005

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of the parties will necessarily require the Court to devote resources, not required for a telephonic hearing, should the matter be heard with personal appearances by one or all of the parties before the Court. Hearing motions in the Eastern District has commonly occurred via telephonic hearing. Such is appropriate for the Defendant's Motion to Dismiss. The goal to conserve judicial resources and promote an efficient

determination of action(s) has been widely considered and is the subject of Local Rules in many jurisdictions, e.g., Civ. L.R. 3-12(~)(2)-(3) for the Northern District of California and S.D. FLA. E.R. 3.9C for the Southern District of Florida. The court in International Beauty Exchange, Inc. v. Tony Dollar Kingdom Inc., 199 F.R.D. 700, 701 (S.D.Fla.,2001) addressed steps, relative to assignment of cases to judges, "--To assist Judges in avoiding the duplication of judicial resources, S.D.FLA.L.R. 3.9D requires "attorneys of
record in every action or proceeding to bring promptly to the attention of the

Court and opposing counsel the existence of other actions or proceedings..."
Courts have the power to manage cases. The processes available are "designed to promote efficiency and conserve judicial resources...". Berkovitz v. Home Box Office, Inc. 89 F.3d 24, 29 (C.A.1 (Mass.) 1996). Counsel for the Defendant has found only a single instance where a hearing by telephonic conference was found to be improper and where personal appearance was required by statute. Purba v. I.N.S. 884 F.2d 516, 517(C.A.9 1989). There is no suggestion of such a requirement relative to the present motion. Defendant's respectfully request the Court to conduct the argument of Defendant's Motion to Dismiss by telephonic conference with all parties participating by telephone.

Defendant's Memorandum Opposing Personal Appearance - 2.

LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

Z:\IPClient\ImpulseMarketingGroup v. Gordon\Pleadings\Plaintiff Motion for S u m m a r y Judgment\DefendantMotionTelephonicOralArgument\MemoOpposingPersonalAp pearance.050913.wpd

Case 2:04-cv-05125-FVS

Document 78

Filed 09/13/2005

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DATED this 13th day of September, 2005. LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE By __/S/FLOYD E. IVEY FLOYD E. IVEY, WSBA #6888 Local Counsel for Defendant KLEIN, ZELMAN, ROTHERMEL & DICHTER, LLP By /S/SIGNED BY PERMISSION BY IVEY PETER J. GLANTZ Attorneys for Defendant

I hereby certify that on September 13, 2005, I electronically filed the Defendant's Memorandum Opposing Plaintiff's Request for Personal Appearance for Argument of Plaintiff's Motion to Dismiss with the Clerk of 12 the Court using the CM/ECF System which will send notification of such filing to the following: Douglas E. McKinley, Jr., Peter J. Glantz and Sean A. Moynihan.
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LIEBLER, IVEY, CONNOR, BERRY & ST. HILAIRE Attorneys at Law P.O. Box 6125 Kennewick, Washington 99336-0125 [phone]

S/ FLOYD E. IVEY FLOYD E. IVEY

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