Case 1:14-cv-02167-NGG-RML Document 18 Filed 04/28/14 Page 1 of 3 PageID #: 289

April 28, 2014 VIA ECF Honorable Nicholas G. Garaufis, U.S.D.J. United States District Court, Eastern District of New York 225 Cadman Plaza East Brooklyn, New York 11201 Re: COLlive Corporation, et al. v. Rivkin et al., Case No.: 14-CV-2167 (NGG)

Dear Judge Garaufis: As the Court is aware, this firm represents Plaintiffs COLlive Corporation, Yossie Soffer and Mica Soffer in the above-referenced action. We write to respectfully request that the Court strike the Supplemental Affirmation by Defendant Yossi Rivkin (Rivkin) which was electronically filed on April 24, 2014 (hereinafter, the SuppAff) [DKTS 13 and 14].1 The SuppAff is a procedurally infirm transparent attempt to pander to the Court regarding Defendants various violations of the Order to Show Cause and Temporary Restraining Order issued by the Court on April 4, 2014 (TRO) [DKT 5], and to raise other claims and defenses which are irrelevant to the determination of Plaintiffs pending application for a Preliminary Injunction [DKT 3]. The SuppAff appears to be in anticipation of Plaintiffs yet-unfiled application seeking to hold Defendants in contempt of court for violating the TRO (an application from which the Plaintiffs hope to spare both the parties and the Court with a stipulated agreement, that resolves the application for a Preliminary Injunction, and in exchange for which Plaintiffs will forego a motion for contempt). The Defendants filing of the SuppAff is procedurally infirm for several reasons. First, on Friday, April 4, 2014, the Court ordered the Defendants to serve and file any response to Plaintiffs moving papers by 5 pm on Monday April 7, 2014 [DKT 5]. No further submission beyond that was contemplated by the Court. The Defendants filed their opposition papers on April 7, 2014, and should not now be permitted to unilaterally file supplemental papers in blatant violation of the TRO. Second, on April 8, 2014, the parties appeared before the Court and the Defendants did not seek leave from the Court to supplement their opposition papers. The record reflects the parties representation to the Court that in an attempt to resolve this litigation they would stipulate to the entry of all the relief sought in the preliminary action application, for a period not to exceed six months while the parties either mediate, negotiate or litigate the issues, with the hope that the interim arrangement would lead to a resolution without further involvement of the Court. (Transcript of April 8, 2014 Hearing at 24:16-25:1; see also Minute Entry on Docket dated 04/08/2014). To the extent that the Defendants intended to proceed beyond the bounds of
1

On April 24, 2014, Defendants electronically filed the SuppAff and accompanying exhibits which was docketed as No. 13 and then, roughly thirty minutes later, refiled the identical SuppAff and accompanying exhibits docketed as No. 14. Plaintiffs respectfully request that Docket No. 14 be stricken from the record as it is duplicative, and that Docket No. 13 be stricken from the record and disregarded because it is procedurally infirm.

Case 1:14-cv-02167-NGG-RML Document 18 Filed 04/28/14 Page 2 of 3 PageID #: 290

Hon. Nicholas G. Garaufis April 28, 2014 Page 2 of 2 the agreement presented to the Court and file further papers, the proper procedure would have been to seek leave of the Court and wait for leave to be granted rather than unilaterally submitting supplemental papers. See Reynart v. Lee, 2012 U.S. Dist. LEXIS 20466 at *1 (E.D.N.Y. Feb. 16, 2012) (the Court need not consider such supplemental replies); see generally In re MTC Elec. Techs. Shareholder Litig. v. MTC Elec. Techs. Co., 74 F. Supp. 2d 276, fn. 4 (E.D.N.Y. 1999) (the Court did not consider reply papers filed without leave of Court, where a reply submission was not contemplated). Consequently, this Court should strike the Defendants supplemental papers. Lastly, if the Defendants improperly entitled Supplemental Declaration in Further Opposition to Plaintiffs Application and in Support of Request to Vacate Ex Parte TRO filing (referred to here as SuppAff) actually was intended to be a motion to vacate the TRO, rather than an untimely supplement to the Defendants opposing papers, it is still procedurally deficient and should be stricken from the docket. Fed. R. Civ. Pro. 65(b)(4) expressly provides that two days notice is required when, after a TRO is granted, the adverse party moves to dissolve or modify the TRO. In blatant violation of this rule, the Defendants provided no notice of its intention to move to vacate to TRO. Further, in violation of Fed. R. Civ. Pro. 7, Defendants failed to include even the most basic formalities of a motion, such as a notice of motion, a return date, and a statement which identifies with particularity the grounds for the requested relief. Indeed, it appears that the Defendants submission is some kind of ad hoc instrument which the Defendants are using to simultaneously vacate, oppose, and modify the TRO while stating a defense in anticipation to an as yet to be filed motion for contempt against the Defendants for already violating the TRO. The Federal Rules of Civil Procedure do not provide for or recognize the Defendants catch all instrument; accordingly the SuppAff is procedurally infirm and should be stricken from the docket. In sum, notwithstanding the clarity of the TRO issued by the Court on April 4, 2014, and the representations made to the Court at the hearing held on April 8, 2014, the Defendants continued their pattern of ignoring the rule of law and circumventing the Courts Orders, by filing, without seeking leave of the Court or providing notice, untimely supplemental papers.2

Moreover, the Defendants decision to file the SuppAff the day after defense counsel had suggested that the parties request an additional ten day enlargement of the TRO, the day before the TRO was scheduled to expire, and the very same day that defense counsel had commented on how close the parties were to coming to an interim agreement, smacks of Defendants continuing bad faith in this process. While Plaintiffs will not at this time address the merits of Defendants SuppAff (although Plaintiffs reserve the right to do so in the future should the parties proceed with an injunction hearing or an evidentiary hearing), Plaintiffs note that Defendant Rivkins statements that he has complied with the TRO since April 8th (four days after the TRO was issued) and his prior violations were innocent, nave mistakes are blatantly false; Plaintiffs will demonstrate the falsity of these statements and the fact that Defendants continue to violate the TRO to this day.
2

Case 1:14-cv-02167-NGG-RML Document 18 Filed 04/28/14 Page 3 of 3 PageID #: 291

Hon. Nicholas G. Garaufis April 28, 2014 Page 2 of 2 For the foregoing reasons, the Plaintiffs respectfully request that the procedurally infirm SuppAff and its accompanying exhibits be stricken from the record and disregarded in their entirety.3 Respectfully Submitted,

Mitchell C. Shapiro

If, however, the Court has read the SuppAff and its accompanying exhibits and wishes to consider it (whether as a motion to vacate or merely as a supplement), Plaintiffs respectfully request that the Court permit the Plaintiffs an opportunity to respond (either by filing an opposition to the procedurally infirm motion to vacate or by filing a reply to the untimely supplement). Additionally, Plaintiffs respectfully request that any such additional submission and preliminary injunction evidentiary hearing be scheduled AFTER the Magistrate Judge has determined whether the ongoing mediation efforts, which have begun on April 28, 2014, are going to succeed.