Opinion
Case Number 03 CV 4487 (LAK).
February 22, 2005
Dear Judge Kaplan:
This office represents defendant Jelly's Jam LLC, (hereinafter "Defendant JJ"), in the above referenced action, and writes this letter regarding the Order of this Court, dated February 10, 2005, (hereinafter the "Order"), granting on default plaintiffs' Motion to Amend the Complaint, dated January 20, 2005, (hereinafter the "Motion"). We respectfully request that this Court vacate the above referenced default, and consent to the filing of Defendant JJ's opposition papers. We apologize for any inconvenience to this Court. Plaintiffs' counsel do not consent to this application.
The Motion was served upon this office via regular mail on January 20, 2005. Pursuant to Fed-R-Civ.Pro. Rule G(e) and S.D.N.Y. Local Civ. Rule 6.1(b), opposition papers were to be served by February 9, 2005. As provided by the attached Affirmation of Service, Defendant JJ's opposition papers were served two days early via facsimile and regular mail on February 7, 2005. Two sets of courtesy copies were forwarded to your Honor, as required pursuant to the part rules. The original opposition papers were left with United Lawyers Service, LLC, (hereinafter "United"), to be filed with the Clerk of the Court on February 8, 2005.
We first learned that the opposition papers were not filed on Friday, February 11, 2005, when plaintiff's counsel forwarded to this office the Order via facsimile. We contacted United and learned that the papers were misplaced and never filed with the Clerk of the Court. We apologize for any inconvenience this clerical error has caused with the Court.
As provided in Defendant JJ's papers in opposition to the Motion, said motion should be denied since (1) any direct infringement claim against Defendant JJ is without Merit; and (2) Defendant JJ can not be liable for allegedly authorizing extraterritorial infringements.
As a result of the forgoing, because this office timely served and forwarded courtesy copies of Defendant JJ's opposition papers to this Court, we respectfully request that the above referenced default be vacated, Defendant JJ be authorized to file his opposition papers and Plaintiff be required to file any reply papers five days after the vacating of the Order. Should Your Honor have any questions or comments regarding the aforementioned, please do not hesitate to contact the undersigned.