Multicultural Radio Broadcasting, Inc. v. Korean Radio Broadcasting, Inc. et al

BRIEF in Opposition

D.N.J.September 19, 2016

PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 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 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MULTICULTURAL RADIO BROADCASTING, INC., a New Jersey Corporation Plaintiff, vs. KOREAN RADIO BROADCASTING, INC., a New York corporation; YOUNG DAE KWON, an Individual; And Does 1-100 Defendants Civil Action. No.: 2:15-CV-01961-SRC-CLW Motion Set For: September 6, 2016 KOREAN RADIO BROADCASTING, INC., a New York corporation; YOUNG DAE KWON, an individual Counter-Complainants, vs. MULTICULTURAL RADIO BROADCASTING, INC., a New Jersey Corporation Counter-Defendants. Documents Filed Electronically _________________________________________________________________________________ PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS- COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) _________________________________________________________________________________ JUNGSUP KIM (JK4776) LAW OFFICE OF JUNGSUP KIM LLC 560 Sylvan Ave, Suite 3160 Englewood Cliffs, NJ 07632 Tel: (201) 509-3367 GINAM LEE (CALIFORNIA SBN 204561) JAY HONG (CALIFORNIA SBN 233818) LEGACY PRO LAW PC 3600 Wilshire Blvd., Suite 1510 Los Angeles, CA 90010 Tel: (213)382-8051 Attorneys for Plaintiff / Counter-Defendant, Multicultural Radio Broadcasting, Inc. Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 1 of 19 PageID: 951 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) i 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 TABLE OF CONTENTS I. INTRODUCTION ........................................................................................................................ 1 II. ARGUMENT ............................................................................................................................... 3 A. STANDARD ON A MOTION TO DISMISS ............................................................................ 3 B. DEFENDANTS’ CROSS-MOTION SHOULD BE DENIED BECAUSE PLAINTIFF’S PRINCIPAL PLACE OF BUSINESS LIES IN NEW JERSEY, AND THUS, DIVERSITY OF CITIZENSHIP EXISTS ........................................................................................................... 3 C. DEFENDANTS FAILED TO FILE ANY OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITS COMPLAINT ............................................................................ 5 D. DEFENDANTS’ ARGUMENTS THAT THEIR MOTION TO DISMISS PLAINTIFF’S COMPLAINT SETS FORTH ARGUMENTS IN OPPOSITION TO PLAINTIFF’S MOTION ARE INVALID ............................................................................................................... 6 1.Plaintiff’s Pending Motion For Leave to Amend Its Complaint Renders Defendants’ Motion Moot. ............................................................................................................................... 6 E. PLAINTIFF WILL PLEAD SUFFICIENT FACTS TO ESTABLISH A CAUSE OF ACTION ALLEGING DEFENDANTS’ VIOLATION OF §43(a) OF THE LANHAM ACT 11 1. Defendants Made False and Misleading Statements Regarding Plaintiff Services/Products ....................................................................................................................... 12 2. ... There is Actual or at Least a Tendency to Deceive The Audience And The Deception is Material in its Influence ............................................................................................................ 12 3.The Goods/Services Traveled in Interstate Commerce ...................................................... 14 4.Injury Exists as to Plaintiff .................................................................................................... 14 III. CONCLUSION ........................................................................................................................ 14 Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 2 of 19 PageID: 952 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) ii 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 TABLE OF AUTHORITIES CASES Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir. 1984) ....................................................................... 9 Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 74 (3d Cir. 2011) ................... 3 Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir.2006) ..................................................................... 9 Bell Atl. Corp. v.Twombly, 550 U.S. 544, 547 (2007) ........................................................................ 11 Bernstein v. Lind–Waldock & Co., 738 F.2d 179, 185 (7th Cir.1984) ................................................. 8 Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (C.A.5 1985) ...................................................... 7 Broad v. DKP Corp., 1998 WL 516113 ........................................................................................... 7, 8 Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997) ......................................... 11 Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) ........................... 8 Centifanti v. Nix, 865 F.2d 1422 (1989) ............................................................................................... 7 Charentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991)....................................................................... 9 Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 101–02, 2 L.Ed.2d 80 (1957) ............................. 3 Foman v. David, 371 U.S. 178, 182 (1962) .......................................................................................... 9 Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996) .............................................. 11 Graham v. Progressive Direct Ins. Co. 271 F.R.D. 112, 124 citing Adams at 868 ............................ 10 Hertz Corp. v. Friend 175 L. Ed. 2d 1029, 1041-1042..................................................................... 4, 5 Hollister v. U.S. Postal Service, 142 Fed.Appx. 576, 577 (3d Cir. 2005) ............................................ 6 Holmes Group, Inc. v. Vornado Air Circ'n Sys., Inc., 535 U.S. 826, 831, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002) .............................................................................................................................. 7 Johnson & Johnson-Merck Consumer Pharmaceuticals Co. v. Rhone-Poulenc Rorer Pharmaceuticals, Inc. 19 F.3d 125, 130 (3d Cir. 1994) .................................................................. 13 Logan v. In-Ter-Space Service,s Inc., 2007 WL 2343868 (E.D.Pa. Aug 15, 2007) ........................... 10 Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993) ...................................................................... 9 Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.) ....................................................... 7 Methyl Tertiary Butyl Ether ("MTBE") Prod. Liab. Litig, 510 F.Supp.2d at 307–08 & nn. 39–42 ..... 8 Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 3 of 19 PageID: 953 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) iii 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 Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) ............................................... 11 Newman–Green, Inc. v. Alfonzo–Larrain,490 U.S. 826, 837, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989)................................................................................................................................................. 8 Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974) ........................... 3 Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d. Cir. 1992).............................................................. 6 The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913) ............ 7 Warner-Lambert Co. v. Breathasure, Inc. 204 F.3d 87 (3d Cir. 2000) .............................................. 11 Wellness Community–Nat. v. Wellness House, 70 F.3d 46, 49 (C.A.7 1995) ...................................... 7 STATUTES 28 U.S.C. § 1331 ................................................................................................................................... 8 RULES Federal Rule of Civil Procedure 15(a)(2) ............................................................................................. 8 Federal Rule of Civil Procedure 12(b)(6) ........................................................................................... 11 L. Civ. R. 7.1(h) .................................................................................................................................... 6 L.Civ.R. 7.1(d)(2) ............................................................................................................................. 2, 6 Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 4 of 19 PageID: 954 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 1 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 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Plaintiff Multicultural Radio Broadcasting, Inc. (“MRBI” or “Plaintiff”) respectfully files its brief in opposition to Defendants/Cross Complainants Korean Radio Broadcasting, Inc. and Young Dae Kwon’s (individually “KRB” and “KWON,” collectively referred to hereinafter as “Defendants.”) Cross-Motion to Dismiss Plaintiff’s Complaint for Lack of Subject Matter Jurisdiction (“Cross-Motion”).1 Defendants in this motion request that the Court dismiss Plaintiff’s Complaint, or, in the alternative, deny Plaintiff’s Motion to Amend the Complaint. Plaintiff’s First Amended Complaint (“FAC”) would maintain the counts and allegations against the same defendants from the original complaint, but accounts for the significant factual developments that have occurred since the original complaint was filed, including discovered facts from Defendant Young Dae Kwon’s deposition. On June 27, 2016 and July 6, 2016, counsels for both Plaintiff and Defendants Kwon and Korean Radio Broadcasting, Inc. (“KRB”) met and conferred, whereby Defendants were briefed as to Plaintiff’s proposed amendments to its complaint. (Decl. Hong in Support of Plaintiff’s Motion ¶14, Exhibit “E”). Given Defendants’ continued position in refusing to consent to allow Plaintiff to amend its complaint, Plaintiff filed its motion for leave to file the FAC before the Court for the reasons set forth below. (Decl. Hong in Support of Plaintiff’s Motion ¶15). On or about July 11, 2016, a telephonic conference was held with the court and all parties at which time the court provided that Plaintiff would be allowed to file its motion for leave to file an amended complaint on or before August 31, 2016. (Decl. Hong ¶17). In the telephonic conference, Defendants Kwon and KRB (collectively “Defendants”) stated to the court that they intended to file a motion to dismiss. At no time did Defendants attempt to meet and confer with Plaintiff, as to their 1 Defendants have filed two motions to dismiss. The first one was filed by Mr. Mueller as to Plaintiff’s Complaint in its entirety for lack of jurisdiction, and the second was filed by Mr. Cafferty solely as to Count II, the trade libel cause of action. Plaintiff’s brief in opposition to Mr. Cafferty’s brief has been addressed and filed separately. Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 5 of 19 PageID: 955 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 2 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 proposed motion, prior to this conference. The court however granted both parties to file their respective motions, Plaintiff’s motion for leave to amend its complaint and Defendants motion to dismiss, on or before August 31, 2016.2 On August 6, 2016, Plaintiff filed its motion for leave and supporting papers (“Motion”) and served all parties. On August 8, 2016, all parties were notified by the court that Plaintiff Motion had been set for September 6, 2016 before the Honorable Stanley R. Chesler. (Decl. Hong ¶18) In lieu of Plaintiff’s filing, Defendants scheduled a teleconference with the court for the purposes of allowing Defendants to be able to file its opposition briefs on a later date, rather than as required pursuant to L.Civ.R. 7.1(d)(2) which would have been August 23, 2016. (Decl. Hong ¶18) On or about August 17, 2016, a teleconference was held with the court whereby Defendants were granted leave to file their opposition to Plaintiff motion on or before August 31, 2016. [Dckt. 65]. No other orders were made. (Decl. Hong ¶19) On August 31, 2016 a conference with the court was held again as to the status of the case and pending motions. At no time were any orders issued. (Decl. Hong ¶20) On August 31, 2016, Defendants filed a Motion for Judgment on the Pleadings as to Count Two (Trade Libel) of Plaintiff’s Complaint [Dckt. 67-1], and a Motion to Dismiss Plaintiff’s Complaint for Lack of Jurisdiction [Dckt. 66-1]. (Decl. Hong ¶21). On September 1, 2016, Both of Defendants motions were set for October 3, 2016. Defendants at no time however filed an opposition to Plaintiff’s Motion for Leave to Amend its Complaint. (Decl. Hong ¶21) Given the court ordered extension which had allowed Defendants to file their opposition to Plaintiff’s Motion on or before August 31, 2016, which they failed to exercise, Plaintiff now submits this brief to request that the Court deem its Motion to File an Amended Complaint unopposed and to grant Plaintiff’s motion, as well as to oppose Defendants’ Cross-Motion. 2 Defendants at no time met and conferred with Plaintiff regarding their intent to file a motion to dismiss relating to count II, nor did they make their intentions known to the court during the telephone conference. Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 6 of 19 PageID: 956 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 3 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 II. ARGUMENT A. STANDARD ON A MOTION TO DISMISS On a motion to dismiss, the Court must “accept all factual allegations as true, construe the [complaint] in the light most favorable to the [Plaintiff], and then determine whether a reasonable inference may be drawn that the [Defendants are] liable for the alleged misconduct.” Argueta v. U.S. Immigration and Customs Enforcement, 643 F.3d 60, 74 (3d Cir. 2011). The Court may not dismiss a complaint unless plaintiff can prove no set of facts which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 101–02, 2 L.Ed.2d 80 (1957). “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974). B. DEFENDANTS’ CROSS-MOTION SHOULD BE DENIED BECAUSE PLAINTIFF’S PRINCIPAL PLACE OF BUSINESS LIES IN NEW JERSEY, AND THUS, DIVERSITY OF CITIZENSHIP EXISTS Defendants do not dispute that Plaintiff is a New Jersey corporation and that Defendants are New York residents. Rather, Defendants’ allegations as to a lack of diversity of citizenship lies in the allegation that Plaintiff’s principal place of business is in New York. However, as discussed below, it is clear that despite some addresses linking Plaintiff corporation to New York, the “nerve center” of the corporation and its principal place of business is in New Jersey, invoking diversity jurisdiction. Aside from the nearly 10 pages of Defendants’ Motion to Dismiss, indicating various documents identifying addresses used by Plaintiff, Defendants themselves indicate that they knew of Plaintiff having business in various states since the filing of Plaintiff’s Complaint. (Def. Motion pg. 23, fn. 6). Yet despite being aware attempts to now address this purported issue of “diversity”3. 3 Defendants misrepresents that a first amended complaint was filed by Plaintiff and further misrepresents the phrasing of ¶1 of Plaintiff’s complaint. Plaintiff states in its complaint that “Plaintiff MULTICULTURAL RADIO BROADCASTING, INC. (“MRBI” or “Plaintiff”) is, Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 7 of 19 PageID: 957 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 4 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 Defendants’ reliance on the 2010 Supreme Court decision in the case of Hertz Corp. v. Friend is misplaced. In Hertz, two California citizens sued the corporation in California state court for violation of state wage and hour laws. The corporation sought to remove the case to federal court on diversity grounds and thus had to prove that neither its state of incorporation nor its principal place of business was in California. As Hertz is a Delaware corporation, its state of incorporation was not disputed. Instead, the issue was as to the corporation’s principal place of business, much like the issue Defendants bring up in the instant litigation. In the Hertz case, the corporation insisted its leadership was headquartered in New Jersey and that New Jersey was where its core executive and administrative functions were carried out. These were the corporation’s reasonings as to why the principal place of business was in New Jersey. The Supreme Court explained that in the typical case, the principal place of business will be the place where the corporation maintains its headquarters and was thus why the Supreme Court determined Hertz corporation to have its principal place of business in California. However, the Court also cautioned that the headquarters may not simply be an office where the corporation holds its board meetings, has a mail drop box, or has a bare office with a computer. Hertz Corp. v. Friend 559 U.S. 77, 92-94 (2010). In these situations, the district court is instructed to locate the “nerve center” as the place of actual direction, control, and coordination without such manipulation. Id. Defendants KRB and KWON cite a near 10-page lengthy list to show business records, annual reports, and tax documents documenting a New York address for MRBI and for Arthur Liu (CEO and Secretary) and Yvonne Liu (Vice President). These are simply mailing addresses and addresses put on record for the purpose of completing such reports and records. Herein lies a significant difference in comparing it to the corporation in Hertz. As a functioning radio station, it is clear that the principal place of business and the nerve center of the corporation is in New Jersey, where the radio station and the business operates. Defendants cite to the Hertz case in defining the phrase “principal place of business” to mean the place where the corporation’s high level officers and at all relevant times herein was, a New Jersey corporation doing radio broadcasting business in more than 10 states including New Jersey” [Dckt. 1] Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 8 of 19 PageID: 958 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 5 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 direct, control and coordinate the corporation’s activities. Hertz 559 U.S. at 80 (2010). Defendants further cite to the case in additional interpretations of where a corporation’s principal place of business is determined. However, a further analysis of the decision in this case will lead to the interpretation discussed above. Generally speaking, this decision seems to put corporations on notice that their principal place of business, for purposes of diversity jurisdiction, will be determined by where the corporation’s officers direct, control and coordinate the corporation’s activities. This is where Defendants take their stance that this makes Plaintiff’s principal place of business New York because of all the documents indicating a New York address and that a New York address is where its officers meet. In the typical case, this place is indeed deemed to be the corporation’s headquarters. However, the Hertz decision is also clear in differentiating that by relying solely on the location listed on forms such as an SEC Form 10-K for principal executive offices, the location of a mail drop box or the location of board meetings is not effective under this new test to determine where a corporation’s principal place of business is located. Accordingly, Plaintiff’s Complaint should not be dismissed for a lack of diversity. Plaintiff has shown that MRBI’s principal place of business and nerve center is in New Jersey thus invoking diversity jurisdiction as Defendants are New York residents. Plaintiff requests that this court dismiss Defendants’ Cross-Motion and to move forth with granting Plaintiff’s Motion to File an Amended Complaint. C. DEFENDANTS FAILED TO FILE ANY OPPOSITION TO PLAINTIFF’S MOTION FOR LEAVE TO AMEND ITS COMPLAINT Defendants have made no attempt to file any opposition to Plaintiff’s Motion. As set forth above, Defendants on July 11, 2016 were allowed to file, on or before August 31, 2016, their respective motion to dismiss. After Plaintiff filed its Motion on August 6, 2016, Defendants, in realizing that their opposition was due on August 23, 2016, requested an extension from the court to be able to file its opposition to Plaintiff’s Motion, and to file its Motion to Dismiss, on or before August 31, 2016. Despite the court granting leave for Defendants to file its opposition by August 31, 2016, Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 9 of 19 PageID: 959 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 6 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 Defendants failed to do so. Rather they chose to file only their respective motions to dismiss. D. DEFENDANTS’ ARGUMENTS THAT THEIR MOTION TO DISMISS PLAINTIFF’S COMPLAINT SETS FORTH ARGUMENTS IN OPPOSITION TO PLAINTIFF’S MOTION ARE INVALID In the likelihood, Defendants assert that their Motion to Dismiss [Dckt. 66-1] asserts arguments in opposition to Plaintiff’s Motion, such arguments are without any merit. Failure to file an opposition brief to a motion, despite having raised such arguments separately, allows the court to deem the motion unopposed. Hollister v. U.S. Postal Service, 142 Fed.Appx. 576, 577 (3d Cir. 2005); see also Stackhouse v. Mazurkiewicz, 951 F.2d 29, 30 (3d. Cir. 1992). As in Hollsiter, despite attempting to raise, even briefly, some argument as to Plaintiff’s Motion in Defendants’ Motion to Dismiss, such arguments do not amount to an opposition brief being filed. Rather, as Defendants’ own moving papers suggest, their arguments are solely to support their moving papers rather than to oppose Plaintiff’s Motion. Defendants’ purported reliance on L. Civ. R. 7.1(h) is also misplaced. (Def. Motion pg. 18, fn. 5). L. Civ. R. 7.1(h) provides that “A cross-motion related to the subject matter of the original motion may be filed by the party opposing the motion together with that party’s opposition papers and may be noticed for disposition on the same day as the original motion, as long as the opposition papers are timely filed.” L. Civ. R. 7.1(h). Defendants’ failure to file any opposition to Plaintiff’s Motion, despite Defendants own request for an extension to file such opposition, warrants the court’s finding that Plaintiff’s Motion is unopposed. Accordingly, Plaintiff’s Motion for Leave to File a First Amended Complaint should be granted. 1. Plaintiff’s Pending Motion For Leave to Amend Its Complaint Renders Defendants’ Motion Moot. As the court is well aware, Plaintiff’s filed its Motion for Leave to Amend Its Complaint on August 6, 2016 pursuant to the court granting Plaintiff’s request to do so.[Dckt. 61-2]. Prior to any of Defendants requesting the ability to file any motions, Plaintiff was the first to make such a request Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 10 of 19 PageID: 960 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 7 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 and was the first to file. (Decl. Hong ¶14-18). As a result, the court should direct its inquiry not toward diversity, but toward the federal question jurisdiction specified in the FAC. Centifanti v. Nix, 865 F.2d 1422 (1989), further supports Plaintiff’s position. Plaintiff in Centifanti, sought leave to amend his complaint given Defendants’ position that the court lacked subject matter jurisdiction. As the Court of Appeals for the third circuit held, in reversing and allowing plaintiff to amend its complaint, the position to be taken is whether or not the amendment would withstand a motion to dismiss. Id. at 1431 citing Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir.), cert. denied, 464 U.S. 937, 104 S.Ct. 348, 78 L.Ed.2d 314 (1983). Additionally, when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction. See Wellness Community–Nat. v. Wellness House, 70 F.3d 46, 49 (C.A.7 1995); Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (C.A.5 1985). Here, Plaintiff claims an entitlement to a federal question jurisdiction based on the Lanham Act. Plaintiff proposes to amend it complaint in response to Kwon’s deposition and alters the jurisdictional underpinning of this action. After all, “the plaintiff is both the author and the master of its complaint”. See Holmes Group, Inc. v. Vornado Air Circ'n Sys., Inc., 535 U.S. 826, 831, 122 S.Ct. 1889, 153 L.Ed.2d 13 (2002). As such, it has the power to “decide what law [it] will rely upon.” The Fair v. Kohler Die & Specialty Co., 228 U.S. 22, 25, 33 S.Ct. 410, 57 L.Ed. 716 (1913). Defendants cite to Broad v. DKP Corp., 1998 WL 516113 to contradict another case in their motion. However, unsurprisingly, Defendants once again misinterpret the case. In Broad, defendant challenged plaintiff’s complaint via a 12(b)(1) motion. The plaintiff however failed to submit a memorandum of law in opposition to defendant’s motion, “opting instead to file a cross-motion to amend its complaint”. Id. at 3.4 Defendants argue that federal courts do not possess and should not presume to exercise hypothetical jurisdiction. They argue that allowing a plaintiff to amend its 4 As set forth above, Defendants have failed to file any separate opposition to Plaintiff’s Motion for leave to amend its complaint. Rather, Defendants have filed a cross-motion. Similar to the court holding in Broad, such a “silence [i]s a tacit admission” and as such Plaintiff’s Motion for Leave to Amend warrants to be granted. Id. at 3. Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 11 of 19 PageID: 961 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 8 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 complaint to add a newly-acquired federal cause of action capable of triggering the existence of federal jurisdiction that otherwise would be lacking is tantamount to sanctioning a form of hypothetical jurisdiction. The case law indicates that a court sometimes may constitutionally exercise jurisdiction over a case even though it does not secure solid jurisdictional footing until after the case has been brought. See, e.g., Caterpillar, Inc. v. Lewis, 519 U.S. 61, 73, 117 S.Ct. 467, 136 L.Ed.2d 437 (1996) (curing a wrongful exercise of removal jurisdiction); Newman–Green, Inc. v. Alfonzo– Larrain,490 U.S. 826, 837, 109 S.Ct. 2218, 104 L.Ed.2d 893 (1989) (involving the dropping of a party); see also Bernstein v. Lind–Waldock & Co., 738 F.2d 179, 185 (7th Cir.1984) (Posner, J.) (holding erroneous exercise of removal jurisdiction cured by subsequent amendment of complaint to include federal causes of action); In re MTBE, 510 F.Supp.2d 307–08, nn. 39–42 (outlining criteria used to determine whether a jurisdictional defect is curable). Furthermore, Broad and all the cases referred therein relate to party first properly addressing the issue as to jurisdiction and the opposing party then seeking to amend its complaint solely for the purpose of curing such deficiencies. Plaintiff, in the present case however, was the first party to notify this court of its intention to file a motion for leave to amend its complaint and was the first party to do so. Broad is further distinguishable in that the plaintiff in Broad sought to “…add facts not alleged in the original complaint in an effort to establish jurisdiction pursuant to 28 U.S.C. § 1331, thus substituting an entirely new cause of action and a new basis for jurisdiction” Id. at 7. Defendants themselves state that the facts presented in Plaintiff’s complaint already provided Plaintiff the ability to have timely made claims for violation of the Lanham Act. (Defs. Motion pgs. 29-36). As Plaintiff further provides in it Motion for Leave to Amend, “a similar cause of action for trade libel was already pled in Plaintiff’s original complaint;” (Pltf. Motion pg. 7, [Dckt. 61-2]. Pursuant to Federal Rule of Civil Procedure 15(a)(2), “a party may amend its pleading only with the opposing party’s written consent or the court’s leave. The court should freely give leave when justice so requires.” F.R.C.P. 15(a)(2). The federal rules allow for liberal amendments to the Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 12 of 19 PageID: 962 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 9 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 pleadings “to facilitate a proper decision on the merits,” and the decision to grant leave to amend a pleading is within the sound discretion of the court. Foman v. David, 371 U.S. 178, 182 (1962). Pursuant to Foman, leave to amend may be denied on the basis of: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to the opposing party; and (4) futility of amendment. Id. “Only when these factors suggest that amendment would be ‘unjust’ should the court deny leave .” Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir.2006) (internal citations omitted). This liberal amendment philosophy limits the district court's discretion to deny leave to amend. The district court may deny leave to amend only if a plaintiff's delay in seeking amendment is undue, motivated by bad faith, or prejudicial to the opposing party. Adams v. Gould Inc., 739 F.2d 858, 864 (3d Cir. 1984) (emphasis added). In this Circuit, prejudice to the non-moving party is the touchstone for denial of leave to amend. Lorenz v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993). Unless the opposing party will be prejudiced, leave to amend should be generally allowed. Charentier v. Godsil, 937 F.2d 859, 864 (3d Cir. 1991). In light of the significant factual and procedural developments since Plaintiff filed suit, good cause for amending the Complaint is apparent. Despite what Defendants allege, Defendants will not be prejudiced in any way if these amendments are allowed at this point in the proceedings as these issues were already known to them and there have been no depositions taken by Defendants at this time. The initial discovery requests made by parties have been stayed since May 2016. (Decl. Hong ¶6). Aside from the very limited jurisdictional and standing discovery conducted by the parties, no other discovery has taken place, nor have any depositions been conducted by Defendants. As such, the proposed amended complaint would impose no prejudice to Defendants. Defendants’ sole arguments in alleging they would be unduly prejudiced if the Court grants Plaintiff’s Motion is that they would have to engage in additional discovery and endure further discovery disputes. As discussed above, what is now new information to Plaintiff is not new information to Defendants. Defendants have known of these newfound facts for quite some time now and it was only to Plaintiff that these new facts were revealed for the first time during KWON’s Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 13 of 19 PageID: 963 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 10 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 deposition. Defendants would not suffer any undue prejudice from the filing of Plaintiff’s Amended Complaint because 1) a similar cause of action for trade libel was already pled in Plaintiff’s original complaint; 2) Defendants have conducted very limited written discovery to date and have yet to even take any depositions, including Plaintiff’s; 3) the issues as to jurisdiction alleged by Defendants would be resolved given that the amendment encompasses a federal question; and 4) any newly- alleged facts in the amendment are already well-known to Defendants. The interests of justice and judicial economy will undoubtedly be served by having all allegations properly before the Court as set forth in Plaintiff’s proposed amended complaint. Furthermore, Plaintiff’s motion is not motivated by bad faith nor has this motion been unduly delayed as defined by this Circuit. The denial of a motion to amend a complaint based on the movant’s undue delay must be based on more than the mere passage of time. Logan v. In-Ter-Space Service,s Inc., 2007 WL 2343868 (E.D.Pa. Aug 15, 2007). While “[t]he question of undue delay, as well as the question of bad faith, requires that [a court] focus on the [moving party's] motives for not amending their complaint to assert this claim earlier; the issue of prejudice requires that [a court] focus on the effect on the [non-moving party].” Graham v. Progressive Direct Ins. Co. 271 F.R.D. 112, 124 citing Adams at 868. It is apparent that this Circuit’s primary concern is that a grant of a leave to amend a complaint would not prejudice the non-moving party. The concern of prejudicial effect, as mentioned above, is without merit as the amendments would not impose any new obligations or burdens on Defendants, nor have there been numerous developments in this case that these proposed amendments would render moot. Rather, the proposed amendments would serve the interests of judicial economy by allowing Plaintiff to bring all its complaints into one action. Plaintiff’s insight into the causes of action for the additional Lanham Act claims under section 43(a) of the Lanham Act, was not apparent until Defendants’ deposition was taken. (Decl. Hong ¶16). In response, Plaintiff has moved quickly to meet and confer with Defendants given these newly discovered facts. (Decl. Hong ¶14). Thus, there has been no undue delay in Plaintiff’s request to amend. The newly-alleged facts were entirely unknown to Plaintiff at the time Plaintiff filed its original complaint. (Decl. Hong ¶16). Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 14 of 19 PageID: 964 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 11 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 Lastly, Plaintiff’s proposed amendment is not futile. “In assessing futility, the district court applies the same standard of legal sufficiency as applies under Rule 12(b)(6).” In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997)(citing Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)(citation and quotation omitted). Under this standard, the question before the Court is whether the complaint sets forth “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.Twombly, 550 U.S. 544, 547 (2007). As further set forth herein, Plaintiff’s proposed amendments to its complaint are sufficiently pled to survive any motions under Rule 12(b)(6). When examining the sufficiency of a litigant’s pleading under Rule 12(b)(6), the Court is “required to accept as true all of the allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the plaintiff.” Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997). The complaint has valid facial plausibility allowing the court to draw a reasonable inference that defendant is liable for the alleged misconduct. As neither undue delay, bad faith, nor futility appear as a result of this proposed amended complaint, Plaintiff respectfully requests that the Court grant this motion to leave to amend its complaint. E. PLAINTIFF WILL PLEAD SUFFICIENT FACTS TO ESTABLISH A CAUSE OF ACTION ALLEGING DEFENDANTS’ VIOLATION OF §43(a) OF THE LANHAM ACT To establish a Lanham Act claim based on a false or misleading representation of a products or service, the plaintiff must show: “1) that the defendant has made false or misleading statements as to his own product [or service] or another’s; 2) that there is actual deception or at least a tendency to deceive a substantial portion of the intended audience; 3) that the deception is material in that it is likely to influence purchasing decisions; 4) that the advertised goods/services traveled in interstate commerce; and 5) that there is a likelihood of injury to the plaintiff in terms of declining sales, loss of good will…” Warner-Lambert Co. v. Breathasure, Inc. 204 F.3d 87 (3d Cir. 2000). KWON’s deposition has unearthed facts that were not previously known to Plaintiff prior to its filing of the original complaint. (Decl. Hong ¶16). Good cause exists for Plaintiff to amend its Complaint to add Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 15 of 19 PageID: 965 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 12 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 this cause of action. Additionally, based on the deposition of Kwon, all elements exist to sufficiently plead a Lanham Act claim based on false or misleading representations. 1. Defendants Made False and Misleading Statements Regarding Plaintiff Services/Products During KWON’s deposition, the advertisement Defendants ran announcing its move to FM 87.7 was discussed. (Decl. Hong ¶9). Unknown to Plaintiff until Kwon’s deposition, was the fact that Defendants began publishing these advertisements in and around December 2014.5 Kwon further acknowledged in his deposition, that Defendants’ advertisements alleging that the AM 1660 signals were inferior and the supposed “causes” were never verified. (Decl. Hong ¶10; Exhibit “A”; Exhibit “C”). Additionally, Kwon testified that he approved the advertisements. (Decl. Hong ¶10; Exhibit “A”).It is apparent that Defendants’ purpose of running these on-air and print advertisements was to transfer listeners from AM 1660 to FM 87.7 so that Defendants could maintain its listenership and advertising sales upon completion of its move to FM 87.7. (Decl. Hong ¶11; Exhibit “B”). Plaintiff also discovered for the first time that Defendants’ had leased FM 87.7 from early on and had been subleasing to other stations while preparing for their own move to transfer AM 1660 listenership to FM 87.7. (Decl. Hong ¶11; Exhibit “B”). Defendants attempt to dismiss these newfound facts as facts that do not make the case differ from the original Complaint. However, none of these specific facts were known to Plaintiff at the time the original Complaint was produced. It was only through KWON’s deposition that any of these specificities were revealed to Plaintiff and it was through these discoveries that it was clear there was a Lanham Act violation. 2. There is Actual or at Least a Tendency to Deceive The Audience And The Deception is Material in its Influence Defendants’ advertisements clearly contain deception or a tendency to deceive a substantial portion of the intended audience and the deception is material in that it is likely to influence 5 Given that Plaintiff was unaware at the time of the filing of the original complaint, Plaintiff’s original complaint states that the advertisements began in February 2015. Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 16 of 19 PageID: 966 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 13 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 purchasing decisions. In determining whether a claim contains deception or a tendency to deceive, “the factfinder must determine whether the public was, in fact, misled…the plaintiff must also show that the claims are literally false or misleading to the public.” Johnson & Johnson-Merck Consumer Pharmaceuticals Co. v. Rhone-Poulenc Rorer Pharmaceuticals, Inc. 19 F.3d 125, 130 (3d Cir. 1994). Defendants’ advertisements were clearly intended to lead the audience to be deceived and be influenced to change stations. As a result of inducing AM 1660’s listeners to FM 87.7 through deceptive advertising, Defendants were thereby able to also increase the ad purchases by advertisers at FM 87.7 given that the purchase of advertising is influenced by listenership and is the staple of Defendants’ income production. (Decl. Hong ¶13; Exhibit “D”). Kwon substantiates this in his deposition, that the advertisements were to bring listeners from AM 1660 to FM 87.7. (Decl. Hong ¶10). Kwon also stated that he knew that once he left AM 1660, MRBI would have to find a new replacement. (Decl. Hong ¶12). Knowing very well that the claims in the advertisements were false, Defendants used these advertisements to entice listeners to switch over to the new station at FM 87.7. (Decl. Hong ¶10). Again, in regard to the potential prejudice these new claims may bring to Defendants, none exist. Plaintiff’s original complaint already mentioned these advertisements. Defendants were aware of the falsity of these advertisements, and in fact, the facts as to all claims being unverified were revealed by Defendants themselves. The new facts that were brought to Plaintiff’s attention during this deposition were new to Plaintiff but not new to Defendants. Plaintiff’s original complaint contains facts as to Defendants airing promo announcements that stated Defendants would be moving to a new station, 87.7 FM. What Plaintiff was unaware of at the time, was that all of Defendants’ promo advertisements contained facts that were never unverified by Defendants, that the advertisements had started in or around December 2014, and that the intent of running these types of on-air and print advertisements was to lead the audience reading and hearing these advertisements to FM 87.7. (Decl. Hong ¶10; Exhibit “A”; Exhibit “C”). Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 17 of 19 PageID: 967 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 14 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 3. The Goods/Services Traveled in Interstate Commerce Additionally, the advertisements reached the areas of New Jersey and New York, and Plaintiff has been injured in that the reputation of the station has been harmed, as well as the potential for future sales and leases of that particular station. As mentioned, Plaintiff had a difficult time replacing Defendants in the lease. 4. Injury Exists as to Plaintiff Furthermore, after Defendants started airing on FM 87.7, Plaintiff had difficulty finding a replacement. Because of Defendants’ untrue claims in their advertisements, it was difficult to find someone to take over that lease for the price that had been constant for MRBI. Instead, sometime long after Defendants’ breach, MRBI found a replacement for a much lower profit given Defendants’ false advertisements which led to low listenership and thereby low advertisement sales. III. CONCLUSION For the foregoing reasons, this Court should grant Plaintiff’s Motion to File an Amended Complaint and should dismiss Defendants’ Motion to Dismiss the Complaint for lack of subject matter jurisdiction. As the new findings Plaintiff cites to in its Motion all come from Defendants themselves, Defendants would not be prejudiced in any way. As Defendants have conducted very limited written discovery to date and have yet to take the deposition of Plaintiff, no additional work would be necessary on the part of Defendants. In fact, the amended complaint would serve to resolve the very issues Defendants have been concerned with regarding jurisdiction. Thus, consistent with the liberal standard that applies to these motions to amend under FRCP 15(a)(2), the Court should thus grant Plaintiff’s motion for leave to amend and deny Defendants’ motion to dismiss. In the event however the court denies Plaintiff’s motion for leave to amend its complaint and/or grants Defendants’ motion dismiss Plaintiff’s claims, Plaintiff would simply be able to file its complaint once more, in this court, triggering a new action. Accordingly, Plaintiff’s motion for leave to amend its complaint should be granted and both Defendants’ motions be rendered moot. Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 18 of 19 PageID: 968 PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 15 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 Respectfully submitted this 19th day of September 2016. LAW OFFICES OF JUNGSUP KIM By: /s/Jungsup Kim JUNGSUP KIM Attorneys for Plaintiff Multicultural Radio Broadcasting, Inc. Case 2:15-cv-01961-SRC-CLW Document 69 Filed 09/19/16 Page 19 of 19 PageID: 969 - 1 – DECLARATION OF JAY HONG IN SUPPORT OF PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 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 JUNGSUP KIM (JK4776) LAW OFFICE OF JUNGSUP KIM LLC 560 Sylvan Ave., Suite 3160 Englewood Cliffs, NJ 07632 Tel: (201) 509-3367 Fax: (201) 586-0278 Email: kimjungsup.esq@gmail.com GINAM LEE (CALIFORNIA SBN 204561) JAY HONG (CALIFORNIA SBN 233818) LEGACY PRO LAW PC 3600 Wilshire Blvd., Suite 1510 Los Angeles, CA 90010 Tel: (213)382-8051 Fax: (866) 203-0408 Email: ginam.lee@legacyprolaw.com jay.hong@legacyprolaw.com Attorneys for Plaintiff / Counter-Defendant, Multicultural Radio Broadcasting, Inc. UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY MULTICULTURAL RADIO BROADCASTING, INC., a New Jersey Corporation Plaintiff, vs. KOREAN RADIO BROADCASTING, INC., a New York corporation; YOUNG DAE KWON, an Individual; And Does 1-100 Defendants Civil Action. No.: 2:15-CV-01961-SRC-CLW DECLARATION OF JAY HONG IN SUPPORT OF PLAINTIFF/COUNTERCLAIM- DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) KOREAN RADIO BROADCASTING, INC., a New York corporation; YOUNG DAE KWON, an individual Counter-Complainants, vs. MULTICULTURAL RADIO BROADCASTING, INC., a New Jersey Corporation Counter-Defendants. Documents Filed Electronically Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 of 25 PageID: 970 - 2 – DECLARATION OF JAY HONG IN SUPPORT OF PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 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 DECLARATION OF JAY HONG 1. I am an attorney at law duly licensed to practice in the State of California. I am an attorney with Legacy Pro Law, PC. and am the attorney of record for Plaintiff MULTICULTURAL RADIO BROADCASTING, INC. (“MRBI”) in this matter. 2. This declaration is made in support of Plaintiff MRBI’s Opposition to Defendant/Cross- Complainant’s Cross-Motion to Dismiss Plaintiff’s Complaint for Lack of Subject Matter Jurisdiction Pursuant to FRCP 12(b)(1). 3. I have personal knowledge of the facts stated herein and could testify to those facts if called upon to do so. The facts set forth in this declaration are true and correct to the best of my personal knowledge. 4. Plaintiff filed suit on or about March 30, 2015. Defendants filed their answer on or about May 28, 2015 with affirmative defenses in addition to their counterclaims against MRBI. On or about June 4, 2015, Defendants filed an Amended Answer with affirmative defenses and counterclaims against MRBI. 5. At no time was MRBI’s lack of standing to bring forth this lawsuit or matter relating to jurisdiction alleged. 6. On or about May 17, 2016, an in person settlement conference took place in court. It was at this conference that Defendants, for the first time, disputed the court’s jurisdiction over the parties. As a result of Defendants’ new position, the Court ordered that the case in its entirety, as well as all discovery, be stayed except as to the allowance of limited discovery relating solely to the issues of jurisdiction and standing. 7. At this stage, limited discovery has been exchanged during which Plaintiff has provided Defendants with a substantial number of documents in response to their requests. 8. On May 10-11, 2016, I took the deposition of Mr. Young Dae Kwon. 9. At this deposition, Mr. Kwon discussed the advertisements that Defendants put out that discussed Defendants moving from AM 1660 to FM 87.7 10. Kwon then explains that the purpose of these advertisements were to let listeners know that Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 2 of 25 PageID: 971 - 3 – DECLARATION OF JAY HONG IN SUPPORT OF PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 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 KRB was moving to FM 87.7. Kwon testifies during his deposition, to having never verified whether any of these claims were true. It is during this same deposition that Plaintiff discovers for the first time that the advertisements started in or around December 2014. Attached hereto as “Exhibit A” is a true and correct copy of excerpts from the reporter’s transcript of the May 10-11 Deposition of Young Dae Kwon. Kwon also admits that he was the one that approved these advertisements. Attached hereto as “Exhibit A” is a true and correct copy of excerpts from the reporter’s transcript of the May 10-11 Deposition of Young Dae Kwon. Attached hereto as “Exhibit C” is a true and correct copy of excerpts from the reporter’s transcript of the May 10-11 Deposition of Young Dae Kwon. 11. Kwon also states in his testimony that Defendants had leased FM 87.7 from early on and had been subleasing FM 87.7 to other stations until Defendants were ready to make the move to FM 87.7. This was a new fact to Plaintiff discovered for the first time during Kwon’s deposition. Attached hereto as “Exhibit B” is a true and correct copy of excerpts from the reporter’s transcript of the May 10-11 Deposition of Young Dae Kwon. 12. Kwon also stated that he knew that once he left AM 1660, MRBI would have to find a new replacement. Knowing very well that the reasons for the move to the new station were false, Defendants used these advertisements to entice listeners to switch over to the new station at FM 87.7. Attached hereto as “Exhibit C” is a true and correct copy of excerpts from the reporter’s transcript of the May 10-11 Deposition of Young Dae Kwon. 13. Kwon further states in his testimony that advertising revenue is the biggest income generator for KRB. Attached hereto as “Exhibit D” is a true and correct copy of excerpts from the reporter’s transcript of the May 10-11 Deposition of Young Dae Kwon. 14. Upon realizing the newfound facts from Kwon’s deposition, Plaintiff’s counsel attempted to meet and confer as to whether Defendant would be willing to amend its complaint. Parties met and conferred on June 27, 2016 and again on July 6, 2016. An email confirming the July 6 telephonic meet and confer is attached hereto as “Exhibit E.” 15. As of the filing of this motion, Defendants have continued to refuse to stipulate to allow Plaintiff to file its amended complaint. Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 3 of 25 PageID: 972 - 4 – DECLARATION OF JAY HONG IN SUPPORT OF PLAINTIFF/COUNTERCLAIM-DEFENDANT’S OPPOSITION TO DEFENDANT/CROSS-COMPLAINANT’S CROSS-MOTION TO DISMISS PLAINTIFF’S COMPLAINT FOR LACK OF SUBJECT MATTER JURISDICTION PURSUANT TO F.R.C.P. 12(b)(1) 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 16. The purpose of this amended complaint was to add a cause of action that arose from facts discovered during Mr. Young Dae Kwon’s deposition taken on May 10-11, 2016. 17. On or about July 11, 2016, a telephonic conference was held with the court and all parties at which time the court provided that Plaintiff would be allowed to file its motion for leave to file an amended complaint on or before August 31, 2016 18. On or about August 8, 2016, all parties were notified by the Court that Plaintiff’s Motion had been set to be heard for September 6, 2016 before the Honorable Stanley R. Chesler. In lieu of Plaintiff’s filing, Defendants scheduled a teleconference with the court for the purposes of allowing Defendants to be able to file its opposition briefs on a later date, rather than as required pursuant to L.Civ.R. 7.1(d)(2) which would have been August 23, 2016 19. On or about August 17, 2016, a teleconference was held with the Court whereby Defendants were granted leave to file their opposition to Plaintiff’s motion on or before August 31, 2016. 20. On or about August 31, 2016 a conference with the court was held again as to the status of the case and pending motions. At no time were any orders issued. 21. On or about August 31, 2016, Defendants filed a Motion for Judgment on the Pleadings as to Count Two (Trade Libel) of Plaintiff’s Complaint [Dckt. 67-1], and a Motion to Dismiss Plaintiff’s Complaint for Lack of Jurisdiction [Dckt. 66-1]. 22. On or about September 1, 2016, both of Defendants motions were set for October 3, 2016. Defendants at no time however filed an opposition to Plaintiff’s Motion for Leave to Amend its Complaint. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and that this declaration as executed by me on this 3rd day of August 2016, at Los Angeles, State of California. Dated: September 19, 2016 ____/s/ Jay Hong_______ Jay Hong Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 4 of 25 PageID: 973 Jay Hong Declaration Exhibit “A” Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 5 of 25 PageID: 974 ·1· · · · · · · ·THE INTERPRETER:· That's five ·2· · · · lines, one, two, three, four -- oh, the ·3· · · · fifth line is "Strong and clean." ·4· · · · · · · ·MR. HONG:· And then turning to the ·5· · · · next page after FM-87.7. ·6· · · · · · · ·THE INTERPRETER:· "Chose FM-87.7." ·7· ·BY MR. HONG: ·8· · · · Q.· · ·Do you recall this advertisement, ·9· ·Mr. Kwon? 10· · · · A.· · ·I know this. 11· · · · Q.· · ·Did you approve this advertisement, 12· ·Mr. Kwon? 13· · · · A.· · ·Yes, it is. 14· · · · Q.· · ·If I can have you turn to the 15· ·fourth page of this exhibit. 16· · · · · · · ·MR. MUELLER:· Counsel, just for our 17· · · · benefit, I think we might have messed up 18· · · · pages.· Can you just show me what page 4 19· · · · looks like? 20· · · · · · · ·MR. HONG:· It's the same 21· · · · advertisement, but it's on one page? 22· · · · · · · ·MS. JAMES-WEIR:· Page 5. 23· · · · · · · ·MR. HONG:· Page 5.· My apologies. 24· · · · · · · ·MR. MUELLER:· Is it this one, 25· · · · Counselor? Case 2:15-cv-01961-SRC-CLW Document 61-5 Filed 08/06/16 Page 1 of 1 PageID: 326Case 2:15-cv-01961-SRC-CL Docu ent 69-1 Filed 09/19/16 Page 6 of 25 PageID: 975 Jay Hong Declaration Exhibit “B” Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 7 of 25 PageID: 976 ·1· · · · · · · ·MR. MUELLER:· Just note my ·2· · · · objection to form.· You can answer. ·3· · · · · · · ·THE WITNESS:· After I finished with ·4· · · · the 1660, I moved to 87.7. ·5· ·BY MR. HONG: ·6· · · · Q.· · ·Do you recall when that was? ·7· · · · A.· · ·It was January 1, 2015. ·8· · · · Q.· · ·So is it fair to say that from ·9· ·about a few years ago to about January of 2015, 10· ·that was the period in which there was Russian 11· ·programming on 87.7? 12· · · · A.· · ·That's correct.· Monday through 13· ·Friday. 14· · · · Q.· · ·Okay.· What about as to the 15· ·Hispanic programming being on the weekends, do 16· ·you recall when that stopped? 17· · · · A.· · ·About a year and a half ago, I 18· ·stopped subleasing weekend hours and weekday 19· ·night hours; and I used those hours and I bring 20· ·to WWRU and used to support the bad signals. 21· · · · Q.· · ·So approximately 2014 is when you 22· ·started broadcasting the weekend times as well 23· ·as the week nights; is that correct? 24· · · · A.· · ·About 18 months ago, I started it 25· ·until January 2- -- I put all Korean program Case 2:15-cv-01961-SRC-CLW Document 61-6 Filed 08/06/16 Page 1 of 2 PageID: 327Case 2:15-cv-01961-SRC-CL Docu ent 69-1 Filed 09/19/16 Page 8 of 25 PageID: 977 ·1· ·into 87.7 until January 1, 2015.· After I ·2· ·finished with WWRU, I moved all the Korean ·3· ·programs to 87.7 in January 2015. ·4· · · · · · · ·MR. MUELLER:· Mr. Kwon, excuse me, ·5· · · · I know it's difficult, but it may help ·6· · · · move things along if you use the ·7· · · · translator.· I know it's difficult. ·8· ·BY MR. HONG: ·9· · · · Q.· · ·Mr. Kwon, is it -- strike that. 10· · · · · · · ·Is it safe to say that prior to 11· ·January 15 -- strike that. 12· · · · · · · ·Prior to January 2015, KRB did not 13· ·operate on 87.7-FM? 14· · · · A.· · ·I did.· As I explained before, 15· ·Saturday/Sunday, the weekend times, and Monday 16· ·through Friday evening hours, I start at 8 p.m. 17· ·and then later it started 7 p.m. on weekdays. 18· · · · Q.· · ·Just to clarify then, when you 19· ·stated earlier that the Hispanic programming 20· ·was on the week nights, it wasn't always 21· ·Hispanic programming then prior to January 22· ·2015; is that correct? 23· · · · A.· · ·No. 24· · · · Q.· · ·Okay. 25· · · · A.· · ·Before 2015 there is a lot of Case 2:15-cv-01961-SRC-CLW Document 61-6 Filed 08/06/16 Page 2 of 2 PageID: 328Case 2:15-cv-01961-SRC-CL Docu ent 69-1 Filed 09/19/16 Page 9 of 25 PageID: 978 Jay Hong Declaration Exhibit “C” Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 10 of 25 PageID: 979 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 1 of 8 PageID: 318Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 9 0 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 2 of 8 PageID: 319Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 981 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 3 of 8 PageID: 320Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 982 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 4 of 8 PageID: 321Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 983 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 5 of 8 PageID: 322Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 984 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 6 of 8 PageID: 323Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 985 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 7 of 8 PageID: 324Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 986 Case 2:15-cv-01961-SRC-CLW Document 61-4 Filed 08/06/16 Page 8 of 8 PageID: 325Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 1 25 PageID: 987 Jay Hong Declaration Exhibit “D” Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 19 of 25 PageID: 988 ·1· ·question isn't in regards to that. ·2· · · · · · · ·But let me go ahead and rephrase my ·3· ·question so there's no misunderstanding. ·4· ·Because I think some of it we already kind of ·5· ·addressed yesterday. ·6· · · · · · · ·Yesterday when you were reviewing ·7· ·to see if you had any documents in your ·8· ·possession, did you use what was previously ·9· ·marked as Exhibit 4 as to the Amended Notice of 10· ·Deposition of KRB as a reference to looking for 11· ·documents? 12· · · · A.· · ·Because I returned all the -- so 13· ·yesterday I returned after the deposition, I 14· ·don't know what Number 4 is. 15· · · · Q.· · ·In your review of the documents 16· ·that you looked for yesterday, was there any 17· ·corporate documents that you had reviewed or 18· ·looked for? 19· · · · A.· · ·I don't have a corporate document 20· ·at home. 21· · · · Q.· · ·Okay.· So you did not look for 22· ·those corporate documents yesterday; is that 23· ·correct? 24· · · · A.· · ·That's correct. 25· · · · Q.· · ·Mr. Kwon, how does KRB generate Case 2:15-cv-01961-SRC-CLW Document 61-8 Filed 08/06/16 Page 1 of 2 PageID: 330Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 20 5 PageID: 989 ·1· ·income? ·2· · · · A.· · ·The biggest one is advertising ·3· ·revenue.· And other than that, we have a ·4· ·variety of things.· Also, some from concert and ·5· ·golf tournament.· There's a variety of things ·6· ·that generates some income, not a lot, but ·7· ·small, but like things even at the park or ·8· ·providing service for the community, a whole ·9· ·variety of things. 10· · · · Q.· · ·Mr. Kwon, what was KRB's income for 11· ·2013? 12· · · · A.· · ·Can I look at the document that I 13· ·brought? 14· · · · Q.· · ·Yes. 15· · · · A.· · ·Because I cannot remember the 16· ·numbers exactly.· Total ad sales, ad sales 17· ·means new contract for 2013 is 1.975 million. 18· ·2014 new contract is 1.582 million.· So 2014 19· ·sales decreased by $392,000.· It's a 20-percent 20· ·decrease from 2013.· That is why I'm saying the 21· ·weakened signal directly influenced the sales. 22· · · · · · · ·If I add some other codes, maybe 23· ·some other signal like -- of course, ad sales 24· ·in Korean community was decreasing so that 25· ·might cause too.· But if you add the whole Case 2:15-cv-01961-SRC-CLW Document 61-8 Filed 08/06/16 Page 2 of 2 PageID: 331Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 21 5 PageID: 990 Jay Hong Declaration Exhibit “E” Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 22 of 25 PageID: 991 8/3/2016 Legacy Pro Law PC Mail Re: Request for Discovery Extension September dates https://mail.google.com/mail/u/0/?ui=2&ik=96a6e53ab7&view=pt&q=mrbi&qs=true&search=query&th=155c164ca3c74382&siml=155c164ca3c74382&siml=155… 1/3 Jennifer Yoo Re: Request for Discovery Extension September dates 2 messages Jay Hong Wed, Jul 6, 2016 at 11:07 AM To: "JamesWeir, Lauren" Cc: "kimjungsup.esq@gmail.com" , "ginam.lee@legacyprolaw.com" , "Geoffrey D. Mueller" , "Cafferty, Thomas J." , Jennifer Yoo Lauren, Part of our telephonic discussion last time also dealt with whether or not the Defendants would be agreeable to stipulate in allowing Plaintiff to amend its complaint. We had requested, by today, to let us know whether or not this was agreeable. I would appreciate you letting us know by today so that we can respond accordingly. Furthermore, as I had stated previously, neither Plaintiff nor its respective counsel available July 14, 2016. We are however available September 20 and 22. Regards, Jay Hong, Esq. LEGACY PRO LAW, PC 3600 Wilshire Blvd, Suite 1510 Los Angeles, California 90010 Tel: 213.382.8051 | Fax: 866.203.0408 www.LegacyProLaw.com NOTICE: This message and any attachments thereto may contain information from Legacy Pro Law that may be confidential, privileged and/or exempt from disclosure. If you are not the intended recipient, you may not read, copy, distribute, or use this information. If you have received this transmission in error, please notify the sender immediately by reply email and then delete this message. Any inadvertent receipt by you of the information herein is not intended to create a waiver of privilege by this office, its clients, employee and or his/her/its agents. Although Legacy Pro Law takes all reasonable email communications precautions, it is your responsibility to scan this communication including any file attachments for viruses and other defects. To the extent permitted by law, this office shall not be liable for any loss or damage arising in any way from this communication including any file attachments. On Wed, Jul 6, 2016 at 8:11 AM, JamesWeir, Lauren wrote: Jay: You asked for dates in September on which we are available for the deposition of MRBI. Just to be clear, we have consented to your request to the Court for an extension of the July 31, 2016 deadline to complete jurisdictional discovery and the August 31, 2016 deadline for filing briefs on that issue. Our consent is contingent, of course, on the Court granting your request for an extension and the Court staying all other discovery in this matter. Should the Court deny your request, we expect that the appropriate representative from MRBI will appear for his or her deposition on July 14, 2016, as noticed, and that jurisdictional discovery will conclude on July 31, 2016. If the Court grants your request for an extension, then we will consent to an adjournment of MRBI’s deposition to a date in September. The dates on which we ARE NOT available are as follows: Case 2:15-cv-01961-SRC-CLW Document 61-9 Filed 08/06/16 Page 1 of 3 PageID: 332Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 23 25 PageID: 992 8/3/2016 Legacy Pro Law PC Mail Re: Request for Discovery Extension September dates https://mail.google.com/mail/u/0/?ui=2&ik=96a6e53ab7&view=pt&q=mrbi&qs=true&search=query&th=155c164ca3c74382&siml=155c164ca3c74382&siml=155… 2/3 September 2, 5, 13, 14, 15, 21, 28 and 29. We assume that Mr. Mueller will provide his availability as well. Lauren JamesWeir, Esq. Gibbons P.C. One Gateway Center Newark, New Jersey 071025310 Direct Dial: 9735964861 Fax: 9736396253 Ljamesweir@gibbonslaw.com Disclaimer The contents of this message, together with any attachments, may contain information that is legally privileged, confidential and exempt from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, printing, or copying of this message, or any attachment, is strictly prohibited. If you have received this message in error, please notify me immediately by reply email or call the Gibbons P.C. Help Desk at 9735964900 (email: helpdesk@gibbonslaw.com) and delete this message, along with any attachments, from your computer. JamesWeir, Lauren Wed, Jul 6, 2016 at 11:55 AM To: Jay Hong Cc: "kimjungsup.esq@gmail.com" , "ginam.lee@legacyprolaw.com" , "Geoffrey D. Mueller" , "Cafferty, Thomas J." , Jennifer Yoo Jay: Defendants are not willing to spulate to an amendment of the Complaint. Further, the Court entered an Order on January 22, 2016, requiring any moons to amend the pleadings to be filed by 3/31/16. September 20 and 22 are acceptable to defense counsel as potenal dates for the deposion of MRBI. Adjourning the deposion to one of those dates, however, is conngent upon the Court granng your request for an extension of Case 2:15-cv-01961-SRC-CLW Document 61-9 Filed 08/06/16 Page 2 of 3 PageID: 333Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 24 25 PageID: 993 8/3/2016 Legacy Pro Law PC Mail Re: Request for Discovery Extension September dates https://mail.google.com/mail/u/0/?ui=2&ik=96a6e53ab7&view=pt&q=mrbi&qs=true&search=query&th=155c164ca3c74382&siml=155c164ca3c74382&siml=155… 3/3 the jurisdiconal discovery deadlines and staying all other discovery. In light of the fact that there are several unresolved discovery issues and the original deadline for jurisdiconal discovery is approaching, we request that any request for an extension be submi퀀�ed by you to the Court by no later than Friday, July 8, 2016. Lauren James‐Weir, Esq. Gibbons P.C. One Gateway Center Newark, New Jersey 07102‐5310 Direct Dial: 9735964861 Fax: 9736396253 Ljamesweir@gibbonslaw.com From: Jay Hong [mailto:jhong@lawlpl.com] Sent: Wednesday, July 06, 2016 2:07 PM To: JamesWeir, Lauren Cc: kimjungsup.esq@gmail.com; ginam.lee@legacyprolaw.com; Geoffrey D. Mueller; Cafferty, Thomas J.; Jennifer Yoo Subject: Re: Request for Discovery Extension September dates [Quoted text hidden] Disclaimer The contents of this message, together with any attachments, may contain information that is legally privileged, confidential and exempt from disclosure. If you are not the intended recipient, you are hereby notified that any dissemination, distribution, printing, or copying of this message, or any attachment, is strictly prohibited. If you have received this message in error, please notify me immediately by reply email or call the Gibbons P.C. Help Desk at 973 5964900 (email: helpdesk@gibbonslaw.com) and delete this message, along with any attachments, from your computer. logo.jpg 7K Case 2:15-cv-01961-SRC-CLW Document 61-9 Filed 08/06/16 Page 3 of 3 PageID: 334Case 2:15-cv-01961-SRC-CLW Document 69-1 Filed 09/19/16 Page 25 25 PageID: 994