Empery Tax Efficient, LP v. MusclePharm Corporation et al
| Empery Tax Efficient, LP |
| MusclePharm Corporation, White Winston Select Asset Funds, LLC, White Winston Select Asset Fund Series MP-18 and Ryan Drexler |
| 1:2023cv00074 |
| January 5, 2023 |
| US District Court for the Southern District of New York |
| Victor Marrero |
| Contract: Other |
| 28 U.S.C. § 1446 nr Notice of Removal |
| None |
Docket Report
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This docket was last retrieved on March 21, 2023. A more recent docket listing may be available from PACER.
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Filing 36
ORDER terminating #35 Letter Motion for Conference re: #35 LETTER MOTION for Conference addressed to Judge Victor Marrero from Stephen A. Fogdall dated 01/31/2023. The contempt motion hearing for violation of a temporary restraining order in the above-captioned matter, currently scheduled for February 17, 2023, is hereby adjourned to a date to be set, if necessary, after the pending motion to remand (see Dkt. No. 21) is decided. SO ORDERED. (Signed by Judge Victor Marrero on 2/15/2023) (tg)
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Filing 35
LETTER MOTION for Conference addressed to Judge Victor Marrero from Stephen A. Fogdall dated 01/31/2023. Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC..(Fogdall, Stephen)
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Filing 34
ORDER granting #31 LETTER MOTION to Adjourn Conference /Hearing Scheduled January 26, 2023. On January 24, 2023, plaintiff Empery Tax Efficient, LP ("Plaintiff") filed a letter requesting an adjournment of the hearing on Plaintiff's contempt motion. (See Dkt. No. 31.) That same day, defendants White Winston Select Asset Funds, LLC and White Winston Select Asset Fund Series MP-18, LLC and defendant Ryan Drexler filed letters opposing Plaintiff's request for an adjournment. (See Dkt. Nos. 32, 33.) Having reviewed the parties' letters, the Court hereby adjourns the hearing on Plaintiff's contempt motion, currently scheduled for January 26, 2023, until February 17, 2023 at 10:00 a.m. SO ORDERED.. (Signed by Judge Victor Marrero on 1/25/2023) (jca)
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Set/Reset Deadlines as to Motion Hearing set for 2/17/2023 at 10:00 AM before Judge Victor Marrero. (jca)
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Filing 33
LETTER addressed to Judge Victor Marrero from Michael P. Richman dated January 24, 2023 re: Opposition to Empery Tax Efficient, LP's Request for Adjournment. Document filed by Ryan Drexler..(Richman, Michael)
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Filing 32
LETTER RESPONSE in Opposition to Motion addressed to Judge Victor Marrero from Stephen A. Fogdall dated 01/24/2023 re: #31 LETTER MOTION to Adjourn Conference /Hearing Scheduled January 26, 2023 addressed to Judge Victor Marrero from Gayle R. Klein dated January 24, 2023. . Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC..(Fogdall, Stephen)
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Filing 31
LETTER MOTION to Adjourn Conference /Hearing Scheduled January 26, 2023 addressed to Judge Victor Marrero from Gayle R. Klein dated January 24, 2023. Document filed by Empery Tax Efficient, LP..(Klein, Gayle)
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Filing 30
LETTER addressed to Judge Victor Marrero from Gayle R. Klein dated January 20, 2023 re: Reply to Defendants' Opposition to Remand. Document filed by Empery Tax Efficient, LP..(Klein, Gayle)
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Filing 29
ORDER FOR ADMISSION PRO HAC VICE granting #26 MOTION for Stephen Andrew Fogdall to Appear Pro Hac Vice. The motion of Stephen A. Fogdall, for admission to practice Pro Hae Vice in the above captioned action is granted. (Signed by Judge Victor Marrero on 1/20/2023) (jca)
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Filing 28
LETTER addressed to Judge Victor Marrero from Michael P. Richman dated January 19, 2023 re: Response to Empery Tax Efficient, LP's Request for Remand. Document filed by Ryan Drexler..(Richman, Michael)
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Filing 27
LETTER addressed to Judge Victor Marrero from Cynthia A. Murray dated 1/19/2023 re: In Response to Plaintiff Empery Tax Efficient, LP's Request for Remand. Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC..(Murray, Cynthia)
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>>>NOTICE REGARDING PRO HAC VICE MOTION. Regarding Document No. #26 MOTION for Stephen Andrew Fogdall to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff.. The document has been reviewed and there are no deficiencies. (sgz)
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Filing 26
MOTION for Stephen Andrew Fogdall to Appear Pro Hac Vice . Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC. (Attachments: #1 Affidavit Affidavit of Stephen A. Fogdall, #2 Text of Proposed Order Proposed Order Granting Admission PHV).(Fogdall, Stephen)
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>>>NOTICE REGARDING DEFICIENT MOTION TO APPEAR PRO HAC VICE. Notice to RE-FILE Document No. #25 MOTION for Stephen Andrew Fogdall to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-27212416. Motion and supporting papers to be reviewed by Clerk's Office staff. The filing is deficient for the following reason(s): missing Certificate of Good Standing from Commonwealth of Pennsylvania and the District of Columbia. Re-file the motion as a Motion to Appear Pro Hac Vice - attach the correct signed PDF - select the correct named filer/filers - attach valid Certificates of Good Standing issued within the past 30 days - attach Proposed Order. (sac)
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Filing 25
FILING ERROR - DEFICIENT DOCKET ENTRY MOTION for Stephen Andrew Fogdall to Appear Pro Hac Vice . Filing fee $ 200.00, receipt number ANYSDC-27212416. Motion and supporting papers to be reviewed by Clerk's Office staff. Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC. (Attachments: #1 Affidavit Affidavit of Stephen A. Fogdall, #2 Text of Proposed Order Proposed Order Granting Admission PHV).(Fogdall, Stephen) Modified on 1/18/2023 (sac).
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Filing 24
ORDER Upon the request of the parties, the Court hereby adjourns the show cause hearing on Plaintiffs request for injunctive relief, currently scheduled for January 26, 2023. However, the hearing on Plaintiff's contempt motion, also set for January 26, 2023 at 11:00 a.m., will proceed as scheduled. Further, upon the request of the parties, the Court will consider and decide Plaintiff's motion for remand to the Supreme Court of New York, New York County prior to considering defendant Ryan Drexler's anticipated motion to transfer venue. The Court hereby approves the proposed briefing schedule on Plaintiff's motion for remand. Plaintiff shall file its three-page letter motion for remand on January 16, 2023. Defendants shall respond via three-page letter by January 19, 2023, and Plaintiff may file a one-page reply by January 20, 2023. The Court will not take further action regarding Plaintiffs request for limited expedited discovery on its contempt motion until the motion for remand is decided. SO ORDERED. (Motions due by 1/16/2023., Replies due by 1/20/2023., Responses due by 1/19/2023) (Signed by Judge Victor Marrero on 1/17/2023) (jca)
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Filing 23
LETTER addressed to Judge Victor Marrero from Gayle R. Klein dated January 17, 2023 re: Rule II.B.1 Request for Remand. Document filed by Empery Tax Efficient, LP..(Klein, Gayle)
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Filing 22
JOINT LETTER addressed to Judge Victor Marrero from Gayle R. Klein dated January 17, 2023 re: Court Order, dated January 11, 2023. Document filed by Empery Tax Efficient, LP..(Klein, Gayle)
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Set/Reset Deadlines as to Motion Hearing set for 1/26/2023 at 11:00 AM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Victor Marrero. (jca)
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Filing 21
FILING ERROR - DEFICIENT DOCKET ENTRY - (SEE DOCUMENT#23) LETTER addressed to Judge Victor Marrero from Gayle R. Klein dated January 16, 2023 re: Rule II.B.1 Motion for Remand. Document filed by Empery Tax Efficient, LP..(Klein, Gayle) Modified on 1/17/2023 (lb).
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Filing 20
FILING ERROR - DEFICIENT DOCKET ENTRY - (SEE DOCUMENT#22) JOINT LETTER addressed to Judge Victor Marrero from Gayle R. Klein dated January 16, 2023 re: Court Order, dated January 11, 2023. Document filed by Empery Tax Efficient, LP..(Klein, Gayle) Modified on 1/17/2023 (lb).
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Filing 19
NOTICE OF VOLUNTARY DISMISSAL WITHOUT PREJUDICE PLEASE TAKE NOTICE that, pursuant to FRCP 41(a)(1) (A)(i), Plaintiff Empery Tax Efficient, LP, by and through its attorneys, Schulte Roth & Zabel LLP, hereby dismisses the above-captioned action as to Defendant MusclePharm Corporation only without prejudice to refiling same. SO ORDERED. MusclePharm Corporation terminated. (Signed by Judge Victor Marrero on 1/13/2023) (jca)
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Filing 18
AMENDED COMPLAINT amending #17 Amended Complaint, against Ryan Drexler, White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC.Document filed by Empery Tax Efficient, LP. Related document: #17 Amended Complaint,..(Klein, Gayle)
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***NOTICE TO ATTORNEY REGARDING DEFICIENT PLEADING. Notice to Attorney Gayle Rosenstein Klein to RE-FILE Document No. #17 Amended Complaint. The filing is deficient for the following reason(s): not all of the party/parties whom the pleading is against were selected. Re-file the pleading using the event type Amended Complaint found under the event list Complaints and Other Initiating Documents - attach the correct signed PDF - select the individually named filer/filers - select the individually named party/parties the pleading is against. (vf)
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***NOTICE TO COURT REGARDING NOTICE OF VOLUNTARY DISMISSAL Document No. #16 Notice of Voluntary Dismissal, was reviewed and referred to Judge Victor Marrero for approval for the following reason(s): the plaintiff(s) filed their voluntary dismissal and it did not dismiss all of the parties or the action in its entirety. (tp)
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Filing 17
FILING ERROR - DEFICIENT PLEADING - FILED AGAINST PARTY ERROR - AMENDED COMPLAINT against Ryan Drexler, White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC.Document filed by Empery Tax Efficient, LP..(Klein, Gayle) Modified on 1/12/2023 (vf).
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Filing 16
NOTICE OF VOLUNTARY DISMISSAL pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure, the plaintiff(s) and or their counsel(s), hereby give notice that the above-captioned action is voluntarily dismissed, without prejudice and without costs against the defendant(s) MusclePharm Corporation. Document filed by Empery Tax Efficient, LP. Proposed document to be reviewed and processed by Clerk's Office staff (No action required by chambers)...(Klein, Gayle)
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Filing 15
RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC..(Murray, Cynthia)
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Filing 14
NOTICE OF APPEARANCE by Hannah Margaret Thibideau on behalf of Empery Tax Efficient, LP..(Thibideau, Hannah)
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Filing 13
NOTICE OF APPEARANCE by Andrew David Gladstein on behalf of Empery Tax Efficient, LP..(Gladstein, Andrew)
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Filing 12
RULE 7.1 CORPORATE DISCLOSURE STATEMENT. No Corporate Parent. Document filed by Empery Tax Efficient, LP..(Klein, Gayle)
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Filing 11
NOTICE OF APPEARANCE by Gayle Rosenstein Klein on behalf of Empery Tax Efficient, LP..(Klein, Gayle)
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Filing 10
ORDER Having reviewed the filings, the Court hereby defers consideration of Plaintiff's request for injunctive relief until Drexler's Motion to Transfer Venue has been filed and adjudicated. The parties are hereby ordered to submit a briefing schedule for the Motion to Transfer Venue within three (3) days of the date of this Order. Additionally, pursuant to Rule 65(b) of the Federal Rules of Civil Procedure, the temporary restraining order currently in place (see Dkt. No. 1-2) shall be extended fourteen (14) days from the date it is set to expire in order to allow Drexler to file, and the Court to adjudicate, the Motion to Transfer Venue. The Court may extend the restraining order should additional time be needed to consider the motion. At this time, the show cause hearing currently scheduled for January 12, 2023 is hereby adjourned until January 26, 2023 at 11:00 a.m. in Courtroom 15B of the United States Courthouse, 500 Pearl Street, New York, New York 10007. Likewise, the hearing on Plaintiff's Order to Show Cause for Contempt for Violation of the Temporary Restraining Order, currently scheduled for January 17, 2023, is hereby adjourned until January 26, 2023 at 11:00 a.m. SO ORDERED. Show Cause Hearing set for 1/26/2023 at 11:00 AM in Courtroom 15B, 500 Pearl Street, New York, NY 10007 before Judge Victor Marrero. (Signed by Judge Victor Marrero on 1/11/2023) (jca)
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Filing 9
OPPOSITION BRIEF . Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC. (Attachments: #1 Affidavit Declaration of Todd M. Enright in Opposition to Plaintiff's Order to Show Cause for Contempt, #2 Exhibit A - 12-16-2022 Empery Proposed Term Sheet DIP Financing, #3 Exhibit B - 12-19-2022 White Winston Term Sheet DIP Financing, #4 Exhibit C - 01-03-2023 Debtor Motion for Approval for DIP Financing, #5 Exhibit D - 01-06-2023 Debtor Notice of Proposed Term Sheet for DIP Financing, #6 Affidavit Declaration of Cynthia A. Murray, Esq. in Opposition to Plaintiff's Order to Show Cause for Contempt, #7 Exhibit 1 - 12-15-2022 Order to Show Cause (signed), #8 Exhibit 2 - 12-15-2022 MusclePharm Corp. Voluntary Bankruptcy Petition).(Murray, Cynthia)
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Filing 8
OPPOSITION BRIEF . Document filed by White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC. (Attachments: #1 Affidavit Declaration of Todd M. Enright in Opposition to Plaintiff's Order to Show Cause for a TRO and Preliminary Injunction, #2 Exhibit A - Massachusetts Complaint, #3 Exhibit B - Disclosure Schedule 3.1(j) to Am. & Restated Securities Purchase Agreement, #4 Exhibit C - Settlement Agreement, #5 Affidavit Declaration of Cynthia A. Murray, Esq. in Opposition to Plaintiff's Order to Show Cause for a TRO and Preliminary Injunction, #6 Exhibit 1 - Excerpts from 12-15-2022 Transcript of OTSC Hearing, #7 Exhibit 2 - OTSC (signed)).(Murray, Cynthia)
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Filing 7
NOTICE OF APPEARANCE by Cynthia Agnes Murray on behalf of White Winston Select Asset Fund Series MP-18, White Winston Select Asset Funds, LLC..(Murray, Cynthia)
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Filing 6
OPPOSITION BRIEF - Memorandum of Law in Opposition to Plaintiff's Order to Show Cause for Contempt for Violation of Temporary Restraining Order. Document filed by Ryan Drexler..(Richman, Michael)
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Filing 5
STATE COURT RECORDS AND PROCEEDINGS PURSUANT TO LOCAL RULE 81. Document filed by Ryan Drexler. (Attachments: #1 Supplement 1 - Summons & Complaint, #2 Supplement 3 - Memorandum of Law in Support of Plaintiff's Order to Show Cause for a Temporary Restraining Order and Preliminary Injunction, #3 Supplement 4 - Affidavit of Timothy Silver, #4 Supplement 5 - Exhibit 1: Amended & Restated SPA, #5 Supplement 6 - Exhibit 2: October Note, #6 Supplement 7 - Exhibit 3: Security Agreement, #7 Supplement 8 - Exhibit 4: June Note, #8 Supplement 9 - Exhibit 5: Settlement Agreement, #9 Supplement 10 - Exhibit 6: Disclosure Schedules, #10 Supplement 11 - Exhibit 7: Form 10-Q, #11 Supplement 12 - Affirmation of Gayle R. Klein, #12 Supplement 13 - Request for Judicial Intervention, #13 Supplement 14 - Addendum: Commercial Division (840C), #14 Supplement 15 - Proposed Order to Show Cause with Temporary Restraining Order, #15 Supplement 16 - Order to Show Cause with Temporary Restraining Order, #16 Supplement 17 - Notice of Entry, #17 Supplement 18 - Notice of Suggestion of Bankruptcy for MusclePharm Corporation and Stay of Proceedings, #18 Supplement 19 - Affirmation of Service re Commencement Documents, #19 Supplement 20 - Proposed Order to Show Cause for Contempt for Violation of Temporary Restraining Order (Motion #002), #20 Supplement 21 - Memorandum of Law in Support of Plaintiff's Order to Show Cause for Contempt for Violation of Temporary Restraining Order, #21 Supplement 22 - Affidavit of Timothy Silver in Support of Order to Show Cause for Contempt for Violation of Temporary Restraining Order, #22 Supplement 23 - Exhibit 1: Letter sent by Mill Haven to MusclePharm, dated November 23, 2022, #23 Supplement 24 - Exhibit 2: Letter sent by Mill Haven to MusclePharm, dated November 29, 2022, #24 Supplement 25 - Exhibit 3: Letter from JW Nutritional to MusclePharm, dated November 9, 2022, #25 Supplement 26 - Exhibit 4: Email to the MusclePharm Board, dated November 28, 2022, #26 Supplement 27 - Exhibit 5: Email conversation between Enright, EAM Principal Ryan Lane, Timothy Silver and others, #27 Supplement 28 - Exhibit 6: MusclePharm's Bankruptcy Petition, #28 Supplement 29 - Exhibit 7: Article dated December 16, 2022 posted on NUTRAingredients-usa.com, #29 Supplement 30 - Exhibit 8: December 19, 2022 DIP Proposal, #30 Supplement 31 - Exhibit 9: December 24, 2022 Revised DIP Proposal, #31 Supplement 32 - Exhibit 10: Loss Calculation, #32 Supplement Affirmation of Gayle R. Klein in Support of Order to Show Cause for Contempt for Violation of Temporary Restraining Order, #33 Supplement 34 - Exhibit 1: Email to Stephen Fogdall and Gavin Shryver, sent on December 15, 2022 at 3:04PM, #34 Supplement 35 - Exhibit 2: Email to Stephen Fogdall and Gavin Shryver, sent on December 15, 2022 at 3:32PM, #35 Supplement 36 - Exhibit 3: Email received from Stephen Fogdall, which copied Gavin Schryver, on December 15, 2022 at 3:47PM, #36 Supplement 37 - Exhibit 4: Second Amended and Restated By-Laws of MusclePharm Corporation, #37 Supplement 38 - Exhibit 5: December 20, 2022 email exchange, #38 Supplement 39 - Order to Show Cause for Contempt for Violation of Temporary Restraining Order, #39 Supplement 40 - Notice of Entry, #40 Supplement 41 - Order to Show Cause (Admission Pro Hac Vice), #41 Supplement 42 - Affirmation of Cynthia A. Murray in Support of Pro Hac Vice Motion, #42 Supplement 43 - Affidavit of Stephen A. Fogdall, Esq. in Support of Motion for Admission Pro Hac Vice, #43 Supplement 44 - Exhibit A: Certificate of Good Standing (S. Fogdall), #44 Supplement 45 - (Proposed) Order for Admission Pro Hace Vice, #45 Supplement 46 - Stipulation Extending Time for White Winston Defendants to Answer, #46 Supplement 47 - Notice of Removal, #47 Supplement 48 - Exhibit A: Summons & Complaint, #48 Supplement 49 - Exhibit B: Temporary Restraining Order, #49 Supplement 50 - Exhibit C: Voluntary Petition for Relief, #50 Supplement 51 - Exhibit D: Affirmation of Service).(Richman, Michael)
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Filing 4
CERTIFICATE OF SERVICE of Ryan Drexler's (1) Notice of Removal with Exhibits A through D and (2) Notice of Preliminary Opposition to Empery Tax Efficient, LP's Request for Temporary Restraining Order and Preliminary Injunction served on Empery Tax Efficient, LP (c/o Gayle R. Klein, Andrew D. Gladstein & Hannah M. Thibideau as its counsel); White Winston Select Asset Funds, LLC and White Winston Select Asset Fund Series MP-18 (c/o Cynthia A. Murray and Stephen Fogdall as their counsel) on 1/5/2023 (email) and 1/6/2023 (mail). Service was made by Mail and E-Mail (see Certificate of Service for details). Document filed by Ryan Drexler..(Richman, Michael)
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Filing 3
CIVIL COVER SHEET filed..(Richman, Michael)
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CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge Victor Marrero. Please download and review the Individual Practices of the assigned District Judge, located at #https://nysd.uscourts.gov/judges/district-judges. Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at #https://nysd.uscourts.gov/rules/ecf-related-instructions..(gp)
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Magistrate Judge James L. Cott is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: #https://nysd.uscourts.gov/sites/default/files/2018-06/AO-3.pdf. (gp)
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Case Designated ECF. (gp)
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***NOTICE TO ATTORNEY TO ELECTRONICALLY FILE CIVIL COVER SHEET. Notice to Attorney Michael Paul Richman. Attorney must electronically file the Civil Cover Sheet. Use the event type Civil Cover Sheet found under the event list Other Documents. (gp)
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Filing 2
NOTICE of Preliminary Opposition to Empery Tax Efficient, LPs Requests for Temporary Restraining Order and Preliminary Injunction. Document filed by Ryan Drexler..(Richman, Michael)
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Filing 1
NOTICE OF REMOVAL from Supreme Court, County of New York. Case Number: 654789/2022. (Filing Fee $ 402.00, Receipt Number ANYSDC-27164512).Document filed by Ryan Drexler. (Attachments: #1 Exhibit A - Summons & Complaint, #2 Exhibit B - Temporary Restraining Order, #3 Exhibit C - Voluntary Petition for Relief, #4 Exhibit D - Affirmation of Service).(Richman, Michael)
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