Page 1 Case 1:24-cv-04832-PAE
Document
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
Greenlight Capital, Inc., DME Capital
:
Management, LP,
:
:
Plaintiffs,
:
:
– against –
:
:
James T. Fishback,
:
:
Defendant.
:
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Filed 08/26/
Page 1 of
Case No.: 24-cv-04832-PAE
ORAL ARGUMENT
REQUESTED
DEFENDANT JAMES T. FISHBACK’S NOTICE OF MOTION TO DISMISS, TO
COMPEL ARBITRATION, AND TO STRIKE
PLEASE TAKE NOTICE that Defendant James T. Fishback, through his undersigned
attorneys, will move this Court before the Honorable Paul A. Engelmayer, at the Thurgood
Marshall United States Courthouse for the Southern District of New York, 40 Foley Square, New
York, NY 10007 on a date and at a time to be designated by the Court, for an Order:
1. Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissing Plaintiffs’ second
cause of action (unfair competition), third cause of action (tortious interference with
prospective economic advantage), and fourth cause of action (defamation and
defamation per se);
2. Pursuant to the Federal Arbitration Act, compelling arbitration of any causes of
action that are not dismissed under the arbitration clause in the Parties’
Employment Agreement;
3. Pursuant to Federal Rule of Civil Procedure 12(f), striking allegations in the
Complaint that are irrelevant, immaterial, impertinent, and salacious; and Page 2 Case 1:24-cv-04832-PAE
Document
Filed 08/26/
Page 2 of
4. Granting to Mr. Fishback such other and further relief as the Court deems just and
proper.
This motion is supported by the Declaration of Mr. Fishback, dated August 25, 2024, and
the exhibit attached thereto, the Declaration of Justin T. Kelton, dated August 26, 2024, and the
exhibits attached thereto, and Mr. Fishback’s Memorandum of Law, dated August 26, 2024.
PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 6.1(b), any opposing or
response papers must be served within fourteen days of the service of these motion papers; and
PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 6.1(b), any reply papers will
be served within seven days after service of the answering papers; and
PLEASE TAKE NOTICE that Oral Argument is requested.
Dated:
Brooklyn, New York
August 26, Respectfully submitted,
ABRAMS FENSTERMAN, LLP
/s/ Justin T. Kelton
Justin T. Kelton
Amanda P. Small
1 MetroTech Center, Suite Brooklyn, NY Tel: (718) 215-Fax: (718) 215-Email: jkelton@abramslaw.com
Email: asmall@abramslaw.com
Counsel for Mr. Fishback
PDF Page 1
PlainSite Cover Page
PDF Page 2
Case 1:24-cv-04832-PAE
Document 10
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------------------------------X
Greenlight Capital, Inc., DME Capital
:
Management, LP,
:
:
Plaintiffs,
:
:
– against –
:
:
James T. Fishback,
:
:
Defendant.
:
---------------------------------------------------------------X
Filed 08/26/24
Page 1 of 2
Case No.: 24-cv-04832-PAE
ORAL ARGUMENT
REQUESTED
DEFENDANT JAMES T. FISHBACK’S NOTICE OF MOTION TO DISMISS, TO
COMPEL ARBITRATION, AND TO STRIKE
PLEASE TAKE NOTICE that Defendant James T. Fishback, through his undersigned
attorneys, will move this Court before the Honorable Paul A. Engelmayer, at the Thurgood
Marshall United States Courthouse for the Southern District of New York, 40 Foley Square, New
York, NY 10007 on a date and at a time to be designated by the Court, for an Order:
1. Pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissing Plaintiffs’ second
cause of action (unfair competition), third cause of action (tortious interference with
prospective economic advantage), and fourth cause of action (defamation and
defamation per se);
2. Pursuant to the Federal Arbitration Act, compelling arbitration of any causes of
action that are not dismissed under the arbitration clause in the Parties’
Employment Agreement;
3. Pursuant to Federal Rule of Civil Procedure 12(f), striking allegations in the
Complaint that are irrelevant, immaterial, impertinent, and salacious; and
1
PDF Page 3
Case 1:24-cv-04832-PAE
Document 10
Filed 08/26/24
Page 2 of 2
4. Granting to Mr. Fishback such other and further relief as the Court deems just and
proper.
This motion is supported by the Declaration of Mr. Fishback, dated August 25, 2024, and
the exhibit attached thereto, the Declaration of Justin T. Kelton, dated August 26, 2024, and the
exhibits attached thereto, and Mr. Fishback’s Memorandum of Law, dated August 26, 2024.
PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 6.1(b), any opposing or
response papers must be served within fourteen days of the service of these motion papers; and
PLEASE TAKE NOTICE that, pursuant to Local Civil Rule 6.1(b), any reply papers will
be served within seven days after service of the answering papers; and
PLEASE TAKE NOTICE that Oral Argument is requested.
Dated:
Brooklyn, New York
August 26, 2024
Respectfully submitted,
ABRAMS FENSTERMAN, LLP
/s/ Justin T. Kelton
Justin T. Kelton
Amanda P. Small
1 MetroTech Center, Suite 1701
Brooklyn, NY 11201
Tel: (718) 215-5300
Fax: (718) 215-5304
Email: jkelton@abramslaw.com
Email: asmall@abramslaw.com
Counsel for Mr. Fishback
2