In the case of In re Michael Stapleton Assocs. v. Michael Stapleton Assocs., 2018 U.S. Dist. LEXIS 140310 (S.D.N.Y. Aug. 17, 2018), the Court dismissed a plaintiff’s case with prejudice because the plaintiffs failed to follow the Judge’s Individual Practices. The Judge assigned to this case has a specific rule addressing motions to dismiss, which is as follows:
“When a motion to dismiss is filed, the non-moving party must, within 10 days of receipt of the motion, notify the Court and its adversary in writing whether (i) it intends to file an amended pleading and when it will do so, or (ii) it will rely on the pleading being attacked. Non-moving parties are on notice that declining to amend their pleadings to timely respond to a fully briefed argument in the motion to dismiss may well constitute a waiver of their right to use the amendment process to cure any defects that have been made apparent by the briefing.” Individual Rules of the Honorable Alison J. Nathan, Rule 3(F).
Here, after more than one year of litigation, which included class and collective notices going out to employees who handled bomb-sniffing dogs, the defendants moved to dismiss alleging that the Complaint failed to properly alleged that the defendants in the action were “employers” under the FLSA. In their opposition to the motion, the plaintiffs requested leave to amend their Complaint. However, based on the plaintiffs’ failure to abide by the Individual Rules by advising within 10 days whether it was going to amend the Complaint, the Court held that the plaintiffs were barred from seeking an amendment and dismissed the Complaint with prejudice.
This shows the importance of reading and knowing the Judge’s individual rules assigned to any case you may be handling.