Rice v. Schaefer et al

Filing 4

ORDER: See annexed order, regarding Rule 4(m). Ordered by Magistrate Judge Peggy Kuo on 5/11/2017. (Copy of order mailed to pro se Plaintiff.) (Syed, Sofie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-----------------------------------------------------------X
JAMIE RICE,
Plaintiff,
ORDER
17-CV-2782 (RRM) (PK)

- against RANDY J. SCHAEFER, ESQ., THE MARGOLIN
& WEINREB LAW GROUP, LLP, GUSTAVIA
HOME, LLC, JARED DOTOLI, CROSBY
CAPTIAL USA and YONEL DEVICO,
Defendants.
-----------------------------------------------------------X
Peggy Kuo, United States Magistrate Judge:

The Honorable Roslynn R. Mauskopf, United States District Judge, has assigned this case to
me for all pretrial purposes. Enclosed is a copy of the “Individual Practices of Magistrate Judge Peggy
Kuo.”
The Court’s records reflect that the complaint in this action was filed on May 8, 2017. Rule
4(m) of the Federal Rules of Civil Procedure provides:
If a defendant is not served within 90 days after the
complaint is filed, the court – on motion or on its own
after notice to the plaintiff – must dismiss the action
without prejudice against that defendant or order that
service be made within a specified time. But if the
plaintiff shows good cause for the failure, the court
must extend the time for service for an appropriate
period.
Plaintiff shall promptly advise the Court once the defendants have been served. Accordingly,
if service is not made upon defendants by August 7, 2017, or plaintiff fails to show good cause why
such service has not been effected, it will be recommended that the Court dismiss this action without
prejudice.

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Plaintiff is required to advise the Clerk of Court of any change of address. Failure to keep the
Court informed of plaintiff’s current address means the Court will not know where to contact plaintiff
and may result in dismissal of the case. For information regarding court procedures, plaintiff may
contact the Pro Se Office at the United States Courthouse by calling [phone].
SO ORDERED.
Dated: Brooklyn, New York
May 11, 2017

Peggy Kuo
PEGGY KUO
United States Magistrate Judge

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Individual Practice Rules of

MAGISTRATE JUDGE PEGGY KUO
Effective November 14, 2016
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201
718.613.2400
Courtroom 11C South
Courtroom Deputy -- Claudia Riquelme: 718.613.2404

I.

Communications with Chambers
A. Written Communications
All communications with Chambers must be through electronic filing on ECF. (For
more information on ECF, see Section II below.) In emergency situations requiring
immediate attention, telephone calls to alert the Court to a filing are permitted.
B. Telephone Calls
Telephone calls to Chambers are not permitted except when immediate attention is
required.
C. Faxes
Faxes are not permitted except with the prior permission of Chambers.
D. E-mail
E-mails are permitted only for sending confidential settlement statements to
Chambers, or as otherwise directed by the Court.

II.

Case Filings
A.

Mandatory Electronic Case Filing (ECF)
1.

Counsel must file all documents via the Court’s Electronic Case Filing system
(ECF). If you are encountering difficulties using ECF, call the ECF Help
Desk at 718.613.2312 for assistance. Do not call Chambers.

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2.

Orders and other notices from the Court will be posted via ECF. Only parties
registered for ECF or attorneys who have filed a Notice of Appearance in a
particular case will receive notifications. No notifications will be sent to
anyone who has not entered an appearance in a case.

3.

Filing procedures for pro se cases
a. Pro se litigants are not required to file on ECF but must follow
instructions from the Clerk’s Office on how to communicate with the
Court. Pro se litigants must keep current contact information on file
with the Court, or risk dismissal of claims or other sanctions.
b. Counsel in cases involving pro se litigants must send copies of all
documents filed on ECF to the pro se party.
c. Court orders will be provided to pro se litigants by U.S. mail.
d. All pro se litigants and represented parties in cases involving pro se
litigants are directed to the relevant Local Civil Rules, including 7.2,
12.1, 33.2, and 56.2.

B.

Sealing of Submissions
Motions for leave to file documents under seal must be filed via ECF in accordance
with the EDNY’s instructions for electronically filing sealed documents. The
proposed sealed document(s) must be attached to the motion for leave to file under
seal. Instructions for filing sealed documents in civil cases are at:
https://img.nyed.uscourts.gov/files/forms/EfilingSealedCV.pdf. Instructions for
filing sealed documents in criminal cases are at:
https://img.nyed.uscourts.gov/files/forms/EfilingSealedCR.pdf.
For instructions on submitting confidential settlement statements, see “Settlement
Conferences,” at Section III (B) below.

C.

Courtesy Copies or Other Correspondence
Do not submit courtesy copies unless asked to do so by the Court. Copies of
correspondence between or among counsel should not be sent to Chambers or filed
via ECF.

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III.

Conferences
A. Initial Conferences
The parties must comply with the Initial Conference Order. At least five (5)
business days before the Initial Conference, the parties must meet and
confer, exchange initial disclosures, complete the Rule 26(f) Conference
Checklist (https://www.nyed.uscourts.gov/pub/PK-confcl.pdf) and complete
the proposed Initial Scheduling Order
(https://www.nyed.uscourts.gov/pub/PK-schedo.pdf). Parties must be
prepared to give an overview of the facts and issues of the case at the Initial
Conference, discuss the dates in the proposed Initial Scheduling Order, and
outline the anticipated discovery.
B.

Settlement Conferences
1.

2.

The parties must exchange an offer and demand before the Settlement
Conference.

3.

C.

Each party, or someone with settlement authority for each party (other than
counsel), must be present at the conference unless prior permission has been
granted to be available by telephone.

Confidential ex parte settlement statements must be e-mailed to Chambers
([e-mail]) at least ten (10) days before the
conference, except as otherwise directed by the Court. Each settlement
statement must contain the last offer or demand made, a realistic assessment
of the strengths and weaknesses of the case, and a description of the interests
of the party (if different from the party’s positions).

Requests to Adjourn or Otherwise Change a Conference
1.

All requests for adjournment of a court date or other changes (such as a
request to appear by telephone) must be made by letter and filed via ECF as a
“Motion.”

2.

Each request must state:
a. the original date of the conference (if for an adjournment) and the number
of previous requests;
b. the reason for the request; and

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c. whether the other parties consent to the request, and, if not, the reasons
given for not consenting;
or
if the other parties could not be reached for input, efforts made to reach
those parties.
3.
4.

IV.

If a requested adjournment affects any other scheduled dates or deadlines, a
proposed Revised Scheduling Order must be attached.
Absent an emergency, requests must be made at least two (2) business days
prior to the conference. Under no circumstances should counsel make a
request for adjournment by telephone. (Counsel may, however, call the
Court’s attention to a last-minute emergency request after it is filed on ECF.)

Extensions of Time
A.

All requests for an extension of time to file or respond by a court-imposed deadline
must be made by letter and filed via ECF as a “Motion.”

B.

Each request must state:
1.

the original deadline;

2.

the reason for the request;

3.

the number of previous requests; and

4.

whether the other parties consent, and, if not, the reasons given for not
consenting.

C.

If a requested extension affects any other scheduled dates or deadlines, a proposed
Revised Scheduling Order must be attached, and the requesting party should also
request to adjourn any scheduled conferences believed to be affected.

D.

Absent an emergency, requests must be made at least two (2) business days prior
to the deadline for which an extension is sought.

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V.

Motions
A.

Non-Dispositive Motions
All non-dispositive pretrial motions, including discovery motions, are to be made
to the Magistrate Judge, unless otherwise specifically ordered.
1.

Discovery Motions
a. All requests for judicial intervention in discovery disputes must be made
by letter and filed via ECF as a “Motion.”
b. Counsel are required to discuss their disputes with one another in person
or by telephone before seeking judicial intervention. Local Civil Rule
37.3(a).
c. Discovery motions and responses must not exceed three (3) pages each
absent prior permission of the Court. Local Civil Rule 37.3(c).
d. A pre-motion conference with the Court is not required before making a
discovery motion.
e. If the motion involves interrogatories, document requests, or requests for
admissions, copies of the disputed requests and responses should be
annexed.
f. Response letters must be filed within five (5) business days after a letter
motion is filed. Submissions are limited to the movant’s letter and the
response letter; unauthorized replies will not be considered.

2.

Non-Discovery Motions
a. No pre-motion conference with the Court is required before making nondispositive non-discovery motions.
b. Responses in opposition to a motion must be filed within ten (10)
business days after the motion is filed. Replies must be filed within five
(5) business days after the response is filed. Deadlines may be modified
at the request of the parties or sua sponte.
c. Unless prior permission has been granted, memoranda of law in support
of, or in opposition to, motions are limited to twelve (12) pages, double-

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spaced and reply memoranda are limited to five (5) pages, doublespaced.
3.

Oral Argument
Parties may request oral argument by letter accompanying moving, opposition,
or reply papers. The Court will determine whether argument will be heard
and, if so, will advise counsel of the argument date and time. The Court may
also order oral argument sua sponte.

B.

Dispositive Motions
All dispositive motions, including summary judgment motions and motions to
dismiss, are to be made to the District Judge, unless all parties have consented in
writing to determination by the Magistrate Judge in accordance with 28 U.S.C. §
636 (c)(1).
For all dispositive motions before Judge Kuo on consent, the following rules
apply:
1. A motion requesting a pre-motion conference is required before any
dispositive motion may be filed. The request must be accompanied by a
summary of the proposed motion, not to exceed three (3) pages. Responses
are limited to three (3) pages, and must be filed within five (5) business
days of the request. Replies are not permitted. The time in which to respond
may be modified at the request of the parties or sua sponte.
2. A briefing schedule for the motion will be set at the pre-motion conference.
3. Unless prior permission has been granted, memoranda of law in support of or
in opposition to dispositive motions are limited to twenty-five (25) pages,
double-spaced, and reply memoranda are limited to ten (10) pages, doublespaced. Length limitations may be modified at the pre-motion conference.

C.

Motions Implicating Federal Rule of Appellate Procedure 4(a)(4)(A)
or Similar Time-Limiting Rules

If any party concludes in good faith that delaying the filing of a motion in order to
comply with any aspect of these Individual Practice Rules will deprive the party of a
substantive right, the party may file the motion within the time required by the Federal
Rules of Civil Procedure and/or the Federal Rules of Appellate Procedure, together with
an explanation of the basis for the conclusion.

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VI.

Trials on Consent
A.

Joint Pretrial Order in Civil Cases

Unless otherwise ordered by the Court, within sixty (60) days from the date of the
completion of discovery in a civil case, the parties must submit to the Court a proposed
Joint Pretrial Order, which shall include the following:
1.

Caption: The full caption of the action.

2.

Parties and Counsel: The names (including firm names), addresses, telephone
numbers, fax numbers, and e-mail addresses of trial counsel.

3.

Jurisdiction: A brief statement by Plaintiff as to the basis of subject matter
jurisdiction and a brief statement by each other party as to the presence or
absence of subject matter jurisdiction. Such statements must include citations
to a) all statutes and legal doctrines relied on and b) relevant facts as to
citizenship and amount in controversy.

4.

Claims and Defenses: By each party, a brief summary of the elements of the
claims and defenses that the party has asserted and that remain to be tried.
The summary must include citations to all relevant statutes.

5.

Damages: A brief statement of the categories and amounts of damages claimed
or other relief sought.

6.

Jury or Bench Trial: A statement by each party as to whether the case is to be
tried with or without a jury, and the number of trial days needed.

7.

Stipulations: A statement of stipulated facts, if any.

8.

Witnesses: From each party, a list of names and addresses for the fact and
expert witnesses whose testimony is to be offered in the party’s case-in-chief,
together with a brief narrative statement of each witness’s expected testimony.
Only listed witnesses will be permitted to testify unless prompt notice is given
and good cause is shown.

9.

Deposition Testimony: By each party, a designation of deposition testimony to be
offered by the party in its case-in-chief, along with any cross-designations and
objections by any other party.

10. Exhibits: A schedule listing exhibits to be offered in evidence and, if not
admitted by stipulation, the party or parties offering each exhibit. The
schedule shall also include possible impeachment documents and/or exhibits,
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and exhibits to be offered only on rebuttal. Plaintiff’s exhibits are to be
identified with the prefix “P” followed by a number. Defendant’s exhibits are
to be identified by the prefix “D” followed by a number. The parties must list
and briefly describe the basis for any objections to the admissibility of any
exhibits to be offered by any other party. Parties are expected to resolve
before trial all issues concerning authenticity, chain of custody, and other
related grounds. Only exhibits listed will be received in evidence, except for
good cause shown.
11. Exchange of Exhibits: All exhibits must be pre-marked for trial and exchanged
between or among the parties at least ten (10) days before trial. If an exhibit
is voluminous, it should be placed in a binder with tabs.
B.

Filings Prior to Trial in Civil Cases
Unless otherwise ordered by the Court, requests to charge and proposed voir dire
questions for jury cases should be filed on ECF one (1) week before trial.
Requests to charge are to be limited to the elements of the claims, the damages
sought, and defenses. General instructions will be prepared by the Court.
Unless otherwise ordered by the Court, each party shall file fifteen (15) days
before the date of commencement of trial (if such a date has been fixed) or thirty
(30) days before the filing of the final pretrial order (if no trial date has been fixed):
1.

By claim, a detailed statement regarding damages and other relief sought;

2.

In non-jury cases, a statement of the elements of each claim or defense
involving that party, together with a summary of the facts relied upon to
establish each element; and

3.

In all cases, motions addressing any evidentiary or other issue that should be
resolved in limine.

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