1902 New Way Gourmet Inc. et al v. United States Department of Agriculture, Food and Nutrition Service

Filing 13

ORDER granting 12 Letter Motion for Extension of Time to File. The Court will accept Plaintiffs' Amended Complaint as the operative pleading, but will admonish Plaintiffs that they must follow the deadlines set by this Court. Defendant must respond to the Amended Complaint within 14 days of its filing. In the event that the defendant files a new motion to dismiss, the briefing for that motion will be on the schedule set forth in Local Rule 6.1(b). SO ORDERED.. (Signed by Judge Mary Kay Vyskocil on 9/19/2022) (jca)

SDNY
CaseUSDC
1:22-cv-04721-MKV
Document 13 Filed 09/19/22 Page 1 of 2
DOCUMENT
U.S. Department of Justice
ELECTRONICALLY FILED
DOC #:
United States Attorney
DATE FILED: 9/19/2022
Southern District of New York
86 Chambers Street
New York, New York 10007

VIA ECF
The Honorable Mary Kay Vyskocil
United States District Judge
United States Courthouse
500 Pearl Street
New York, NY 10007-1312
Re:

September 15, 2022

Mohammed, et al. v. United States Dept. of Agric., Food and Nutrition Svc.,
22 Civ. 4721 (MKV)

Dear Judge Vyskocil:
The U.S. Attorney’s Office represents defendant the United States Department of
Agriculture, Food and Nutrition Service (the “USDA” or “Defendant”) in the above-referenced
action in which plaintiffs Rashad Lutf Ahmed Mohammed and 1902 New Way Gourmet Inc.
(“Plaintiffs”) challenge their six-month disqualification from the Supplemental Nutrition
Assistance Program (“SNAP”). I write to request clarification of the briefing schedule on
Defendant’s motion to dismiss the complaint in light of the First Amended Complaint filed by
Plaintiffs today, and if necessary, a brief adjournment of the motion filing deadline.
Plaintiffs commenced this action on June 6, 2022. See Compl. (ECF No. 1). On August
8, 2022, the USDA filed a letter motion requesting leave to file a motion to dismiss the
complaint on sovereign immunity grounds. Letter Motion dated August 8, 2022 (ECF No. 9).
Plaintiffs did not file a response. On August 23, 2022, the Court granted the USDA’s request for
leave to file a motion to dismiss the complaint and set a briefing schedule, with the USDA’s
opening brief due by September 15, 2022 (today). See Scheduling Order (ECF No. 10).
Alternatively, the Scheduling Order directed Plaintiffs to file a letter by September 1, 2022,
advising if they intended to amend their complaint in response to the arguments raised in
Defendant’s August 8 letter motion, and if so, to file any such amended complaint by September
15. See id. The Court advised that this was Plaintiffs’ “last opportunity” to amend the complaint
in response to the arguments raised in the USDA’s letter. Id.
Plaintiffs did not file a letter by September 1, 2022, or at any time, advising the Court or
Defendant of an intent to file an amended complaint. Nor did Plaintiffs advise Defendant by any
other means that it intended to amend its complaint. As such, the USDA prepared its motion to
dismiss, which is ready to be filed today. Nevertheless, earlier today, Plaintiffs filed a First
Amended Complaint. See Am. Compl. (ECF No. 11). The First Amended Complaint is largely
identical to the original complaint except for a new allegation that Plaintiffs “received” the
USDA’s final agency decision on May 5, 2022, and their assertion that their original complaint
was timely filed on June 6, 2022. Id. ¶¶ 12, 15.

Case 1:22-cv-04721-MKV Document 13 Filed 09/19/22 Page 2 of 2

In light of today’s untimely filing, the USDA respectfully requests clarification as to
whether the original or amended complaint is operative, which complaint Defendant’s motion to
dismiss should address, and the briefing schedule. If the First Amended Complaint is untimely,
the USDA respectfully requests that the Court formally strike this pleading (or grant leave to
move for same) or issue an Order stating that the original complaint remains operative, and reset
Defendant’s deadline to file its motion to dismiss within one week therefrom. Alternatively, if
the Court deems the amended complaint to be timely filed, the USDA respectfully requests leave
to move to dismiss the First Amended Complaint on substantially the same grounds as set forth
in the pre-motion letter dated August 8, 2022—sovereign immunity, failure to state a claim, and
failure to serve process—and to set a new briefing schedule. See Individual Rules ¶ 4(A)(i). If a
new briefing schedule is set, the USDA respectfully proposes that its deadline to file the motion
to dismiss be set at least one week after the Court enters a new scheduling order.
I thank the Court for consideration of this request.
The Court will accept Plaintiffs' Amended Complaint as
the operative pleading, but will admonish Plaintiffs that
they must follow the deadlines set by this Court.
Defendant must respond to the Amended Complaint
within 14 days of its filing. In the event that the
defendant files a new motion to dismiss, the briefing for
that motion will be on the schedule set forth in Local
Rule 6.1(b). SO ORDERED.
9/19/2022

Cc:

Respectfully,
DAMIAN WILLIAMS
United States Attorney for the
Southern District of New York
By:

/s/ Carly Weinreb
CARLY WEINREB
Assistant United States Attorney
86 Chambers Street, Third Floor
New York, NY 10007
Tel: [phone]
Email: [e-mail]
Counsel for Defendant

Joseph Bahgat, Esq., Counsel for Plaintiffs (by ECF)

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