Walston v. City of New York et al

Filing 52

ORDER withdrawing 28 Motion to Dismiss; granting 33 Motion to Withdraw 28 MOTION to Dismiss ., 33 MOTION to Withdraw 28 MOTION to Dismiss . ., 46 LETTER MOTION for Conference to discuss Defe ndants' anticipated motion to stay discovery until a decision has been rendered concerning the pending motion to dismiss (ECF No. 28) addressed to Magistrate Judge Jennifer Willis from Jolie A, 50 LETTER MOTION to Stay Discovery addressed to Magistrate Judge Jennifer Willis from Jolie Apicella dated May 16, 2023. ; terminating 46 Letter Motion for Conference re: 28 MOTION to Dismiss ., 33 MOTION to Withdraw 28 MOTION to Dismiss . ., 46 LETTER MOTION for Conference to discuss Defendants' anticipated motion to stay discovery until a decision has been rendered concerning the pending motion to dismiss (ECF No. 28) addressed to Magistrate Judge Jennifer Willis from Jolie A, 50 LETTER MOTION to Stay Discovery addressed to Magistrate Judge Jennifer Willis from Jolie Apicella dated May 16, 2023. ; denying without prejudice 50 Letter Motion to Stay re: 28 MOTION to Dismiss ., 33 MOTION to Withdraw 28 MOTION to Dismiss . ., 46 LETTER MOTION for Conference to discuss Defendants' anticipated motion to stay discovery until a decision has been rendered concerning the pending m otion to dismiss (ECF No. 28) addressed to Magistrate Judge Jennifer Willis from Jolie A, 50 LETTER MOTION to Stay Discovery addressed to Magistrate Judge Jennifer Willis from Jolie Apicella dated May 16, 2023. As to judicial ec onomy, the Court finds that it will actually promote judicial economy to have the clarity afforded by a new set of briefing that cleanly addresses the Amended Complaint. The Motion to Withdraw the Motion to Dismiss is GRANTED. Furthermore, Defendant s' Motion to Stay Discovery during the pendency of the Motion is DENIED without prejudice. Defendants shall have until June 15, 2023, to file a new Motion to Dismiss based upon the Amended Complaint. Should a new Motion to Dismiss b e filed, Defendants may submit a new letter seeking a Stay of Discovery. The parties are encouraged to confer on a new briefing schedule for the anticipated Second Motion to Dismiss. The Clerk of the Court is respectfully requested to close Dkt. Nos. 28, 33, 46, and 50. SO ORDERED. (Signed by Magistrate Judge Jennifer E Willis on 5/19/2023) (tg)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JORDIN WALSTON, individually and on behalf
of her infant child, L.W.,
Plaintiffs,

ORDER
22-cv-10002

-againstCITY OF NEW YORK et al.,

Defendants.
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JENNIFER E. WILLIS, United States Magistrate Judge:
BACKGROUND
The initial Complaint in this case was filed in November 2022. Dkt. No. 1. That
month, District Judge Kaplan referred “all dispositive motions” to this Court. Dkt.
No. 17. The Defendants were served in December, and they filed a Motion to Dismiss
in late February 2023. Dkt. No. 28.
On March 2, 2023, a Thursday, Plaintiffs’ attorney Max Selver emailed the
attorney for Defendants, Jolie Apicella, informing her that the Plaintiffs intended to
imminently file an Amended Complaint. Dkt. No. 35-1. The Parties apparently
discussed the issue over the phone that afternoon, as well as a recent Second Circuit
decision, Pettaway v. Nat’l Recovery Sols., LLC 955 F.3d 299 (2nd Cir. 2020), which
permits a pending motion to dismiss to be determined based upon the facts alleged in
an amended complaint. See Pettaway, supra at 303 (“District courts in this Circuit
have repeatedly explained that, when faced with an amended complaint, they may
either deny a pending motion to dismiss as moot or consider the merits of the motion,
analyzing the facts as alleged in the amended pleading.”).

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Plaintiff filed the Amended Complaint that night. Dkt. No. 31.
Later that evening, at 8:38 p.m., Mr. Selver emailed the Defendants’ attorney
a redline version of the Amended Complaint highlighting the revisions and
requesting that Defendants withdraw their Motion to Dismiss the initial Complaint.
Dkt. No. 35-1. Within twenty minutes, Defendants’ attorney responded that she
would review the document and “let you know”. Dkt. No. 35-1.
The next afternoon, a Friday, Mr. Selver again reached out to Defendants’
counsel Jolie Apicella to “check in to see whether you have a sense of whether you’ll
be able to give us an answer on this before the weekend. As I mentioned, we are
otherwise preparing our Opposition to be filed on Monday.” (cleaned up). Id. Ms.
Apicella responded that she “tried to speak to the client yesterday and today but my
contacts are not available until early next week.” Id. Mr. Selver then requested a
response before noon the following Monday.
On Monday morning, at 11:51 a.m., Ms. Apicella responded that “of the people
I need to confer with on this, one is on trial and one has been on vacation so I apologize
but we do not have authority to decide what to do here yet.” Id.
Mr. Selver then responded, “Thank you for the update. Given that our
Opposition is due today, we will go ahead and file it based on the allegations in the
Amended Complaint, in accordance with Pettaway.”). Dkt. No. 35-1.
Thus, as Mr. Selver said he would, on March 6, 2023, the Plaintiffs filed an
Opposition to the Motion to Dismiss based upon the Amended Complaint. Dkt. No.
32.
The following day, given the newly filed Amended Complaint, the Defendants
submitted a Motion to Withdraw their previous Motion to Dismiss. Dkt. No. 33.
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Plaintiffs, (not ordinarily in the business of objecting to a motion to withdraw
their opposing counsel’s motion to dismiss) filed an Opposition to the Motion to
Withdraw. Their primary objections were that permitting the withdrawal would
allow the Defendants two bites at the apple and would fail to promote judicial
economy. Dkt. No. 34.
On May 16, 2023, Defendants requested to file a Motion to Stay Discovery
while their Motion to Dismiss is pending, even though they previously sought to
withdraw that same Motion. Dkt. No. 50.
DISCUSSION
Once a motion is submitted to a court, the motion “may be withdrawn only if
the court consents.” See David F. Herr & Roger S. Haydock, Motion Practice § 3.13 at
3-34 (7th ed. 2016). “There are few occasions when the court would not permit the
withdrawal of a motion, but they can occur.” Id. Such denials may involve a party
engaging in gamesmanship and prejudicing the other side. Id. (“If it is apparent that
a motion is being withdrawn because of the likelihood that judgment would be
entered against the moving party, the court may refuse to permit withdrawal of the
motion.”); see also Medina v. New York State Dep't of Corr. Servs., No. 03-cv-9249
(RWS), 2004 WL 2397193, at *4 (S.D.N.Y. Oct. 26, 2004)(“Leave to withdraw a motion
without prejudice may be granted in the absence of a showing of prejudice to other
parties.”).
On balance, Defendants’ attorney cannot be said to have engaged in improper
gamesmanship due to a failure to contact her clients and receive approval to
withdraw the Motion to Dismiss in the short time between a Thursday evening and
the next Monday at noon. See Carlson v. Northwell Health Inc., No. 20-cv-9852 (LAP),
2022 WL 1304453, at *2 (S.D.N.Y. May 2, 2022)(“Gamesmanship occurs when a party
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delays in asserting defenses or claims with the intent or hope that the delay will
prejudice the other side.”).
Defendants will perhaps benefit from access to Plaintiffs’ arguments made in
Plaintiffs’ Opposition, but only slightly more so than when drafting a Reply. Thus,
the prejudice to Plaintiffs in permitting Defendants to withdraw their Motion to
Dismiss

is

marginal.

See

Harris

v.

Butler,

961

F.Supp.

61,

62

(S.D.N.Y.1997)(“Because the withdrawal of plaintiff's motion will not prejudice any
party, plaintiff's request to withdraw his motion is granted.”).
As to judicial economy, the Court finds that it will actually promote judicial
economy to have the clarity afforded by a new set of briefing that cleanly addresses
the Amended Complaint.
The Motion to Withdraw the Motion to Dismiss is GRANTED. Furthermore,
Defendants’ Motion to Stay Discovery during the pendency of the Motion is DENIED
without prejudice.
Defendants shall have until June 15, 2023, to file a new Motion to Dismiss
based upon the Amended Complaint. Should a new Motion to Dismiss be filed,
Defendants may submit a new letter seeking a Stay of Discovery.
The parties are encouraged to confer on a new briefing schedule for the
anticipated Second Motion to Dismiss.
The Clerk of the Court is respectfully requested to close Dkt. Nos. 28,
33, 46, and 50.
SO ORDERED.
DATED:

New York, New York
May 19, 2023

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______________________________
JENNIFER E. WILLIS
United States Magistrate Judge