Olshan Frome Wolosky LLP v. Suttongate Holdings, Ltd.

Background

Olshan Frome Wolosky LLP and Thomas J. Fleming, identified as counterclaim defendants, filed a motion to dismiss counterclaims asserted by Suttongate Holdings, Ltd. in its amended answer and counterclaims. The motion was filed on May 8, 2020.

Order

Under Rule 3.F. of the court’s Individual Practices in Civil Cases, the court required Suttongate to notify the court and Olshan in writing by May 18, 2020, whether it would file an amended pleading and when, or rely on the pleading challenged by the motion to dismiss.

The court warned that declining to amend promptly in response to fully briefed arguments could waive Suttongate’s later opportunity to use the amendment process to correct defects identified in the motion. The order cited a prior appellate decision concerning circumstances in which leave to amend may properly be denied, including undue delay, bad faith, dilatory motive, or futility.

If Suttongate amended its pleading, the counterclaim defendants could answer, file a new motion to dismiss, or state that they relied on the original motion. The order stated that it did not change the deadlines for amending, answering, or moving under the Federal Rules of Civil Procedure or the Local Rules.

Disposition

Judge Alison J. Nathan did not rule on the motion to dismiss in this order. Instead, the order established Suttongate’s required response concerning amendment or reliance on its existing pleading.