Deptula v. Rosen
- John Cronan
- 1:20-cv-02371
- U.S. District Court · Southern District of New York
- 2
In Deptula v. Rosen, Judge Torres terminated an unauthorized filing and set deadlines for Defendants’ proper motion to dismiss.
The order affected Kelcey Deptula, Jonathan Rosen, and Ceramica de Espana by setting the schedule for a future motion to dismiss, response, reply, and initial pretrial conference; it did not resolve the claims.
What happened
In Deptula v. Rosen, Kelcey Deptula sued Jonathan Rosen and Ceramica de Espana. Defendants first sought dismissal for allegedly improper service and submitted a letter they said asked Deptula’s lawyer to end the case.
The court said Defendants’ later filing was unauthorized and improper, and that communications between Deptula and her lawyer were legally irrelevant and potentially ethically troublesome. The court directed Defendants to raise their service and other dismissal arguments in one proper motion under the federal civil rules, and terminated the earlier filing.
Judge Analisa Torres set deadlines for Defendants’ motion, Deptula’s opposition, and Defendants’ reply, and scheduled a telephone initial pretrial conference. The court did not decide whether the complaint should be dismissed.
The detailed version
- Deptula v. Rosen · No. 1:20-cv-02371
- John Cronan
- Sept. 10, 2020
Background
Kelcey Deptula began the action on March 17, 2020, against Jonathan Rosen and Ceramica de Espana. On August 27, 2020, Defendants filed a submission described as a “limited/special appearance” seeking dismissal for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5). They attached a document they claimed was a letter from Deptula to her lawyer asking counsel to dismiss the action.
The court treated that submission as a required pre-motion letter and directed Deptula to respond. Deptula disputed Defendants’ account of service. She also stated that Rosen had presented her with and pressured her into signing the purported letter, but that she later told her lawyer to disregard it and continue the case.
On September 9, 2020, Defendants filed a 16-page brief with more than 200 pages of attachments. They asked the court to dismiss the case with prejudice or summarily adjudicate it in their favor, reasserted that the letter should affect the case, characterized the lawsuit as an attempt to “extort” Defendants, and reproduced text messages involving Deptula, Rosen, and third parties.
Court’s Actions
The court held that Defendants’ September 9 filing was unauthorized and improper. It stated that the federal rules and the court’s practices provide specific procedures for challenging a complaint and litigating an action. The court also stated that publicly filing communications between Deptula and her lawyer—possibly sent at Defendants’ behest—was legally irrelevant and potentially ethically troublesome.
The court explained that a voluntary dismissal or agreed settlement should be handled through the procedures provided by Federal Rule of Civil Procedure 41(a)(1) or by a joint notice to the court. It stated that those procedures do not permit Defendants to seek dismissal based on a letter from Deptula to her lawyer.
The court treated Defendants’ September 9 submission as indicating that they wanted to move to dismiss on both legal-insufficiency and improper-service grounds. It directed Defendants to present those arguments, and any others, in a single motion under Rule 12(b). The court cited Rule 12(g)(2), which generally prevents a party from making another motion under that rule based on a defense or objection available but omitted from an earlier motion.
Disposition and Schedule
The court ordered Defendants to file their motion to dismiss by October 8, 2020; Deptula to file her opposition by November 5, 2020; and Defendants to file any reply by November 19, 2020. It also ordered the parties to appear by telephone for an initial pretrial conference on September 28, 2020, and to submit a joint status letter and proposed case-management plan by September 21, 2020.
The Clerk of Court was directed to terminate the motion at ECF No. 20. The order did not grant or deny a motion to dismiss, did not dismiss the case, and did not decide the sufficiency of the complaint or the adequacy of service. Judge Analisa Torres signed the order.
Classification
This is a procedural order because the court addressed filing procedures and scheduling without reaching the merits of the claims or deciding whether dismissal was warranted.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.