Levai v. Marlborough Gallery, Inc.

Background

On October 7, 2020, Marlborough Gallery, Inc. and Stanley N. Bergman filed a motion to dismiss. The order concerns the procedure Plaintiff must follow in responding to that motion.

Order

Under Rule 3.F of the court’s Individual Practices in Civil Cases, Plaintiff must notify the court and Defendants in writing by October 16, 2020, whether he will: (1) file an amended pleading and state when he will do so; or (2) rely on the pleading challenged by the motion to dismiss.

The court warned that if Plaintiff declines to amend in a timely response to a fully briefed argument in Defendants’ motion, that decision may waive Plaintiff’s right to use the amendment process to correct defects made apparent by Defendants’ briefing. 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, and futility.

If Plaintiff files an amended pleading, Defendants may file an answer, file a new motion to dismiss, or submit a letter stating that they rely on the original motion. The order states that it does not change the deadlines for amending, answering, or moving under the Federal Rules of Civil Procedure or the court’s Local Rules.

Disposition

Judge Alison J. Nathan issued a procedural order setting the parties’ next steps. The order did not grant or deny the motion to dismiss and did not decide the underlying claims.