Compass, Inc. v. Real Estate Board of New York, Inc.

Background

The defendant filed a motion to dismiss on May 18, 2021. The order concerns how the plaintiffs should respond to that motion; it does not state the grounds for dismissal or decide whether the plaintiffs’ claims may proceed.

Order

Under Rule 3.F. of the court’s Individual Practices in Civil Cases, the plaintiffs had to notify the court and the defendant in writing by June 1, 2021, whether they intended to file an amended pleading and when, or whether they would rely on the pleading challenged by the motion.

The court warned that declining to amend in response to a fully briefed argument could constitute a waiver of the plaintiffs’ right to use the amendment process to cure defects made apparent by the defendant’s briefing. The order cited an earlier appellate decision concerning circumstances in which leave to amend may properly be denied, including undue delay, bad faith, dilatory motive, and futility.

If the plaintiffs amended, the defendant could file an answer, file a new motion to dismiss, or submit a letter stating that it would rely on its original motion. The order also stated that it did not change the deadlines for amending, answering, or moving under the Federal Rules of Civil Procedure or the court’s local rules.

Disposition and Classification

The court issued a procedural order setting the plaintiffs’ response to the pending motion to dismiss. It did not grant or deny that motion and did not decide the underlying claims. The matter is therefore classified as a procedural order.