Tavarez v. Aqua Elite Events.Inc
- Alison Nathan
- 1:21-cv-09979
- U.S. District Court · Southern District of New York
- 2
In Tavarez v. Aqua Elite Events Inc., Judge Nathan directed the plaintiff to choose whether to amend after the defendant moved to dismiss.
Tavarez and Aqua Elite Events Inc.; the order set the plaintiff’s response choice and described the defendant’s options if an amended pleading was filed.
What happened
In Tavarez v. Aqua Elite Events Inc., the defendant filed a motion asking the court to dismiss the plaintiff’s claims.
The court required the plaintiff, by March 10, 2022, to state whether it would file an amended pleading or rely on the existing pleading. The order warned that declining to amend in response to fully briefed arguments could waive the opportunity to fix defects identified in the motion.
Judge Alison J. Nathan said that, if the plaintiff amended, the defendant could answer, file a new motion to dismiss, or state that it relied on its original motion. The order did not change the deadlines provided by the Federal Rules of Civil Procedure or the court’s local rules.
The detailed version
- Tavarez v. Aqua Elite Events.Inc · No. 1:21-cv-09979
- Alison Nathan
- Feb. 28, 2022
Background
On February 28, 2022, Aqua Elite Events Inc. filed a motion to dismiss Tavarez’s pleading. The opinion does not decide whether the motion should be granted or denied.
Order
Under Rule 3.E. of the court’s Individual Practices in Civil Cases, the court directed Tavarez to notify the court and the defendant in writing by March 10, 2022, whether Tavarez intended to file an amended pleading and when, or would rely on the pleading challenged by the motion.
The court warned that declining to amend in response to a fully briefed argument in the motion could waive the right to use the amendment process to cure defects made apparent by the defendant’s briefing. The order cited a Second Circuit decision upholding denial of permission to amend when a plaintiff had an opportunity to amend after full briefing of a motion to dismiss.
If Tavarez amended the pleading, Aqua Elite Events Inc. could file an answer, file a new motion to dismiss, or submit a letter stating that it relied on the original motion. The court stated that nothing in the order changed the time to amend, answer, or move under the Federal Rules of Civil Procedure or the court’s local rules.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.