Javier v. Russo
- Vincent Briccetti
- 7:21-cv-07097
- U.S. District Court · Southern District of New York
- 1
In Javier v. Russo, Judge Briccetti extended the plaintiff’s deadline to oppose dismissal and denied fee-free appeal status.
Al Javier and the Moving Defendants—Rosinsky, Watkins, Kopp, Rodriguez, and Annucci—were affected by the extended briefing deadlines; the order also denied Javier fee-free appeal status.
What happened
In Javier v. Russo, defendants Rosinsky, Watkins, Kopp, Rodriguez, and Annucci asked to dismiss Al Javier’s amended complaint. Javier, who is representing himself, had been served with the motion but had not filed a response by the October 6 deadline.
The court extended Javier’s deadline to respond to November 28, 2022. Any reply from the moving defendants was due December 5, 2022. The court said the dismissal motion would be treated as fully submitted and unopposed if Javier did not respond by November 28.
Judge Vincent L. Briccetti also certified that an appeal from this order would not be taken in good faith and denied Javier permission to appeal without paying court fees. The order did not decide whether the amended complaint should be dismissed.
The detailed version
- Javier v. Russo · No. 7:21-cv-07097
- Vincent Briccetti
- Oct. 26, 2022
Background
Defendants Rosinsky, Watkins, Kopp, Rodriguez, and Annucci—the “Moving Defendants”—moved to dismiss Al Javier’s amended complaint under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Those rules address, respectively, challenges to the court’s authority to hear a case and challenges that a complaint does not adequately state a legal claim. The Moving Defendants served Javier with the motion and supporting papers by regular mail. The opinion states that Javier was representing himself.
Javier’s deadline to oppose the motion was October 6, 2022, but he had not filed an opposition by the date of the order.
Ruling
The court extended Javier’s deadline to oppose the Moving Defendants’ motion to November 28, 2022. Any reply by the Moving Defendants was due December 5, 2022. The court ordered that, if Javier did not respond by November 28, the motion would be treated as fully submitted and unopposed.
The court also certified under 28 U.S.C. § 1915(a)(3) that any appeal from the order would not be taken in good faith. It therefore denied Javier permission to appeal without paying court fees. The order did not rule on the merits of the motion to dismiss or decide whether Javier’s amended complaint stated a valid claim. Chambers was directed to mail Javier a copy of the order at the address on the docket.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.