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 treated Javier’s opposition as timely, vacated the prior order, and granted defendants’ request to file a reply.
Al Javier and the defendants: Javier’s opposition will be considered, and defendants may file a reply by January 30, 2023.
What happened
In Javier v. Russo, defendants asked the court to continue treating their motion to dismiss as fully submitted and unopposed because Javier’s opposition arrived after the stated deadline.
The court found that Javier’s papers were signed and dated December 7, 2022, and included a certificate saying they were mailed that day. Applying the prison-mailbox rule, the court treated the opposition as timely submitted.
Judge Briccetti denied defendants’ application, vacated the December 20, 2022 order, and said the court would consider Javier’s opposition. The court also granted defendants’ request to file a reply by January 30, 2023.
The detailed version
- Javier v. Russo · No. 7:21-cv-07097
- Vincent Briccetti
- Dec. 28, 2022
Background
On December 20, 2022, the court had issued an order deeming defendants’ motion to dismiss the amended complaint fully submitted and unopposed. Defense counsel later reported receiving Javier’s opposition papers by mail on December 23, after the December 12 deadline, and asked the court to continue treating the motion as fully submitted and unopposed.
Timeliness of the opposition
The court denied defendants’ application. Although the opposition was not filed on the electronic docket by the deadline, the submission included a certificate of service stating that it was mailed on December 7, 2022. The papers were also signed and dated December 7.
The court applied the prison-mailbox rule, under which courts generally treat documents submitted by incarcerated individuals as filed when they are delivered to prison authorities for mailing. The court therefore deemed Javier’s opposition timely submitted.
Disposition
The court vacated its December 20, 2022 order and stated that it would consider Javier’s opposition when deciding the motion to dismiss. It also granted defendants’ request to file a reply by January 30, 2023. The order addressed the briefing schedule and did not decide the motion to dismiss itself.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.