City of New York v. Lopez
- James Oetken
- 1:21-cv-07862
- U.S. District Court · Southern District of New York
- 2
In City of New York v. Lopez, Judge Oetken granted the City’s motion to dismiss Lopez’s abuse-of-process counterclaim and strike 22 affirmative defenses.
The ruling affected the City of New York and Robert G. Lopez: the City obtained dismissal of Lopez’s abuse-of-process counterclaim and the striking of 22 affirmative defenses, while Lopez was denied permission to amend that counterclaim.
What happened
In City of New York v. Lopez, the City of New York asked the court to dismiss Robert G. Lopez’s second counterclaim for abuse of process and strike 22 of his 27 affirmative defenses. Lopez did not respond by the deadline, so the motion was treated as unopposed.
The court said that an unopposed motion still requires it to assume the counterclaim’s factual allegations are true and decide whether they legally state a plausible claim. The court concluded that the counterclaim did not meet that standard. It also granted the City’s request to strike the specified affirmative defenses under the rule governing insufficient, redundant, immaterial, impertinent, or scandalous defenses.
Judge James Oetken granted the City’s motion to dismiss and strike. He denied Lopez permission to amend the counterclaim because amendment would be futile. The court also scheduled a later telephone status conference.
The detailed version
- City of New York v. Lopez · No. 1:21-cv-07862
- James Oetken
- Aug. 9, 2023
Background
The City of New York moved to dismiss Robert G. Lopez’s Second Counterclaim for Abuse of Process and to strike 22 of Lopez’s 27 affirmative defenses. Lopez did not respond by the applicable deadline, despite a warning that the motion would be treated as unopposed.
Court’s analysis
The court explained that an unopposed motion to dismiss is not automatically granted. Instead, the court assumed that the counterclaim’s factual allegations were true and considered only whether those allegations were legally sufficient to state a plausible claim for relief. The court concluded that Lopez had failed to state such a claim and granted the motion to dismiss the abuse-of-process counterclaim for substantially the reasons given in the City’s moving brief.
The court also applied Federal Rule of Civil Procedure 12(f), which permits a court to strike an insufficient defense or matter that is redundant, immaterial, impertinent, or scandalous. It granted the motion to strike the affirmative defenses for substantially the reasons outlined in the City’s moving brief.
Disposition
The court granted the City’s motion to dismiss and to strike. It denied leave to amend the counterclaim on the ground that amendment would be futile. The order does not state that the dismissal or denial of leave to amend was with prejudice or without prejudice. The court directed the parties to appear for a telephonic status conference on September 12, 2023, and directed the Clerk of Court to close the motion at ECF No. 78.
Read the full 2-page opinion on CourtListener, the free public archive maintained by the Free Law Project.