Lipsitz v. Harel
- Sidney Stein
- 1:24-cv-00146
- U.S. District Court · Southern District of New York
- 1
In Lipsitz v. Harel, Judge Torres denied defendants’ dismissal request without prejudice and dismissed their counterclaim without prejudice.
The order affected Plaintiff Chaim Lipsitz and Defendants Shneior Harel and Natalie Aballi by denying the defendants’ motion to dismiss without prejudice, dismissing their counterclaim without prejudice to renewal, and setting a response deadline.
What happened
In Lipsitz v. Harel, the defendants asked to file a motion to dismiss the complaint and filed that motion and a counterclaim. The court found that their request did not follow the court’s required process.
The court denied the defendants’ pre-motion letter request and motion to dismiss without prejudice to refiling. It also dismissed the counterclaim without prejudice to renewal because a counterclaim must be included in a proper pleading, not filed separately or as part of a motion to dismiss.
Judge Analisa Torres directed the defendants to answer or otherwise respond to the complaint by January 31, 2024, and directed the Clerk of Court to terminate the motion filed at ECF No. 6.
The detailed version
- Lipsitz v. Harel · No. 1:24-cv-00146
- Sidney Stein
- Jan. 17, 2024
Background
On January 16, 2024, Defendants Shneior Harel and Natalie Aballi filed a pre-motion letter seeking permission to file a motion to dismiss the complaint. They also filed the motion to dismiss and a counterclaim against Plaintiff Chaim Lipsitz.
Motion to Dismiss
The court’s Individual Rules required a party seeking to file a motion to dismiss to exchange letters with opposing counsel before submitting a pre-motion letter to the court. The defendants did not complete that required exchange. They also filed their motion to dismiss before the court reviewed and ruled on their pre-motion letter.
The court therefore denied the defendants’ letter request and motion to dismiss without prejudice to refiling.
Counterclaim
The court explained that counterclaims must be included in a pleading under Federal Rule of Civil Procedure 13. A motion to dismiss is not a pleading, and a party may not file a standalone counterclaim as its own pleading. The court therefore dismissed the counterclaim without prejudice to renewal.
Other Directions and Disposition
The court ordered the defendants to answer or otherwise respond to the complaint by January 31, 2024, in accordance with the court’s Individual Rules. It directed the Clerk of Court to terminate the motion at ECF No. 6.
Read the full 1-page opinion on CourtListener, the free public archive maintained by the Free Law Project.