Local Rule 7.1: Motion Practice

7.1 Motion Practice (Amended January 1, 2020)

Introduction - Motion Dates and Times Unless the Court directs otherwise, the moving party shall make its motion returnable at the next regularly scheduled motion date at least thirty-one days from the date the moving party files and serves its motion. The moving party shall select a return date in accordance with the procedures set forth in subdivision (b). If the return date the moving party selects is not the next regularly scheduled motion date, or if the moving party selects no return date, the Clerk will set the proper return date and notify the parties.

Information regarding motion dates and times is specified on the case assignment form that the Court provides to the parties at the commencement of the litigation or the parties may obtain this form from the Clerk's office or at the Court's webpage at "www.nynd.uscourts.gov."

The Court hereby directs the Clerk to set a proper return date in motions that pro se litigants submit for filing that do not specify a return date or fail to allow for sufficient time pursuant to this Rule. Furthermore, the Clerk shall forward a copy of the revised or corrected notice of motion to the parties.

(a) Papers Required. Except as otherwise provided in this paragraph, all motions and opposition to motions require a memorandum of law, supporting affidavit, and proof of service on all the parties. See L.R. 5.1(a). Additional requirements for specific types of motions, including cross-motions, see L.R. 7.1(c), are set forth in this Rule.

1. Memorandum of Law. No party shall file or serve a memorandum of law that exceeds twenty-five (25) pages in length, unless that party obtains leave of the judge hearing the motion prior to filing. All memoranda of law shall contain a table of contents. When serving a pro se litigant with a memorandum of law or any other paper which contains citations to authorities that are unpublished or published exclusively on electronic databases, counsel shall include a hard copy of those authorities. Although copies of authorities published only on electronic databases are not required to be filed, copies shall be provided upon request to opposing counsel who lack access to electronic databases.

When a moving party makes a motion based upon a rule or statute, the moving party must specify in its moving papers the rule or statute upon which it bases its motion.

A memorandum of law is required for all motions except the following:

(A) a motion pursuant to Fed. R. Civ. P. 12(e) for a more definite statement; (B) a motion pursuant to Fed. R. Civ. P. 17 to appoint next friend or guardian ad litem; (C) a motion pursuant to Fed. R. Civ. P. 25 for substitution of parties; (D) a motion pursuant to Fed. R. Civ. P. 37 to compel discovery; and (E) a motion pursuant to Fed. R. Civ. P. 55 for default.

2. Affidavit. An affidavit must not contain legal arguments but must contain factual and procedural background that is relevant to the motion the affidavit supports.

An affidavit is required for all motions except the following:

(A) a motion pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim upon which relief can be granted; (B) a motion pursuant to Fed. R. Civ. P. 12(c) for judgment on the pleadings; and (C) a motion pursuant to Fed. R. Civ. P. 12(f) to strike a portion of a pleading 3. Summary Judgment Motions. Any motion for summary judgment shall contain a Statement of Material Facts. The Statement of Material Facts shall set forth, in numbered paragraphs, a short and concise statement of each material fact about which the moving party contends there exists no genuine issue. Each fact listed shall set forth a specific citation to the record where the fact is established. The record for purposes of the Statement of Material Facts includes the pleadings, depositions, answers to interrogatories, admissions and affidavits. It does not, however, include attorney's affidavits. Failure of the moving party to submit an accurate and complete Statement of Material Facts shall result in a denial of the motion.

The moving party shall also advise pro se litigants about the consequences of their failure to respond to a motion for summary judgment. See also L.R. 56.2.

The opposing party shall file a response to the Statement of Material Facts. The non-movant's response shall mirror the movant's Statement of Material Facts by admitting and/or denying each of the movant's assertions in a short and concise statement, in matching numbered paragraphs. Each denial shall set forth a specific citation to the record where the factual issue arises. The Court shall deem admitted any properly supported facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert. The non-movant's response may also set forth a short and concise statement of any additional material facts that the non-movant contends are in dispute in separately numbered paragraphs, followed by a specific citation to the record where the fact is established.

4. Motions to Amend or Supplement Pleadings or for Joinder or Interpleader. A party moving to amend a pleading pursuant to Fed. R. Civ. P. 14, 15, 19-22 must attach an unsigned copy of the proposed amended pleading to its motion papers. Except if the Court otherwise orders, the proposed amended pleading must be a complete pleading, which will supersede the pleading sought to be amended in all respects. A party shall not incorporate any portion of its prior pleading into the proposed amended pleading by reference.

The motion must set forth specifically the proposed insertions and deletions of language and identify the amendments in the proposed pleading, either through the submission of a redline/strikeout version of the pleading sought to be amended or through other equivalent means.

Where a party seeks leave to supplement a pleading pursuant to Fed. R. Civ. P. 15(d), the party must limit the proposed supplemental pleading to transactions or occurrences or events which have occurred since the date of the pleading that the party seeks to supplement. The party must number the paragraphs in the proposed pleading consecutively to the paragraphs contained in the pleading that it seeks to supplement. In addition to the pleading requirements set forth above, the party requesting leave to supplement must set forth specifically the proposed supplements and identify the supplements in the proposed pleading, either through the submission of a redline/strikeout version of the pleading sought to be supplemented or other equivalent means.

Caveat: The granting of the motion does not constitute the filing of the amended pleading. After the Court grants leave, unless the Court otherwise orders, the moving party must file and serve the original signed amended pleading within fourteen (14) days of the Order granting the motion.

(b) Motions.

1. Dispositive Motions. The moving party must file all motion papers with the Court and serve them upon the other parties not less than THIRTY-ONE DAYS prior to the return date of the motion. The Notice of Motion must state the return date that the moving party has selected.

The party opposing the motion must file its opposition papers with the Court and serve them upon the other parties not less than SEVENTEEN DAYS prior to the return date of the motion.

The moving party must file its reply papers, which may not exceed (10) pages with the Court and serve them upon the other parties not less than ELEVEN DAYS prior to the return date of the motion.

A surreply is not permitted.

Parties shall file all original motion papers, including memoranda of law and supporting affidavits, if any, in accordance with the Administrative Procedures for Electronic Case Filing (General Order #22) and/or the case assignment form provided to the parties at the commencement of the litigation. The parties need not provide a courtesy copy of their motion papers to the assigned judge unless the assigned judge requests a copy.

2. Non-Dispositive Motions. Prior to making any non-dispositive motion before the assigned Magistrate Judge, the parties must make good faith efforts among themselves to resolve or reduce all differences relating to the non-dispositive issue. If, after conferring, the parties are unable to arrive at a mutually satisfactory resolution, the party seeking relief must then request a court conference with the assigned Magistrate Judge.

A court conference is a prerequisite to filing a non-dispositive motion before the assigned Magistrate Judge. In the Notice of Motion, the moving party is required to set forth the date that the court conference with the Magistrate Judge was held regarding the issues being presented in the motion. Failure to include this information in the Notice of Motion may result in the Court rejecting the motion papers.

Actions which involve an incarcerated, pro se party are not subject to the requirement that a court conference be held prior to filing a non-dispositive motion.

Unless the Court orders otherwise, the moving party must file all motion papers with the Court and serve them upon the other parties not less than THIRTY-ONE DAYS prior to the return date of the motion.

The party opposing the motion must file its Opposition papers with the Court and serve them upon the other parties not less than SEVENTEEN DAYS prior to the return date of the motion.

Reply papers and adjournments are not permitted without the Court's prior permission. Permission to file a reply does not exist simply because CM/ECF generates a deadline for a reply on a nondispositive motion.

3. Failure To Timely File or Comply. The Court shall not consider any papers required under this Rule that are not timely filed or are otherwise not in compliance with this Rule unless good cause is shown. Where a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.

Any party who does not intend to oppose a motion, or a movant who does not intend to pursue a motion, shall promptly notify the Court and the other parties of such intention. They should provide such notice at the earliest practicable date, but in any event no less than FOURTEEN DAYS prior to the scheduled return date of the motion, except for good cause shown. Failure to comply with this Rule may result in the Court imposing sanctions, and may be deemed sufficient cause for the denial of a motion or the granting of a motion by default.

(c) Cross-Motions. A party may file and serve a cross-motion (meaning a request for relief that competes with the relief requested by another party against the cross-moving party) at the time it files and serves its opposition papers to the original motion, i.e., not less than SEVENTEEN DAYS prior to the return date of the motion. If a party makes a cross-motion, it must join its cross-motion brief with its opposition brief, and this combined brief may not exceed twenty-five (25) pages in length, exclusive of exhibits. A separate brief in opposition to the original motion is not permissible.

The original moving party must join its reply brief in further support of its original motion with its brief in opposition to the cross-motion, and this combined reply/opposition brief may not exceed twenty-five (25) pages in length, exclusive of exhibits. The original moving party must file its reply/opposition papers with the Court and serve them on the other parties not less than ELEVEN DAYS prior to the return date of the original motion. The original moving party shall file a response to a Statement of Material Facts contained in a cross-motion for summary judgment, in accordance with L.R. 7.1(a)(3).

The cross-moving party may not reply in further support of its cross-motion without the Court's prior permission.

(d) Discovery Motions. The following steps are required prior to making any discovery motion pursuant to Rules 26 through 37 of the Federal Rules of Civil Procedure.

1. Parties must make good faith efforts among themselves to resolve or reduce all differences relating to discovery prior to seeking court intervention.

2. The moving party must confer in detail with the opposing party concerning the discovery issues between them in a good faith effort to eliminate or reduce the area of controversy and to arrive at a mutually satisfactory resolution. Failure to do so may result in denial of a motion to compel discovery and/or imposition of sanctions.

3. If the parties' conference does not fully resolve the discovery issues, the party seeking relief must then request a court conference with the assigned Magistrate Judge. Incarcerated, pro se parties are not subject to the court conference requirement prior to filing a motion to compel discovery. The assigned Magistrate Judge may direct the party making the request for a court conference to file an affidavit setting forth the date(s) and mode(s) of the consultation(s) with the opposing party and a letter that concisely sets forth the nature of the dispute and a specific listing of each of the items of discovery sought or opposed. Immediately following each disputed item, the party must set forth the reason why the Court should allow or disallow that item.

4. Following a request for a discovery conference, the Court may schedule a conference and advise all parties of a date and time. The assigned Magistrate Judge may, in his or her discretion, conduct the discovery conference by telephone conference call, initiated by the party making the request for the conference, by video conference, or by personal appearance.

5. Following a discovery conference, the Court may direct the prevailing party to submit a proposed order on notice to the other parties.

6. If a party fails or refuses to confer in good faith with the requesting party, thus requiring the request for a discovery conference, the Court, at its discretion, may subject the resisting party to the sanction of the imposition of costs, including the attorney's fees of opposing party in accordance with Fed. R. Civ. P. 37.

7. A party claiming privilege with respect to a communication or other item must specifically identify the privilege and the grounds for the claimed privilege. The parties may not make any generalized claims of privilege.

8. The parties shall file any motion to compel discovery that these Rules authorize no later than FOURTEEN DAYS after the discovery cut-off date. See L.R. 16.2. A party shall accompany any motion that it files pursuant to Fed. R. Civ. P. 37 with the discovery materials to which the motion relates if the parties have not previously filed those materials with the Court.

(e) Order to Show Cause. All motions that a party brings by Order to Show Cause shall conform to the requirements set forth in L.R. 7.1(a)(1) and (2). Immediately after filing an Order to Show Cause, the moving party must telephone the Chambers of the presiding judicial officer and inform Chambers staff that it has filed an Order to Show Cause. Parties may obtain the telephone numbers for all Chambers from the Clerk's office or at the Court's webpage at "www.nynd.uscourts.gov." The Court shall determine the briefing schedule and return date applicable to motions brought by Order to Show Cause.

In addition to the requirements set forth in Local Rule 7.1(a)(1) and (2), a motion brought by Order to Show Cause must include an affidavit clearly and specifically showing good and sufficient cause why the standard Notice of Motion procedure cannot be used. The moving party must give reasonable advance notice of the application for an Order to Show Cause to the other parties, except in those circumstances where the movant can demonstrate, in a detailed and specific affidavit, good cause and substantial prejudice that would result from the requirement of reasonable notice.

An Order to Show Cause must contain a space for the assigned judge to set forth (a) the deadline for filing and serving supporting papers, (b) the deadline for filing and serving opposing papers, and (c) the date and time for the hearing.

(f) Temporary Restraining Order. A party may seek a temporary restraining order by Notice of Motion or Order to Show Cause, as appropriate. Filing procedures and requirements for supporting documents are the same as set forth in this Rule for other motions. The moving party must serve any application for a temporary restraining order on all other parties unless Fed. R. Civ. P. 65 otherwise permits. L.R. 7.1(b)(2) governs motions for injunctive relief, other than those brought by Order to Show Cause. L.R. 7.1(e) governs motions brought by Order to Show Cause.

(g) Motion for Reconsideration. Unless Fed. R. Civ. P. 60 otherwise governs, a party may file and serve a motion for reconsideration or reargument no later than FOURTEEN DAYS after the entry of the challenged judgment, order, or decree. All motions for reconsideration shall conform with the requirements set forth in L.R. 7.1(a)(1) and (2). The briefing schedule and return date applicable to motions for reconsideration shall conform to L.R. 7.1(b)(2). A motion for reconsideration of a Magistrate Judge's determination of a non-dispositive matter shall toll the fourteen (14) day time period to file objections pursuant to L.R. 72.1(b). The Court will decide motions for reconsideration or reargument on submission of the papers, without oral argument, unless the Court directs otherwise.

(h) Oral Argument. The parties shall appear for oral argument on all motions that they make returnable before a district court judge, except motions for reconsideration, on the scheduled return date of the motion. A motion may be disposed of without oral argument as described in General Order 25, on consideration of a request of any party, or otherwise at the discretion of the presiding judge. Thus, the parties should be prepared to have their motion papers serve as the sole method of argument on the motion.

The parties shall not appear for oral argument on motions that they make returnable before a Magistrate Judge on the scheduled return date of the motion unless the Magistrate Judge sua sponte directs or grants the request of any party for oral argument.

(i) Sanctions for Vexatious or Frivolous Motions or Failure to Comply with this Rule. A party who presents vexatious or frivolous motion papers or fails to comply with this Rule is subject to discipline as the Court deems appropriate, including sanctions and the imposition of costs and attorney's fees to the opposing party.

(j) Adjournments of Dispositive Motions. (Amended January 1, 2020). After the moving party files and serves its motion papers requesting dispositive relief, but before the time that the opposing party must file and serve its opposing papers, the parties may agree to an adjournment of the return date for the motion. However, any such adjournment may not be for more than THIRTY-ONE DAYS from the return date that the moving party selected. In addition, the parties may agree to new dates for the filing and service of opposition and reply papers. However, the parties must file all papers with the Court and serve them upon the other parties not less than ELEVEN DAYS prior to the newly selected return date of the motion. If the parties agree to such an adjournment, they must file a letter with the Court stating the following: (1) that they have agreed to an adjournment of the return date for the motion, (2) the new return date, (3) the date on which the opposing party must file and serve its opposition papers, and (4) the date on which the moving party must file and serve its reply papers. The parties may not agree to any further adjournment.

If one of the parties seeks an adjournment of not more than THIRTY-ONE DAYS from the return date that the moving party selected, but the other parties will not agree to such an adjournment, the party seeking the adjournment must file a letter request with the Court and serve the same upon the other parties, stating the following: (1) that the parties cannot agree to an adjournment, (2) the reason that the party is seeking the adjournment, and (3) the suggested return date for the motion. All requests for extension of any deadlines must be made at least three business days prior to the expiration of the deadline, absent a showing of cause as to why it could not be made earlier. The Court will then take the request under advisement and, as soon as practicable, will enter an order granting or denying the request and, if granting the request, will set forth new dates for the filing and serving of opposition and reply papers.

If any party seeks an adjournment of the return date that is more than THIRTY-ONE DAYS from the return date that the moving party selected, that party must file a letter request with the Court stating the following: (1) why the party needs a longer adjournment and (2) a suggested return date for the motion. The Court will grant such an adjournment only upon a showing of exceptional circumstances. In the alternative or if the Court denies the request for an adjournment, the moving party may withdraw its motion without prejudice to refile at a later date. The moving party must refile its motion within the time frame set in the Uniform Pretrial Scheduling Order unless either the assigned District Judge or the assigned Magistrate Judge has granted an extension of the motion-filing deadline.