(a) Briefing Schedule. Motions are decided without oral argument unless scheduled
by the Court. Parties may make a written request for oral argument, which is subject to the
discretion of the presiding judge. In any such requests for oral argument, the parties should
specify the ground(s) for the request (e.g., the need of an inexperienced lawyer to gain
experience in the courtroom, the need to respond to arguments presented in the last-filed brief,
the need to advise the Court of recently occurring events or arguments regarding new controlling
or persuasive case law, and/or the need to help familiarize the Court with the case’s complex
facts and/or procedural history given the length of time that has passed since the Court last
reviewed the case or the fact that the case has recently been transferred from another judge, etc.).
Lead attorneys are encouraged to allow less experienced attorneys to handle legal arguments and
court conferences. The court will permit lead counsel to supplement the presentations made by
the less-experienced attorneys. In accordance with Local Rule 7.1(b)(5), a movant requesting
oral argument should state the grounds therefore in its Notice of Motion.
1. Dispositive Motions. Unless the Court orders otherwise, the moving party must
file all motion papers with the Court and serve them upon any pro se parties.
Unless otherwise ordered by the Court, the opposing party must file and serve its
opposition papers no more than TWENTY-ONE (21) DAYS after service of the
motion. The moving party must file and serve its reply papers, if any, including a
memorandum of law that may not exceed TEN (10) pages in length, no more than
SEVEN (7) DAYS after service of the response papers. A surreply is not
permitted.
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. For discovery motions, see L.R. 37.1.
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 (upon filing all motion
papers with the Court) serve its motion papers on any pro se parties.
The opposing party must file and serve its opposition papers no more than
TWENTY-ONE (21) DAYS after service of the motion, unless otherwise
ordered by the Court.
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 non-dispositive motion. When leave of
court is granted, reply briefs may not exceed 10 pages in length.
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 more than TWENTY-ONE (21) DAYS after service of the
motion.
(b) Papers Required. Except as otherwise provided in this paragraph, all motions
and opposition to motions require a memorandum of law, supporting affidavit when necessary to
establish and provide factual and procedural background relevant to the motion, and proof of
service on non-Electronic Case Filers (“non-ECF filers”). In addition, all motions require a
Notice of Motion (except requests that are permitted by chambers to take the form of letter-
requests, provided that the party seeking relief has identified in its motion or letter the precise
relief sought). Additional requirements for specific types of motions, including cross-motions,
see L.R. 7.1(c), are set forth in the Local Rule that corresponds with the Federal Rule.
Documents that are on file with the Court in the same action should not be attached as
exhibits to the motion papers, but rather should be referenced to the appropriate docket number.
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.
1. Memorandum of Law. No party shall file or serve a memorandum of law that
exceeds twenty-five (25) pages in length, double-spaced, unless that party obtains
leave of the judge hearing the motion prior to filing. All memoranda of law shall
contain a table of contents and numbered pages. 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 or pro se party 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; and
(D) a motion pursuant to Fed. R. Civ. P. 37 to compel discovery.
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 not required for the following motions:
(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. Statement of Material Facts. Any motion for summary judgment shall include a
Statement of Material Facts, and any opposition shall contain a response to the
Statement of Material Facts. See L.R. 56.1.
4. Unsigned Copy of Proposed Amended Pleading. 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. See L.R. 14, 15, 19-22
5. Notice of Motion. A Notice of Motion shall identify the following information:
the case caption and docket number, if then known; the supporting papers upon
which the motion is based; and the relief demanded and the grounds therefor. If
publicly filed, the Notice of Motion shall be the main document filed on ECF,
with the supporting documents filed as attachments. Relief in the alternative or of
several different types may be demanded. If oral argument is requested, the
Notice of Motion should so state and should identify the reason(s) argument is
requested.
(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 more than
TWENTY-ONE DAYS after service of the motion, unless otherwise ordered by the Court. 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 restrictions of Local
Rule 7.1(c) relating to “cross-motions” do not apply when summary judgment motions are filed
by multiple parties on or before the deadline for filing of initial dispositive motions, even if the
motions seek competing relief.
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
more than SEVEN DAYS after service of the cross-motion/opposition to 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. 56.1(b).
The cross-moving party may not reply in further support of its cross-motion without the
Court's prior permission.
(d) Discovery Motions. See L.R. 37.1.
(e) Emergency Motion/Order to Show Cause. All requests for an Emergency
Motion/Order to Show Cause shall conform to the requirements set forth in L.R. 7.1(b)(1) and
(2). Immediately after filing a request for 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 a request for 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 the request for an Order
to Show Cause.
In addition to the requirements set forth in Local Rule 7.1(b)(1) and (2), a request for an
Order to Show Cause must include an affidavit clearly and specifically showing good and
sufficient cause why the standard motion procedure (i.e., advanced notice, 21 days for an
opposition, and 7 days for a reply) cannot be used with regard to the underlying motion. In
addition, the moving party must give reasonable advance notice of the request for an Order to
Show Cause to the other parties, except in those circumstances where the movant demonstrates,
in a detailed and specific affidavit, good cause why reasonable advance notice cannot be used,
and that substantial prejudice would result from the requirement of reasonable advance notice.
A proposed 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. See L.R. 65.1.
(g) Motion for Reconsideration. See L.R. 60.1.
(h) Oral Argument. Motions are decided without oral argument unless otherwise
scheduled by the Court. Parties may make a written request for oral argument, which is subject to
the discretion of the presiding judge. See L.R. 7.1(a).
(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. 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.
