UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JAMES T. FOLEY U.S. COURTHOUSE
445 BROADWAY, COURTROOM 5
ALBANY, NEW YORK 12207
MAE A. D'AGOSTINO
UNITED STATES DISTRICT JUDGE
INDIVIDUAL RULES AND PRACTICES OF HON. MAE A. D'AGOSTINO1
Matters before Judge D'Agostino shall be conducted in accordance with the following
practices unless otherwise ordered by the Court.
1. Requests for Adjournments or Extensions of Time
Requests for adjournments or extensions of time shall be in writing and shall be made at
least 48 hours prior to the scheduled date. Requests shall state (1) the original date, (2)
the number of previous requests for adjournment or extension, (3) whether previous
requests were granted or denied, and (4) whether the adversary consents and, if not, the
reasons given by the adversary for refusing to consent. If the requested adjournment or
extension affects any other scheduled dates, a proposed scheduling order (reflecting only
business days) must be attached.
2. Motions2
A. Pre-Motion Letters and Conferences in Civil Cases.3
i. General Provisions. A pre-motion letter and conference with the Court are
required before making any of the following motions: (1) motions to dismiss or
for judgment on the pleadings; (2) motions for summary judgment; (3) motions
for preliminary injunctive relief; and (4) motions for sanctions. To arrange a
1
To the extent that any of the rules and practices set forth herein conflict with the Local
Rules of the Northern District of New York, the rules set forth herein control.
2
Any motions filed that fail to comply with these rules will be summarily denied by the
Court.
3
Unless otherwise ordered, the Individual Rules and Practices relating to motion practice
do not apply to the following types of civil cases: (1) social security appeals; (2) habeas corpus
proceedings; (3) bankruptcy appeals; (4) civil rights cases brought by inmates proceeding pro se;
and (5) student loan cases.
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pre-motion conference, the moving party shall submit a letter not to exceed three
pages in length, double spaced, setting forth the grounds for the anticipated
motion. The opposing party may respond with a letter not to exceed three pages,
double spaced within three business days of receiving the pre-motion letter. The
opposing party shall briefly describe any anticipated arguments in opposition and
applicable defenses. Upon review, the Court will either permit the filing of the
proposed motion or issue an order scheduling a conference with the parties to
discuss the issues raised. The proposed motion shall not be filed until the Court
enters an order with respect to the pre-motion letter.4
ii. Motions to dismiss. Motions to dismiss and for judgment on the pleadings in
civil cases will be decided "with prejudice" unless (1) the opposing party amends
as of right prior to the filing of the motion to dismiss; or (2) files, and the Court
grants, a cross-motion to amend the complaint in response to the motion to
dismiss. The transmittal of a pre-motion letter for a proposed motion under Rule
12(b) of the Federal Rules of Civil Procedure stays the time to answer or move
until further order of the Court.
iii. Orders to Show Cause. Any application presented by order to show cause
must include a written explanation (with case and statutory authority) why
ordinary motion practice is not available and why the matter is appropriately
treated as an order to show cause.
B. Courtesy Copies.
i. Motion Papers. Courtesy copies of motions and responses thereto are only
required when specifically ordered by the Court. If the Court orders a party to
provide courtesy copies of a pending motion or response thereto, any
accompanying affidavits, declarations, and attached exhibits shall be printed from
the docket of the Court's electronic filing system (CM-ECF) so that the courtesy
copies contain the page and docket numbers assigned by CM-ECF. Courtesy
copies of any accompanying affidavits/declarations with attached exhibits shall
be bound, labeled, tabbed, and indexed.
ii. Exceptions. Unless otherwise ordered, courtesy copies shall not be required in
motions or responses submitted by pro se litigants, habeas corpus proceedings,
social security proceedings, and prisoner civil rights litigation.
4
Among other purposes, the exchange of letters enables the Court to set an appropriate
briefing schedule and to explore whether the motion may be (1) obviated by an amendment to
the pleadings or by consent to the relief sought; or (2) deferred to a different juncture in the case.
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C. Memoranda of Law.
i. General provisions. Memoranda of law in support of and in opposition to
motions may be up to 25 pages (double-spaced), and reply memoranda may be up
to 10 pages (double-spaced). All memoranda of 10 pages or more shall contain a
table of contents and a table of authorities. All memoranda shall be double-
spaced with one-inch margins, and 12-point font for text and footnotes (footnotes
and block quotations may be single-spaced).
ii. Multiple parties/joint motions. All motions shall be filed jointly if there is
more than one movant on a side (i.e., plaintiffs or defendants) unless the Court
permits otherwise during the pre-motion conference. If the parties wish to file
separate/multiple motions seeking the same relief, in their pre-motion letter, those
parties must provide the Court with compelling justification as to why a joint
motion is inappropriate.
ii. Opposition/Cross-Motion. All parties opposing a motion shall file a joint
opposition. Any cross-motion shall be included in the opposition brief.
iii. Reply. One reply may be filed in support of a motion. Replies shall include
any opposition to a cross-motion.
iv. Sur-reply. Sur-replies are not permitted without prior authorization of the
Court. A party wishing to file a sur-reply must submit a letter request, not to
exceed one page, setting forth the reasons it believes a sur-reply is necessary.
D. Oral Argument on Motions. Most motions will be resolved "on submission." The
Court will order oral argument only when it deems it necessary for the resolution of the
motion.
E. Electronic Filing of Motions. When filing a motion or response which includes
exhibits, each exhibit shall be filed as a separate docket sub-entry/attachment to the
corresponding motion. Each docket entry shall indicate the exhibit number and provide a
brief description of the exhibit.
F. Confidentiality Orders and Sealing. Litigants should assume that all pleadings and
documents will appear on the public docket, with very limited exceptions. No pleadings,
motions, or other documents may be filed under seal without prior authorization from the
Court. The request to file a document or documents under seal shall include a
declaration setting forth good cause or compelling reasons why the documents should be
sealed, in addition to a proposed confidentiality order. Proposed confidentiality orders
submitted to the Court shall include the following language:
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"The Court retains discretion whether to afford confidential
treatment to any confidential document or information contained
in any confidential document submitted to the Court in connection
with any motion, application, or proceeding that may result in an
order and/or decision by the Court."
G. Default Judgment. In addition to the requirements set forth in the Federal and Local
Rules of Civil Procedure, a party moving for default judgment must include a certificate
of service demonstrating that it has served the motion on the party against whom default
is sought.
3. Cases Removed from State Court
All parties removing actions to this Court pursuant to 28 U.S.C. § 1441 shall, no later
than seven (7) days after filing a notice of removal, file and serve a signed statement that
sets forth the following information:
(a). The date on which each defendant first received a copy of the summons and
complaint in the state court action.
(b). The date on which each defendant was served with a copy of the summons
and complaint, if any of those dates are different from the dates set forth in item
(a).
(c). In diversity cases, whether any defendant who has been served is a citizen of
New York. Also, if any party is a partnership, limited liability partnership or
limited liability company or corporation, the citizenship of each partner, general
partner, limited partner and member, and if any such partner, general partner,
limited partner or member is itself a partnership, limited liability partnership or
limited liability company or corporation, the citizenship of each member.
(d). If removal takes place more than thirty (30) days after any defendant first
received a copy of the summons and complaint, the reasons why removal has
taken place at this time.
(e). The name of any defendant served prior to the filing of the notice of removal
who has not formally joined in the notice of removal and the reasons why any
such defendant did not join in the notice of removal.
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