Opinion
11 Civ. 2283 (PKC)
06-30-2011
MAGDY YOUSSEF, Plaintiff, v. HALCROW, INC., et al., Defendants.
MEMORANDUM AND ORDER
This is an action for unfair competition, misappropriation and unjust enrichment arising out of the defendants' alleged improper use of plaintiff's creative structural design solution for a construction engineering problem. The action invokes this Court's diversity jurisdiction. Each side is represented by counsel.
The parties do not appear acquainted with the Individual Practices of the undersigned. They are available—as are the Individual Practices of every judge of this Court—on the Court's website. A review by counsel would have disclosed the requirement of a pre-motion conference prior to the filing of the two motions now pending in this case.
The pre-motion conference requirement implements the goals of Rules 1 and 16 of the Federal Rules of Civil Procedure. Rule 16(a)(3) provides that a district court may order the parties to appear at a pretrial conference in order to "discourage[e] wasteful pretrial activities." Pursuant to Rule 16(c)(2)(A), "[a]t any pretrial conference, the court may consider and take appropriate action on . . . formulating and simplifying the issues, and eliminating frivolous claims or defenses." The Second Circuit has noted that a timely held pre-motion conference "may serve the useful purpose of narrowing and resolving conflicts between the parties and preventing the filing of unnecessary papers. Litigants and the courts profit when this occurs." Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 652 (2d Cir. 1987). It has also stated that "'it is well within the judge's discretion to hold a pre-motion conference for the purpose of persuading a party not to file a perceived meritless motion.'" Eisemann v. Greene, 204 F.3d 393, 397 (2d Cir. 2000) (quoting Milltex Indus. Corp. v. Jacquard Lace Co., 55 F.3d 34, 39 (2d Cir. 1995)).
Pursuant to the undersigned's Individual Practices, a party seeking to file a motion to dismiss a complaint is required to set forth the basis for the motion in a pre-conference letter. The other side is invited to respond. A proposed movant may either request a conference in time to satisfy the answer date, or, as is most often the case, request an adjournment (first from the opposing side and then from the Court) of its time to answer or move to a date to be set at the conference.
The letter and conference requirement does not impermissibly foreclose the filing of a motion which the Federal Rules of Civil Procedure otherwise permits. See, e.g., Eisemann, 204 F.3d at 397. There are, however, motions that are ill-advised, ill-timed or unnecessary, and the pre-motion letter and conference requirement gives the parties the opportunity to air these matters with the Court before spending the client's resources on submitting a pointless motion.
First, a motion to dismiss may be obviated in whole or in part by a non-movant's desire, in the face of the opposing side's letter, to amend a pleading in order to cure an identified deficiency or to drop a claim. This action presents a good example. Defendants assert that the alter ego claims against two corporate defendants are inadequately pled. At a pre-motion conference, the Court would have inquired of plaintiff whether he seeks leave to replead the claim with additional facts or, instead, stand on the allegations as written. Second, a pre-motion conference is useful to consider the appropriate timing of a motion: for example, whether a party would be better advised to await a period of limited discovery. These defendants assert the affirmative defense of the statute of limitations not based upon the four corners of the complaint, but upon extrinsic evidence—design drawings and photographs—of dubious propriety on a motion to dismiss. Third, at a pre-motion conference the Court may inquire (based upon information gleaned from the pre-motion letter) as to the form and content of the motion. These defendants have moved to dismiss under Rule 12(b)(6) on the ground that plaintiff is not a licensed engineer and thus cannot maintain a claim. To establish this proposition, they have submitted a lawyer's declaration attesting that plaintiff is not a licensed engineer—again, a matter of dubious propriety on a Rule 12(b)(6) motion. Undoubtedly, other inquires (sometimes, settlement-related) would have been prompted by a discussion at the conference.
Instead, defendants have blithely filed their motion (asserting, as noted above, several fact-intensive defenses) and then filed a joint motion for a proposed briefing schedule. A briefing schedule would have been set at the pre-motion conference and certainly would not have required the filing of a joint motion. Most scheduling issues are resolved by conferring with opposing counsel and submitting a one-page letter to Chambers via fax; the Court then rules on the request by memorandum endorsement.
The plaintiff need not formally respond to the motion at this time. Instead, plaintiff is directed to respond in the form of a letter faxed to Chambers by July 8, 2011 addressing its position on the motion, including whether he seeks to replead or withdraw any claim and whether discovery is appropriate on the licensure and statute of limitations issues. Defendants may reply by July 12 at noon. I will conduct a pre-motion conference on July 13, 2011 at 2 p.m.
SO ORDERED.
/s/_________
P. Kevin Castel
United States District Judge Dated: New York, New York
June 30, 2011