Bisel v. Acasti Pharma, Inc.

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK MICHAEL CASTALDO, individually and on behalf of all others similarly situated, Plaintiff, -v.- 21 Civ. 6051 (KPF) ACASTI PHARMA, INC., RODERICK ORDER CARTER, JAN D’ALVISE, JOHN CANAN, and DONALD OLDS, Defendants. KATHERINE POLK FAILLA, District Judge: On June 21, 2022, the Court issued an Order granting Plaintiff Michael Castaldo’s request to proceed in forma pauperis, denying his request for pro bono counsel, and ordering him to file his opposition to Defendants’ pending motion to dismiss on or before August 1, 2022. (Dkt. #44). The Order concluded by stating that Plaintiff’s failure to file an opposition brief by August 1, 2022, would result in the dismissal of this case without prejudice. (Id. at 4). Upon further reflection, the Court now clarifies that Plaintiff’s failure to oppose Defendants’ motion will not, on its own, result in the dismissal of his case. Rather, if Plaintiff does not file an opposition brief by August 1, 2022, the Court will treat Defendants’ motion as unopposed and engage in its own analysis of the legal sufficiency of Plaintiffs’ claims. See Pearson v. Gesner, No. 21 Civ. 05670 (PMH), 2022 WL 1523166, at *4 (S.D.N.Y. May 13, 2022) (observing that “although a party is of course to be given a reasonable opportunity to respond to an opponent’s motion, the sufficiency of a complaint is a matter of law that the court is capable of determining based on its own reading of the pleading and knowledge of the law”); see also James v. John Jay Coll. of Crim. Just., 776 F. App’x 723, 724 (2d Cir. 2019) (summary order) (stating that a district court errs by dismissing a complaint solely on the ground that the plaintiff failed to oppose a motion to dismiss). The Clerk of Court is directed to mail a copy of this Order to Plaintiff at the following address: Mr. Michael Castaldo PO Box 102402 Denver, Colorado 80250 SO ORDERED. Dated: June 23, 2022 Kittens ath. ful New York, New York KATHERINE POLK FAILLA United States District Judge