City of New York v. Lopez

S.D. New York

City of New York v. Lopez

DecidedAugust 9, 2023

Docket1:21-cv-07862

StatusUnknown

This text of City of New York v. Lopez (City of New York v. Lopez) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

City of New York v. Lopez, (S.D.N.Y. 2023).

Pincite

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CITY OF NEW YORK, Plaintiff, 21-CV-7862 (JPO) -v- ORDER ROBERT G. LOPEZ, Defendant.

J. PAUL OETKEN, District Judge: Pending before the Court is Plaintiff City of New York’s motion to dismiss Defendant Robert G. Lopez’s Second Counterclaim for Abuse of Process and to strike 22 of his 27 affirmative defenses.1 (ECF No. 78.) Defendant failed to respond to the motion by the applicable deadline, despite a warning that failure to do so would cause Plaintiff’s motion to be treated as unopposed. (ECF No. 81.) While Plaintiff’s motion is unopposed, this alone does not justify dismissal. “In deciding an unopposed motion to dismiss, a court is to assume the truth of a pleading’s factual allegations and test only its legal sufficiency.” Haas v. Com. Bank, 497 F. Supp. 2d 563, 564 (S.D.N.Y. 2007) (citation omitted). Having assumed the truth of Defendant’s factual allegations, the Court concludes that Defendant has failed to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff’s motion to dismiss the Second Counterclaim for Abuse of Process is granted substantially for the reasons stated in its moving brief. (ECF No. 79 at 2 – 5.) Leave to amend the Counterclaim is denied on the basis of futility.

1 The Court assumes familiarity with the underlying facts in this case, as discussed in its Opinion and Order dated September 22, 2022. (ECF No. 76.) The Court may grant a motion to strike an “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The motion to strike affirmative defenses is granted substantially for the reasons outlined in Plaintiff's moving brief. (See ECF No. 79 at 7 — 17.) The parties shall appear for a telephonic status conference in this matter on September 12, 2023 at 3:00 p.m. At the scheduled time the parties should call (888) 557-8511 and enter access code is 9300838. Plaintiff's motion to dismiss and to strike is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 78. SO ORDERED. Dated: August 9, 2023 New York, New York

United States District Judge

Free access — add to your briefcase to read the full text and ask questions with AI

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

CITY OF NEW YORK, Plaintiff, 21-CV-7862 (JPO) -v- ORDER ROBERT G. LOPEZ, Defendant.

J. PAUL OETKEN, District Judge: Pending before the Court is Plaintiff City of New York’s motion to dismiss Defendant Robert G. Lopez’s Second Counterclaim for Abuse of Process and to strike 22 of his 27 affirmative defenses.1 (ECF No. 78.) Defendant failed to respond to the motion by the applicable deadline, despite a warning that failure to do so would cause Plaintiff’s motion to be treated as unopposed. (ECF No. 81.) While Plaintiff’s motion is unopposed, this alone does not justify dismissal. “In deciding an unopposed motion to dismiss, a court is to assume the truth of a pleading’s factual allegations and test only its legal sufficiency.” Haas v. Com. Bank, 497 F. Supp. 2d 563, 564 (S.D.N.Y. 2007) (citation omitted). Having assumed the truth of Defendant’s factual allegations, the Court concludes that Defendant has failed to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiff’s motion to dismiss the Second Counterclaim for Abuse of Process is granted substantially for the reasons stated in its moving brief. (ECF No. 79 at 2 – 5.) Leave to amend the Counterclaim is denied on the basis of futility.

1 The Court assumes familiarity with the underlying facts in this case, as discussed in its Opinion and Order dated September 22, 2022. (ECF No. 76.) The Court may grant a motion to strike an “insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.” Fed. R. Civ. P. 12(f). The motion to strike affirmative defenses is granted substantially for the reasons outlined in Plaintiff's moving brief. (See ECF No. 79 at 7 — 17.) The parties shall appear for a telephonic status conference in this matter on September 12, 2023 at 3:00 p.m. At the scheduled time the parties should call (888) 557-8511 and enter access code is 9300838. Plaintiff's motion to dismiss and to strike is GRANTED. The Clerk of Court is directed to close the motion at ECF No. 78. SO ORDERED. Dated: August 9, 2023 New York, New York

United States District Judge

Cite This Page — Counsel Stack

Bluebook (online)

City of New York v. Lopez, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-new-york-v-lopez-nysd-2023.

Opinion

Related

Cite This Page — Counsel Stack