DeLeon v. Dunaway

CourtDistrict Court, S.D. New York
DecidedAugust 30, 2022
Docket7:22-cv-06039
StatusUnknown

This text of DeLeon v. Dunaway (DeLeon v. Dunaway) 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
DeLeon v. Dunaway, (S.D.N.Y. 2022).

Opinion

USDC SDNY MEMORANDUM ENDORSEMENT DOCUMENT ELECTRONICALLY FILED DOC #: DeLeon et al v. Dunaway et al, DATE FILED: 08/30/2022 7:22-cv-6039 (NSR) —————

The Court is in receipt of the attached moving papers from pro se Defendant Douglas Dunaway, filed August 29, 2022, seeking to dismiss Plaintiffs’ Complaint on several bases. The Court is also in receipt of the attached letter from pro se Defendant Douglas Dunaway, dated August 26, 2022, but entered August 29, 2022, with a suggestion of death under FRCP 25 of his wife and named co-defendant Maria Louise Dunaway. With respect to the filed moving papers, the Court recognizes that “pro se litigants may in general deserve more lenient treatment than those represented by counsel.” McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d 121, 124 (2d Cir. 1988). However, that a party proceeds pro se “does not exempt [the] party from compliance with relevant rules of procedural and substantive law.” Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983) (citations omitted). Accordingly, the Court DENIES pro se Defendant Douglas Dunaway’s motion to dismiss without prejudice with leave to refile for failure to follow this Court’s Individual Rules of Practice in Civil Cases.' See Sec. 3.A.ii (“A pre-motion conference with the Court is required before making any other motion . . . . To arrange a pre-motion conference, the moving party shall submit a letter, not to exceed three pages, setting forth the basis for the anticipated motion. The opposing party shall submit a letter, also not to exceed three pages, setting forth its position within three business days from the service of the moving party’s letter. If a premotion conference is requested in connection with a proposed motion to dismiss, the request will stay the deadline for the requesting party to move or answer, and a new deadline will be set at the conference.”). Additionally, the Court REMINDS pro se Defendant Douglas Dunaway, as it did in its endorsement issued yesterday (see ECF No. 20), that he may only make filings on his own behalf and not on behalf of his other pro se co-Defendants, as he did in his motion to dismiss. See In re Texaco Inc. Shareholder Derivative Litig., 123 F. Supp. 2d 169, 172 (S.D.N.Y. 2000) (“Tt is well-established . . . that th[e] right to proceed pro se does not encompass the right to proceed pro se on behalf of the interests of another.” (citing cases)). Again, if the pro se Defendants in this case wish to make a joint request, they must expressly note it as such in the applicable filing and each pro se Defendant must sign the applicable filing. And with respect to the filed suggestion of death, in view thereof, the Court hereby STAYS this action for 90 days, or November 28, 2022. The Court directs the parties to FRCP 25(a)(1), which provides that “[a] motion for substitution may be made by any party or by the decedent’s successor or representative. If the motion is not made within 90 days of service of a statement noting the death, the action by or against the decedent must be dismissed.”

’ Available at: https://www nysd.uscourts.gov/hon-nelson-s-roman.

The Clerk of the Court is directed to terminate the motion at ECF No. 21, mail a copy of this memorandum endorsement to pro se Defendants Douglas and Michael Dunaway’s at their address on 4 Staub Court, Mamaroneck, NY 10543, and show service on the docket.

Dated: August 30, 2022 SO ORDERED: White Plains, NY □□ > fr . £- ee ———— “NELSONS. ROMAN UNITED STATES DISTRICT JUDGE

————————— UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Jason DeLeon, Ana Carraca-DeLeon Ariela Rosa Mori-Gehring and Walter Gehring ae ieee ee ee Write the full name of each plaintiff or petitioner. . Case No. 7:22 cv 06039 NSR -against- Douglas Dunaway, Maria Louise Dunaway NOTICE OF MOTION a and Michael Dunaway Write the full name of each defendant or respondent.

PLEASE TAKE NOTICE that Defendant Douglas Dunaway plaintiff or defendant name of party who is making the motion requests that the Court: Dismiss the compliant in its entirety pursuant to FRCP 12(B) due to 1. Lack of subject matter jurisdiction; 2. Lack of personal jurisdiction; 3.Improper venue: 4. Insufficiency of process; 9. Failure to state a claim on which relief can be granted; 6. Failure to join the Village of Mamaroneck Police Department as a party and for such other and further relief as the Court Deems fit. Briefly describe what you want the court to do. You should also include the Federal Rule(s) of Civil Procedure or the statute under which you are making the motion, if you know. In support of this motion, I submit the following documents (check all that apply): a memorandum of law fx] my own declaration, affirmation, or affidavit C) the following additional documents:

August 30,2022 “ = “Dated Mtge — Douglas Dunaway ) Name Prison Identification # (if incarcerated) 4 Staub Court Mamaroneck, NY 10543 Address City State Zip Code (914) 698-9215 Telephone Number (if available) E-mail Address (if available)

SDNY Rev: 5/24/2016

——————

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK Jason DeLeon, Ana Carraca-DeLeon Ariela Rosa Mori-Gehring and Walter Gehring Fill in above the full name of each plaintiff or petitioner. Case No. 7:22 Cv 06039NSR -against- Douglas Dunaway, Maria Louise Dunaway and Michael Dunaway ce eg ee

Fill in above the full name of each defendant or respondent. DECLARATION | Douglas Dunaway, a defendant, herein submit this declaration in support of es EE Oe my motion to dismiss the compliant pursuant to FRCP 12b. i a Briefly explain above the purpose of the declaration, for example, “in Opposition to Defendant's Motion for Summary Judgment.”

1, Douglas Dunaway , declare under penalty of perjury that the following facts are true and correct: In the space below, describe any facts that are relevant to the motion or that respond to a court order. You may also refer to and attach any relevant documents. | have read the compliant in its entirety and it is essentially a smear compliant by the plaintiffs and their attorney. The compliant lists specific acts that are not specifically assigned to any defendants The compliant is incendiary and designed to enrage the court, gain and court the attention of the media and to the cost of myself and my family. Essentially, | am being accused of fraud, false reporting and various criminal activities. Why are there no arrest records? This isn't a civil compliant is is a criminal compliant. Itis alleging that my family and myself somehow conspired with th behavior. This matter has been in the media and this is a shameless money grab. The matter belongs in state court eee SS Because the allegations listed by plaintiffs are necessary conclusive statements with no direct allegations against myself, en

Rev. 6/30/16

the compliant against me must be dismissed. There is a thinly veiled allegation that my family and Thave taken advantage of my wife’s so-called governmental connections because of her position as a clerk? That not a compliant that_can be tried without adjoining the police department. Plaintiffs cannot cherry pick who they prosecute. i i ee nn ne a i rc a er a ay ep Ei etn RR eee, a a ee a a ee ee

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Bluebook (online)
DeLeon v. Dunaway, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deleon-v-dunaway-nysd-2022.