Henderson v. Alvarez

Opinion

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK | “ : NOV 2 1 20 Tyrel Henderson, | | ~ Plaintiff, 17-cv-3977 (AJN) _y— ORDER Police Officer Alvarez, ef al., Defendants.

ALISON J. NATHAN, District Judge: On November 12, 2019, Defendant Alvarez filed a motion to dismiss the complaint

pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. Under Rule 15(a)(1)(B), a

plaintiff has 21 days after the service of a motion under Rule 12(b) to amend the complaint once

as a matter of course. However, since Plaintiff is proceeding pro se, he shall be given additional

time to amend the complaint. Accordingly, it is hereby ORDERED that if Plaintiff intends to file

an amended complaint, he shall do so by December 14, 2019, Plaintiff is hereby advised that

any amended complaint will completely replace the original complaint. Accordingly, if Plaintiff

files an amended complaint, it should include all of the information he believes is necessary to

make a short, plain statement explaining why he 5 entitled to relief against each defendant. Plaintiff is on notice that declining to amend his pleadings to timely respond to a fully briefed

argument in the Defendant Alvarez’s November 12, 2019 motion to dismiss may well constitute

a waiver of the Plaintiff's right to use the amendment process to cure any defects that have been

made apparent by the Defendants’ briefing. See Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo

Sec., LLC., 797 F.3d 160, 190 (2d Cir. 2015) (leaving “unaltered the grounds on which denial of

leave to amend has long been held proper, such as undue delay, bad faith, dilatory motive, and

futility.”). If Plaintiff chooses to amend, Defendants may then (a) file an answer, (b) file a new

motion to dismiss; or (c) submit a letter stating that they intend to rely on the initially-filed

IT IS FURTHER ORDERED that if no amended complaint is filed, Plaintiff shall serve

his opposition to Defendants’ motion to dismiss by December 14, 2019, Defendants’ reply, if

any, shall be served by December 31, 2019, At the time any reply is served, Defendants shall

supply Chambers with a courtesy copy of all motion papers by mailing or delivering them to the

United States Courthouse, 40 Foley Square, New York, New York. IT IS FURTHER ORDERED that either party may request an extension of the briefing

schedule for the motion. A deadline will be extended if the party demonstrates that its pursuit of

the action has been diligent and that there is a good reason for extending the deadline.

Chambers will mail a copy of this Order to Plaintiff and that mailing will be noted on the

docket.

SO ORDERED.

Dated: November ON, 2019 New York, New York }

4 At ISON J. NATHAN United States District J udge