The Regency NYC, Inc. v. Atkinson

• Court: District Court, S.D. New York
• Decided: September 21, 2023
• Docket: 1:23-cv-05479
• Status: Unknown

Opinion

KANE | KESSLER £00 THIRD AVENUE | NEW YORK, NEW YORK 10016-1 TEL 212.541.6222 FAX 212.245.3009 WWW .KANEKESSLER.COM MEMO ENDORSED «seo (212) 541-6222 EMAIL ADDRESS rkahn @kanekessler.com September 20, 2023 VIA ECF Hon. Jessica G. L. Clarke, U.S.D.J. United States District Court Southern District of New York 500 Pearl Street, Room 1040 New York, New York 10007-1312 RE: Regency v. Atkinson et. al.; 23-cv-05479-JGLC Request for Adjournment of Initial Pretrial Conference Dear Judge Clarke: We represent Defendants Barbara Atkinson, Worth Higgins & Associates, Inc., Brian Losch and Benny Bowman (collectively “Defendants’’) in the above-captioned action. Defendants submit this letter motion requesting an adjournment of the Initial Pretrial Conference currently scheduled for September 29, 2023, and postponing the requirement to submit a joint letter and proposed Civil Case Management Plan and Scheduling Order by September 22, 2023 in accordance with Paragraph 3(c) of the Court’s Individual Rules and Practices, until Defendants’ pending motion to dismiss the First Amended Complaint is decided by the Court. Defendants timely filed their Motion to Dismiss Plaintiff's First Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(6) on September 13, 2023, upon the grounds that the each cause of action in First Amended Complaint fails to state a claim upon which relief may be granted and that there is no personal jurisdiction with respect to Defendants Losch and Bowman (EFC No. 31). In the event that Defendants succeed on the pending motion, this action may be dismissed in its entirety, or the parties and claims could change significantly. Defendants believe that postponing the Initial Pretrial Conference will conserve judicial resources, as well as the resources of the parties. See Elisens v. Cayuga Cty. Mental Health, 2020 WL 8081938, at *2 (N.D.N. Aug. 26, 2020 (“In the interest of judicial economy, the Court adjourns the Rule 16 conference until a decision on the pending motion to dismiss is issued...). Defendants sought Plaintiff's consent to this request by contacting Plaintiffs counsel, Mr. Jerome Noll, via telephone and by the email. Mr. Noll informed us telephonically that he would not give consent to our request, stating that he does not want to delay discovery by agreeing to an adjournment.

KANE | KESSLER Defendants disagree with Mr. Noll’s desire to begin discovery immediately, since Defendants’ motion seeks dismissal of all claims against Defendants Losch and Bowman on the basis of lack of personal jurisdiction under Fed. R. Civ. Pro. 12(b)(2). In addition, it is impossible to determine at this juncture what discovery is relevant or necessary, since the parties do not know which claims, if any, will survive after the motion to dismiss is decided. Therefore, Defendants respectfully request that the Court adjourn the Initial Pretrial Conference and the requirement to submit a joint letter and proposed Civil Case Management Plan and Scheduling Order by September 22, 2023, until an Order has been issued in response to Defendants’ motion and any subsequent responsive pleadings related thereto. This is the first request by Defendants for an adjournment of the Initial Pretrial Conference. We thank the Court for its attention to this matter. Application DENIED. The filing of a motion to dismiss does not automatically stay discovery. Hong Respectfully submitted, Leong Fin. Ltd. (Singapore) v. Pinnacle Performance Ltd., 297 F.R.D. 69, 72 (S.D.N.Y. 2013). The joint letter and proposed Civil Case Management Plan and > Ret KE wee Scheduling Order remain due on September 22, 2023S. Reid Kahn and the initial pretrial conference remains scheduled 600 Third Avenue-35th Floor for September 29, 2023. New York, New York 10016 (212) 541-6222 SO.ORDERED.,. rkahn @kanekessler.com C | (barke dH.CA (KAA . / Attorneys for Defendants Barbara Atkinson, JESSICA G. L. CLARKE Worth Higgins & Associates Inc., Brian Losch and Benny Bowman United States District Judge and Benny Bowman Dated: September 21, 2023 ce: New York, New York Jerome Noll, Esq. Darius A. Marzec, Esq. Marzec Law Firm, P.C. jerome.noll @marzec.myfirm.pro dmarzec @ MarzecLaw.com (via ECF and email)