aa DOCUMENT UNITED STATES DISTRICT COURT ELECTRONICALLY FILED SOUTHERN DISTRICT OF NEW YORK | DOC #: | SALINA WILLIFORD, EE

Plaintiff, 24-CV-2335 (JHR) (BCM) -against- ORDER FIREWORK, d/b/a Loop Technologies, and DEBORAH VUE, Defendants.

BARBARA MOSES, United States Magistrate Judge. On August 12, 2024, defendants filed a motion (Dkt. 19) to dismiss plaintiff's amended complaint (Dkt. 5) pursuant to Fed. R. Civ. P. 12(b)(6). However, as defendants advised in their "Notice to Pro Se Litigant Who Opposes a Rule 12 Motion Supported by Matters Outside the Pleadings," filed and served pursuant to Local Civil Rule 12.1, they have "submitted additional written materials” in support of their motion, and now ask the Court to "decide this case without a trial, based on these written materials." (Dkt. 22 at 1.) Specifically, defendants rely on the Declaration of Christina Ushijima (Dkt. 20), which in turn attaches and authenticates a Separation and Release Agreement (Dkt. 20-1) in which, defendants argue, plaintiff released all of the claims alleged in her amended complaint. "The purpose of Rule 12(b)(6) is to test, in a streamlined fashion, the formal sufficiency of the plaintiff's statement of a claim for relief without resolving a contest regarding its substantive merits." Glob. Network Commc'ns, Inc. v. City of New York,

, 155 (2d Cir. 2006). Thus, if "matters outside the pleadings are presented to and not excluded by the court" on a Rule 12(b)(6) motion, "the motion must be treated as one for summary judgment under Rule 56." Fed. R. Civ. P. 12(d). This Court cannot resolve defendants’ pending motion without considering the Separation and Release Agreement. Therefore, the Court construes

defendants' motion as a motion for summary judgment made pursuant to Fed. R. Civ. P. 56, and extends plaintiff's deadline to respond to the motion to October 4, 2024. Should plaintiff fail to respond by this date, the Court will consider defendants' motion unopposed. To assist plaintiff, a copy of this Court's motions guide for pro se litigants is attached to this Order. A summary of basic procedures for opposing a motion for summary judgment appears on pages 5 and 6 of the motions guide. Additionally, attached to this Order is a copy of a flyer with details about the New York Legal Assistance Group (NYLAG) Clinic for Pro Se Litigants in the Southern District of New York. Plaintiff may wish to contact NYLAG, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the Court. It cannot accept filings on behalf of the Court, which must still be made by any pro se party through the Pro Se Intake Unit. To receive limited-scope assistance from the clinic, parties may complete the clinic's intake form on their computer or phone at: https://tinyurl.com/NYLAG-ProSe-Ol. If parties have questions regarding the form or they are unable to complete it, they may leave a voicemail at (212) 659-6190. The Clinic is open on weekdays from 10 a.m. to 4 p.m., except on days when the Court is closed. Dated: New York, New York September 4, 2024 SO ORDERED. ale BARBARA MOSES sit” United States Magistrate Judge

“| Stef \\ United States District Court A .| Southern District of New York

This guide is intended to be a summary of basic procedures for motion practice. The statements in this guide do not constitute legal advice and may not be cited as legal authority. This guide does not take the place of the Federal Rules of Civil Procedure, this court’s Local Civil Rules, or the individual rules of practice and orders of the judges of this court. Parties using this guide remain responsible for complying with all applicable rules of procedure.

Introduction to Motions What is a motion? e A motion is a formal way for a party to ask the court to do something. Generally, any time a party wants the court to do something in a case, that party must make a motion. See Fed. R. Civ. P. 7(b). Some types of motions — the types most often made in cases involving litigants without lawyers — are discussed in this packet. What is a dispositive motion? e A “dispositive” motion means that if the court grants the motion, judgment will be entered with respect to certain claims or defenses, or even with respect to the entire case. Dispositive motions include motions to dismiss and motions for summary judgment. e Other types of motions, such as a motion to amend the complaint or a motion for an extension of time, are “nondispositive,” which means that the decision on the motion will not ordinarily result in judgment or dismissal of any part of the case. What are the steps for making a motion? e Motions must be made in writing, except for those made during a hearing or a trial. See Fed. R. Civ. P. 7(b). o First, the party who makes the motion (called the “moving party” or “movant”) files the motion, explaining what the moving party wants the court to do and why the court should do it. o Second, the opposing party files papers opposing the motion, explaining why the court should not grant the motion.

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o Third, the moving party may file reply papers responding to the arguments made in the opposition papers. At that point, neither side may file any more documents related to the motion without permission from the court. Will there be oral argument on the motion? e After all of the motion papers are filed, the court will typically decide the motion based solely on the arguments in the papers. In some cases, the court may schedule a conference where each side appears in the courtroom and states their arguments in person (this is called “oral argument”). e Ineither case, the court may decide the motion either in a written decision or by announcing the decision in the courtroom during a conference. How do I file and serve motion papers? e Unless you have applied for and received permission to file your documents electronically, you should mail or deliver all papers to the Pro Se Intake Unit. The Clerk’s Office will scan and docket your papers, and if the other parties have lawyers, they will be served with your papers electronically. e If any other parties do not have lawyers, you must serve those parties with paper copies of your documents. When will the court decide the motion? e Given how many cases each judge is assigned, it may take a while before the court decides a motion. Making a Motion How do I make a motion? e First, you must determine the legal basis for bringing the motion. Some of the most common types of motions brought by plaintiffs without lawyers are motions for extensions of time, motions to compel compliance with discovery requests, and motions to amend a complaint. e Second, you must check the Local Civil Rules and the judge’s individual rules of practice to determine whether you are required to request a conference or take some other step before making your motion. If, for example, you would like to make a motion concerning a discovery issue, you must first write a letter to the judge. See Local Civil Rule 37.2. In some cases, a formal motion is not required, and you may make a motion simply by writing a letter. e Third, you must draft your motion papers, which are described next.

United States District Court, S.D.N.Y. WEY) Motions Page 3 What documents do I need to file to make a motion? e Under Local Civil Rule 7.1, unless the court makes an exception, all motions must include the following motion papers:! o Notice of Motion: This notice (usually just one page) specifies (1) the rules or statutes under which the party is bringing the motion, and (2) what the party is asking the court to do. A Notice of Motion form is attached to this guide. o Memorandum of Law: The memorandum of law describes the cases, other authorities, and arguments that support the party’s position. This is often referred to as a “brief.” o Declaration: A declaration (sometimes called an “affirmation”) is a statement made under penalty of perjury that contains factual information relevant to the motion. The declaration may also include attached exhibits. A declaration is only required if factual information is necessary for the court to decide the motion. e All motion papers must include a caption, the docket number, and the initials of the district judge and any magistrate judge before whom the case is pending, and have the name, address, telephone number, and email address (if available) of each person signing it clearly printed or typed below the signature. See Fed. R. Civ. P. 7, 10, 11; Local Civil Rule 11.1. Motion papers should also include a title next to or below the caption; for example, “Notice of Motion for Extension of Time” or “Declaration in Support of Motion to Dismiss.” (Local Civil Rule 11.1 describes other formatting requirements for typewritten motions.) e Certain types of motions may be made by letter. Check the Local Civil Rules and the individual rules of practice of the judge. e If you are the one who made the motion, you are entitled to file a reply, responding to arguments that the other side made in its opposition papers. Unless the judge set a different schedule or includes different deadlines in his or her individual rules of practice, a reply is generally due seven days after the opposition is served. Your reply should consist of a memorandum of law or declaration (or both).

! The Clerk of Court will not refuse to accept your papers simply because they do not exactly comply with these rules. See Fed. R. Civ. P. 5(d).

United States District Court, S.D.N.Y. WEY) Motions Page 4 Opposing Motions How much time do I have to oppose a motion? e Unless otherwise ordered by the judge or specified in the judge’s individual rules of practice, opposition to most motions must be filed within 14 calendar days after you are served with the motion papers. Check Federal Rule of Civil Procedure 6 and Local Civil Rule 6.1, as well as the judge’s individual rules of practice, if you are unsure how much time you have to respond to a motion. e If you need additional time to meet a motion deadline, you should ask the party who made the motion for an extension of time. If that party agrees, you and that party can submit the agreement to the court to get its approval of the proposed schedule. If that party does not agree, you may write a letter to the judge asking for an extension of time. What documents do I need to file to oppose a motion? e Unless the court makes an exception, you will need to file a memorandum of law to oppose a motion. In your memorandum of law, you will describe the cases, other authorities, and arguments that support your position that the motion should not be granted. e If factual information is necessary for the court to decide the motion (if, for example, the defendant has moved for summary judgment), you may also need to submit one or more declarations. You may attach additional evidence as exhibits to the declarations. e After you file your opposition, the party who made the motion may file a reply. You cannot “oppose” or respond to reply papers without permission from the court. Motions to Dismiss (Rule 12) e Ina motion to dismiss, the defendant argues that, even if everything you allege in your complaint is true, there are legal defects that require the court to dismiss your complaint (for example, the allegations in your complaint do not state a constitutional violation). See Rules 12(b) and 12(c) of the Federal Rules of Civil Procedure. e The defendant may move to dismiss before filing an answer (under Federal Rule of Civil Procedure 12(b)) or after (under Federal Rule of Civil Procedure 12(c)).

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e Ifyou need to add facts to your complaint to oppose the motion to dismiss, you should describe the additional facts in a proposed amended complaint and submit that document with your memorandum of law. Motions for Summary Judgment (Rule 56) e motion for summary judgment, a party (usually, but not always, a defendant) argues that the court should decide the case without a trial, because the undisputed facts show that the other party is not entitled to a verdict in that other party’s favor. See Rule 56 of the Federal Rules of Civil Procedure. e With some exceptions, motions for summary judgment are normally made after discovery has concluded. e To successfully oppose a motion for summary judgment, you need to present the evidence, through declarations or exhibits, that demonstrates that there are disputes over important facts and therefore a trial is needed. e In addition to the other documents required to make a motion, a party’s motion for summary judgment must include a statement in the form required by Local Civil Rule 56.1 (a 56.1 statement). e Inthe 56.1 statement, the moving party must list, in individually numbered paragraphs, important facts that the party argues are not in dispute. e To oppose a motion for summary judgment, in addition to a memorandum of law, you must submit your own statement responding to the other party’s 56.1 statement. o In paragraphs numbered to correspond with the other party’s 56.1 statement, you must state whether you agree or disagree with each factual statement. o If you agree with the statement, you may just write “agree” as to the particular numbered paragraph. o Ifyou disagree with the statement, you must identify evidence that supports your version of the facts. You may cite to your own sworn statement (such as a declaration made under penalty of perjury), deposition testimony, witness affidavits, or other documents as evidence to demonstrate that there is a dispute concerning that statement of fact. All of this evidence must be submitted to the court. You may do this by filing a declaration signed under penalty of perjury, to which each piece of evidence is attached as a separate exhibit. o For example, if the defendant states: “1. The light was green when defendant entered the intersection,” the plaintiff can either write: “1. Agree.” or something like: “1. Disagree. The light was red when the defendant entered the intersection. See Police Accident Report, attached to plaintiff's declaration as Exhibit A.”

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e Ifyou do not respond to the other party’s 56.1 statement, or if you do not respond to a particular paragraph, the court may consider the opposing party’s factual statement to be true. e If you believe that you need access to additional information to oppose the motion, you must file a declaration stating what information you need and why you need it to oppose the motion. See Fed. R. Civ. P. 56(d). Usually, filing such a declaration is appropriate only if the motion was made before discovery ended.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Write the full name of each plaintiff or petitioner. Case No. CV -against-

NOTICE OF MOTION

Write the full name of each defendant or respondent. PLEASE TAKE NOTICE that plaintiff or defendant name of party who is making the motion requests that the Court:

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 ☐ my own declaration, affirmation, or affidavit ☐ the following additional documents:

Dated Signature

Name Prison Identification # (if incarcerated)

Address City State Zip Code

Telephone Number (if available) E-mail Address (if available) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Fill in above the full name of each plaintiff or petitioner.

Case No. CV -against-

Fill in above the full name of each defendant or respondent. DECLARATION

Briefly explain above the purpose of the declaration, for example, “in Opposition to Defendant’s Motion for Summary Judgment.” I, , 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. Attach additional pages and documents if necessary.

Executed on (date) Signature

Name Prison Identification # (if incarcerated)

Address City State Zip Code

Telephone Number (if available) E-mail Address (if available) Y | A G Since 1990, NYLAG has provided free civil legal services to New Yorkers who cannot afford private attorneys. New York ME Legal Assistance Group Free Legal Assistance for Self-Represented Incarcerated Civil Litigants in Federal District Court

e NYLAG Legal Clinic for Pro Se Litigants in The Clinic Can: Southern District of New York is a free legal staffed by attorneys, law students, and « Assist with amending complaints and respondin; to assist those who are representing motions to dismiss; or planning to represent themselves, = Represent litigants for settlement purposes and, incarcerated litigants, in civil lawsuits in limited circumstances, for depositions; Southern District of New York federal court, = Assist with written discovery; habeas cases. The clinic is not part of or = Recruit pro bono counsel for depositions and tris by the court. and en if a litigant has consulted with Clinic staff, = Assist with oppositions to summary judgment. they retain other counsel and that counsel . . Clinic staff cannot assist with habeas cases « a notice of appearance, they remain : criminal matters. are responsible for doing is necessary in connection with the case; NyT_AG may also be unable to assist if it determines still oe co a a ' its professional legal judgement, that (i) you have petay bg Keo mas met ay Dame refused to cooperate with the Clinic’s counsel or foll Moynihan Courthouse, 40 Foley Square, way sass . □ : the Clinic’s advice; (ii) any assistance would be York, New York, or by following the court’s . □□ i A J □ unreasonably difficult for NYLAG to carry out; or (ii for filing via email as a pro se litigant. . . . your case is or will become frivolous, unreasonable, groundless, or without merit. the Clinic: the clinic and request a copy of our retainer, please call (212) 659-6190 and leave a message or to us at the following address: NYLAG Legal Clinic for Pro Se Litigants Thurgood Marshall Federal Courthouse Room LL22 40 Foley Square New York, NY 10007 mail a signed retainer back to the clinic at the above address. Once the paperwork is received, clinic will contact you. It may take up to two weeks. Disclaimer: The information contained herein is for informational purposes only and is not legal advice or a substitute for legal counsel, nor does it constitute advertising or a solicitation.

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The NYLAG Legal Clinic for Pro Se Litigants in the Southern District of New York provides free limited legal assistance to individuals who are representing themselves or planning to represent themselves in civil lawsuits in federal court in Manhattan and White Plains. The clinic is staffed by attorneys, law students, and paralegals. Information given to clinic staff is confidential.

Clinic Staff Can: Clinic Staff Cannot: Advise on filing cases in federal court e Assist with federal civil cases that belong in a including on the issue of whether a = 3 different federal court, such as the Eastern District of should be filed in the Southern District of New York, which covers of New York, which covers New York or somewiierocisd Brooklyn, Queens, Staten Island, and Nassau and Provide legal advice in response to questions Suffolk Counties; that come up at any stage of litigation; e Assist with an appeal of your federal case; Assist in getting additional information or e Assist with state court cases, bankruptcy court cases, research into the legal issue in your case; or criminal cases; oo Review and explain court orders and filings ¢ Pay any of the costs associated with filing or by your opponent, and provide an overview of defending a lawsuit in federal court; the federal legal process in civil cases e File documents with the court on your behalf; generally; e Appear on your behalf other than representation at a Assist with motions, discovery, and strategy; mediation through the Southern District’s Alternative Assist with getting ready for depositions, Dispute Resolution Program, a court-ordered pretrial conferences, mediations, and court settlement conference, or, in appropriate cases, a appearances; deposition; Provide forms and instructions manuals; ° Write court documents for you, or In appropriate cases, help you retain bono ° Conduct an investigation into the facts of your case. counsel; Inappropriate cases, represent you in a Clinic Staff May Decline Assistance If: mediation through the Southern District’s Alternative Dispute Resolution Program, ora NYLAG has already given advice to your opponent; court-ordered settlement conference; e Your legal problem is beyond the scope of matters Inappropriate cases, represent you at a handled by the clinic; deposition; and e Providing assistance would conflict with the New York Inappropriate cases, provide referrals to Rules of Professional Conduct; other agencies and organizations that provide e Your income and/or assets are high enough to allow you civil legal services and/or social services. to retain private counsel; or e NYLAG determines, in its professional legal judgement, that (i) you have refused to cooperate with the Clinic’s counsel or follow the Clinic’s advice; (ii) any assistance would be unreasonably difficult for NYLAG to carry out; or (iii) your case is or will become frivolous, unreasonable, groundless, or without merit.

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