UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK NAJAY CUMMINGS, Plaintiff, 23 Civ. 11184 (KPF) -v.-

JAMES CASSAR and CHELSEA ORDER WHITTAKER, Defendants. KATHERINE POLK FAILLA, District Judge: This Order resolves certain issues discussed during the pre-motion conference held in this matter on January 17, 2025. First, as suggested by the Court’s comments during the conference, the Court will deem Plaintiff’s Amended Complaint (Dkt. #25), which is the operative pleading in this matter, to have been amended to include those factual assertions (as distinguished from legal arguments) made by Plaintiff during the conference. See Yates v. Villalobos, No. 15 Civ. 8068 (KPF),

, at *1 n.2 (S.D.N.Y. Feb. 5, 2018) (“Courts may also consider statements made in response to a defendant’s request for a pre-motion conference and statements made during that conference.” (collecting cases)); accord Polardo v. Adelberg, No. 22 Civ. 2533 (KMK),

, at *1 n.2 (S.D.N.Y. Mar. 28, 2023) (collecting cases), appeal dismissed sub nom. Poplardo v. Adelberg, No. 23-604,

(2d Cir. June 8, 2023); cf. Walker v. Schult,

, 122 n.1 (2d Cir. 2013) (“A district court deciding a motion to dismiss may consider factual allegations made by a pro se party in his papers opposing the motion.”). Defendants may therefore consider it prudent to obtain a transcript of the conference in connection with briefing their motion to dismiss. If they choose to do so, the Court directs them to mail a copy of that transcript to Plaintiff at his address of record. The Court also cautions Defendants to be mindful of the

Second Circuit’s directives regarding material that a court may properly consider in the context of a Rule 12(b)(6) motion. See, e.g., United States ex rel. Foreman v. AECOM,

(2d Cir. 2021); Goel v. Bunge, Ltd.,

(2d Cir. 2016); see also Donoghue v. Gad, No. 21 Civ. 7182 (KPF),

, at *3 (S.D.N.Y. Aug. 8, 2022) (discussing what makes a document “integral” to a complaint). Also during the conference, the Court scheduled Defendants’ motion to dismiss as follows: Defendants’ opening submissions are due on or before

March 7, 2025; Plaintiff’s submission in opposition is due on or before April 18, 2025; and Defendants’ reply submission is due on or before May 9, 2025. Defendants are reminded to send to Plaintiff copies of any cases cited in their legal memoranda. Finally, the Court appreciates the clarification provided by defense counsel regarding the proper name of one of the defendants. The Clerk of Court is directed to amend the caption as specified above. The Clerk of Court

is also directed to mail a copy of this Order to Plaintiff at his address of record. SO ORDERED. Dated: January 17, 2025 ' : New York, New York Kathe Mal. kild- KATHERINE POLK FAILLA United States District Judge