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MOREL v. AMERICAN BUILDING MAINTENANCE COMPANY

United States District Court, Southern District of New York


May 20, 2003

MARCOS A. MOREL, PLAINTIFF, AGAINST AMERICAN BUILDING MAINTENANCE COMPANY, DEFENDANT.

The opinion of the court was delivered by: Robert W. Sweet, United States District Judge

MEMORANDUM OPINION

Defendant American Building Maintenance Company ("ABMC') moved by letter of April 4, 2003 to dismiss the amended complaint of pro se plaintiff Marcos Morel ("Morel"). For the reasons set forth below, the motion is denied, and ABMC is granted leave to renew its summary judgment motion on the original papers if it so chooses.

ABMC moved to dismiss Morel's initial discrimination complaint based on res judicata and collateral estoppel. The motion was submitted on February 12, 2003 and granted by order of March 12, 2003 in the absence of any opposition by Morel. In consideration of Morel's pro se status, he was granted leave to amend his pleading, and he has filed an amended complaint, which according to ABMC, replicates his prior complaint.

ABMC's letter motion seeks dismissal based on the March 12, 2003 order which resulted in Morel's default. Given the filing of an amended complaint, the motion to dismiss on the basis of the prior procedural default by Morel is denied.

However, in the event that any further motion to dismiss the amended complaint is made, either on the original papers or additional papers, Morel must be advised that a failure to oppose the motion will result in dismissal of his action and that in order to defeat any such motion he must set forth a factual or legal basis for his amended complaint. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988) ("A pro se party is entitled to notice of the consequences of failing to respond to a motion to dismiss or for judgment on the pleadings which is being treated as a motion for summary judgment."). See also Local Civil Rule 56.2 ("Any represented party moving for summary judgment against a party proceeding pro se shall serve and file a separate document [explaining to the plaintiff how to avoid dismissal of the complaint], together with the papers in support of the motion.).

It is so ordered.

20030520

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