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Linares v. Richards

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK


January 29, 2010

JESUS LINARES, PLAINTIFF,
v.
LARRY RICHARDS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Roanne L. Mann, United States Magistrate Judge

MEMORANDUM AND ORDER

Plaintiff has requested a premotion conference in advance of his motion to dismiss defendants' second through fourth counterclaims, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure. See Letter to the Court from Jerauld E. Brydges (Jan. 11, 2010), ECF Docket Entry ("D.E.") 42. Defendants respond that plaintiff "raises factual issues with regard to the adequacy of the defendants' counterclaims." Letter to the Court from Robert W. Keddie, III (Jan. 19, 2010), at 1, D.E. #43. This Court agrees.

Moreover, fact discovery is scheduled to end on March 17, 2010; it is extremely unlikely that any Rule 12(b) motion would be fully submitted -- let alone ruled upon -- before the close of fact discovery. It is not the Court's practice to stay discovery during the pendency of motions to dismiss. Therefore, under these circumstances, the more efficient way to proceed is to have the parties present all their legal and factual arguments in the context of a motion for summary judgment at the conclusion of fact discovery.

For the foregoing reasons, defendants' request for a premotion conference is premature and therefore is denied without prejudice.

SO ORDERED.

ROANNE L. MANN UNITED STATES MAGISTRATE JUDGE

20100129

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