Hon. Seth D. Eichenholtz — Individual Rules of Practice

INDIVIDUAL PRACTICES AND RULES OF

MAGISTRATE JUDGE SETH D. EICHENHOLTZ

United States District Court

Eastern District of New York

225 Cadman Plaza East

Brooklyn, New York 11201

Courtroom: 324N / Chambers: 304N

Telephone: 718-510-9710 (Chambers)

Email: Eichenholtz_Chambers@nyed.uscourts.gov

Courtroom DUeppduattye: dD Niaonvae Cmabgegria 3n,o 2 (072158 -510-9714)

Pro se

Unless otherwise ordered pbryo tshee Court, matters before Judge Eichenholtz will be

conducted purs uant to the following practices and rules. litigants and attorneys

representing parties in cases with litigants should review the Court’s specific practices

fIo. r thosCe O c N a S s E e N s T . ING TO MAGISTRATE JUDGE JURISDICTION

Should the parties consent to the jurisdiction of Judge Eichenholtz for all purposes, the

pIIa. rties Cs O h M al M l p UN ro IC m AT p I t O ly N S fi W le I t T h H e C N H o A t M ic B e E o R f S Option to Consent to Magistrate Judge Jurisdiction.

A. Electronic Case Filing (ECF)

Except as provided below, parties must use the Electronic Case Filing (ECF) system to

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“ElCeFtt seyrs”t eomr . “ sWtahteuns firleinpgo artn”y document via ECF, parties must use the appropriate event type

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) and a brief description of the document. Unless specifically

directed otherwise, parties should not provide courtesy copies of documents filed by ECF to

Ch ambers.

B. Telephone Calls

Parties may contact Chambers by telephone only as permitted in these rules, as

instructed by the Court, or in emergency situations requiring immediate attention. Parties may

contact the Courtroom Deputy with questions about scheduling matters by telephone, but all

adjournment requests must be filed on ECF as set forth in Section III.

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Parties are advised to contact the ECF help desk for any ECF-related questions.

C. E-Mail

E-mail messages to Chambers are not permitted, except as specified in these rules or as

instructed by the Court. Parties with urgent issues should contact the Chambers by teleexp hpoanrtee,

not by e-mail. When authorized, e-mails should be sent to

Eichenholtz_chambers@nyed.uscourts.gov. Unless the e-mail contains an authorized

su bmission, parties should copy all parties’ counsel when sending an e-mail to Chambers.

D. Required Notification to Chambers

All parties shall immediately notify Chambers by telephone or e-mail if (1) any party has

reason to believe that there may be grounds that Judge Eichenholtz should be recused from a

pending matter or (2) where a case has settled, when unable to promptly notify the Court by

IEICI.F . REQUESTS FOR ADJOURNMENTS OR, EXTENSIONS OF TIME

A. Timing

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All requests for adjournments or extensions of time shall be filed on ECF as a “Motion”

(not a “Letter”) at least two (2) business days prior to the scheduled appearance or deadline.

Parties who do not meet this deadline must provide a good faith basis for the late request and

must notify Chambers by telephone about the filing of a late request.

B. Required Contents

Any adjournment or extension request must include the following information: (1) the

appearance date or deadline you wish to adjourn or extend; (2) the number of previous

requests for adjournment or extension (by any party); (3) whether those previous requests

were granted or denied; (4) whether the other party or parties consent (including any reasons

given for withholding consent); and (5) whether the request affects any other scheduled Court

appearance or deadline. Parties seeking an adjournment of a case management deadline should

propose a revised schedule addressing all deadlines impacted by the extension. Parties seeking

the adjournment of a conference should propose at least three new dates for the conference

when all parties are available.

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Any request to convert an in-person conference to a virtual (telephone or video)

conference is considered a request to adjourn. Because the Court is intentional in the format it

selects for conferences, the request must contain good cause for the change in format and

c omply with the requirements in III.A and B, including that the request be filed at least two (2)

business days prior to the conference. 2

C. Effect of Filing

The filing of an adjournment or extension request does not stay existing deadlines and

conference dates. Unless the Court grants an adjournment or extension, parties must adhere to

all existing conference dates and scheduling deadlines. In the event a deadline is approaching,

a party may contact Chambers by telephone to advise the Court of the urgency of addressing

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extension request.

A. Appearances of Counsel

Any attorney appearing before the Court must first enter a notice of appearance on ECF

prior to their first appearance. Counsel shall appear promptly for all conferences. When

appearing, counsel must be fully familiar with the case and authorized to discuss (1) the parties’

progress in the case; (2) scheduling of further proceedings; and (3) the possibility of settlement

and status of any settlement discussions. Counsel must also be familiar with all orders and rules

related to the conference. The Court may consider a party failing to appear if the counsel

represen ting the party does not meet criteria set forth in this section.

B. Participation of Junior Attorneys and Law Students

The United States District Court for the Eastern District of New York is a teaching court,

and the Court encourages opportunities for junior attorneys and law students to appear and

participate in proceedings. The Court will permit multiple attorneys to appear for a party if this

creates an opportunity for junior attorneys to participate. The Court will also grant leave in

appropriate cases for law students to participate under the supervision of an admitted attorney.

The Court recognizes that the decision of who conducts each proceeding is with the lawyer in

cVh. arge Io N f I e T a IA c L h C c O a N se FE , a R n EN d C , E u S lt I i N m Ca I t V e I l L y C, t A h S e E S r epresented party.

A. Parties’ Rule 26(f) Conference

Pursuant to Fed. R. Civ. P. 26(f), the parties must meet and confer at least one week prior

to the Initial Conference to discuss the nature and basis of their claims and defenses, the parties’

position o n settlement, and a proposed discovery plan.

B. Parties’ Proposed Discovery Plan

At least seven (7) days before the Initial Conference the parties must file on ECF a joint

proposed discovery plan using the model provided by the Court. In the event the parties are

unable to reach agreement on any of the deadlines in the proposed discovery plan, the parties

should note any areas of disagreement in the joint submission.

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C. Discovery Exchanges Prior to the Conference

Prior to the initial conference, the parties are required to exchange Rule 26 initial

disclosures and are strongly encouraged to exchange initial sets of interrogatories, requests for

production of documents, and, when applicable, releases for relevant records. Making these

exchanges ahead of the conference will make the initial conference more productive. If the

parties are unable to make these initial exchanges prior to the conference, they should come to

the conference prepared to discuss why they could not make these exchanges ahead of the

VcoIn. fereCn I c V e IL . D ISCOVERY PRACTICES

A. Parties to Conduct Discovery

Parties are expected to conduct discovery on their own in good faith and within the

scheduling deadlines set by the Court. Parties shoSueled not file discovery requests and responses

with the Court. When a dispute arises, the parties must first try to resolve it themselves and in

good faith before seeking judicial intervention. Fed. R. Civ. P. 37(a)(1); Local Civil Rules

26.4 and 37.2. Once those efforts are exhausted, parties should raise disputes as instructed

below.

B. Discovery Disputes During Ongoing Depositions

In the event the parties are unable to resolve a dispute during an ongoing deposition, the

parties are directed to contact Chambers by telephone with all parties on the line. The Court

will either resolve the matter or instruct the parties on how to proceed. If the Court is not

immediately available to address the dispute, the parties should continue the deposition to the

extent possible while waiting for the Court’s response. Under no circumstances should the

parties discontinue the deposition without contacting the Court.

C. All Other Discovery Disputes

For all other discovery disputes requiring judicial intervention, the parties must file a

single letter, jointly composed. The letter should be filed on ECF using the “motion” event,

describing the motion as seeking a discovery conference. If a party is raising a dispute as part

of a status report to the Court, they should file the status report as a “motion” and not as a

“status report.” The letter must describe (1) the nature of the dispute; (2) each party’s position

regarding the facts and law surrounding the dispute; and (3) a description of the parties’ efforts

to resolve the dispute in good faith prior to filing the motion. Each party’s portion of the joint

submission shall be limited to three pages (up to six total pages in the joint letter). To the extent

the parties need to file discovery requests and responses as exhibits to their letter, they must

file only those requests and responses relevant to the motion. Unless the Court can resolve the

matter based on the letter, the Court will schedule a conference to discuss the dispute and/or

set a scheduling order so that the parties can brief a motion to compel or for a protective

order. Absent unforeseen circumstances, applications to compel discovery made later than

thirty (30) days prior to the close of discovery will be considered untimely.

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D. Confidentiality Orders

Judge Eichenholtz uses a form confidentiality order that the parties may submit to the

Court for approval to protect the confidentiality of information exchanged in discovery in

appropriate circumstances. The form order is available on the Court’s website. If the parties

consent to the form order, they should file the proposed order signed by the parties via ECF as

a “consent motion,” along with a cover letter detailing the kinds of information that will be

subject to the order and asking the Court to endorse the stipulation.

If any party seeks to change the language of the form order, the party proposing the

changes must submit (1) a letter explaining the basis for the proposed changes and setting forth

the parties’ positions on those changes; (2) a redlined version of the confidentiality order

identifying the proposed changes; and (3) a clean version of the proposed confidentiality order.

That party should also send a copy of the proposed order to Chambers

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A. Settlement Discussions

The parties are expected to discuss the possibility of settlement at every stage of

litigation. The Court encourages the parties to exchange demands and offers as early as their

Fed. R. Civ. P. 26(f) discovery planning conference. The Court expects that the parties will be

prepared to address the possibility of settlement at every appearance, including the initial

conferenc e.

B. Settlement Conferences

The Court will hold a settlement conference at a point in the litigation when it would be

productive to do so. The purpose of a settlement conference is to try to resolve the

case. Attorneys who appear must be authorized to enter into a settlement on the record on

behalf of a party. Client(s) are expected to attend the conference in person, unless the Court

specifies otherwise.

To be fully prepared for the conference, the Court requires the following ahead of the

conference:

1. At least fourteen (14) days prior to the Settlement Conference, Plaintiff’s

counsel shall submit a settlement demand to Defendant’s counsel with a

brief explanation of why such a settlement is appropriate. No later than

seven (7) days prior to the settlement conference, Defendant’s counsel

shall submit an offer to Plaintiff’s counsel with a brief explanation of why

such a settlement is appropriate. If there is a dispute between co-

Defendants represented by different counsel about contribution to a

settlement, the counsel for each Defendant should submit to counsel for

the other Defendant(s) a brief letter stating that party’s position on

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contribution.

ex parte

2. At least five (5) business days prior to the Settleemxe npt aCroten ference, the

parties shall submit settlement letters to Chambers by email to

Eichenholtz_chambers@nyed.uscourts.gov. The settlement

letters should include the following: (a) the demand(s) and offer(s)

exchanged thus far; (b) the strengths and weakness of the party’s case; (c)

any legal arguments in support of their settlement position and valuation

of the case with citations to relevant authorities (including relevant

verdicts, decisions, and settlements); (d) what, in the party’s view, are the

obstacles to resolving the case; and (e) any additional information that the

party believes will be helpful to the Court in trying to resolve the case,

which emx upsatr itneclude any special terms the party is requesting as part of a

final settlement agreement (confidentiality, indemnification, etc.). As

these statements will be treated as confidexe nptaiartl eand will not be

docketed, they should include a realistic valuation of the case and

assessment of the party’s settlement position. The letters shall be

limited to five (5) pages exclusive of attachments.

3. Counsel should anticipate that the Court may contact counsel for each

party individually ahead of the conference to discuss that party’s

settlement position.

C. Advising the Court of a Settlement in Principle

When the parties have reached an agreement in principle on the settlement of a case, the

parties should promptly file a letter by ECF indicating that they have reached a settlement in

principle. If, for some reason, the parties cannot promptly file a letter by ECF, they should

immediately call or e-mail Chambers to advise of the settlement. Unless the Court enters an

Order otherwise, the parties should file within seven (7) days of a settlement in principle a

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u s letter proposing a date to file the stipulation of dismissal.

Unless otherwise directed by the presiding District Judge, all non-dispositive pre-trial

motions, inclaudd ihnogc dviiscceovery motions, are to be made to Judge Eichenholtz. For discovery

motions, follow the process described in Local Civil Rule 37.2 and Section VI of these Rules. For

motions for admissions or attorney withdrawals, follow the relevant Local Civil

Rules. For all other non-dispositive motions, after first exhausting good faith efforts to resolve

the dispute, a party should file a letter motion when permitted under Local Civil Rule 7.1(e) or,

alternatively, request a conference about the dispute in anticipation of filing a motion. In

certain cases, after submission of the initial letter motion, the Court may order the moving party

to file a formal motion, in which case the parties should follow the requirements for formal

briefing of motions in Local Civil Rules 6.1 and 7.1.

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IX. DISPOSITIVE MOTIONS

Dispositive motions, such as motions to dismiss and motions for summary judgment,

must be made to the presiding District Judge in accordance with his or her Individual Practices

and Rules, unless the parties have consented to Judge Eichenholtz in accordance with 28 U.S.C.

§ 636(c)(1).

W here the parties have cons ented to Judge Eichenholtz, the following rules apply:

A. Pre-Motion Conferences

1. Pre-motion conferences are not required in Social Security appeals or

habeas cases. In all other cases, a party must request a pre-motion

conference before filing any dispositive motion pursuant to Fed. R. Civ. P.

12 or 56; any motion for a change of venue; or a motion to amend a

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pleading pursuant to Fed. R. Civ. P. 15 when leave of court is required.

2. To request a pre-motion conference, the moving party is to file and serve

a pre-motion conference letter, not to exceed three (3) pages, setting forth

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the basis for the anticipated motion. The letter shall include citations to

relevant authority and should provide a brief overview of the anticipated

motion. A party’s submission of a pre-motion letter seeking leave to file a

pre-answer motion to dismiss will stay that party’s obligation to answer

or move against the complaint through the date of the pre-motion

conference.

3. All parties served with the moving party’s pre-motion conference letter

are required to serve and file a letter response within five (5) business

days of service of the moving party’s letter, unless otherwise ordered by

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the Court. The response shall not exceed three (3) pages. When a party

responds to a pre-motion conference letter in anticipation of a motion to

dismiss, they should state whether they intend to: file an amended

complaint as of right, pursuant to Fed. R. Civ. P. Rule 15(a)(1)(B); seek

leave to amend in light of one or more alleged pleading defects; or proceed

to briefing on the contemplated motion. Replies are not permitted.

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When submitting a pre-motion letter regarding a request to amend a pleading, the moving

party must comply with Local Civil Rule 15.1.

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If the pre-motion conference letter is filed in anticipation of a motion pursuant to Fed. R. Civ. P.

56, the party does not need to file a full statement of facts on a motion for summary judgment (a Local

Civil Rule 56.1 Statement) at the time of the pre-motion conference letter, but the letter must describe

the general undisputed material facts that will support the motion.

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Any letter in response from a party opposing an anticipated motion pursuant to Fed. R. Civ. P.

56 must include a description of the dispute(s) of fact that will serve as a basis for opposing summary

judgment and the admissible evidence that supports the dispute.

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4. In appropriate cases, the Court may construe the pre-motion conference

letter, along with counsel’s arguments at the pre-motion conference, as

the motion itself. The Court may also set a briefing schedule without a

pre-motion conference if the Court determines that a pre-motion

conference will not be a useful expenditure of the parties’ time.

5. If any party concludes in good faith that delaying the filing of a motion, in

order to comply with any aspect of these Individual Practices and Rules,

will deprive the party of a substantive right (e.g. the timing provisions of

Fed. R. App. P. 4(a)(4)(A)), the party may file the motion within the time

required by the Federal Rules of Civil or Appellate Procedure, together

with an explanation of the basis for that conclusion.

B. Motion Papers

1. Motion papers shall be filed promptly at the time of service. Parties should

not hold motion papers until all papers are complete. The Court does not

follow a “bundling rule.”

2. Please follow Local Civil Rule 7.1(b) regarding formatting of memoranda

and Local Civil Rule 7.1(c) regarding length of memoranda. Counsel should

note that the rule now provides a word limit (as opposed to a page limit)

in most cases and requires a certification of the word count. All

X. PRE-TRIAL SUB m M e I m SS o IO r N a S n d a must be filed in a text-searchable format.

The parties must file a joint proposed pre-trial order in the format prescribed by the

presiding District Judge on or before the deadline set by the Court or as set forth in the presiding

District Judge’s Individual Practices and Rules.

Where the parties have consented to Judge Eichenholtz for trial, the following rules

apply:

A. Joint Proposed Pre-Trial Orders

Unless otherwise ordered by the Court, within sixty (60) days from the date for

the completion of discovery in a civil case, the parties shall submit to the Court a

joint proposed pre-trial order that includes the following:

1. The full caption of the action;

2. The names, addresses (including firm names), telephone number, and

email addresses of trial counsel;

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3. A brief statement by Plaintiff as to the basis of subject-matter jurisdiction,

and a brief statement by Defendant as to the presence or absence of

subject-matter jurisdiction, each of which shall include citations to all

authority relied on and relevant facts as to citizenship and jurisdictional

amount;

4. A brief summary by each party of the claims and defenses that the party

has asserted that remain to be tried—without recital of evidentiary

matters but with citations to all statutes on which the party has relied—

and of the claims and defenses that the party has previously asserted that

are not to be tried;

5. A statement by each party as to whether the case is to be tried with or

without a jury, and the number of trial days needed;

6. Any stipulations or agreed statements of fact or law that have been agreed

to by all parties;

7. A statement by each party as to the witnesses whose testimony is to be

offered in the party’s case-in-chief, indicating whether such witnesses will

testify in person or by deposition. The statement should also include a

brief narrative of the expected testimony for each witness. Only listed

witnesses will be permitted to testify except when prompt notice has been

given and good cause shown;

8. A designation by each party of those portions of any deposition testimony

to be offered in its case-in-chief, with any cross-designations and

objections by any other party;

9. A table by each party of exhibits to be offered in the partey.g’s. case-in-chief,

with an indication as to whether any party objects to any such exhibits and

a brief statement of the nature of the objection ( , “relevance,”

“authenticity,” “hearsay”), and a brief response to those objections. The

taEbxlhe ifboirtm at below Dsheosucrldip bteio fnol lowOebdj:e ction(s) Brief response

to the

Objection(s)

All exhibits must be pre-marked in the order in which they are expected

to be used (using numerals for Plaintiff’s exhibits and letters for

Defendant’s exhibits). Parties are expected to resolve before trial all

issues of authenticity or chain of custody. Only exhibits listed will be

received in evidence, except for good cause shown.

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B. Filings Prior to Trial

in limine

1. All motions addressing any evidentiary or other issues that should be

resolved shall be filed at least fifteen (15) days before the trial

unless otherwise ordered by the Court. Parties must provide the Court

with copies of any disputed documents as exhibits to the motion.

Responses, if any, shall be due five (5) days later. Oral argument will be

scheduled if necessary. voir dire

2. For jury trials, proposed jury instructions, questions, and a jury

verdict sheet shall be filed at least ten (10) days prior to the start of the

trial unless otherwise ordered by the Court. These pre-trial submissions

should also be sent to Chambers via email

(Eichenholtz_chambers@nyed.uscourts.gov) in Microsoft Word format.

Pretrial memoranda are not required for jury trials, but a party may

submit one along with these other filings if a party believes it would be

useful.

3. For non-jury trials, if the Court requests a pretrial memorandum, it shall

be filed at least ten (10) days prior to the start of the trial. The

memorandum should describe the facts the party intends to establish and

the application of those facts to the relevant law. Parties need not put

citations to evidence in a pre-trial memorandum.

C. Courtesy Copies of Trial Exhibits

Unless otherwise ordered by the Court, each party shall provide the Court with three

binders of their pre-marked exhibits with tabs reflecting each exhibit’s corresponding number

or letter. The parties shall bring their binders to the final pre-trial conference. All exhibits,

i ncluding demonstrative exhibits, should be exchanged with the opposing party prior to

s ubmitting the courtesy copy binder to the Court

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