Hon. Gabriel W. Gorenstein — Individual Rules of Practice

Dated

January 29, 2025

INDIVIDUAL PRACTICES OF MAGISTRATE JUDGE GABRIEL W. GORENSTEIN

Note on Consent Jurisdiction

If the parties wish to consent to having Judge Gorenstein

preside over their case for all purposes, the necessary form is available on Judge Gorenstein’s

page on the SDNY website (https://nysd.uscourts.gov/hon-gabriel-w-gorenstein). In consent

cases, the Magistrate Judge assumes the role of the District Judge and thus the right to a jury trial

is preserved. Any appeal is directly to the Court of Appeals. Judge Gorenstein schedules trials

in civil cases for firm dates chosen in consultation with the parties, rather than using a trailing

trial calendar or requiring counsel to be available for trial on short notice. If all parties sign a

consent form, it may be filed on the Electronic Case Filing (“ECF”) system as an attachment to a

cover letter to Judge Gorenstein. A form is also available to consent to jurisdiction over a

particular motion.

All matters referred to Judge Gorenstein shall be conducted in accordance with the

instructions below, unless otherwise ordered.

1. Communications with Chambers

A. Letters. Letters to the Court are permitted. However, the Court will not consider

any letter that fails to comply with any applicable requirement contained in these Individual

Practices. Parties shall not copy the Court on correspondence sent between counsel or the

parties.

B. Method of Submitting Letters. Parties are permitted, though not required, to file a

letter on ECF. For any request for an extension or an adjournment (which must comply with

paragraphs 1.E and 1.F below), counsel should select the “letter motions” option on ECF. All

other letters should be docketed simply as a “letter.” If a letter is filed on ECF, a courtesy copy

should not be sent to Chambers.

Letters sent by mail or overnight delivery should be addressed to Judge Gorenstein at the

U.S. Courthouse, 40 Foley Square, New York, NY 10007. If delivered by hand, letters should be

brought to 40 Foley Square. The Court does not accept letters by email.

C. Telephone Calls. Except as provided in Paragraph 1.D below, telephone calls to

Chambers are permitted only in emergency situations. For any other situation, a party may

submit a letter to the Court in accordance with paragraphs 1.A and 1.B above.

D. Calendar Matters. For information regarding available dates for adjournments as

stated in paragraph 1.F below, call Chambers at (212) 805-4260.

E. Requests for Extensions of Deadlines. Requests for extensions of deadlines must

state (1) the date or dates sought to be extended, (2) the number of previous requests for

extensions, (3) the reason for the extension, and (4) whether the adversary objects and, if so, the

reasons given by the adversary for objecting. To the extent a request to extend a particular date

requires a change in other scheduled dates, the request must list the proposed change for all such

other dates, giving the new proposed date for each affected deadline. A request may be made

either by letter or by a joint stipulation that reflects the required information. Note: to the extent

a party’s adversary objects to a request regarding a discovery deadline, the party must also

comply with the conference requirements of paragraph 2.A below.

Note

This paragraph does not apply to deadlines for briefing of a formal motion where

the deadline is not court-ordered and the parties agree to the new deadline, as described in

paragraph 2.B below.

F. Requests for Adjournments of Court Appearances (including telephone

conferences). A request for an adjournment of a court appearance shall be made as soon as a

party is aware of the need for the adjournment and, in any event, no later than five business days

prior to the scheduled appearance (absent unforeseen circumstances). Prior to making such a

request, the party intending to make the request should contact the Deputy Clerk ((212) 805-

4260), to determine an alternative date for which the Court is available for a rescheduled court

appearance. The requesting party should next contact all other parties to determine their

availability for that date. The requesting party must then file a letter to the Court on ECF

seeking the adjournment, stating the date and time that is being requested. The letter must

include a statement as to the other parties’ positions on the change in date. The appearance is

not adjourned unless the parties are thereafter informed by the Court that the written application

has been granted.

G. Electronic Device Orders. Orders permitting an attorney to bring an electronic

device to the Courthouse may be requested by filing a letter on ECF (using the “Letter”

category) that attaches a completed form. Any such letter shall be filed at least two business

days before the proceeding at issue. The form for such orders is located on the forms page of the

SDNY website and is entitled “Fillable Form For Electronic Devices General Purpose.” (It can

be found by using the “what are you seeking” box on the Forms page and searching for

“electronic devices.”) Note that only attorneys are eligible for such an order.

2. Motions

A. Pre-Motion Conferences in Civil Cases. As described below, pre-motion

conferences are required where the proposed motion is returnable before Judge Gorenstein, or

where the proposed motion has been referred to Judge Gorenstein, except that no pre-motion

conference is required for motions for admission pro hac vice, motions for reconsideration or

reargument, motions listed in Fed. R. App. P. 4(a)(4)(A), motions for recusal, and applications

made by order to show cause.

Discovery Motions. No application relating to discovery (that is, any dispute arising

under Rules 26 through 37 or Rule 45 of the Federal Rules of Civil Procedure) shall be heard

unless the moving party has first conferred in good faith by telephone or in person with all other

relevant parties in an effort to resolve the dispute. A party must respond within one business day

to any request from another party to confer unless an emergency prevents such a response. If the

conference with the relevant parties has not resolved the dispute, the moving party must confirm

this fact with the opposing party and must inform the opposing party during the conference that

as a result of the impasse the moving party intends to seek relief from the Court regarding the

dispute. The moving party must thereafter promptly request a conference with the Court. See

Local Civil Rule 37.2. To request a conference with the Court, the moving party shall submit a

letter (normally not more than five pages) setting forth the basis of the dispute and the need for

the anticipated motion. (Do not use the “Letter Motion” category on ECF for such a letter; use

instead the “Letter” category.) The letter must certify that the required in-person or telephonic

conference took place between the relevant parties. The letter must also state (1) the date and

time of such conference, (2) the approximate duration of the conference, (3) the names of the

attorneys who participated, (4) the adversary’s position as to each issue being raised (as stated by

the adversary during the in-person or telephonic conference), and (5) that the moving party

informed the adversary during the conference that the moving party believed the parties to be at

an impasse and that the moving party would be requesting a conference with the Court. None of

these requirements may be satisfied by attaching copies of communications between the parties

and it is usually unhelpful to attach such communications. The party opposing the requested

relief must submit a letter to the Court in response as soon as practicable and in any event within

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two business days, unless the parties agree otherwise (and the Court is informed of the agreed

response date by letter filed on ECF) or, if no agreement can be reached, an extension of time is

sought and granted in accordance with paragraph 1.E above.

In most instances, the letters will fully describe the parties’ discovery dispute.

Accordingly, if a party believes that the issue must be decided based on formal briefing, the

party must so state in a separate letter application and shall give the reasons therefor. In the

absence of such an application, the Court may decide the dispute based solely on the letters and

without holding a conference.

Motions other than Discovery Motions. To arrange a pre-motion conference for non-

discovery matters, the moving party shall submit a letter setting forth briefly (normally in not

more than three pages) the nature of the anticipated motion. An opposing party shall respond

within two business days. Parties are reminded that, as described in section 1.B above, if this

letter is filed on the ECF system, the “letter motion” option should not be selected. Instead the

“letter” option should be selected. Parties are encouraged to confer with their adversary in

appropriate cases to determine whether a motion is in fact necessary.

B. Briefing Schedule on Motions. Where the Court has ordered deadlines for briefing a

motion, the court-ordered deadlines apply. Any extension of a Court-ordered deadline may be

sought in accordance with paragraph 1.E above.

Where the Court has not ordered a briefing schedule, the moving party shall, prior to

filing the motion, contact all other parties in an attempt to agree on a reasonable schedule.

Unless the Court orders otherwise, any agreed-upon schedule shall govern as long as it is

disclosed to the Court in the text of the notice of motion. The parties may agree to subsequent

extensions of deadlines without Court order as long as the new schedule is disclosed in a letter to

the Court filed on ECF. Thus, in a situation where the parties agree on an extension to deadlines

in a briefing schedule and the deadlines at issue were not court-ordered, paragraph 1.E above is

inapplicable, and no Court order is required (or should be sought) to effectuate the new schedule.

In the rare instance where the parties cannot agree on a schedule for the briefing of a

motion, the briefing schedule will instead be in accordance with the time periods specified in

Local Civil Rule 6.1. Any extensions may be sought in accordance with paragraph 1.E above.

A return date should not be given in the Notice of Motion.. Instead, the Notice of Motion

shall list the due date for opposition and reply papers (in accordance with the parties’ agreement,

Local Civil Rule 6.1 or any governing Court Order, whichever may be applicable).

When the motion is fully submitted, the party making the initial motion shall file a letter

informing the Court of such.

C. Courtesy Copies of Motion Papers. A party must send to Chambers (by postal mail

or other delivery to 40 Foley Square) one courtesy copy of each memorandum of law the party

files, marked as such, at the same time as it is filed.

D. Memoranda of Law. A memorandum of law must accompany all motions and

oppositions thereto. See Local Civil Rule 7.1. The memorandum of law must set forth all

pertinent facts, which may not be accomplished by incorporating by reference other documents,

such as affidavits or statements under Local Civil Rule 56.1. Instead, the memorandum must

contain a fact section that sets forth all facts relevant to the motion and, for each factual

statement, provides one or more citations (with specific page or paragraph numbers) to

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pleadings, declarations, affidavits or other documents that have been separately filed. Any

factual statement contained within other sections of a memorandum also must be followed by a

citation to documents in the record.

Notwithstanding the provisions of Local Rule 7.1 (c) to the contrary, the Court does not

impose page or word count limitations on memoranda of law. Nonetheless, a party should make

every effort to eliminate repetitive or unnecessary mater from memoranda so as not to

unnecessarily burden the Court. Memoranda of more than 10 pages shall contain a table of

contents.

E. Requests to File Materials Under Seal. The parties are reminded that the filing of

any papers or portions of papers under seal is only permitted pursuant to an order of the Court or

these Individual Practices. (This does not apply to the sensitive information described in Fed. R.

Civ. P. 5.2 which must be redacted and for which no Court order is required). To the extent

papers proposed for filing contain material that one or both sides believe should be filed under

seal, the party shall (1) file the materials under seal and (2) publicly file the materials in redacted

form (that is, in a form that redacts information that is proposed to be sealed). The set of papers

filed under seal shall highlight any proposed redactions or otherwise clearly indicate where they

occur.

At the time of the filing of the redacted and unredacted versions of the materials, the

filing party shall either (1) state that the redactions are a result of a Confidentiality Order

designation made by another party and that such other party has an obligation to file a motion to

seal within 7 days or (2) file a motion to seal (either as a formal motion or as a letter motion) that

justifies the proposed sealing by citing case law and providing any factual explanation required

to justify the sealing. In cases where the request to seal arises because of an opposing party’s

designations, the opposing party has the obligation to make the written application to the Court

justifying the proposed sealing and shall make the application within 7 days of the filing. (The

Court reminds the parties that the mere fact that material has been designated as confidential

under a Confidentiality Order will not support sealing and the party making the designation must

reconsider any prior designation in light of the case law applicable to filing Court documents

under seal.)

If the Court issues an order that denies the motion to seal, the filing party shall promptly

refile any previously sealed materials in accordance with the Court’s Order.

F. Oral Argument on Motions. Judge Gorenstein normally does not hear oral

argument on motions. A party may request oral argument by letter. If the Court determines that

argument will be heard, it will so advise the parties. (A request for oral argument is more likely

to be granted if a party identifies a lawyer to argue the motion who has been admitted within the

previous five years and references this paragraph in the letter request.)

G. Applicability of Rule 56.1 to Summary Judgment Motions. Any motion for

summary judgment must comply with Local Civil Rule 56.1, except that a party who is not

required to comply with Local Civil Rule 56.1(d) based on the applicability of Fed. R. Civ. P.

56(c)(1)(B) may seek to be relieved of Local Civil Rule 56.1(d)’s requirements by raising the

issue in the pre-motion conference request.

H. Motions in Pro Se Cases. As required by Local Civil Rule 7.2, counsel must

provide a pro se litigant with printed copies of decisions cited in any submission that are

reported exclusively in computerized databases.

Where a party seeks summary judgment against a pro se litigant, the party must also

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comply with the notice requirements of Local Civil Rule 56.2. Where a party moves to dismiss

or for judgment on the pleadings against a pro se litigant and refers to matters outside the

pleadings, counsel must serve and file the notice set forth in Local Civil Rule 12.1. In such

situations, counsel are strongly encouraged to move in the alternative for summary judgment so

that the pro se litigant understands, based on the Local Civil Rule 56.1 submission, exactly what

facts are relevant to the motion.

3. Pretrial Procedures

Note

The following additional procedures apply only to those cases where the

parties have consented under 28 U.S.C. § 636(c) to have all proceedings, including trial,

before Judge Gorenstein.

A. Pretrial Disclosure. The parties are reminded of their obligations to make certain

disclosures regarding expert testimony pursuant to Fed. R. Civ. P. 26(a)(2) and to make

disclosures regarding evidence that may be presented at trial pursuant to Fed. R. Civ. P. 26(a)(3).

Failure to comply with these requirements may result in preclusion or other sanctions.

B. Joint Pretrial Orders in Civil Cases. Unless otherwise ordered by the Court, within

30 days from the date for the completion of discovery in a civil case, the parties shall submit to

the Court for its approval a joint pretrial order, which shall include the following:

i. The full caption of the action.

ii. The names, addresses (including firm names), and telephone (including

cellular phone if available) and email addresses of trial counsel.

iii. A brief statement by plaintiff as to the basis of subject matter jurisdiction, and

a brief statement by each other party as to the presence or absence of subject matter

jurisdiction. Such statements shall include citations to all statutes relied on and relevant

jurisdictional facts, such as citizenship and jurisdictional amount.

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

asserted that remain to be tried, without recital of evidentiary matter but including

citations to all statutes relied on.

v. With respect to each claim remaining to be tried, a statement listing each

element or category of damages sought with respect to such claim and, if appropriate, a

calculation of the amount of damages sought with respect to such element or category.

vi. A statement by each party as to whether the case is to be tried with or without

a jury, and the number of total trial days needed.

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

by all parties.

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

offered in its case, indicating whether such witnesses will testify in person or by

deposition. A party may not call as a witness an individual who is not listed in its portion

of this statement.

ix. A designation by each party of deposition testimony to be offered in its case,

referencing page and line numbers, with any cross-designations and objections by any

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other party. If there is no objection or cross-designation, the Court will deem the

opposing party to have waived any such objection or cross-designation. A party may not

offer deposition testimony that is not listed in its portion of the designation.

x. A list by each party of exhibits to be offered in its case. Each exhibit shall be

pre-marked (plaintiff to use numbers, defendant to use letters). For any exhibit as to

which there is an objection, the party objecting must briefly specify, next to the listing for

that exhibit, the nature of the party’s objection (e.g., “authenticity,” “hearsay,” “Rule

403”). Any objection not listed shall be deemed waived. A party may not offer an

exhibit that is not listed in its portion of the list.

C. Filings Prior to Trial in Civil Cases. Unless otherwise ordered by the Court, each

party shall file – at the same time as the filing of the joint pretrial order – the following:

i. In jury cases, all parties must prepare jointly three separate documents: (1) a

list of voir dire questions to be asked of prospective jurors; (2) requests to charge; and (3)

a proposed verdict sheet. To the extent a party objects to another party’s requested voir

dire questions, requests to charge or proposed verdict sheet, that party should (1) set forth

the grounds for that objection (or refer to the trial memorandum of law for a full

discussion of the objection) and (2) propose an alternative. All requests to charge, all

objections and all alternative proposals must include citation to authority. If the voir dire

questions, requests to charge and/or verdict sheets are prepared on a computer, electronic

copies must also be submitted via e-mail. Counsel should contact the Deputy Clerk for

instructions on how to submit such materials by e-mail.

Each party must also file a Trial Memorandum of Law addressing each

issue of law that the party expects to arise at or before trial.

ii. In nonjury cases, the parties are required to submit proposed findings of fact

and conclusions of law. The parties must also submit trial memoranda of law that

identify the issues, summarize facts and applicable law, and address any evidentiary

issues. If prepared on a computer, these materials should also be submitted via e-mail.

Counsel should contact the Deputy Clerk for instructions on how to submit such

materials by e-mail.

D. Submissions to the Court Prior to Trial in Civil Cases. At or before the time the

materials set forth in paragraph 3.C above are filed, the parties shall deliver to the Court in a

loose-leaf binder: (1) a copy of each of the party’s pre-marked exhibits, see paragraph 3.B.x

above, and (2) a copy of any deposition testimony designated in paragraph 3.B.ix above. If an

exhibit is voluminous, it should not be included.

E. Witnesses at Trial. When a party’s case commences, that party is expected to have

witnesses available to fill the trial day, which runs from 9:00 a.m. to 5:00 p.m. with a one hour

lunch break. The parties are warned that if a party does not have a witness available to testify,

the Court may deem that party to have rested. Any requests to schedule a witness out of order

and/or for a particular day must be made by a letter application that states the opposing party’s

position and that is sent (1) prior to trial and (2) as soon as counsel is aware of the limited

availability of that witness. Untimely applications will be denied.

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