Hon. Mary Kay Vyskocil — Individual Rules of Practice

INDIVIDUAL RULES OF PRACTICE IN CIVIL CASES

Mary Kay Vyskocil, United States District Judge

Chambers Courtroom

United States District Court 500 Pearl Street, Courtroom 18C

Southern District of New York Roseanne Dempsey,

500 Pearl Street, Room 2230 Courtroom Deputy

New York, NY 10007 (212) 805-0174

(212) 805-0200

VyskocilNYSDChambers@nysd.uscourts.gov Pro Se Intake Office

United States District Court

Southern District of New York

40 Foley Square, Room 105

New York, NY 10007

(212) 805-0175

1. Procedural Rules

A. Generally. The Court’s procedures are governed by the Federal

Rules of Civil Procedure, the Local Rules of the United States

District Courts for the Southern and Eastern Districts of New York

(the “Local Rules”), and the Individual Practices set forth below.

Unless otherwise ordered, these Individual Practices apply to all

civil matters before Judge Vyskocil.

B. Pilot Projects and Plans. If a case is designated by Order of the

Court to be part of one of the Court’s pilot projects or plans

(including the protocols set forth in Local Civil Rule 83.10), the

procedures in such project or plan shall govern to the extent that

they are inconsistent with these Individual Practices.

2. Communications with the Court

A. ECF. In accordance with the Electronic Case Filing (“ECF”) Rules

and Instructions, counsel are required to register as ECF filers and

to enter a notice of appearance in the case promptly. Instructions

are available on the Court website, at

https://nysd.uscourts.gov/electronic-case-filing. Counsel are

responsible for updating their contact information on ECF as

needed, and counsel remain responsible for checking the docket

sheet regularly, regardless of whether they receive an ECF

notification of case activity.

B. Letters. Except as otherwise provided below, communications

with the Court should be by letter not to exceed three pages in

length. Unless there is a request to file a letter under seal or a

letter contains sensitive or confidential information, letters should

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be filed electronically on ECF, with copies simultaneously delivered

to all counsel.

Copies of correspondence between counsel shall not be filed

on ECF or otherwise sent to the Court (except as exhibits to an

otherwise properly filed document).

i. By a Pro Se Party. All communications with the Court by a

pro se party must be sent to the Pro Se Intake Office. You

may contact the Pro Se Intake Office at (212) 805-0175

during normal business hours, 8:30am - 5:00pm, Monday –

Friday. No documents or filings should be sent directly to

Chambers. Copies of correspondence between a pro se party

and counsel should not be sent to the Court.

C. Urgent Communications. Materials filed via ECF are generally

reviewed within one business day of filing. If a given submission

requires immediate attention, please notify Chambers by telephone

after it is filed by ECF.

D. Telephone Calls. For docketing, scheduling, and calendar

matters, call the Courtroom Deputy Roseanne Dempsey at (212)

805-0174 between 9:00AM and 4:30PM. Otherwise, telephone

calls to Chambers are permitted only for urgent matters.

i. By a Pro Se Party. Pro se parties are not permitted to

telephone Chambers. Pro se parties are directed to contact

the Pro Se Intake Office at (212) 805-0175.

E. Faxes. Faxes to Chambers are not permitted (unless specifically

directed by the Court).

F. Hand Deliveries. Where requested by the Court, hand-delivered

mail should be left with the Court Security Officers at the Worth

Street entrance of the Daniel Patrick Moynihan United States

District Courthouse at 500 Pearl Street, New York, NY 10007, and

may not be brought directly to Chambers. Hand deliveries are

continuously retrieved from the Worth Street entrance by

Courthouse mail staff and then taken to Chambers. If the hand-

delivered letter is urgent and requires the Court’s immediate

attention, ask the Court Security Officers to notify Chambers that

an urgent package has arrived that needs to be retrieved by

Chambers staff immediately.

G. Requests for Adjournments or Extensions of Time. Letter

motions for adjournments or extensions of time should state:

(i) the original due date; (ii) the number of previous requests for

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adjournment or extension of time; (iii) whether these previous

requests were granted or denied; (iv) the reason for the current

request; and (v) whether the adversary consents, and, if not, the

reasons given by the adversary for refusing to consent. If the

requested adjournment or extension affects any other scheduled

dates, a proposed Revised Scheduling Order must be attached. All

requests for adjournments or extensions of time, including

requests on consent, must be made at least 72 hours prior to the

scheduled appearance. Absent good cause, failure to comply with

this deadline will result in denial of the request.

i. By a Pro Se Party. Requests for extensions by pro se parties

should be submitted to the Pro Se Office, and shall include the

information specified in Rule 2(D), except that a pro se party

may, but is not required to, submit a proposed Revised

Scheduling Order.

H. Proposed Orders and Stipulations. All stipulations and proposed

orders — with the exception of emergency applications, including

temporary restraining orders and preliminary injunctions —

should be filed electronically using the Court’s ECF system.

Emergency applications should be filed with the Orders and

Judgments Clerk, in person at 40 Foley Square, Room 105.

Courtesy copies need not be sent to Chambers. For further

information, parties are directed to consult the SDNY Electronic

Case Filing Rules & Instructions, available at

https://nysd.uscourts.gov/electronic-case-filing.

I. Related Cases. After an action has been accepted as related to a

prior filing, all future court papers and correspondence must

contain the docket number of the new filing as well as the docket

number of the case to which it is related (e.g., 19 Civ. 1234 [rel. 18

Civ. 4321]).

J. Cases Removed from State Court. Counsel for the removing

party or parties must, in addition to providing a copy of all process,

pleadings, and papers served upon the defendants pursuant to 28

U.S.C. § 1446(a), provide the Court with a courtesy copy of any

pleading filed or served while the case remained in state court.

Counsel for all parties must file notices of appearance in this Court

promptly upon removal.

3. Conferences

A. Attendance by Principal Trial Counsel. The attorney who will

serve as principal trial counsel must appear at all conferences with

the Court.

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B. Participation by Junior Attorneys: The Court encourages the

participation of less experienced attorneys in all proceedings —

including pretrial conferences, hearings on discovery disputes, oral

arguments, and examinations of witnesses at trial — particularly

where that attorney played a substantial role in drafting the

underlying filing or in preparing the relevant witness. The Court is

amenable to permitting more than one lawyer to argue for one

party if this creates an opportunity for a junior lawyer to

participate. Nevertheless, all attorneys appearing before the Court

must have authority to bind the party they represent consistent

with the proceedings (for example, by agreeing to a discovery or

briefing schedule), and should be prepared to address any matters

likely to arise at the proceeding. The ultimate decision of who

speaks on behalf of the client is for the lawyer in charge of the

case, not for the Court.

C. Initial Case Management Conference. The Court will generally

schedule a conference pursuant to Federal Rule of Civil Procedure

16(c) to take place within one month of the filing of an Answer to

the Complaint. The Notice of Initial Pretrial Conference will be filed

on ECF. Plaintiff’s counsel is responsible for distributing the

Notice of Initial Pretrial Conference to all parties. Pursuant to the

Notice, the parties are required to file on ECF and submit via e-

mail (VyskocilNYSDChambers@nysd.uscourts.gov) a joint letter

and Proposed Civil Case Management Plan and Scheduling Order

(https://nysd.uscourts.gov/sites/default/files/practice_document

s/MKV%20Vyskocil%20Case%20Management%20Plan.pdf) in PDF

and Microsoft Word format one week prior to the Initial Pretrial

Conference. In addition, initial disclosures pursuant to Rule

26(a)(1) shall be promptly exchanged prior to the Initial Pretrial

Conference. Fed. R. Civ. P. 26(a)(1).

D. Discovery Disputes. The parties are to follow Local Civil Rule

37.2 with the following modifications: Any party wishing to raise a

discovery dispute with the Court must first confer in good faith

with the opposing party, in person or by telephone, in an effort to

resolve the dispute. If this meet-and-confer process does not

resolve the dispute, the party may file on ECF a joint letter, no

longer than four pages, explaining the nature of the dispute and

setting forth the position of each party with respect to the disputed

issue, and requesting an informal conference. Such a letter must

include a representation that the meet-and-confer process

occurred and was unsuccessful. After reviewing the joint letter,

the Court may schedule a conference with the parties or ask for

additional submissions in order to resolve the dispute.

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Counsel should seek relief in accordance with these procedures in a

timely fashion. Specifically, parties should seek relief with respect

to discovery in sufficient time to obtain a ruling and any further

discovery that is ordered in advance of the discovery cutoff. If a

party waits until near the close of discovery to raise an issue that

could have been raised earlier, the party is unlikely to be granted

the relief that it seeks, let alone more time for discovery.

E. Post-Discovery Conference. In the Case Management Plan, the

Court will schedule a Post-Discovery Conference to occur after all

discovery has closed. In advance of the Post-Discovery Conference,

the parties must submit a joint status letter, as described in the

Case Management Plan and Scheduling Order. Any pre-motion

filings for post-discovery dispositive motions will be addressed at

the Post-Discovery Conference. Pre-motion letters and related

filings (as described in ¶4(A)(i) below) must be submitted to the

Court at least seven days before the Post-Discovery Conference.

Deadlines for briefing dispositive motions and submission of

pretrial materials (see ¶7) will be set at the conference.

4. Motions

A. General Rules

i. Pre-Motion Submissions in Civil Cases. Parties wishing to file

a motion to dismiss, a motion for summary judgment, a motion

for judgment on the pleadings, a motion for sanctions, and any

motions concerning discovery should, prior to filing any motion,

request a pre-motion conference with the Court. Motions

concerning discovery are discussed in Section 3(D) above.

Pre-motion conferences are not required with respect to:

• Motions by incarcerated pro se litigants;

• Applications for temporary restraining orders;

• Applications for injunctions;

• Motions to remand;

• Motions for reargument;

• Motions described in Federal Rules of Appellate Procedure

4(a)(4)(A);

• Applications for attorney’s fees;

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• Motions for reduction of sentences;

• Objections to a Magistrate Judge’s ruling;

• Motions brought on by order to show cause;

• Motions for admission pro hac vice;

To request a pre-motion conference, the party wishing to make

a motion shall file a letter, not to exceed three pages, briefly

describing the motion that is contemplated and summarizing

the grounds for the proposed motion, and whether the motion is

on consent of all parties. If the motion is not on consent, any

opposing party should file a letter setting forth its position, not

to exceed three pages, within three business days after the

request is filed. The Court will then determine whether to hold

a pre-motion conference in the matter. Courtesy copies are not

necessary unless otherwise directed by the Court.

If a case has been referred to a magistrate judge for any reason

that does not include dispositive motions, the parties should

address pre-motion letters about dispositive motions to Judge

Vyskocil, and Judge Vyskocil will hold any pre-motion

conference and control the briefing schedule for the motion.

If the contemplated motion is for summary judgment under

Rule 56 of the Federal Rules of Civil Procedure, the

pre-motion conference letter must be accompanied by a

copy of the movant’s Rule 56.1 statement and any letter in

opposition must attach the non-movant’s Rule 56.1

Counter-Statement. See 5(C) below. The supporting

exhibits need not be filed with the Court until the parties

submit their actual motion (or opposition) and supporting

memoranda. Pre-motion letters concerning a motion for

summary judgment must be filed one week in advance of

the Post-Discovery Conference (see ¶3E).

The submission of a pre-motion letter does not stay any future

deadlines, except that submission of a pre-motion letter

concerning a motion to dismiss will stay a defendant’s time to

answer or otherwise move with respect to the Complaint.

ii. By a Pro Se Party. Pre-motion submissions are not required

from pro se parties. If the pro se party’s adversary files a pre-

motion submission, the pro se party may, but is not required to,

file a response to the pre-motion submission. Any such

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response shall be due three business days after the pre-motion

submission is received by the pro se party.

iii. Memoranda of Law in Civil Cases. The typeface, margins, and

spacing of motion papers must conform to Local Civil Rule 11.1.

Unless prior permission has been granted, memoranda of law in

support of and in opposition to motions are limited to 25 pages,

and reply memoranda are limited to 10 pages. All memoranda

of law shall be in 12-point font or larger, double-spaced, and

text-searchable. Memoranda of 10 pages or more shall contain

a table of contents and a table of authorities, neither of which

shall count against the page limit. Sur-reply memoranda will

not be accepted without prior permission of the Court. All

appendices to memoranda of law must be indexed.

iv. Filing of Motion Papers. Motion papers shall be filed with the

Clerk’s Office promptly after service.

v. Motion Schedule – Unless otherwise stipulated by the Court,

the schedule for responses and replies to civil motions shall be

that established by Local Civil Rule 6.1.

vi. Courtesy Copies. Courtesy copies are not necessary unless

otherwise directed by the Court. Upon request, courtesy copies

of motion papers, marked as such and including the ECF

header (See Section 2(B) above), shall be mailed or hand-

delivered to the Court by the party making the filing. All

courtesy copies should be double-sided, three-hole-punched,

tabbed, and placed in binders.

vii. Oral Argument on Motions. Parties may request oral

argument by letter at the time their moving or opposing or reply

papers are filed. After reviewing the motion papers, the Court

will determine whether argument will be heard and, if so, will

advise counsel of the argument date.

B. Letter Motions. Letter motions with respect to administrative

matters may be filed via ECF if they comply with the Local Rules

and the S.D.N.Y. Electronic Case Filing Rules and Instructions. All

requests for adjournments, extensions, and pre-motion

conferences should be filed as letter motions. If the letter motion is

not on consent, any opposing party should submit a letter setting

forth its position, within three business days after the initial letter

motion is received.

C. Motions to Dismiss. When a motion to dismiss is filed, the non-

moving party must, within fourteen (14) days of filing of the

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motion, notify the Court and its adversary in writing whether (i) it

intends to file an amended pleading and when it shall do so, or (ii)

it will rely on the pleading being attacked. This Rule does not alter

the time to file a response provided by the Federal and Local Rules.

If plaintiff amends its pleading, the defendant must, within

fourteen days of service of the amended complaint: (i) file an

answer; (2) file a new motion to dismiss; or (3) submit a letter to

the Court and the plaintiff stating that it relies on the previously

filed motion to dismiss.

D. Preliminary Injunction Motions. The Court generally follows the

procedure for the conduct of non-jury trials described in Section

7(C) below.

E. Motions to Exclude the Testimony of Experts. Pursuant to

Rules 702-705 of the Federal Rules of Evidence and the line of

cases beginning with Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993), motions to exclude testimony of experts must

be made by the deadline for dispositive motions and should not be

treated as motions in limine.

F. Pro Se Notices. Parties who file a motion to dismiss, a motion for

judgment on the pleadings, or a motion for summary judgment

must provide the pro se party with a copy of the notices required

under Local Civil Rules 12.1 or 56.2.

G. Default Judgments. A plaintiff seeking a default judgment must

proceed by way of a motion, and NOT by Order to Show Cause,

pursuant to the procedure set forth in Attachment A.

5. Special Rules for Summary Judgment Motions.

A. Generally Not Available in Non-Jury Cases. Absent good cause,

the Court will not have summary judgment practice in a non-jury

case.

B. Courtesy Copy of Deposition Transcript. Except in pro se cases,

the parties shall provide the Court with an electronic, text-

searchable courtesy copy of any hearing or deposition transcript on

which the parties rely, if such a copy is available, unless doing so

would be unduly burdensome. Parties should provide these

materials on a CD or memory stick and not by e-mail. Where

parties rely on deposition testimony, they may quote excerpts of

deposition transcripts, but must include (only once) the entire

deposition transcript as an exhibit.

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C. Local Rule 56.1 Statements. Pursuant to Local Civil Rule 56.1, a

movant for summary judgment shall file a statement of material

undisputed facts and the opposing party shall respond.

i. Electronic Copy to Other Parties. Except in pro se cases, the

moving party should provide all other parties with an electronic

copy, in Microsoft Word format, of the moving party’s Statement

of Material Facts Pursuant to Local Civil Rule 56.1.

ii. Organization of 56.1 Statements. The 56.1 Statement must

be organized into numbered paragraphs and each numbered

paragraph must contain only one factual assertion. Each

factual assertion must be followed by a citation to the portion(s)

of the evidentiary record relied upon.

Except in pro se cases, opposing parties must reproduce each

entry in the moving party’s 56.1 Statement, and set out the

opposing party’s response directly beneath it. The response

must state specifically what is admitted and what is disputed,

and the basis for any dispute, citing specific portions of the

evidentiary record relied upon. The response may go on to

make additional factual allegations in paragraphs numbered

consecutively to those of the moving party (i.e., they do not

begin re-numbering at 1). If additional factual allegations are

made by the opposing party, the moving party must file its own

responsive 56.1 Statement addressing the additional assertions.

iii. Multiple Parties Must Coordinate Statements. If multiple

parties are submitting 56.1 Statements, they must coordinate

their statements to provide for consecutive, non-overlapping,

numbered paragraphs in their respective statements.

iv. Statement of Facts. Each memoranda of law must include a

statement of facts and may not simply incorporate by reference

the entirety of a party’s 56.1 Statement.

6. Other Pretrial Guidance

A. Notice of Orders and Judgments. The Court will provide notice

of entry of any order or judgment through the Electronic Filing

System for all ECF cases. The Court will not send facsimile copies

of orders of judgments, except in cases which are not ECF cases

and in extraordinary circumstances. It remains the duty of

counsel for a party to review regularly the docket sheet of a case.

B. Applications for a Temporary Restraining Order. A party must

confer with his or her adversary before making an application for a

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temporary restraining order unless the requirements of Fed. R. Civ.

P. 65(b) are met. As soon as a party decides to seek a temporary

restraining order, he or she must call Chambers at (212) 805-0200

and state clearly whether (i) he or she has notified the adversary,

and whether the adversary consents to temporary injunctive relief;

or (ii) the requirements of Fed. R. Civ. P. 65(b) are satisfied and no

notice is necessary. If a party’s adversary has been notified but

does not consent to temporary injunctive relief, the party seeking a

restraining order must bring the application to the Court at a time

mutually agreeable to the party and its adversary, so that the

Court may have the benefit of advocacy from both sides in deciding

whether to grant temporary injunctive relief.

C. Voluntary Dismissals, Settlement Agreements, and Requests

To Retain Jurisdiction. The Court does not endorse stipulations

of voluntary dismissal pursuant to Rule 41(a)(1)(A)(ii) of the Federal

Rules of Civil Procedure. The Court does not endorse the terms of

private settlement agreements. The Court also generally will not

retain jurisdiction to enforce settlement agreements. If the parties

believe that exceptional and compelling circumstances justify

requesting that the Court retain jurisdiction to enforce a particular

settlement agreement, the parties must file a motion containing

that request and the reasons for retaining jurisdiction and

attaching a copy of the settlement agreement on the public docket

(or explaining why the settlement agreement cannot be made

public at the time of the motion). Upon receipt of the motion, the

Court will decide whether to retain jurisdiction.

D. Bankruptcy Appeals. The briefing schedule and format and

length specifications set forth in the applicable provisions of

Federal Rules of Bankruptcy Procedure shall govern unless

otherwise ordered by the Court. Counsel may extend the default

deadlines by stipulation submitted to the Court no later than two

business days before the brief is due.

7. Trial Procedures

A. Joint Pretrial Order. The parties shall file on ECF, and e-mail to

the Court, within thirty (30) days of the Post-Discovery Conference,

unless otherwise ordered by the Court, a proposed joint pretrial

order, which shall include the following:

i. The full caption of the action;

ii. The names, law firms, addresses, telephone (including mobile

phone) and fax numbers, and email addresses of trial counsel;

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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 facts as to citizenship and jurisdictional amount;

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

the party asserts remain to be tried, including citations to any

statutes on which the party relies. Any claim or defense not so

identified will be deemed withdrawn. Such summaries shall also

identify all claims and defenses previously asserted which are

not to be tried. The summaries should not recite any

evidentiary matter;

v. A statement as to whether all parties have consented to trial by

a magistrate judge, without identifying which parties do or do

not consent;

vi. 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;

vii. A joint statement summarizing the nature of the case, to be

read to potential jurors during jury selection;

viii. A list of people, places, and institutions that are likely to be

mentioned during the course of the trial, to be read to potential

jurors during jury selection;

ix. Any stipulations or agreed statements of fact or law to which all

parties consent, including a certification by lead trial counsel

for all parties that they have met face-to-face for the purpose of

endeavoring to reach agreement upon stipulations of fact and

stipulations of testimony and the content of their stipulations;

x. A list of all trial witnesses, indicating whether such witnesses

will testify in person or by deposition, and a brief summary of

the substance of each witness’s testimony;

xi. A designation (page and line) of deposition testimony to be

offered by each party in its case in chief and any counter-

designations and objections by any other party;

xii. A list by each party of exhibits to be offered in its case in chief,

with one star indicating exhibits to which no party objects on

grounds of authenticity, and two stars indicating exhibits to

which no party objects on any ground. If there are objections,

the objecting party must include a brief statement that makes

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clear the basis for its objection and provide any necessary

supporting authority;

xiii. A statement of the damages claimed and any other relief

sought, including the manner and method used to calculate any

claimed damages and a breakdown of the elements of such

claimed damages; and

xiv. A statement of whether the parties consent to less than a

unanimous verdict.

B. Required Pretrial Filings. Each party shall file and serve with the

joint pretrial order:

i. In both jury and non-jury cases, motions addressing any

evidentiary issues or other matters that should be resolved in

limine. **Opposition papers shall be filed within seven days

thereafter, and reply papers, if any, shall be filed within four

days of any opposition;

ii. In all cases where a party believes it would be useful to the

Court, a pretrial memorandum of law;

iii. In jury cases, joint proposed voir dire questions, verdict form

and requests to charge. These joint submissions shall consist of

single documents, jointly composed, noting any areas of

disagreement between the parties. The voir dire questions and

jury instructions shall include both the text of any requested

questions or instructions as well as a citation, if available, to

the authority from which it derives. These documents should

also be submitted by e mail to Chambers in Microsoft Word

format;

iv. Submit to the Court and serve on opposing counsel, but NOT

file on ECF, all documentary exhibits; and

v. In non-jury cases, proposed findings of fact and conclusions of

law. The proposed findings of fact should be detailed and

should include citations to the proffered trial testimony and

exhibits, as there may be no opportunity for post-trial

submissions. These documents should also be submitted to

Chambers by e mail in Microsoft Word format.

C. Additional Submissions in Non-Jury Cases. At the time the joint

pretrial order is filed, each party shall e-mail to the Court and

serve on opposing counsel, but not file on ECF, the following:

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i. Copies of affidavits constituting the direct testimony of each

trial witness, except for the direct testimony of an adverse party,

a person whose attendance is compelled by subpoena, or a

person for whom the Court has agreed to hear direct testimony

live at the trial. Three business days after submission of such

affidavits, counsel for each party shall submit a list of all

affiants whom he or she intends to cross-examine at the trial.

Only those witnesses who will be cross-examined need to

appear at trial. The original signed affidavits should be brought

to trial to be marked as exhibits;

ii. All deposition excerpts which will be offered as substantive

evidence, as well as a one-page synopsis of those excerpts for

each deposition. Each synopsis shall include page citations to

the pertinent pages of the deposition transcripts; and

iii. All documentary exhibits.

D. Filings in Opposition. Any party may file on ECF, and e-mail to

the Court, the following documents within one week after the filing

of the pretrial order:

i. Objections to another party’s requests to charge or proposed

voir dire questions;

ii. Opposition to any motion in limine, due within seven days of the

filing of the motion; and

iii. Opposition to any legal argument in a pretrial memorandum.

E. Courtesy Copies. Two courtesy copies of all documents identified

in Sections 7(A), (B), (C)(i-ii), and (D) above should be mailed or

hand-delivered to Chambers on the date on which they are to be

served or filed. Only one set of documentary exhibits is required.

Voluminous material may be organized either in binders or manila

file folders but in any event, the courtesy copies shall be separately

arranged into two independent sets.

8. Trial Procedures in Pro Se Cases

A. Generally. Rule 7 applies equally to cases involving a pro se party,

with the following exceptions:

i. Pretrial Statement. Unless otherwise ordered by the Court,

within 30 days of the completion of discovery, a pro se party

shall file a concise, written Pretrial Statement. This Statement

need take no particular form, but it must contain the following:

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(i) a statement of the facts the pro se party hopes to prove at

trial; (ii) a list of all documents or other physical objects that the

pro se party plans to put into evidence at trial; and (iii) a list of

the names and addresses of all witnesses the pro se party

intends to have testify at trial. The Statement must be sworn

by the pro se party to be true and accurate based on the facts

known by the pro se party. The pro se party shall file an

original of this Statement with the Pro Se Intake Office. Two

weeks after service of the pro se party’s Statement, counsel for

any represented party must file and serve a similar Statement

containing the same categories of information.

ii. Pretrial Filings. The pro se party may also file either proposed

findings of fact and conclusions of law or a proposed jury

charge, but is not required to do so. Counsel for any

represented party is directed to follow Rule 7(B)-(D).

9. Electronic Filing Under Seal in Civil and Miscellaneous Cases

A. Redactions Not Requiring Court Approval. Federal Rule of Civil

Procedure 5.2 describes sensitive information that must be

redacted from public court filings without seeking prior permission

from the Court. The parties are also referred to the E-Government

Act of 2002 and the Southern District’s ECF Privacy Policy and

Notice Regarding Privacy and Public Access to Electronic Civil and

Criminal Case Files (together “Privacy Policy”).

B. Sealing/Redactions Requiring Court Approval. Except for

redactions permitted by the previous paragraph, all redactions or

sealing of public court filings require Court approval. To be

approved, any redaction or sealing of a court filing must be

narrowly tailored to serve whatever purpose justifies the redaction

or sealing and must be otherwise consistent with the presumption

in favor of public access to judicial documents. See, e.g., Lugosch

v. Pyramid Co. of Onondaga, 435 F.3d 110, 119-20 (2d Cir. 2006).

In general, the parties’ consent or the fact that information is

subject to a confidentiality agreement between litigants is not, by

itself, a valid basis to overcome the presumption in favor of public

access to judicial documents. See, e.g., In re Gen. Motors LLC

Ignition Switch Litig., No. 14-MD-2543 (JMF), 2015 WL 4750774, at

*4 (S.D.N.Y. Aug. 11, 2015).

i. Procedures for Filing Documents with Redactions. Motions

or Letter Motions for approval of sealed or redacted filings in

civil and miscellaneous cases and the subject documents,

including the proposed sealed document(s), must be filed

electronically through the Court’s ECF system in conformity

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with the Court’s Standing Order 19-mc-00583 and ECF Rules &

Instructions Section 6, available at

https://nysd,uscourts.gov/rules/ecf-related-instructions.

The motion must be filed in public view, must explain the

particular reasons for seeking to file that information under seal

(including why the redactions are consistent with the standards

discussed in Paragraph 9(B) above), and should not include the

confidential information sought to be filed under seal or

redacted. Supporting papers must be separately filed

electronically and may be filed under seal or redacted only to

the extent necessary to safeguard information sought to be

redacted.

The proposed sealed document must be contemporaneously

filed under seal in the ECF system and electronically related to

the motion. The summary docket text, but not the sealed

document, will be open to public inspection and should not

include confidential information sought to be filed under seal.

Where the motion seeks approval to redact information from a

document that is to be publicly filed, the filing party shall:

(a) publicly file the document with the proposed redactions, and

(b) electronically file under seal a copy of the unredacted

document with the proposed redactions highlighted. Both

documents must be electronically filed on ECF and related to

the motion.

Any party unable to comply with the requirements for electronic

filing under seal through the ECF system, or who has reason to

believe that a particular document should not be electronically

filed, must move for leave of the Court to file in the traditional

manner, on paper.

ii. E-mailing of Documents to Chambers. At the same time, the

party should e-mail to Chambers

(VyskocilNYSDChambers@nysd.uscourts.gov) (i) a clean (i.e.,

unredacted) copy of the document and (ii) a copy of the

document highlighting the information that has been redacted

in the ECF filing.

10. Policy on the Use of Electronic Devices

Attorneys’ use of electronic devices (including mobile telephones,

personal electronic devices, computers, and printers) within the

Courthouse and its environs is governed by the Court’s Standing Order

M10-468, available at

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Revised: July 17, 2020

https://nysd.uscourts.gov/sites/default/files/pdf/standing-order-

electronic-devices.pdf. If required by the Standing Order, counsel

seeking to bring a device into the Courthouse shall submit a copy of the

Electronic Devices General Purpose Form, available at

https://nysd.uscourts.gov/node/766, to the Court by e-mail at least 24

hours prior to the relevant trial or hearing. Untimely requests may be

denied on that basis alone. If permitted by the Standing Order, mobile

telephones are permitted inside the Courtroom, but they must be kept

turned off at all times. Non-compliance with this rule may result in

forfeiture of the device for the remainder of the proceedings.

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ATTACHMENT A

DEFAULT JUDGMENT PROCEDURE

1. Before proceeding with a motion, a plaintiff seeking a default judgment

must obtain a Certificate of Default for each defaulting defendant from

the Clerk’s Office pursuant to Federal Rule of Civil Procedure 55(a) and

Local Rule 55.1.

2. After receiving the certificate of default, the plaintiff must file on ECF a

motion for default judgment pursuant to Federal Rule of Civil Procedure

55(b)(2) and Local Civil Rule 55.1 and 55.2. A plaintiff seeking a default

judgment should NOT proceed by order to show cause.

3. The motion for default judgment must be accompanied by a proposed

form of judgment and be supported by the following papers (which must

be filed on ECF):

a. An attorney’s affidavit setting forth:

i. A brief description of the nature of the claim(s);

ii. A description of the legal and factual basis for the Court’s

subject matter jurisdiction;

iii. A description of the legal and factual basis for the assertion of

personal jurisdiction over the defendant against whom default

judgment is sought;

iv. A statement that the defendant is not an infant or incompetent;

v. the basis for entering a default judgment, including:

• a description of the method and date of service of the

Summons and Complaint;

• the procedural history beyond service of the Summons

and Complaint, if any;

• whether, if the default is applicable to fewer than all of

the defendants, the Court may appropriately order a

default judgment on the issue of damages prior to

resolution of the entire action;

• the proposed damages and the basis for each element of

damages, including interest, attorney’s fees, and costs;

and

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Revised: July 17, 2020

• the legal authority for why an inquest into damages

would be unnecessary.

b. A proposed order to show cause.

c. A proposed default judgment.

d. A copy of the Affidavit of Service of the Summons and Complaint.

e. A Certificate of Default from the Clerk of Court.

4. Relief. If a party seeks an award of damages or attorney’s fees and

expenses, the moving party must also include:

a. A request for an amount equal to or less than the principal amount

demanded in the Complaint;

b. Definitive information and documentation such that the amount

provided for in the proposed judgment can be readily calculated.

(If this requirement cannot be satisfied, a default judgment may be

granted as to liability, and damages will be determined by an

inquest.);

c. An affidavit representing that no part of the judgment sought has

been paid, other than as indicated in the motion;

d. Any request for interest on the principal amount may not exceed

9% simple interest, unless a legal or factual basis is demonstrated

for a different rate;

e. An affidavit setting forth the legal and factual basis for any claim of

attorneys’ fees and expenses, the hours spent by each attorney, the

reasonable hourly rate for each attorney, a description of services

and the dates on which the services were rendered and a

description of the expenses; and

f. The calculations made in arriving at the proposed judgment

amount.

5. The Court will review the motion for default judgment and, if appropriate,

issue an order setting a date and time for a default judgment hearing.

6. If the Court issues an Order, plaintiff should promptly serve on the

defendant (a) a conforming copy of the motion and supporting papers

and (b) the Court’s Order setting the date and time for the default

judgment hearing.

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Revised: July 17, 2020

7. Prior to the hearing date, Plaintiff must file on ECF proof of service in the

manner and by the date specified by the Court’s Order setting the default

judgment hearing.

8. Prior to the return date, Plaintiff must take the proposed judgment,

separately backed, to the Orders and Judgments Clerk for the Clerk’s

approval. The proposed judgment, including all damage and interest

calculations, must be approved by the Clerk prior to the conference and

then brought to the conference for the Judge’s signature.

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