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District Court Erred by Deciding Motion to Dismiss on Letter Submissions Without Warning to Parties, Second Circuit Holds


In Int’l Code Council v. UpCodes, No. 21-826 (2d Cir. July 29, 2022), a Second Circuit panel criticizes the practice of a district court judge who rules on dispositive motions based on cross-letter submissions by the parties.

“International Code Council, Inc. (‘ICC’), a nonprofit organization that develops model building codes and standards, sued a for-profit competitor, UpCodes, Inc., for false advertising in violation of the Lanham Act, 15 U.S.C. § 1125(a), New York General Business Law §§ 349 and 350-a, and New York’s common law of unfair competition. ICC alleges that UpCodes falsely asserted that its codes are always up to date, that its codes integrate all amendments 21-826 (L) Int’l Code Council v. UpCodes enacted by local jurisdictions, and that it is the sole provider of such integrated amendments. The United States District Court for the Southern District of New York (Marrero, J.) sua sponte and without notice converted the parties’ pre-motion letters into a motion to dismiss and a response, and then granted that motion.”

On appeal, before reaching the merits (the panel reversed the dismissal), the Second Circuit offered extended criticism of the district court’s practice—repeated in other cases—of deciding the motion based on the parties’ pre-motion letter submissions, which are intended only to summarize the parties’ positions before full briefing on the merits. The judge’s standing order requires that defendants moving to dismiss must first submit a letter of no more than three pages explaining the basis of such a motion; the plaintiff has seven days to respond. “If the parties fail to resolve their disputes through the letter exchange,” then the judge sets a conference to consider the motion.

“Prior to UpCodes’s filing of a motion to dismiss and pursuant to Judge Marrero’s published individual practices, the parties exchanged pre-motion letters—which were limited to three pages by those practices—outlining their arguments for or against dismissal. Instead of scheduling the post-letter conference called for by those same individual practices, however, on March 1, 2021, the district court sua sponte and without notice converted the parties’ pre-motion letters into a motion to dismiss and opposition. Based on those three-page letters alone and without providing the parties an opportunity to file a motion and response, much less to be heard with full briefing, the court dismissed ICC’s complaint in its entirety.”

Dismissal based on pre-motion letters, with limited exceptions, is an unacceptable practice holds the Second Circuit. “Panels of this Court have, indeed, condoned district courts’ denials of non-dispositive motions based on pre-motion letters when those letters were sufficiently lengthy to address all relevant arguments and when there was a clear lack of merit to the arguments supporting the motion.” The Second Circuit has also accepted dismissals based on letter-submissions where there was a lack of subject-matter jurisdiction, but “it is well established that courts are obligated to sua sponte consider such a deficiency.”

“The circumstances in which we have found such abbreviated proceedings appropriate are poles apart from those presented in this appeal. Here, the court granted (rather than denied) a dispositive motion; the pre-motion letters were limited to three pages; and—as indicated by our reversal for the reasons detailed below—ICC’s arguments against dismissal did not clearly lack merit. As recently as May of this year, we noted other plaintiffs’ ’valid concern[s]’ that this district judge’s similar actions in another case possibly violated local rules and the judge’s individual practices.”

The panel urges the district court to reconsider this practice. “We reiterate our concern here. First, parties must be afforded notice that the court is considering dismissal based solely on the arguments presented in pre-motion letters . . . . Second, by relying solely on three-page pre-motion letters, the district court denied the ‘[non-moving party] the opportunity to present [its] best arguments in opposition’ . . . .  Third, the district court’s course of action did nothing to conserve judicial resources.”



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