Commercial Litigation and Arbitration

Failure to Defend Claims Attacked by Motion to Dismiss Constitutes Abandonment — General Request that Motion Be Denied Is Insufficient

From Wright v. Brae Burn Country Club, Inc., 2009 U.S. Dist. LEXIS 26492 (S.D.N.Y. Mar. 20, 2009):

When one party fails to respond to an opposing party's arguments that its claim must be dismissed, the claim may be deemed abandoned. See Brodsky v. Trumbull Bd. of Educ., No. 06 Civ. 1947 (PCD), 2009 WL 230708, at *9 (D. Conn. Jan. 30, 2009); Santiago v. Newburgh Enlarged City School Dist., 485 F. Supp. 2d 327, 338 (S.D.N.Y. 2007); Lipton v. County of Orange, 315 F. Supp. 2d 434, 446 (S.D.N.Y. 2004); Jessamy v. City of New Rochelle, 292 F. Supp. 2d 498, 515, n.21 (S.D.N.Y. 2003); Taylor v. City of New York, 269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003). Here, plaintiffs added their Thirteenth Amendment and RICO claims for the first time in their Second Amended Complaint, yet they wholly ignored defendants' arguments about these claims in their brief in opposition to defendants' motion. Instead, plaintiffs' counsel submitted a declaration stating "defendants' motion should be denied in its entirety." … This broad statement cannot be construed as a response to defendants' lengthy and substantive arguments regarding plaintiffs' Thirteenth Amendment and RICO claims…. Accordingly, plaintiffs' Thirteenth Amendment and RICO claims are deemed abandoned and dismissed.

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