“[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”
How later courts described this case
- “[I]t is axiomatic that the Complaint cannot be amended by the briefs in opposition to a motion to dismiss.”
Written by the judges who cited it.
The opinion
[ees]
DOCUMENT
UNITED STATES DISTRICT COURT a a FILED □
SOUTHERN DISTRICT OF NEW YORK | DOC #: _.. tt
Ee
CYNTHIA BROWN,
Plaintiff, 23-CV-05593 (DEH)(SN)
-against- ORDER
ZETA CHARTER SCHOOL,
Defendant.
panne eX
SARAH NETBURN, United States Magistrate Judge:
Defendant filed a motion to dismiss Plaintiff's complaint. Defendant argues, pursuant to
Federal Rule of Civil Procedure 12(b)(6), that Plaintiff's complaint fails to state a claim. By
February 12, 2024, Plaintiff shall either file opposition to Defendant’s motion to dismiss or file
an amended complaint. If Plaintiff files an opposition, Defendant may file a reply, if any, by
February 26, 2024. If Plaintiff elects to oppose the motion to dismiss, she may not be granted
leave to amend later.
Plaintiff is advised that an amended complaint would replace her initial complaint. When
deciding the motion to dismiss, the Court cannot consider any facts alleged in the opposition
brief that are not also alleged in the most recently filed complaint. O’Brien v. Nat’! Prop.
Analysts Partners, 719 F. Supp. 222, 229 (S.D.N.Y. 1989) (“[I]t is axiomatic that the Complaint
cannot be amended by the briefs in opposition to a motion to dismiss.”). For that reason, if
Plaintiff chooses to file an amended complaint instead of filing opposition to Defendant’s motion
to dismiss, that amended complaint should include all relevant facts and claims.
The Court recommends that Plaintiff, proceeding pro se, contact the New York Legal
Assistance Group (“NYLAG”) Legal Clinic for Pro Se Litigants for guidance with drafting
either an opposition to the motion to dismiss or an amended complaint. NYLAG’s Clinic can be
reached at 212-659-6190. Additional information on the Clinic is attached. The Court also
recommends that Plaintiff review the attached document titled “How to Oppose a Motion” for
further guidance.
SO ORDERED.
satan NETBURN
United States Magistrate Judge
DATED: January 11, 2024
New York, New York