Lewis A. Kaplan
How Judge Kaplan decides
Patterns drawn from this judge's own signed orders. Every observation links to the order it came from.
What persuades
On a Rule 12(b)(6) motion he will not resolve a fact-intensive standard against the non-movant on the pleadings: where a UCC Article 4-A claim turns on the 'commercial reasonableness' of a bank's security procedure -- an inquiry that draws on materials outside the complaint -- he lets the claim proceed to summary judgment rather than dismissing it. A plaintiff facing a pleadings motion on such a claim should frame it as fact-dependent and reserve the merits for a developed record.
“Resort to these extra-complaint sources illustrates the fact-intensive nature of the commercial reasonableness inquiry, one that courts typically address at summary judgment.”
Procedural preferences
He enforces Rule 56(f)/56(d) strictly: a party that resists summary judgment on the ground it needs more discovery MUST submit an affidavit specifying the facts sought, how they are to be obtained, and why prior efforts failed -- the failure to file that affidavit is fatal, even where the need for discovery was alluded to in a brief. A litigant short on a developed record should file the affidavit, not argue inadequate discovery in a memorandum.
“Here, plaintiffs have submitted no Rule 56(f) affidavit. They have not shown what facts are sought to resist the motion and how they are to be obtained. They have made no effort to show how those facts might create a genuine issue of material fact. By their own admission, they have made no effort to obtain them. They have failed utterly to make the requisite showing.”
He treats interlocutory review and post-judgment reconsideration as narrow exceptions, not second bites. Even where the 28 U.S.C. 1292(b) factors are arguably met he may decline certification as a discretionary matter, and a Local Rule 6.3 / Rule 60(b) motion that advances arguments or evidence not put before the Court on the original motion will fail. A litigant should make its full record the first time; do not hold an argument in reserve for a certification or reconsideration motion.
“This Court is not satisfied either that the criteria of Section 1292(b) are satisfied in this instance or, even if they were, that this would be an appropriate case for certification.”
Cautions
He polices the line between facial and as-applied constitutional challenges and will not let a relabeled facial attack proceed as an as-applied one: an attack premised on the alleged improper motive behind a regulation's adoption is not an as-applied challenge, and a court will not strike down an otherwise constitutional enactment on an illicit-legislative-motive theory. A plaintiff must tie an as-applied claim to the concrete manner in which a rule was applied to it, not to the rule's origins.
“It is an attack on the fact that they exist based on the assertion that they were adopted for an improper motive. It therefore is not an as-applied challenge, which is the only avenue that remains open to plaintiffs after the Court's July 23, 2009 decision.”
On a Securities Exchange Act Section 10(b) claim he scrutinizes whether the instrument at issue is actually a 'security,' and he focuses on what the plaintiff SOLD, not what the plaintiff was left holding. Retained indicia of control -- e.g., sole signature power over the entity's bank account and a veto over sale or encumbrance of its assets -- are inconsistent with the 'passive investor' premise of an investment contract under W.J. Howey, and defeat federal jurisdiction. A plaintiff invoking 10(b) over a closely-held business interest must show the interest sold was a genuine investment contract, not merely relabel an ordinary business dispute as securities fraud.
“The relevant focus is on what Endico sold, not what he was left with after the transaction.”
Motion outcomes
Counted from classified signed orders only. Percentages are shown only where the sample is large enough to be meaningful; smaller samples are reported as raw counts.
| Motions to dismiss N = 10 |
Granted: 6Granted in part: 2Denied: 2 | 80% granted |
| Summary judgment N = 6 |
Granted: 4Granted in part: 2 | counts only |
| Preliminary injunction N = 2 |
Granted: 1Denied: 1 | counts only |
| Motion for reconsideration N = 2 |
Denied: 2 | counts only |
| Motion for judgment on pleadings N = 1 |
Granted: 1 | counts only |
| Motions to strike N = 1 |
Denied: 1 | counts only |
| Motion to certify interlocutory appeal N = 1 |
Denied: 1 | counts only |
| Motions to stay N = 1 |
Denied: 1 | counts only |
| Motion for appointment of counsel N = 1 |
Denied: 1 | counts only |
A "1 of 1" is one ruling, not a tendency. Treat small samples as illustrative, not predictive.
Signed rulings
A grounded sample of orders signed by this judge, with the verbatim dispositive language.
“For the foregoing reasons, defendants' motion for summary judgment dismissing the complaint [00 Civ. 2843 docket item 5030] is granted and the action dismissed.”
“Accordingly, defendants' motion for judgment on the pleadings dismissing what remains of Count 2 is granted. As this disposes of the only claim remaining in this case, the Clerk shall enter final judgment of dismissal and close the case.”
“For the reasons set forth below, the Court denies the defendants' motion to strike and grants in part and denies in part the defendants' motion for summary judgment.”
“For the reasons set forth below, the Court denies the defendants' motion to strike and grants in part and denies in part the defendants' motion for summary judgment.”
“Defendants' motions [DI 14, 16] are granted and the amended complaint is dismissed for lack of subject matter jurisdiction. The Clerk shall enter judgment and close the case.”
“In conclusion, defendant Wells Fargo's motion to dismiss [DI 13] is granted to the extent that the breach of contract and negligence claims (Counts I and III) are dismissed. It is denied in all other respects.”
“As there remains no other basis for federal jurisdiction, plaintiffs state law claims must be dismissed.”
“Accordingly, defendants' motion is denied in all respects.”
“The motion to dismiss the complaint is denied.”
“For the foregoing reasons, defendant's motion for partial summary judgment [docket item 24] is granted in all respects.”
“DT-US's motion for reconsideration [04MD1653 docket item 1672, 04 Civ. 0030 docket item 1043] is denied.”
“In all the circumstances, the motion to certify questions to the Court of Appeals [04 MD 1653 docket item 1670, 04 Civ. 0030 docket item 1041] is denied.”
“Plaintiff's motion to stay the Contempt Motion [DI 288] is denied.”
Caseload & timing
From public federal docket records for this judge.
Sample from search_dockets(assigned_judge='Lewis A. Kaplan'). The visible docket is current and 2026-heavy: a wave of alien-detainee habeas petitions (463), Schedule A trademark-counterfeiting suits, ERISA, securities/commodities, consumer banking, and a criminal docket. Reflects current assignments, not a tenure-wide caseload; the few terminated dockets are days-long procedural habeas terminations. (Kaplan took senior status in 2011, so his historical caseload is far larger than this current-assignment page suggests.)