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October 16, 1980

Rosalie GUTIERREZ, Lorraine Gutierrez and Luis Gutierrez, Plaintiffs,
Carl VERGARI, Fredrick Arone, Joel Aurnou, Frank Corollo, Richard Daronco, James Duggan, Leon Greenspan, Henry Gustafson, Wayne Stix, Wallace Haviland, Sandford Lindenbaum, Nicholas Kralik, John Lydon, Alice Stewart, Harvey Lothringer, Patrick McKay, Joseph Santagate, Diva Sagrati, Joseph Rakacky, Joseph Ragno, Ralph Purdy, Jerry Holley, John Ruddley and John Madry, Sr., Defendants

The opinion of the court was delivered by: WARD

The complaint in this action seeks damages for violation of 42 U.S.C. §§ 1981, 1982, 1983, 1985 & 1988. Plaintiffs move for leave to serve and file an amended complaint. Twelve of the defendants have moved the Court, under Rule 12(b)(6), Fed.R.Civ.P., to dismiss the complaint either as it presently stands or as it would stand if plaintiffs' motion were granted.


 On June 25, 1974, plaintiffs' business premises were searched by members of the White Plains, Greenburgh, and Scarsdale Police Departments. Certain items recovered from these premises were later identified as having been stolen. As a result, Luis Gutierrez was arrested and charged with criminal possession of stolen property, possession of a weapon, and defacing a firearm. He was tried and convicted on these charges in March, 1976; on May 3, 1976, he was sentenced to concurrent terms of one year, one year, six months, and six months. The judgment of conviction was unanimously affirmed by a December 27, 1977 order of the Supreme Court of the State of New York, Appellate Division, Second Department. An application for leave to appeal to the New York Court of Appeals was denied by Justice Mollen in an order dated February 10, 1978.

 On May 2, 1979, plaintiffs instituted a pro se action in this Court, 79 Civ. 2305(RJW). The complaint alleged violations of Luis Gutierrez' civil rights in the course of his arrest and trial. The present action, 79 Civ. 3558(RJW), was commenced by a pro se complaint filed July 10, 1979, which charged substantially the same defendants with identical civil rights violations. On application of the plaintiffs, the complaint in 79 Civ. 2305(RJW) was dismissed pursuant to Rule 41(a)(2), Fed.R.Civ.P., by an order of the Court dated August 22, 1979. This order also stayed all proceedings in the present action until September 17, 1979, so that plaintiffs might have the opportunity to retain counsel. Plaintiffs' counsel filed a notice of appearance on August 27, 1979.

 At a pre-trial conference held September 18, 1979, the Court directed each of the named defendants in the present action to communicate with plaintiffs' counsel, stating the legal reasons why the action should be dismissed against such defendant. This directive was made in an attempt to simplify the pleading process by discontinuing the action as to those defendants having valid legal defenses. Stipulations dismissing the action as to defendants Herold, Adler and Macaro were filed, and dismissal was ordered by the Court with respect to each of these defendants.

 Another conference was held on October 26, 1979, at which plaintiffs' counsel made known plaintiffs' desire to serve and file an amended complaint. The Court directed plaintiffs to file a motion for leave to serve and file an amended complaint by December 21, 1979. At the same time, the Court directed defendants to file any opposition they might have to this motion, and also any motions to dismiss which they saw fit to serve, by January 18, 1980.

 Plaintiffs filed the instant motion for leave to serve and file an amended complaint on December 17, 1979. A great majority of the defendants either filed papers opposing this motion or brought on motions to dismiss the complaint as it would be amended if the motion were granted. For the reasons hereinafter stated, plaintiffs' motion to amend is granted as are certain of the motions to dismiss. The remaining motions to dismiss are denied.


 I. Plaintiffs' Motion for Leave to Serve and File Amended Complaint

 Papers in opposition to plaintiffs' motion for leave to serve and file an amended complaint have been filed on behalf of fifteen defendants. These papers state two basic grounds of opposition to the instant motion. First, defendants Daronco, Stewart, McKay, Sagrati, Vergari, Corollo, Lindenbaum, Rakacky, Stix and Kralik argue that plaintiffs' motion should be denied on account of what they view to be the numerous requests for amendment already made by plaintiffs. This is plaintiffs' first effort to amend the complaint filed in the present action. However, these defendants point to plaintiffs' first action, and the amended complaints served in the course thereof, to justify their observation that the proposed complaint would be the fourth (or even the fifth) in the present controversy. *fn1"

 It is clear that a repeated failure to cure deficiencies in the complaint by amendments previously allowed may provide a basis for the trial judge to exercise his or her discretion to deny a motion for leave to amend. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230, 9 L. Ed. 2d 222 (1962). For several reasons, the Court is not persuaded that the concern to avoid repetitious amendments is sufficiently implicated by plaintiffs' conduct to justify denial of the instant motion. First, the fact that plaintiffs have heretofore acted pro se inclines the Court to a certain liberality with respect to application of the procedural requirements. Mount v. Book-of-the-Month Club, Inc., 555 F.2d 1108, 1112 (2d Cir. 1977); Serzysko v. Chase Manhattan Bank, 461 F.2d 699, 703 (2d Cir.), cert. denied, 409 U.S. 883, 93 S. Ct. 173, 34 L. Ed. 2d 139 (1972). Second, the Court is of the opinion that its convenience as well as that of the litigants would be greatly served by replacing plaintiffs' current rambling, discursive pro se complaint with the new one prepared by plaintiffs' counsel.

 Most important with respect to this first ground of opposition to plaintiffs' motion, these defendants have failed to make any clear showing that they would be prejudiced by allowing the amended complaint. The most important factor to a trial judge's decision regarding a motion for leave to amend is whether the opposing party will be prejudiced if the moving party is permitted to alter his or her pleading. Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330-31, 91 S. Ct. 795, 802, 28 L. Ed. 2d 77 (1971); see Browning Debenture Holders' Committee v. DASA Corp., 560 F.2d 1078, 1086 (2d Cir. 1977). The Court is mindful of the fact that every motion filed by a party to a litigation imposes a certain cost on the opposing party by virtue of the necessity of examining the motion to consider whether and how to respond to it. However, defendants' opposition seems to the Court to be insubstantial. In essence, they oppose the motion solely because of the expense imposed on them in filing their opposition.

 Defendants Gustafson, Santagate, Purdy, Holley, Madry and Kralik put forth a second ground of opposition to the instant motion. They contend that plaintiffs' motion should be denied insofar as they are concerned because the proposed amended complaint fails to state a claim upon which relief could be granted. The trial judge may properly exercise his or her discretion to deny a motion to amend where the complaint, as amended, would be subject to a motion to dismiss under Rule 12(b)(6), Fed.R.Civ.P. Middle Atlantic Utilities Co. v. S.M.W. Development Corp., 392 F.2d 380, 385 (2d Cir. 1968); Grogg v. General Motors Corp., 444 F. Supp. 1215, 1221 (S.D.N.Y.1978); Horwitt v. Movado Watch Agency, Inc., 62 F.R.D. 5, 7 (S.D.N.Y.1974); see Foman, supra, 371 U.S. at 182, 83 S. Ct. at 230. It has been reasoned that where the defendant suggests that the complaint as amended would fail to state a claim, the court should deal with the issue on the motion for leave to amend, rather than mechanically allowing the amendment and forcing the defendant to go through the formality of instituting a distinct Rule 12(b)(6) motion. 3 Moore's Federal Practice P 15.08(4), at 15-109 (2d ed. 1980).

 The Court is not persuaded, however, that the above reasoning applies in the present action. The cases employing this thinking usually have involved situations where the proposed amendment would have superseded a complaint which itself either had already been dismissed under Rule 12(b)(6) or was already subject to an equivalent motion. See, e.g., Grogg, supra, 444 F. Supp. at 1221. Here, none of defendants Gustafson, Santagate, Purdy, Holley, Madry and Kralik have moved to dismiss the present complaint under Rule 12(b)(6). Thus, if the proposed amended complaint were disallowed in respect of these defendants, the present complaint would remain. While there would then indeed be no need for these defendants to file a distinct Rule 12(b)(6) motion with respect to the proposed amended complaint, they would still have to file such a motion regarding the present complaint. Either way, then, a Rule 12(b)(6) motion will be required ...

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