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September 5, 1996

TENNECO, INC., Defendant

The opinion of the court was delivered by: HURD


 Norman Phaneuf ("Phaneuf") was employed as a laborer by Southeast Pipeline Contractors ("Southeast") when he was injured in an accident. Southeast was performing a subcontract for the defendant Tenneco, Inc. ("Tenneco") which involved laying underground gas pipe from Albany, New York to Massachusetts. At the time of his injury, Phaneuf was working at the Albany site.

 On the afternoon of July 17, 1992, the plaintiff was laying sandbags at the bottom of a pipeline trench approximately five feet wide and ten feet deep. Another Southeast employee was standing on the edge of the trench and dropping fifty pound sandbags into the trench. Plaintiff was allegedly injured when the Southeast co-employee threw a sandbag which hit the plaintiff on the left knee.

 On August 6, 1993, the plaintiff and his wife filed a complaint alleging separate causes of action in which the accident and injuries complained of were attributable to the defendant's negligence and violations of N.Y. Lab. Law §§ 200(1) and 241(6) (McKinney 1986). On February 11, 1994, a Uniform Pretrial Scheduling Order issued by this court established deadlines for amending any pleadings (March 31, 1994), for discovery (July 30, 1994), and for filing all motions (August 31, 1994). Trial was tentatively scheduled for October 3, 1994. The parties subsequently agreed to a Stipulation Amending the Pretrial Scheduling Order on November 15, 1995. The amended order pushed the discovery deadline to July 1, 1996, the motion deadline to August 1, 1996, and the trial ready date to September 1, 1996. No provision was made for extending the deadline for amending the pleadings.

 On May 10, 1996, almost three years after the filing of the complaint and over two years after the amended pleadings deadline, plaintiffs moved to serve an amended complaint which would: 1) add a new cause of action under N.Y. Lab. Law § 240(1) (McKinney 1986) ("N.Y. Labor Law § 240(1)"); 2) add New York Code of Rules and Regulations, Industrial Code § 23 violations to the N.Y. Lab. Law § 241(6) (McKinney 1986) ("N.Y. Labor Law § 241(6)") claim in the original complaint; 3) add clarifying language to the complaint which would not only cover "agents of the defendant" but "laborer's at the site under the supervision and control of the defendant;" and 4) designate each cause of action as separate and distinct claims which would raise the plaintiffs' demand from $ 650,000 to $ 2,150,000.

 Defendant opposes the motion on the grounds of undue delay, prejudice, and futility of the proposed amendments.


 The rules governing amendment of pleadings after the deadline established in a pre-trial scheduling order are set forth in rules 15 and 16 of the Federal Rules of Civil Procedure. In an effort to expedite the disposition of pending actions, Rule 16 provides for pretrial conferences, scheduling, and management. Rule 16(b) specifically sets forth that a District Court "shall ... enter a scheduling order that limits the time (1) to join other parties and to amend the pleadings ..." Fed. R. Civ. P 16(b). The rule further provides that "[a] schedule shall not be modified except upon a showing of good cause and by leave of the district judge, or, when authorized by local rule, by a magistrate judge." Fed. R. Civ. P. 16(b). Generally, a party is free to amend the pleadings as a matter of course prior to the service of the responsive pleading or at any time within 20 days after it is served. Fed. R. Civ. P. 15. 'Otherwise, a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." Fed. R. Civ. P. 15.

  When Rule 16 and Rule 15 come into conflict, however, "Rule 16 must be read in light of Rule 15." Usery v. Marquette Cement Mfg. Co., 568 F.2d 902, 909 (2d Cir. 1977) (citing 3 Moore's Federal Practice P 15.13[1] (2d ed. 1974)). In deciding which rule to apply, "'the court ... balance the need for doing justice on the merits between the parties (in spite of the errors and oversights of their attorneys) against the need for maintaining orderly and efficient procedural arrangements.'" Id. (citing Moore, supra, at P 16.20)

 Historically, Rule 15 has been applied extremely liberally. The underlying premise behind the liberal construction of the Rule 15 is to afford a plaintiff "an opportunity to test his claims on the merits" rather than lose on a procedural imperfection. Foman v. Davis, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227 (1962). The Supreme Court has found that:

"In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require be "freely given."

 Id.; Union Bank of India v. Seven Seas Imports, Inc., 727 F. Supp. 125, 133 (S.D.N.Y. 1989) ("[a] motion to amend should be denied only for reasons such as undue delay, bad faith, futility of the amendment, or prejudice to the opposing party"). "Although the decision of whether to allow plaintiffs to amend their complaint is left to the sound discretion of the district court, there must be good reason to deny the motion." Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d. Cir. 1995) (citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block - Bldg. 1 Housing Dev. Fund Co., Inc., 608 F.2d 28, 42 (2d Cir. 1979)); John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458 (2d Cir. 1994).

 Generally, while a delay in making a motion to amend the pleadings must be weighed as a factor in deciding whether or not to grant the motion, the delay by itself will not be reason to deny the motion. U.S. v. Continental Ill. Nat. Bank and Trust, 889 F.2d 1248, 1254 (2d Cir. 1989). For example, the Second Circuit has found that a three year delay from filing the initial complaint was an inadequate basis for denying a motion to amend a complaint when there was no showing of bad faith on the part of the plaintiff or prejudice to the defendant. Middle Atlantic Utils. Co. v. S.M.W. Dev. Corp., 392 F.2d 380 (2d Cir. 1968).

 However, the Second Circuit has noted that "although the grant or denial of leave to amend is within the discretion of the district court, a decision 'without any justifying reason may be an 'abuse of that discretion and inconsistent with the spirit of the Federal Rules.'" Evans v. Syracuse City School Dist., 704 F.2d 44, 46 (2d Cir. 1983) (quoting Foman, 371 U.S. 178, 182, 9 L. Ed. 2d 222, 83 S. Ct. 227). In instances "where ... 'a considerable amount of time has passed between filing the complaint and the motion to amend, courts have placed the burden upon the movant to show some 'valid reason for his [or her] neglect and delay." Sanders v. Thrall Car Mfg. Co., 582 F. Supp. 945 (S.D.N.Y. 1983); aff'd, 730 F.2d 910 (1984) (citing Hayes v. New England Millwork Distribs., Inc., 602 F.2d 15, 19-20 (1st Cir. 1979) (quoting Freeman v. Continental Gin Co., 381 F.2d 459, 469 (5th Cir. 1967)); Greenberg v. Mynczywor, 667 F. Supp. 901, 905 (D.N.H 1987) (if considerable delay has occurred, the burden shifts to the movant to show a valid reason for the Court to excuse the delay). "'[The court] must weigh good cause shown for the delay in moving vis a vis dilatoriness of counsel resulting in last minute surprise and inability of opposing counsel to meet the tendered issue.'" Evans, 704 F.2d at 47 (quoting Nevels v. Ford Motor Co., 439 F.2d 251, 257 (5th Cir. 1971). Further, in addressing prejudice to the nonmoving party, the Second Circuit noted that "'the longer the period of an unexplained delay, the less will be required of the nonmoving ...

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