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August 18, 1999


The opinion of the court was delivered by: McAVOY, Chief Judge.


Defendants Reeher Enterprises, Inc., Aaron Clause, John Reeher and Reeher Majik, Inc. (collectively "defendants") appeal from the Memorandum Decision & Order of Magistrate Judge Ralph W. Smith, Jr., dated June 29, 1999 granting plaintiffs' motion to file and serve a Second Amended Complaint. See Stetz v. Reeher Enterprises, Inc., 99-CV-223, at 4 (N.D.N.Y. January 22, 1999) (hereinafter "Order"). Specifically, the Magistrate Judge granted plaintiffs' request to raise claims against an additional party, Reeher Majik, Inc., based on an "identity of interests" between Reeher Enterprises, Inc., John Reeher and Reeher Majik, Inc. See Order, at 3. The Magistrate Judge also held that the issuance of plaintiffs' right-to-sue letters prior to the expiration of 180 days from the filing of their administrative complaints did not "deprive[] [the Court] of jurisdiction." See id. at 4.

I. Background and Procedural History

Plaintiffs Michele Stetz, Crystal Weinheimer, Sonya Carmon and Jessie Doughty commenced the instant action against the above-named defendants alleging, inter alia, sexual harassment in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and N.Y.EXEC.LAW § 296 (Human Rights Law).

Plaintiffs Stetz, Weinheimer and Carmon filed their administrative complaints on November 2, 1998, and received their right-to-sue letters on November 24, 1998. See Second Amended Compl. at ¶¶ 29-30; Affidavit of Joseph A. Saccomano, Jr., Ex. A (hereinafter "Saccomano Aff.") (attaching copies of right-to-sue letters). Plaintiff Doughty filed her administrative complaint on November 18, 1998, and received her right-to-sue letter on December 2, 1998. See Second Amended Compl. at ¶¶ 31-32; Saccomano Aff. at Ex. A. Plaintiffs were granted leave to amend their Complaint, pleading "additional facts, additional claims and claims against an additional party, Reeher Majik, Inc., an entity which defendants claim was the actual employer of the plaintiffs." Order, at 1-2.

On appeal, defendants advance two arguments in opposition to plaintiffs' motion to file a Second Amended Complaint. First, defendants argue that this court does not have subject matter jurisdiction because plaintiffs failed to include Reeher Majik, Inc. as a party in the administrative complaints filed by plaintiffs, as required under 42 U.S.C. § 2000e-5(e). Second, defendants argue that the plaintiffs should not have been granted leave to file an Amended Complaint — and the present action should be dismissed as untimely — because plaintiffs received their right-to-sue letters prior to the expiration of the 180-day investigatory and conciliation period set forth in 42 U.S.C. § 2000e-5(f)(1).

II. Standard of Review

"Orders granting leave to amend are nondispositive, as they do not remove claims or defenses of a party." Vandewalker v. Quandt's Food Serv. Distribs., Inc., 934 F. Supp. 42, 48 (N.D.N.Y. 1996) (Pooler, J.) (citing FED.R.CIV.P. 72); see also Aries Ventures Ltd. v. Axa Fin. S.A., 696 F. Supp. 965, 966 (S.D.N.Y. 1988). FED. R.CIV.P. 72(a) states that within ten (10) days of being served with a magistrate judge's order on a nondispositive issue, a party may file objections to the order. The district judge to whom the case is assigned "shall consider such objections and shall modify or set aside any portion of the magistrate judge's order found to be clearly erroneous or contrary to law." See FED.R.CIV.P. 72(a). Accordingly, the Court will treat the Order as nondispositive and apply the "clearly erroneous" standard of review to the Magistrate Judge's grant of leave to amend the Complaint. "A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Vandewalker, 934 F. Supp. at 48 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1948)).

III. Futility Doctrine

"Rule 15(a) declares that leave to amend [a complaint] `shall be freely given when justice so requires'" Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (quoting FED.R.CIV.P. 15(a)). Thus, leave to amend should be freely given in the absence of any apparent or declared reason such as undue delay, bad faith or dilatory motive on the part of the movant, or futility of amendment. See id.; see also Hunt v. Alliance N. Am. Gov't Income Trust, Inc., 159 F.3d 723, 728 (2d Cir. 1998); Mackensworth v. S.S. Am. Merchant, 28 F.3d 246, 251 (2d Cir. 1994) (same); Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) ("Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend."); In re Horizon Cruises Litig., 1999 WL 436560, at *1 (S.D.N.Y. June 24, 1999) ("If amending the complaint would be futile because, for example, the amendment would not survive a motion to dismiss, then leave to amend should be denied.") (citing Azurite Corp. v. Amster & Co., 52 F.3d 15, 19 (2d Cir. 1995)); Jones v. New York State Div. of Military and Naval Affairs, 1997 WL 266765, at *6 (N.D.N.Y. May 7, 1997) ("If the amended complaint is subject to dismissal, the amendment is considered futile and will not be permitted.") (citing Mackensworth, 28 F.3d at 251), aff'd, 166 F.3d 45 (2d Cir. 1999).

"`In assessing whether proposed claims are futile . . . the court is required to adopt the same analysis as that applied on a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure.'" Olumuyiwa v. Harvard Protection Corp., 1999 WL 529553, at *5 (E.D.N.Y. July 21, 1999) (quoting Brown v. R.D.F. Transp. Corp., 1998 WL 713807, at *6 (E.D.N.Y. Oct.7, 1998)). Accordingly, the Court treats the facts alleged by plaintiffs as true and views them in the light most favorable to them. See id. (citing Adar Import & Distrib. Corp. v. Thomson Consumer Elecs., Inc., 1998 WL 760264, at *2 (E.D.N.Y. Sept.11, 1998)).

IV. Issuance of Early Right-To-Sue Letter

Defendants object to the Magistrate Judge's order granting plaintiffs' motion to amend the complaint on the grounds that the EEOC's early issuance of plaintiffs' right-to-sue letters was in violation of 42 U.S.C. § 2000e-5(f). This section states, in pertinent part:

  If a charge filed with the Commission pursuant to
  subsection (b) . . . is dismissed by the Commission,
  or if within one hundred and eighty days from the
  filing of such charge . . . the Commission has not
  filed a civil action under this section, . . . or the
  Commission has not entered into a conciliation
  agreement to which the person ...

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