The opinion of the court was delivered by: McAVOY, Chief Judge.
MEMORANDUM-DECISION & ORDER
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
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).
"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
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)).
"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
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 ...