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CHIMAREV v. TD WATERHOUSE INVESTOR SERVICES

December 4, 2002

ALEKSANDRE I. CHIMAREV,
V.
TD WATERHOUSE INVESTOR SERVICES, INC., DEFENDANTS.



The opinion of the court was delivered by: VICTOR Marrero, United States District Judge.

DECISION AND ORDER

Plaintiff Aleksandre I. Chimarev ("Chimarev"), proceeding pro se, brings this action under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 ("Title VII"), and the Fair Labor Standards Act, 29 U.S.C. § 201 ("FLSA"), as well as unspecified sections of the Civil Rights Act of 1991, the Labor Management Relations Act of 1947, and various other state and federal laws. He alleges ten causes of action relating to the termination of his employment from TD Waterhouse Investor Services, Inc. ("Waterhouse") Chimarev has moved to amend his complaint, originally filed on July 23, 2001, pursuant to Rule 15(a) of the Federal Rules of Civil Procedure ("FRCP"), to add one claim for age discrimination under the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA") and a second claim for defamation. For the reasons set forth below, the motion is denied.

I. BACKGROUND*fn1

After this action was originally filed in the Supreme Court of the State of New York, County of New York, it was removed in August 2001 to this Court. A scheduling order and case management plan was issued on September 28, 2001 ("Scheduling Order"), in accordance with FRCP 16, directing the parties to file amended pleadings without leave of the Court by October 12, 2001 and requiring the completion of discovery by March 1, 2002.*fn2 Discovery has proceeded in this case for approximately one year, under the supervision of Magistrate Judge Gabriel W. Gorenstein since April 12, 2002, culminating in an order issued by him on September 26, 2002 denying in part and granting in part a motion filed by Chimarev to compel Waterhouse to respond to interrogatories and produce certain documents.*fn3

Magistrate Judge Gorenstein's order denied Chimarev' s request that Waterhouse produce "age-related" documents because Chimarev' s complaint was devoid of any reference to age discrimination. The Magistrate Judge granted Chimarev permission to file a motion to amend the complaint, if he chose to do so, by October 11, 2002.

Waterhouse counters that Chimarev's motion should be denied because Chimarev's age discrimination and defamation claims are futile. Alternately, Waterhouse contends that Chimarev's motion should be denied because this motion was filed, without offering satisfactory explanation for the delay, one year and three months after the complaint was initially filed and more than seven months after discovery closed. Waterhouse also contends that the inordinate delay in moving to amend the complaint would severely prejudice Waterhouse because it would be required to devote substantial additional resources to discovery, motion practice, and pretrial preparation.

II. DISCUSSION

A. THE STANDARD FOR A MOTION TO LEAVE TO AMEND

Generally, leave to amend under FRCP 15(a) should be granted freely "when justice so requires," and amendment is typically permitted. Foman v. Davis, 371 U.S. 178, 182 (1962); Nerney v. Valente & Sons Repair Shop, 66 F.3d 25, 28 (2d Cir. 1995). However, a motion to amend may be denied, at the discretion of the district court, because of futility of the amendment, undue delay on the part of the movant, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed or undue prejudice to the opposing party by virtue of allowance of the amendment. See Foman, 371 U.S. at 182; John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994). A proposed claim is futile only if it is clearly frivolous or legally insufficient on its face. Saxholm AS v. Dynal Inc., 938 F. Supp. 120, 124 (E.D.N.Y. 1996). But when there is no merit in proposed amendments, leave to amend should be denied. Health-Chem Core. v. Baker, 915 F.2d 805, 810 (2d Cir. 1990); Friedman v. Chesapeake & Ohio Ry. Co., 261 F. Supp. 728, 734 (S.D.N.Y. 1996), aff'd, 395 F.2d 663, 664 (2d Cir. 1968); Yaba v. Cadwalader, Wickersham & Taft, 931 F. Supp. 271, 274 (S.D.N.Y. 1996) (denying leave to amend where new claims are futile.)

In this case, Chimarev's motion to amend is denied because both of his requested amendments are futile. The Court will discuss the futility of each of the proposed amendments in turn.

B. AGE DISCRIMINATION CLAIM

Chimarev seeks to amend his complaint to specify age discrimination, as well as national origin, as the particular forms of harassment he underwent while employed at Waterhouse and which ended with his termination. Although Chimarev claims that such a specification only details the claims already stated, and simply conforms the complaint to the evidence, he also seeks to add that such age discrimination violates the Age Discrimination Employment Act of 1967 ("ADEA"), which alleged violation was not alleged in his original complaint. (Compare Chimarev's Proposed Amended Complaint, dated October 11, 2002 and Complaint ¶ 6A.) Since age discrimination is a cause of action asserted under the ADEA, not Title VII or the other statutes referenced by Chimarev, Chimarev is clearly seeking to add this cause of action.

As a prerequisite for bringing an action under the ADEA, a plaintiff must first exhaust administrative remedies with the Equal Employment Opportunity Commission ("EEOC") and designated state or local agency. In accordance with 29 U.S.C. § 626(c), no person can bring a suit in federal or state court under the ADEA until he has first resorted to the appropriate administrative proceedings. See Oscar Mayer v. Evans, 441 U.S. 750, 754-755 (1979). In "deferral states", a plaintiff must file charges with the EEOC and a designated state agency at least sixty days before bringing a lawsuit.*fn4 Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 328 (2d Cir. 1999) (citing 29 U.S.C. ยง 626(d), 633(b)); Brodsky v. City Univ. of N.Y., 56 F.3d 8, 10 (2d Cir. 1995). New York is a deferral state under the ADEA because it has a law prohibiting age discrimination and the NYSDHR is empowered to remedy it. Tewksbury, 192 F.3d at 328. Furthermore, a charge of age discrimination must be filed with the EEOC within 300 days of the alleged act of discrimination. See Tewksburry, 192 F.3d. at 328 (2d Cir. ...


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