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GALLERY v. MERRITT

United States District Court, S.D. New York


June 29, 2004.

SPANIERMAN GALLERY, Profit Sharing Plan, Plaintiff,
v.
MARY MERRITT, Defendant.

The opinion of the court was delivered by: THEODORE KATZ, Magistrate Judge

MEMORANDUM OPINION AND ORDER

Presently before the Court is Defendant's application to amend the Answer to assert a counterclaim concerning her right to title and possession of the painting which lies at the center of this litigation.*fn1 In a pretrial telephone conference with the Court, on June 28, 2004, Plaintiff argued that Defendant had never technically asserted such a claim in this action. For the following reasons, Defendant is permitted leave to amend the Answer to include a counterclaim asserting her claim to title and possession of the painting.

Rule 15 of the Federal Rules of Civil Procedure provides that leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). "The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the nonmovant of prejudice or bad faith." Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230 (1962) (leave to amend should be granted unless there is an "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, [or] futility of the amendment").

  Leave to amend the pleadings after the expiration of a deadline set by a scheduling order, however, is governed by Fed.R. Civ. P. 16(b)'s more demanding "good cause" standard. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) ("a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause"). Yet, when the nonmoving party has failed to demonstrate how it will be prejudiced, the court may permit the amendment. See, e.g., Zomba Recording Corp. v. MP3.Com, Inc., Nos. 00 Civ. 6831(JSR), 00 Civ. 6833(JSR), 2001 WL 770926, at *1 (S.D.N.Y. July 10, 2001) ("where defendant has utterly failed to show how it will be materially prejudiced by the amendment, the Court exercises its discretion to permit the amendment"); Cotto v. Clark Investigations & Sec. Servs., Ltd., No. 03 Civ. 2878(RMB)(DFE), 2003 WL 22852240, at *1 (S.D.N.Y. Dec. 1, 2003) (same).

  In this action, the existing scheduling order required all amendments to the pleadings to be made by February 28, 2003. (See Pretrial Scheduling Order, dated Jan. 31, 2003.) Although Defendant's application to amend the Answer to add a counterclaim is indisputably untimely, it is apparent that Plaintiff will suffer no material prejudice as a result of the amendment.

  Courts determine whether prejudice would result from a proposed amendment by "consider[ing] whether the amendment would require significant additional resources to conduct discovery and prepare for trial or significantly delay resolution of the dispute." In re Worldcom, Inc. Secs. Litig., No. 02 Civ. 3288 (DLC), 2003 WL 22831008, at *2 (S.D.N.Y. Dec. 1, 2003) (citing Block, 988 F.2d at 350). The Court cannot foresee the need for further discovery as a result of the proposed counterclaim, since Plaintiff has already deposed Defendant with respect to virtually all matters pertinent to her proposed counterclaim for title and possession of the painting. Indeed, Plaintiff has conceded that the proposed counterclaim would require minimal, if any, additional discovery. Further, because the factual and legal issues relating to lawful title and possession of the painting have been at the center of this litigation since its inception, allowing Defendant to technically assert a claim to title and possession at this point will not materially impact Plaintiff's preparation for trial or delay resolution of the dispute.*fn2 The trial in this action is scheduled to commence on August 9, 2004, and the Court intends to adhere to that schedule.

  For the foregoing reasons, Defendant is permitted leave to amend the Answer to raise a counterclaim with respect to her right to title and possession of the painting. Any such amendment must be made by June 30, 2004.

  SO ORDERED.


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