United States District Court, S.D. New York
June 29, 2004.
SPANIERMAN GALLERY, Profit Sharing Plan, Plaintiff,
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
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)
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.