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United States District Court, S.D. New York

May 2, 2005.


The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge


The plaintiff, Manik Chowdhury, brings this action against the defendant Haveli Restaurant (the "Restaurant") and its owner/managers Mohammed A. Hazim and Maklis Ali pursuant to the Fair Labor Standards Act of 1938 (the "FLSA"), 29 U.S.C. §§ 201 et seq., and New York State Labor Law. Mr. Chowdhury, a former waiter, contends that the defendants did not pay him the minimum wage and overtime pay, took shares of tips he earned, and, when he complained about these practices, fired him. He now moves to amend his complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure to include as a plaintiff another waiter, Gulam Badat, and to add a defendant, Abu Sufian Ahmed, allegedly an owner of the Restaurant.


  Mr. Chowdhury was employed as a waiter at the Restaurant from January 2000 until July 12, 2004, when his employment was terminated. (First Amended Complaint ("First Am. Compl."), ¶¶ 11-12 & 25). He worked six days and, on average, seventy hours, a week. (First Am. Compl., ¶¶ 13 & 18). The plaintiff was paid $120 per week until approximately March 2004, when his wages were increased to $140 per week. (First Am. Compl., ¶ 20). In addition, he received tips that the defendants pooled daily and distributed on Sundays. (First Am. Compl., ¶ 22). Mr. Chowdhury alleges that Mr. Hazim and Mr. Ali took tip shares from the pool equal to his own, although they worked half as many hours. (First Am. Compl., ¶ 23).

  Mr. Chowdhury filed his Complaint in November 2004, and he subsequently submitted a First Amended Complaint that included minor corrections. (Plaintiff's Memorandum of Law in Support of Motion for Leave to Amend Complaint at 2). He states that he first requested permission from the Court to further amend the Complaint on January 25, 2005. (Plaintiff's Reply Memorandum of Law in Support of Motion for Leave to Amend Complaint ("Pl. Reply") at 1). Mr. Chowdhury formally moved to amend the complaint to include Mr. Badat as a plaintiff and Mr. Ahmed as a defendant on February 25, 2005. (Plaintiff's Notice of Motion to Amend Complaint dated February 22, 2005). As stated in the proposed Amended Complaint, Mr. Badat was employed as a waiter at the Restaurant from March 17, 2004 until November 1, 2004. (Draft Second Amended Complaint ("Sec. Am. Compl."), ¶ 20). He worked there at least sixty hours a week, for which he was paid $125. (Sec. Am. Compl., ¶¶ 26 & 29). The plaintiff alleges that the defendants illegally diverted Mr. Badat's tips. (Sec. Am. Compl., ¶ 31). Mr. Chowdhury also alleges in the proposed Amended Complaint that Mr. Ahmed is an owner of the Restaurant, with the power to hire and fire employees, set their wages and schedules, and retain their records. (Sec. Am. Compl., ¶ 11).


  A motion to amend is generally governed by Rule 15(a) of the Federal Rules of Civil Procedure. "Where the proposed amendment seeks to add new defendants, however, Rule 21 governs." Randolph-Rand Corp. of New York v. Tidy Handbags, Inc., No. 96 Civ. 1829, 2001 WL 1286989, at *2 (S.D.N.Y. Oct. 24, 2001) (citations omitted). Under Rule 21, a party may be added to an action "at any stage of the action and on such terms as are just." In deciding whether a party may be added under this rule, a court is guided by "the same standard of liberality afforded to motions to amend pleadings under Rule 15." Soler v. G & U, Inc., 86 F.R.D. 524, 527-28 (S.D.N.Y. 1980); FTD Corp. v. Banker's Trust Co., 954 F. Supp. 106, 109 (S.D.N.Y. 1997) ("Although Rule 21, and not Rule 15(a) normally governs the addition of new parties to an action, the same standard of liberality applies under either Rule.") (internal quotations and citations omitted).

  Under Rule 15(a), leave to amend "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see Oneida Indian Nation of New York v. City of Sherrill, New York, 337 F.3d 139, 168 (2d Cir. 2003), rev'd on other grounds, ___ U.S. ___, 125 S. Ct. 1478 (2005). Notwithstanding the liberality of the general rule, however, "it is within the sound discretion of the court whether to grant leave to amend," John Hancock Mutual Life Insurance Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citation omitted), and for the proper reasons, a court may deny permission to amend in whole or in part. See Krumme v. WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998). In discussing the use of this discretion, the Supreme Court has stated:

In the absence of any 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, futility of amendment, etc. — the leave sought should . . . be "freely given."
Foman v. Davis, 371 U.S. 178, 182 (1962).

  Here, the defendants do not oppose adding Mr. Badat as an additional plaintiff. They do appear to argue, however, that the proposed amendment adding Mr. Ahmed as a defendant is futile because a portion of the claims in the first Complaint are time-barred. (Defendants' Memorandum of Law ("Def. Memo.") at 2-3). As a rule, an amendment is considered futile when the proposed new claim would not withstand a motion to dismiss. See Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001); Avent v. Solfaro, No. 02 Civ. 0914, 2003 WL 21361730, at *3-4 (S.D.N.Y. June 12, 2003) (addition of new defendants was futile where defendants were immune from suit).

  The defendants contend that the claims against Mr. Ahmed prior to March 7, 2003*fn1 are futile because they fall outside the two-year statute of limitations applicable under the FLSA. (Def. Memo. at 3). In turn, the plaintiff argues that the statute of limitations should run from January 25, 2005, the day he first asked the Court for leave to further amend the Complaint, and that the applicable limitations period is three years since Mr. Ahmed was aware of or showed a reckless disregard of his responsibilities under the FLSA. 29 U.S.C. § 255(a); see McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133 (1988); Herman v. RSR Security Services Ltd., 172 F.3d 132, 141 (2d Cir. 1999).*fn2

  In any event, a portion of the plaintiff's claims against Mr. Ahmed arose after February 25, 2003, two years before the date that the motion to amend was filed, and therefore would not be time-barred under any theory. Those new claims would, then, survive a motion to dismiss on statute of limitations grounds and are not futile. See Randolph-Rand, 2001 WL 1286989, at *9 (granting motion to amend complaint to the extent that the applicable statute of limitations would not bar cause of action). It is not necessary at this time to establish with precision the extent of Mr. Ahmed's potential liability. Conclusion

  For the reasons set forth above, the plaintiff's motion for leave to amend his pleadings to add Gulam Badat as an additional plaintiff and Abu Sufian Ahmed as an additional defendant is granted.


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