Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

September 15, 2005.

JUANA VIADA, ET AL., Plaintiffs,

The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge


In this action, brought pursuant to the Fair Labor Standards Act and comparable state law, the plaintiffs seek to recover wages, tips and overtime compensation they contend the defendants withheld from them improperly. Before the Court is a motion to amend the complaint, for a second time, so that the plaintiffs might assert a claim that defendants Bok Sil Lee and Nam-Hi Lee ("Dr. Lee") retaliated against plaintiffs Martha Chicaiza ("Chicaiza") and Virgilio Lopez ("Lopez") for instituting this action by causing a criminal complaint to be lodged against them in the New York City Criminal Court, for stealing, inter alia, appointment books, records, rosters and patient information belonging to the defendants. In addition, the plaintiffs also allege that Dr. Lee threatened retaliation against plaintiff Juana Viada ("Viada") by indicating that she would contact the United States Department of Homeland Security's immigration unit, so that Viada might be deported from this country.

Dr. Lee has made a written submission in opposition to the plaintiffs' motion. She contends that the motion should be denied because the plaintiffs have not submitted, in connection with their proposed amended pleading, any evidence that supports their retaliation claim. Furthermore, Dr. Lee maintains that the proposed modification to the plaintiffs' amended complaint is violative of Fed.R.Civ.P. 11. In addition, Dr. Lee asserts that she and her mother, defendant Bok Sil Lee, will be prejudiced by the proposed amended pleading because it will require them to expend "significant" additional resources defending a "baseless lawsuit." Moreover, Dr. Lee urges the Court to deny the plaintiffs' request to amend their pleading because she did not threaten to contact the United States Department of Homeland Security to urge that Viada be deported.

  Rule 15(a) of the Federal Rules of Civil Procedure provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served. . . . Otherwise a party may amend the party's pleading by leave of the court . . . and leave shall be freely given when justice so requires." Fed.R.Civ.P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962). The determination to grant or deny a motion to amend a complaint is within the discretion of the court. See New York State Nat'l Org. for Women v. Cuomo, 182 F.R.D. 30, 36 (S.D.N.Y. 1998). However, there must be good reason to deny such a motion. See Acito v. Imcera Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995) (citing S.S. Silberblatt, Inc. v. East Harlem Pilot Block Bldg. 1 Hous. Dev. Fund Co., Inc., 608 F.2d 28, 42 [2d Cir. 1979]). "[U]ndue delay, bad faith or dilatory motive on the part of the movant . . . undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of [the] amendment" are valid reasons to deny the motion. Foman, 371 U.S. at 182, 83 S. Ct. at 230.

  In the case at bar, the plaintiffs made their motion to amend their complaint for a second time at a juncture in the litigation when discovery had not progressed very far, and at a point in time shortly after the criminal action which gives rise to a portion of the claim of retaliation had been filed in the local criminal court. Therefore, the Court does not find that there was undue delay on the part of the plaintiffs in seeking to amend their complaint for a second time.

  Dr. Lee alleges that the instant motion was not made in good faith but, rather, was made to harass her and defendant Bok Sil Lee. She also contends that the motion was motivated by a desire on the part of the plaintiffs to cause the two defendants to whom the allegation of retaliation is directed, to expend resources unnecessarily defending against what they characterize as an unfounded accusation of retaliation. In support of that position, Dr. Lee asserts that the plaintiffs have failed to submit evidence with their proposed amended pleading that supports their claim of retaliation.

  In crafting a complaint, a plaintiff need only comply with Fed.R.Civ.P. 8. That Rule requires, inter alia, that a complaint contain a short and plain statement of the plaintiff's claim. The purpose of the Rule is to ensure that, among other things, an adversary party will be put on notice of the nature of the claim and the relief sought by a plaintiff. The Federal Rules of Civil Procedure do not require that evidence be submitted with the complaint that supports the claim(s) made by a plaintiff. The discovery tools provided to litigants through the Federal Rules of Civil Procedure provide a means for the parties to gather evidence that will either support the claim(s) being made or any defense(s) that has been asserted in response to the claim(s). Therefore, the failure of the plaintiffs to submit evidentiary support with the proposed amended pleading, about which Dr. Lee complained, does not provide a valid basis upon which the Court might deny the plaintiffs' application to amend their complaint for a second time.

  With respect to the allegation that granting the plaintiffs' motion would prejudice the two defendants who are the objects of the retaliation claim, the Court disagrees. The retaliation claim focuses on a hotly contested matter in this action: whether the plaintiffs removed, improperly, from their former work sites documents belonging to the defendants that the defendants contend are needed to defend against the allegations made in this action. If the Court were to grant the plaintiffs' motion to amend their pleading, it would give the defendants an opportunity to explore, through a limited and targeted discovery effort, the facts and circumstances most pertinent to this hotly contested issue. Moreover, if the instant application were granted, it would obviate the need for the Court to consider a motion made by defendant Myung-Hi Lee to amend her answer so that she might assert counterclaims against the plaintiffs. It is worth noting that Dr. Lee previously expressed a similar desire to assert counterclaims against the plaintiffs. Granting the instant application would also give Dr. Lee an opportunity to amend her answer, something she sought to do previously, but unsuccessfully.

  After considering all of the factors set forth in Foman and, in light of the express language contained in Fed.R.Civ.P. 15, that leave to amend a party's pleading should be freely given when justice so requires, the Court finds that justice would be served by permitting the plaintiffs to amend their complaint for a second time. Therefore, the application made by the plaintiffs, pursuant to Fed.R.Civ.P. 15, is granted.*fn1 The plaintiffs shall serve and file their second amended complaint expeditiously.



© 1992-2005 VersusLaw Inc.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.