United States District Court, S.D. New York
October 14, 2005.
YOLANDA P. MATOS Plaintiff,
PATHMARK STORES, INC., Defendant.
The opinion of the court was delivered by: DENISE COTE, District Judge
MEMORANDUM OPINION & ORDER
This is an action in diversity, removed from New York state
court, for personal injury based on an alleged slip-and-fall
suffered by the plaintiff Yolanda P. Matos ("Matos"), a New York
resident, on the premises of the defendant Pathmark Stores, Inc.
("Pathmark"), a Delaware corporation with its principle place of
business in New Jersey. Matos has moved to amend and join as a
defendant Pathmark's cleaning contractor, Lashellda Maintenance
Corp. ("Lashellda"), a New York resident, and to remand this
action to state court for lack of diversity. Pathmark has moved to implead Lashellda as a third-party defendant, but opposes
joining Lashellda as a defendant and remanding. For the following
reasons, Matos's motion is granted, Pathmark's motion is denied
as moot, Lashellda is joined as a defendant, and this action is
remanded to the New York Supreme Court.
Matos filed her complaint on February 15, 2005 in New York
Supreme Court. The defendant filed a notice of removal on March
11, 2005. A pretrial scheduling order of April 11 ordered that no
additional parties could be joined to this action after May 13.
On May 10, Matos moved to amend her complaint, join Lashellda as
a defendant and remand this action to state court. Matos did not
submit a memorandum of law in support of this motion.
On May 24, Pathmark moved to implead Lashellda as a third-party
defendant. Pathmark also did not submit a memorandum of law in
support of its motion, although an accompanying affirmation
indicates that Pathmark does not oppose the addition of Lashellda
as a party, but opposes remand. Pathmark did not file an
opposition to Matos's motion, and Matos did not file an
opposition to Pathmark's motion. A letter dated July 13 from
Pathmark's counsel requests that Pathmark's motion for impleader
also be treated as an opposition to Matos's motion for joinder
and remand. A letter dated July 18 from Matos's counsel requests
that Matos's motion also be treated as an opposition to
A party at this stage in the proceedings may amend their
complaint "only by leave of court or by written consent of the adverse party." Fed.R.Civ.P. 15(a). Leave to amend the
pleadings shall be given "freely" in the absence of a reason such
as undue delay, bad faith or dilatory motive, repeated failure to
cure deficiencies, undue prejudice to the opposing party, or
futility of the amendment. Fed.R.Civ.P. 15(a); Foman v.
Davis, 371 U.S. 178, 182 (1962). The defendant has not raised
any of these concerns in its opposition to the plaintiff's
motion. This amendment is also timely under the schedule set at
the pretrial conference on April 8, 2005. The parties were given
until May 13, 2005 to join additional parties or to amend their
pleadings. Matos's motion to join Lashellda was filed on May 10,
2005. Because the motion to amend is both timely and falls within
the text and spirit of Rule 15, the motion is granted.
Matos's motion for leave to amend is granted and Pathmark's
motion is denied as moot. Lashellda is joined as a defendant, and
this action is remanded to the New York Supreme Court. The Clerk
of Court shall close the case.
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