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Otto v. Saia

March 31, 2006

HAJO OTTO, PLAINTIFF,
v.
SAMUEL J. SAIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

I. INTRODUCTION

Plaintiff commenced this action on or about March 12, 2004 in the United States District Court, Southern District of New York and it was transferred to this District on July 6, 2004. Presently before this Court are Plaintiff's Motion to Extend Time for mediation set forth in the Referral Order dated January 10, 2006 and Plaintiff's Motion for Leave to Amend his Complaint. The Motion to Extend Time is contested and the Motion for Leave to Amend is not. Both are discussed below, beginning with the latter.

II. DISCUSSION

A. MOTION TO AMEND

On March 24, 2006, Plaintiff moved for leave to amend his Complaint to include additional defendants and claims (Docket No. 58).

Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure, leave to amend pleadings shall be freely given when justice so requires. See Livingston v. Piskor, 215 F.R.D. 84, 85 (W.D.N.Y. 2003) (Larimer, J.). Nonetheless, the decision of whether to grant leave to amend remains within the court's discretion. John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994) (citing Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed. 2d 222 (1962)); cf. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) (court's decision on whether to allow amendment is reviewed for abuse of discretion).

A refusal to grant a request for leave to amend must be "based on solid ground." Oliver Sch., Inc. v. Foley, 930 F.2d 248, 253 (2d Cir. 1991) (internal citations omitted). Factors 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, [and] futility of amendment" have been identified by the Supreme Court as adequate grounds for denial. Foman, 371 U.S. 178, 182; Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991); John Hancock, 22 F.3d at 462.

Plaintiff's Notice of Motion states that Alan Bozer, Esq., counsel for the only served Defendant to appear in this action, consents to the proposed amendment (Id., ¶ 2). While Plaintiff's Motion is not accompanied by a stipulation or affirmation to that effect, Attorney Bozer did submit an affirmation in opposition to Plaintiff's Motion to Extend Time, wherein he acknowledged that "[o]n or about December 2, 2005, [he] stipulated . . . to allow the plaintiff to amend his complaint" (Docket No. 56, ¶ 4). In short, the motion is unopposed.

Plaintiff's Motion to Amend also is unaccompanied by any statement of the reasons for the amendment and, presumably, Plaintiff relies on the Affirmation of Patrick J. Monaghan, Jr., Esq., submitted in support of the Motion to Extend Time, in this regard. Therein, Attorney Monaghan states that discovery revealed the existence of additional parties who should be made defendants. Upon review of the proposed amended complaint, it appears that the additional parties and claims are consistent with those identified in the Monaghan Affirmation.

The Court's primary concern here is the potential for additional delay in this action. The docket in this case is rife with requests, motions and stipulations for extensions of time, initiated by both parties, culminating in this Court's notice on March 1, 2006 that no further extensions of time will be granted.*fn1 However, in light of Rule 15's mandate that leave to amend be freely given and the fact that Plaintiff's motion is unopposed, Plaintiff's Motion for Leave to Amend is granted on condition that the Amended Complaint is filed no later than April 15, 2006.

B. MOTION TO EXTEND TIME

Although captioned as a Motion to Extend Time to Complete Mediation, Plaintiff appears to be requesting an extension of time in which to conduct the initial mediation session and also permission for both Plaintiff and his counsel to participate in mediation by telephone (Docket No. 55). For the reasons stated below, the time in which to conduct the initial ...


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