The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge
Currently before the Court in this civil rights action is a motion by Plaintiff for leave to file a Third Amended Complaint. For the reasons discussed below, this motion is granted.
On September 17, 2003, Plaintiff filed a Complaint asserting claims pursuant to 42 U.S.C. § 1983. (Dkt. No. 1.) The then-defendants moved to dismiss on a variety of grounds. (Dkt. No. 6.) By Decision & Order dated June 24, 2004, Senior District Judge Thomas J. McAvoy granted the motion in part and denied it in part. (Dkt. No. 15.) Inter alia, Judge McAvoy "dismissed without prejudice to re-pleading" all Section 1983 claims against the County of Jefferson, the Jefferson County Sheriff's Department, and Frank Seymour in his official capacity.
On October 21, 2004, Plaintiff moved for leave to file an Amended Complaint. (Dkt. No. 31.) The proposed defendant opposed the motion on the ground of futility, and further briefing followed. (Dkt. Nos. 32, 34, and 36.) By Order dated December 29, 2004, I sua sponte provided Plaintiff with an opportunity to submit a new motion to amend based upon a revised proposed amended complaint. (Dkt. No. 37.) On January 17, 2005, Plaintiff filed a second motion to amend with an attached "Second Amended Complaint." (Dkt. No. 40.) The proposed defendants again opposed the motion, again on the ground of futility. (Dkt. No. 41.) By Order dated April 20, 2005, I denied Plaintiff's motion with prejudice. Uhlein v. County of Jefferson, 03-CV-1147, 2005 WL928619 (N.D.N.Y. Apr. 20, 2005).
On January 19, 2006, Plaintiff applied for leave to file a third motion to amend his Complaint (given my Order of April 20, 2005 denying with prejudice Plaintiff's previous motion to amend his Complaint). The ground for granting such leave, according to Plaintiff's counsel, was the existence of newly discovered evidence, obtained after my Order of April 20, 2005, which allegedly supports Plaintiff's proposed theory of liability against the County of Jefferson ("the proposed defendant").*fn1 By Order dated January 23, 2006, I granted Plaintiff's application for leave to file a third motion to amend his Complaint. (Dkt. No. 61.) I also authorized the proposed defendant to file an amicus brief with respect to such motion to amend, and noted that the County would not be precluded from arguing that Plaintiff's renewed motion to amend his Complaint should be denied because Plaintiff's second motion to amend his Complaint had been denied with prejudice. (Id.)
On February 17, 2006, Plaintiff filed a third motion to amend his Complaint, attaching a proposed Third Amended Complaint. (Dkt. No. 62.) On March 10, 2006, the proposed defendant opposed Plaintiff's motion. (Dkt. No. 63.) On March 21, 2006, I heard oral argument on Plaintiff's motion, and permitted the filing of supplemental letter briefs, which were subsequently filed by both Plaintiff and the proposed defendant. (Dkt. Nos. 64, 66.)
A. Applicable Legal Standard
"Although Rule 21 [of the Federal Rules of Civil Procedure] governs the addition of new defendants, in deciding whether to allow joinder under that rule, the Court is guided by the same standard of liberality afforded to motions to amend under Rule 15." Smith v. P.O. Canine Dog Chas, Shield No. 170, 02-CV-6240, 2004 U.S. Dist. LEXIS 19623, at *39, n.11 (S.D.N.Y. Sept. 28, 2004) [internal quotation marks and citations omitted].
Thus, the plaintiff's motion is governed by Rule 15(a), which explicitly provides that "leave [to amend] shall be freely given when justice so requires." This phrase "when justice so requires" has been interpreted to mean that leave to amend "should not be denied unless there is evidence of undue delay, bad faith, undue prejudice to the non-movant, or futility." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (citing Foman v. Davis, 371 U.S. 178 ). Here, the County of Jefferson ("the proposed defendant") opposes the motion on the ground that the amendment would be futile.
In my previous Order, I briefly (and perhaps too narrowly) stated the standard for determining if a proposed amended pleading is "futile," implying that the only reason for such futility would be if the proposed amended pleading could be defeated by a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Uhlein, 2005 WL 928619, at *1 ("A court measures futility under the same standard as a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure."). While this may be the most common reason that a proposed amended pleading might be "futile" (since most motions to amend are probably filed early in the proceedings, before discovery has been conducted), there are, of course, several other reasons that a proposed amended pleading might be "futile."*fn2 One such reason might be if the proposed amended pleading could be defeated by a motion for summary judgment under Rule 56.*fn3
The distinction between a motion to dismiss and a motion for summary judgment (and their respective standards) is especially important here, where both Plaintiff and the proposed defendant have submitted evidence with their motion papers, and each has advanced legal arguments that vacillate between addressing the failure to "state" a claim (i.e., employing a Rule 12[b] analysis) and the failure to "establish" a claim (i.e., employing a Rule 56 analysis). The question, then, is whether the circumstances of this case warrant judging Plaintiff's proposed amended complaint under a Rule 56 standard or Rule 12(b)(6) standard.
From my review of the cases, it appears that, generally, courts that evaluate the futility of a plaintiff's proposed amended complaint under a Rule 56 standard do so because the plaintiff's motion to amend has come after discovery has closed and the defendant has moved for summary judgment. See, e.g., Milanese v. Rust-Oleum Corp., 244 F.3d 104, 111 (2d Cir. 2001) ("[W]here . . . [the motion is amend] is made in response to a Fed. R. Civ. P. 56 motion for summary judgment, and the parties have fully briefed the issue of whether the proposed amended complaint could raise a genuine issue of fact and have presented all relevant evidence in support of their positions.").*fn4
Here, discovery has not yet closed, and Defendant has not moved for summary judgment. Of course, the reason discovery has not yet closed is because Plaintiff filed a third motion to amend (i.e., the Court wished to permit Plaintiff and the proposed defendant have to an opportunity to brief, and have decided, that motion to amend, before discovery closes). Furthermore, the reason no summary judgment motion has been filed is that it is not the current Defendant in the case (i.e., Frank Seymour) but the proposed defendant (i.e., County of Jefferson) that has had any real incentive to file such a motion (and the proposed defendant has lacked the standing to file such a motion).*fn5 For these reasons, I believe that the bulk of cases applying a Rule 56 analysis to a Rule 15 motion are inapposite.
More instructive, I think, are the few cases that apply a Rule 56 analysis even where no motion for summary judgment has been filed. Generally, in these cases, the plaintiff has submitted evidence extraneous to his complaint in support of his motion to amend; the defendant has also submitted extraneous evidence in opposition of the motion; and the court bases its conclusion (to apply a Rule 56 analysis) on principles of fairness and judicial economy.*fn6
Under the circumstances, I conclude that it is best to consider the proposed amended complaint under the Rule 12(b)(6) standard, and let the proposed defendant subsequently move for summary judgment (if the proposed amended complaint survives a Rule 12 analysis). I reach this conclusion for three reasons. First, I am not sure that Plaintiff and the proposed defendant intended, or were on sufficient notice that, the Court would apply a Rule 56 analysis to Plaintiff's motion to amend. Second, I am not sure that Plaintiff and the proposed defendant have had a sufficient opportunity to obtain and present all relevant evidence in support of their positions, since discovery is not yet complete (and since the proposed defendant has had only a somewhat limited right to engage in discovery due its current status as a nonparty); thus, a Rule 56 analysis may be premature.*fn7 Third, there are numerous ways a properly filed (and opposed) motion for summary judgment would refine, organize and develop the issues to be decided by the Court (e.g., through submission of a Rule 7.1 Statement of Material Facts and a response thereto).*fn8
B. Legal Standard on Motion to Dismiss
To prevail on a motion to dismiss under Rule 12(b)(6) for "failure to state a claim upon which relief can be granted," a defendant must show "beyond doubt that the plaintiff can prove no set of facts in support of his claim [that] would entitle him to relief,"*fn9 or the defendant must show that the plaintiff's claim "fails as a matter of law."*fn10 Thus, a defendant may base a Rule 12(b)(6) motion on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Rule 8(a)(2); or (2) a challenge to the legal cognizability of the claim.*fn11
Rule 8(a)(2) requires that a pleading include "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). Although Rule 8(a)(2) does not require a pleading to state the elements of a prima facie case,*fn12 it does require the pleading to "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests."*fn13 The purpose of this rule is to "facilitate a proper decision on the merits."*fn14 A complaint that fails to comply with this rule "presents far too a heavy burden in terms of defendants' duty to shape a comprehensive defense and provides no meaningful basis for the Court to assess the sufficiency of [plaintiff's] claims."*fn15
The Supreme Court has characterized this pleading requirement under Rule 8(a)(2) as "simplified" and "liberal," and has rejected judicially established pleading requirements that exceed this liberal requirement. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 513-514 (2002) (noting that "Rule 8(a)(2)'s simplified pleading standard applies to all civil actions, with limited exceptions [including] averments of fraud or mistake."). However, even this liberal notice pleading standard "has its limits."*fn16
"In reviewing a complaint for dismissal under Rule 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor."*fn17 "This rule applies with particular force ...