The opinion of the court was delivered by: Kenneth M. Karas, District Judge
This case is before the Court on Plaintiffs' request to file a Motion to Amend their Complaint. The Parties argued the merits of Plaintiffs' potential motion at a pre-motion conference on April 20, 2006 and at a follow-up conference on June 6, 2006. The Court therefore construes Plaintiffs' request for a pre-motion conference as a Motion to Amend.*fn1
Plaintiffs move to add Inspector Thomas Galati as a Defendant. They assert both state and federal law claims against him. Defendants concede that there is no bar to adding Galati as a Defendant on Plaintiffs' federal claims. Defendants argue, however, that Plaintiffs cannot add Galati as a Defendant because the statute of limitations period has expired and neither Fed. R. Civ. P. 15(c)(3) nor the New York state relation back doctrine applies.
For the reasons stated below, the Motion is denied.
This case involves one hundred forty-seven Plaintiffs who were arrested on August 31, 2004 during the Republican National Convention ("RNC"). The Complaint was filed on September 30, 2005 and it identified three Defendants by name -- Mayor Michael Bloomberg, Police Commissioner Raymond Kelly, and Assistant Police Chief Terence Monahan. The Complaint also named John and Jane Doe Defendants.
The Complaint stated that "[u]pon information and belief, defendant Monahan ordered this mass arrest . . . ." (Compl. ¶ 25) Plaintiffs were initially informed by Galati that their protest march would be permitted so long as they obeyed all traffic laws. Shortly thereafter, however, Monahan announced that the Plaintiffs were under arrest. Because Monahan announced that the Plaintiffs were under arrest in apparent contradiction of Galati's earlier pronouncement, Plaintiffs believed Monahan alone made the decision to place them under arrest.
However, during his deposition on November 29, 2005, Galati testified that he and Monahan had a conversation and agreed together to order the arrest of Plaintiffs. Counsel for Plaintiffs was present at Galati's deposition but apparently did not recognize the importance of Galati's statement at that time. It was not until approximately three months later, when counsel for Plaintiffs was reviewing the deposition transcript, that he realized that Galati admitted that he participated in the decision to arrest the Plaintiffs.
Plaintiffs argue that the Court may apply either Federal Civil Procedure Rule 15(c)(3) or the New York relation back doctrine to allow amendment of the Complaint. Federal Civil Procedure Rule 15 permits a plaintiff to amend his complaint by leave of court after a responsive pleading is served. Fed. R. Civ. P. 15(a). "[L]eave shall be freely given when justice so requires." Id. An amendment relates back to the time of the original filing if (1) it "is permitted by the law that provides the statute of limitations applicable to the action," or (2) "the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading." Fed. R. Civ. P. 15(c)(1)-(2). Where either condition is met, an amendment that changes the name of a party or adds a party relates back to the date of the original pleading when (1) the party has received notice of the action within one hundred-twenty days of the filing of the complaint so that he will not be prejudiced in his defense, and (2) the party "knew or should have known that, but for a mistake concerning the identity of the proper party, the action would have been brought against the party." Fed. R. Civ. P. 15(c)(3).
The New York relation-back doctrine tracks the federal rule. See Bass v. World Wrestling Fed'n Entm't, Inc., 129 F. Supp. 2d 491, 508 (E.D.N.Y. 2001) ("New York's relation-back doctrine incorporates a standard similar to Rule 15 . . . ."); Buran v. Coupal, 661 N.E.2d 978, 982 (N.Y. 1995). In Brock v. Bua, 443 N.Y.S.2d 407, 412 (App. Div. 1981), the court articulated a three-prong test for determining when an amended complaint adding a new party relates back to the filing of the original complaint. One component of the test was whether the plaintiff had made an "excusable mistake" in initially failing to name the new party. Id. at 412. In Buran, however, the New York Court of Appeals later clarified the "mistake" component of the three-prong Brock test by removing the "excusable" requirement. 661 N.E.2d at 982; see also Blakeslee v. Royal Ins. Co., No. 93 Civ. 1633, 1998 WL 209623, at *6 (S.D.N.Y. Apr. 29, 1998) ("'[E]xcusability' is no longer an element of New York's relation back test."); De Sanna v. Rockefeller Ctr., Inc., 780 N.Y.S.2d 651, 653 (App. Div. 2004) ("[W]e need no longer consider whether the mistake was excusable."). The Buran court interpreted "excusable mistake" to mean any mistake except for a calculated decision "not to assert a claim against a party known to be potentially liable." 661 N.E.2d at 983. New York courts applying Buran have also found that a mistake of law "is not the type of mistake contemplated by the relation-back doctrine." Somer & Wand, P.C. v. Rotondi, 674 N.Y.S.2d 770, 771-72 (App. Div. 1998) (denying plaintiff's application to add new counterclaim defendants where plaintiff knew of the proposed defendants' identities but chose not to initially counterclaim against them because it thought a different statute applied); see also Doe v. HMO-CNY, 785 N.Y.S.2d 813, 817 (App. Div. 2004) (rejecting mistake of law as sufficient to qualify under relation back doctrine).
Thus, under New York law, an amended complaint relates back to the original complaint where: "(1) both claims arose out of the same conduct, transaction or occurrence, (2) the new party is united in interest with the original defendant, and by reason of that relationship can be charged with such notice of the institution of the action that the new party will not be prejudiced in maintaining its defense on the merits by the delayed, otherwise stale, commencement, and (3) the new party knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper parties, the action would have been brought against that party as well." Losner v. Cashline, L.P., 757 N.Y.S.2d 91, 93 (App. Div. 2003) (citing, inter alia, Buran, 661 N.E.2d at 982).
Under federal law, "if the claim arises under state law, or if the court borrows a state statute of limitations, relation back is to be determined by whichever procedural rule gives the most favorable result to the plaintiff." Smith v. Rochester Tel. Bus. Mktg. Corp., 786 F. Supp. 293, 309 (W.D.N.Y. 1992) (citing Fed. R. Civ. P. 15 advisory committee's note on 1989 proposed amendments to Rule), aff'd, 40 F.3d 1236 (2d Cir. 1994); see also Lieber v. Vill. of Spring Valley, 40 F. Supp. 2d 525, 532 (S.D.N.Y. 1999) ("[I]f a state's rules regarding relation back are less rigorous than the federal rules, state principles apply."); Blakeslee, 1998 WL 209623, at *5 (applying more generous New York relation back rule); Fed. R. Civ. P. 15 advisory committee's note on 1991 Amendment ("Whatever may be the controlling body of limitations law, if that law affords a more forgiving principle of relation back than the one ...