The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
By notice of motion dated December 1, 2006, Plaintiffs moved, pursuant to Federal Rule of Civil Procedure 15(a), for leave to file a Fourth Amended Complaint to amend certain factual allegations contained in the Third Amended Complaint. Defendants opposed the motion. For the reasons set forth below, Plaintiffs' motion is GRANTED.
Plaintiffs filed suit against Defendants on November 6, 1996, alleging that Defendants participated in certain human rights violations in Nigeria during the period from 1990 through 1995. Since then Plaintiffs have filed three amended complaints, the parties have conducted extensive discovery, and the parties have filed several dispositive motions. Plaintiffs filed their latest complaint, the Third Amended Complaint, on June 16, 2003.
By Order dated September 29, 2006, the Court dismissed certain claims alleged in the Third Amended Complaint, and gave Plaintiffs leave to file a further amended complaint "specifically, and only, for the purpose of allowing Plaintiffs to delete paragraph 45 [of the Third Amended Complaint]." (Order 7, Sept. 29, 2006.) Plaintiffs subsequently filed this motion, requesting leave to amend additional factual allegations made in the Third Amended Complaint, "in order to conform the factual allegations to several items that came to plaintiffs' attention during discovery." (Pls.' Mem. Supp. Mot. Amend 1.) Defendants opposed the motion on various grounds.*fn1
Leave to amend "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a); Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990). However, the Court may deny leave to amend upon a showing of "undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendment previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Aetna Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 604-05 (2d Cir. 2005) (stating that leave to amend "'should be denied only for such reasons as undue delay, bad faith, futility of the amendment, and perhaps most important, the resulting prejudice to the opposing party'") (quoting Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987)).
Plaintiffs request leave to amend the following factual allegations in the Third Amended Complaint: (1) the status of Plaintiffs Ken Wiwa, Blessing Kpuinen, Lucky Doobee, Friday Nuate, Monday Gbokoo and James N-nah (collectively, "Representative Plaintiffs") with respect to their standing to sue on behalf of their respective decedents and/or family members (Pls.' Mem. 3-4, proposed amendments to ¶¶ 7, 9, 12, 13, 14 & 16), (2) the circumstances surrounding the arrest and detention of Plaintiff Michael Tema Vizor (Pls.' Mem. 3-4, proposed amendments to ¶¶ 3 & 49), and (3) the circumstances surrounding the arrest and detention of Plaintiff Owens Wiwa (Pls.' Mem. 5, proposed amendments to ¶ 69; Pls.' Proposed Fourth Amended Complaint ¶ 95).
Defendants oppose Plaintiffs' proposed amendments, arguing that (1) Plaintiffs have failed to explain the delay in filing their Motion to Amend, (2) Plaintiffs' proposed amendments regarding the standing of the Representative Plaintiffs are futile, and (3) Plaintiffs' proposed amendments regarding Plaintiffs Vizor and Owens Wiwa are factually unsupported. Defendants' arguments are unavailing.
First, Plaintiffs' delay in making this motion to amend, while certainly lengthy, is insufficient to justify denial of leave to amend. Absent a showing of bad faith or undue prejudice, mere delay does not justify denial of leave to amend. See Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). There is no evidence that Plaintiffs' delay in filing this motion to amend was a result of bad faith, or that it has caused undue prejudice to Defendants. Plaintiffs' delay is therefore excusable.
Second, Plaintiffs' proposed amendments regarding the standing of the Representative Plaintiffs are not futile. Where there is a "colorable basis" for the amendment, leave to amend should be granted. Kaster v. Modifications Sys., Inc., 731 F.2d 1014, 1018 (2d Cir. 1984); Gallegos v. Brandeis School, 189 F.R.D. 256, 259 (S.D.N.Y. 1999) (granting leave to amend even where possibility of relief is "remote"). Plaintiffs have established a "colorable basis" for the claim that the Representative Plaintiffs have standing. (Pls.' Reply 4-7.) Plaintiffs' proposed amendments with respect to these claims are therefore not futile.
Third, there is sufficient evidence to support Plaintiffs' proposed amendments regarding the factual circumstances surrounding the arrests and detention of Plaintiffs Vizor and Owens Wiwa, respectively. Generally, the veracity of factual allegations should not be considered on a motion to amend; however, the Court may deny leave to amend when the proposed amendments are "so groundless" as to indicate bad faith. Grunwald v. Borenfreund, No. 85 CV 3338, 1987 WL 176367, at *5 (E.D.N.Y. Nov. 26, 1986); cf. WIXT Television, Inc. v. Meredith Corp., 506 F. Supp. 1003, 1010 (S.D.N.Y. 1980) (noting that the factual support for proposed amendments is best considered on a substantive motion on the merits). Having reviewed the evidence ...