The opinion of the court was delivered by: Neal P. McCurn, Senior District Judge
MEMORANDUM, DECISION AND ORDER
Presently before the court are objections to Magistrate Judge Treece's August 3, 2007 Memorandum, Decision and Order granting in part and denying in part defendant Jill A. Dunn's ("Dunn") motion to amend her answer. See Dkt. No. 128 (hereinafter "the MDO"). By her motion, Dunn sought to amend her answer to assert as affirmative defenses that (1) plaintiff's amended complaint is barred by the government speech doctrine, and (2) plaintiff's amended complaint is barred, and Dunn is immune, by the Establishment Clause of the First Amendment to the United States Constitution. Plaintiff, Children First Foundation, Inc., ("CFF" or "plaintiff") opposed Dunn's motion, arguing that it is untimely and will prejudice CFF, and that her proposed affirmative defenses are futile. Judge Treece held that Dunn's delay in seeking to amend her answer was not in bad faith, nor did the delay advance any untoward prejudice for CFF. (Neither CFF nor Dunn object to this portion of the MDO.) Judge Treece further held that it would be futile for Dunn to assert the government speech doctrine as an affirmative defense, thereby denying her motion in that regard. On the other hand, Judge Treece granted Dunn's motion insofar as he held that it would not be futile for her to assert an Establishment Clause affirmative defense.
These timely objections to Judge Treece's order followed. Plaintiff objects to so much of the order that granted Dunn's motion to amend her answer with an Establishment Clause affirmative defense. Dunn opposes this objection, and plaintiff replies. Dunn objects to so much of Judge Treece's order that denies her motion to amend her answer with a government speech doctrine affirmative defense. Plaintiff opposes this objection, and Dunn replies. The remaining parties are silent regarding the aforementioned objections, except insofar as defendant Pataki, by attorney declaration, notes his support for Dunn's objection and opposition to plaintiff's objection. See Decl. of Ira J. Lipton, Sept. 10, 2007, Dkt. No. 139. The court heard oral argument regarding the pending objections on September 25, 2007 in Syracuse, New York. Decision was reserved.
II. Procedural Background
This civil rights action was commenced in August 2004 by plaintiffs CFF and Elizabeth Rex, director of CFF, alleging violation of the rights to freedom of speech and assembly, due process, and equal protection under the United States Constitution and violation of the right to freedom of speech under the New York State Constitution. Plaintiffs sought declaratory and injunctive relief as well as damages. Defendants, Raymond Martinez ("Martinez"), sued individually and in his official capacity as Commissioner of the New York Department of Motor Vehicles ("DMV"); Jill Dunn, sued individually and in her official capacity as the Deputy Commissioner and Counsel for the DMV; Eliot Spitzer, sued individually and in his official capacity as Attorney General of the State of New York ("Spitzer"); and George Pataki, sued individually and in his official capacity as then Governor of the State of New York ("Pataki"), filed a pre-answer motion to dismiss the entire complaint. At the time this court decided the motion to dismiss, each defendant was represented by the New York State Attorney General.
After hearing oral argument regarding the motion to dismiss, this court issued a bench order granting the motion in part based on stipulation by plaintiffs, thereby dismissing all claims by plaintiff Elizabeth Rex, the freedom of assembly claim, and the claims for damages against the defendants in their official capacities. See Transcript of Oral Argument at 71:5-12, Children First Foundation, Inc. v. Martinez, 04-CV-927 (Dkt. No. 17) (hereinafter "Tr."). The court went on to deny defendants' motion to dismiss the remaining claims, citing the simplified pleading standard of the Federal Rules of Civil Procedure and noting that defendants had not met their heavy burden thereunder to show that "no relief could be granted under any set of facts that could be proved consistent with the allegations." Tr. 71:13-72:12, quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514, 122 S.Ct. 992, 998 (2002) (emphasis added). Upon query for clarification by defense counsel, the court stated that it was not treating the motion to dismiss based on qualified immunity because the allegations in the pleadings did not support it, but that defendants are entitled to raise the defense again on a motion for summary judgment. See Tr. 75:11-76:17.
Thereafter defendants filed both a motion for reconsideration with this court and an appeal of this court's decision on the motion to dismiss with the Court of Appeals for the Second Circuit. This court denied defendants' motion for reconsideration, noting that they failed to overcome the "formidable hurdle" faced by movants seeking dismissal on qualified immunity grounds via a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 31. Shortly thereafter, defendants appealed the denial of their reconsideration to the Court of Appeals for the Second Circuit.
The Second Circuit dismissed both appeals by summary order, finding that because facts supporting the defense of qualified immunity do not appear on the face of the complaint, said defense cannot be determined as a matter of law, and therefore, the court lacks appellate jurisdiction. See Children First Found., Inc. v. Martinez, 169 Fed. Appx. 637, 639, 2006 WL 544502, at *1(2d Cir. 2006). Defendants' appeals were dismissed accordingly.
A few months later, after stipulation by all parties, plaintiffs amended their complaint to comport with this court's ruling on the Rule 12(b)(6) motion, eliminating Elizabeth Rex as a plaintiff, removing the freedom of assembly claim, and withdrawing the claims for damages against the defendants in their official capacities. In addition, the freedom of speech claim under the New York Constitution is absent from the First Amended Complaint (hereinafter "Amended Complaint").*fn1 Defendant Martinez, who is no longer Commissioner of the DMV, is now named in his individual capacity only, and Nancy Naples is substituted as Commissioner, sued in her official capacity. The Attorney General for the State of New York, then Eliot Spitzer, was eliminated from the Amended Complaint.*fn2
CFF, as the sole remaining plaintiff, alleges claims of violation of its right to freedom of speech, due process, and equal protection under the United States Constitution. Also included are newly pled facts regarding events which occurred subsequent to the filing of this lawsuit. While copies of the correspondence between the parties commencing July 2004 have been added as exhibits to the Amended Complaint, copies of correspondence through March 2004, which were included as exhibits to the original complaint, have been eliminated.
Shortly after CFF amended its complaint, defendants collectively filed an answer. At some point within the following six months, Dunn, who continually asserted that her representation by the Attorney General posed a conflict of interest, was finally given permission to, and subsequently did retain separate counsel to represent her in her individual capacity only. Dunn then made a motion to amend her complaint, which is the subject of the MDO, the objections to which are presently before this court.
New York State law enables the Commissioner of the DMV to issue special number license plates, and to promulgate regulations in relation thereto. N.Y. VEH. & TRAF. LAW § 404(1) (McKinney 2002). One category of special number plates, known as "Picture Plates" or "logo plates," has a picture or logo next to the plate number. There are several sub-categories of Picture Plates including "Organizations and Causes." Currently, there are fifty-nine available Picture Plates under the Organizations and Causes sub-category, of which twenty were authorized by legislative action. See §§ 404-b through 404-u. Otherwise, the procedure for the application for and issuance of a Picture Plate is purely within the discretion of the Commissioner and is not governed by statute or regulation.
An organization will initially qualify for a Picture Plate if it (1) is a nonprofit organization incorporated in New York, (2) has a sponsoring agency or organization as the main point of contact, and (3) pays a $5000 deposit and agrees same will be refunded upon the occurrence of one of two possible alternative circumstances. If such an organization requests information from the DMV about developing a Picture Plate, the DMV issues a "custom plate development kit" which sets forth the application and issuance process in some detail. The kit does not include a time frame within which an application must be approved or denied, nor does it set forth any guidelines, objectives, or prohibitions against the use of any logo, slogan, phrase, or message on a Picture Plate.
Plaintiff CFF is a non-profit organization incorporated in New York State. CFF's purpose is "to raise funds and awareness to promote and support adoption as a positive choice for women with unwanted pregnancies or newborns in ... New York, New Jersey and Connecticut." Am. Compl. ¶ 31. CFF utilizes the phrase, "Choose Life" as an integral part of its corporate identity within its official logo, Internet domain name, legal alternate name, and toll free telephone and facsimile numbers. Its official corporate logo is "a yellow sun behind the faces of two smiling children that are ...