Presently before the court is plaintiff's request to amend her complaint to add two causes of action. On November 1, 2007, plaintiff's counsel filed a letter-motion requesting an extension of the deadline for amendment of pleadings,*fn1 and stating that he had sent a proposed amended pleading to defense counsel for his review and possible consent. (Dkt. No. 16). This court initially denied the extension request without prejudice and told plaintiff's counsel to wait for defendant's response regarding a possible stipulation to amend. (Dkt. No. 17).
Defense counsel declined to stipulate to the amendment, and on December 3, 2007, the court held a telephone conference to discuss the issue. The court requested that the parties brief the issue, and both parties have filed documents in support of their respective positions. (Dkt. Nos. 20, 21). Plaintiff's counsel has filed a copy of the original and the proposed amended complaint with his papers. (Dkt. No. 21, Exs. A & B).
Generally, the court has discretion whether or not to grant leave to amend [a pleading]. Foman v. Davis, 371 U.S. 178, 182 (1962). In exercising this discretion, the court must act pursuant to FED. R. CIV. P. 15(a), granting leave to amend "freely ... when justice so requires." FED. R. CIV. P. 15(a)(2)*fn2 ; Foman, 371 U.S. at 182. A motion to amend should not be denied unless there has been undue delay, bad faith, undue prejudice to the opposing party, or the amendment is futile. Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001)(citing Foman, supra). Leave may also be denied if granting leave would contravene a prior order of the court setting a deadline for amendment. Mataraza v. Newburgh Enlarged City Sch. Dist., 294 F. Supp. 2d 483, 486 (S.D.N.Y. 2003).
Generally, an amendment is futile if the pleading fails to state a claim or would otherwise be subject to dismissal. U.M.G. Recordings, Inc. v. Lindor, CV-05-1095, 2006 U.S. Dist. LEXIS 83486, *5-6 (E.D.N.Y. Nov. 9, 2006); S.S. Silberblatt, Inc. v. East Harlem Pilot Block, 608 F.2d 28, 42 (2d Cir. 1979). The analysis is similar to that employed in a motion to dismiss. Stetz v. Reeher Enterprises, Inc., 70 F. Supp. 2d 119, 121 (N.D.N.Y. 1999). The court must accept the asserted facts as true and construe them in the light most favorable to the amending party. Id.
When amendments raise colorable claims, especially where they are based upon disputed facts, they should be allowed, and a comprehensive legal analysis deferred to subsequent motions to dismiss or for summary judgment. Madison Fund, Inc. v. Denison Mines Ltd., 90 F.R.D. 89, 91 (S.D.N.Y. 1981); EEOC v. Sage Realty Corp., 87 F.R.D. 365, 371-72 (S.D.N.Y. 1980); WIXT Television, Inc. v. Meredith Corp., 506 F. Supp. 1003, 1010 (N.D.N.Y. 1980).
It has also been held, however, that a motion to amend may be denied when the movant knew or should have known of the facts upon which the amendment is based when the original pleading was filed. Berman v. Parco, 986 F. Supp. 195, 217 (S.D.N.Y. 1997)(M.J. Peck). This is particularly true when the movant offers no excuse for the delay.
In this case, defendant argues that the court should not allow the amendment because the new claims would be barred by the statute of limitations, and the new claims do not "relate back" to the original complaint under FED. R. CIV. P. 15(c). If the claims are barred by the applicable statute of limitations, then they are futile under the standard for amendment of pleadings. See Grace v. Rosenstock, 228 F.3d 40, 53 (2d Cir. 2000).
A. Family and Medical Leave Act (FMLA)
The complaint in this case is based in relevant part on the Family and Medical Leave Act, 29 U.S.C. § 2611 et seq. The FMLA provides eligible employees with the ability to take 12 work weeks of leave in any 12 month period for various reasons, including caring for the employee's spouse, child, or parent with a serious health condition. 29 U.S.C. § 2612(a)(1)(C).*fn3 The FMLA makes it unlawful for an employer to interfere with, restrain, or deny the exercise or the attempt to exercise any of the rights conferred by the statute. 29 U.S.C. § 2615(a)(1). Employers may not discharge or discriminate against an employee who is exercising or attempting to exercise these rights.*fn4 29 U.S.C. § 2615(a)(2).
The statute also contains a provision prohibiting specific types of retaliation*fn5 .
Id. § 2615(b). This section states that it shall be unlawful to discharge or in any manner discriminate against any individual for filing charges that relate to the statute, giving information in connection with an inquiry or proceeding relating to rights provided by the statute, or testifying in any inquiry or proceeding relating to rights under the statute. Id. § 2615(b)(1)-(b)(3). The FMLA creates a private right of action for both equitable relief and money damages against the employer who violates section 2615. 29 U.S.C. § 2617. See ...