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Ward v. Empire Vision Centers

September 22, 2009


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



By order dated July 1, 2008, the above-captioned matter has been referred to the undersigned for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 6). Plaintiff Ernestine Ward ("Ward") has filed suit under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act and the New York Human Rights Law, alleging that defendant Empire Vision Centers, Inc. ("Empire") discriminated against her on the basis of her race, color and age and subjected her to retaliation for having complained of such discrimination. (Docket # 1). Currently pending before this Court are pretrial motions filed by Ward, many duplicative of others, seeking leave to file an amended complaint, appointment of counsel, orders unsealing certain discovery material, compelling Empire to respond to discovery requests and directing the issuance of subpoenas. (Docket ## 39-41, 43, 44, 46, 50, 60, 68-70).


I. Motion to Amend the Complaint (Docket # 46)

Ward originally filed two actions against Empire. Both complaints alleged violations of Title VII, but one also included the New York State Human Rights Law claim and the other the Age Discrimination in Employment Act claim. On February 4, 2009, United States District Judge David G. Larimer consolidated the two cases under this docket number. (Docket # 45). Thus, Ward's pending consolidated complaint alleges discrimination in violation of all three statutes.

On December 18, 2008, prior to the consolidation order, I denied Ward's motion to amend her complaint because she had not included with her motion a proposed amended complaint. (Docket # 30). On February 5, 2009, the day after Ward's cases were consolidated, this Court received the pending motion to amend Ward's complaint. (Docket # 46). Although not received until February 5, the documents contained in Ward's motion are dated several weeks earlier. ( Id .). Thus, Ward's proposed complaint was apparently prepared before the consolidation order and pertained to only one of the pending complaints, rather than to both. A review of the proposed amended complaint reveals that it includes charges under all three statutes and contains factual allegations similar to those in the two consolidated cases. Empire has not opposed the amendment.

Rule 15(a) of the Federal Rules of Civil Procedure provides that once the time for amending a pleading as of right has expired, a party may request leave of the court to amend, which shall be "freely give[n] . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). If the underlying facts or circumstances relied upon by the party seeking leave to amend may be a proper subject of relief, the party should be allowed to test the claim on its merits. See United States ex rel. Maritime Admin. v. Continental Illinois Nat. Bank and Trust Co. of Chicago , 889 F.2d 1248, 1254 (2d Cir. 1989). "In the absence of any apparent or declared reason -- such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. -- the leave sought should, as the rules require, be 'freely given.'" Foman v. Davis , 371 U.S. 178, 182 (1962).

While the court retains discretion to grant or deny leave to amend under Rule 15(a), "[the] outright refusal to grant the leave without any justifying reason appearing for the denial is not an exercise of discretion; it is merely abuse of that discretion and inconsistent with the spirit of the Federal Rules." Id. at 182; Ruffolo v. Oppenheimer & Co. , 987 F.2d 129, 131 (2d Cir. 1993); Evans v. Syracuse City Sch. Dist. , 704 F.2d 44, 46 (2d Cir. 1983).

Ward's proposed amended complaint has not added any new legal claims or factual allegations to the case. Rather, the proposed amended complaint consists primarily of Ward's evidence in support of her claims and rebuttals to Empire's witness statements. Therefore, I deny Ward's motion to amend her complaint as moot and instead direct the Clerk of the Court to file the exhibits to Ward's proposed amended complaint as exhibits to her pending consolidated complaint.

II. Motions to Unseal (Docket ## 50, 69)

Ward has filed two motions to unseal certain documents contained in discovery responses that Empire had filed under seal pursuant to a confidentiality agreement and protective order signed by Ward during a status conference held with this Court. (Docket ## 35, 36). Pursuant to Local Rule 7.1(a)(1), Empire must file all discovery materials with the Court. Because Empire determined that some of the information Ward sought in her requests for production was confidential and sensitive, it provided that material to her pursuant to the confidentiality order and filed it with the Court under seal. Significantly, Empire represents that it has provided to Ward copies of all documents that have been filed under seal. (Docket # 58). The impetus behind Ward's motions appears to be her belief that Empire has filed certain documents with the Court that have not been provided to her.*fn1 (Docket # 61). Although no evidence exists to support this suggestion, Ward may make arrangements with this Court's chambers staff to review the documents filed with the Court should she wish. Ward's motions to unseal are denied.

III. Discovery Motions (## 39, 43, 44, 60, 68, 70)

Under the terms of the original scheduling order, the fact discovery deadline expired on January 5, 2009, and motions to compel were to be filed thirty days prior to that date. (Docket # 7). Neither party moved to extend either deadline. Ward has filed four similar motions to compel seeking Empire's responses to requests for documents, interrogatories and requests for admission. (Docket ## 39, 44, 60, 68). Of the four, only one was filed prior to the discovery deadline. (Docket # 39). In addition, Ward has filed a fifth motion, styled as a motion for an order to show cause, attempting to compel the same discovery responses. (Docket # 70). Finally, Ward requests an ...

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