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Duling v. Gristede's Operating Corp.

January 8, 2010

SUSAN DULING AND MARGARET ANDERSON, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS,
v.
GRISTEDE'S OPERATING CORP., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pitman, United States Magistrate Judge

OPINION AND ORDER

I. Introduction

By notice of motion dated March 17, 2009 (Docket Item 91), plaintiffs move for leave to file an amended complaint. The proposed amended complaint would add Lakeya Sewer as a named plaintiff, add John Catsimatidis as a defendant, add individual claims on behalf of Lakeya Sewer under the Family Medical Leave Act ("FMLA") and the New York City Human Rights Law ("NYCHRL"), supplement the injunctive relief requested, and make certain other technical amendments.

For the reasons set forth below, plaintiffs' motion is granted.

II. Facts

This is an employment discrimination action brought as a class action. Plaintiffs allege that defendants (collectively referred to as "Gristede's"), entities which operate several retail grocery store chains in the New York metropolitan area, systematically discriminate against women in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL") and the NYCHRL (First Amended Complaint ("First Am. Compl.") ¶ 1). Specifically, plaintiffs allege that defendants channel women into cashier and bookkeeper positions because of their gender (First Am. Compl. ¶ 3). According to plaintiffs, cashiers and bookkeepers work fewer hours and are paid less than those in other positions, and, therefore, the positions available to women are less desirable than those available to men (First Am. Compl. ¶¶ 3-4). Plaintiffs allege that defendants also discriminate against women in the promotion of employees to managerial positions, using a "tap on the shoulder" method rather than posting job openings, as well as promoting male employees in substantially larger numbers than female employees (First Am. Compl. ¶¶ 5-6).

Overall, plaintiffs allege that defendants discriminate against women with regard to job placement, compensation, promotion, training, discipline, and other terms and conditions of employment (First Am. Compl. ¶ 7). Plaintiffs also allege that defendants discriminate by failing to implement effective equal employment opportunity policies, cultivating a discriminatory culture, failing to implement a system for posting promotion opportunities, and failing to provide managers and executives with equal employment opportunity training (First Am. Compl. ¶ 7).

Plaintiffs seek to represent "all current and former female Gristede's employees who worked for Gristede's at any time between November 2, 2004 and the date of final judgment in this matter" (Plaintiffs' Memorandum of Law in Support of Motion for Class Certification, dated January 30, 2009 ("Pls.' Mem. in Support of Certification") at 1). Plaintiffs filed their First Amended Complaint on June 21, 2007, adding Susan Duling as a named plaintiff and deleting Vanessa Hill as a named plaintiff (Compare Complaint with First Am. Compl.).

Class discovery began after the First Amended Complaint was filed, and was completed on January 30, 2009 (Memorandum of Law in Support of Motion for Leave to File an Amended Complaint, dated Mar. 17, 2009 ("Pls.' Mem. in Support") at 2; Memorandum of Law in Opposition to Plaintiffs' Motion to Amend the Complaint, dated March 31, 2009 ("Defs.' Mem in Opp.") at 1). Plaintiffs filed their motion for class certification on January 30, 2009, and defendants submitted their reply papers on March 9, 2009. That motion is still pending.

On March 17, 2009, plaintiffs served the instant motion, seeking leave to amend their complaint for a second time. Plaintiffs seek to add Lakeya Sewer, a former employee of Gristede's, as a named plaintiff (Proposed Second Amended Complaint ("Sec. Am. Compl.") ¶¶ 20-22), add John Catsimatidis, who is owner, Chairman of the Board of Directors, President, and Chief Executive Officer of Gristede's, as a defendant (Sec. Am. Compl. ¶¶ 1, 50-59), add claims under the FMLA and the NYCHRL on behalf of Sewer (Sec. Am. Compl. ¶¶ 132-38), and modify the relief requested (Sec. Am. Compl. ¶¶ (b), (e), (h), (i), (k), (q)-(w)).

In addition to joining the class allegations, Sewer alleges that defendants restored her to an inferior position --cashier, rather than receptionist -- upon her return from maternity leave, thereby both violating her restoration rights under the FMLA and discriminating against her based on her gender and pregnancy in violation of the NYCHRL (Sec. Am. Compl. ¶¶ 96-110, 132-38). According to plaintiffs, the change of positions constituted a demotion because of the difference in status and responsibilities between the two jobs (Sec. Am. Compl. ¶¶ 101-05).

The modifications to the requested relief include adding Sewer as an additional class representative, adding a request for declaratory relief against Catsimatidis, adding specific requests for injunctive relief including the implementation of objective assignment, promotion and compensation standards, the promotion of plaintiffs and class members to rightful positions or the award of front pay, and various requests for relief for Sewer (Sec. Am. Compl. ¶¶ (b), (e), (h), (i), (k), (q)-(w)).

Plaintiffs seek to add Sewer as a named plaintiff in order to eliminate certain objections to their motion for class certification (Pls.' Mem. in Support at 3). Plaintiffs also assert that litigating Sewer's individual claims along with the class claims would serve judicial economy (Pls.' Mem. in Support at 5). Plaintiffs seek to add Catsimatidis as a defendant because they believe that evidence developed in another case pending in this Court, Torres v. Gristede's Operating Corp., 04 Civ. 3316 (PAC) (S.D.N.Y.) (settlement pending), establishes that he is subject to liability as an "employer" under the NYSHRL and the NYCHRL (Pls.' Mem. in Support at 3).

I have issued two Scheduling Orders in this case. On February 13, 2009, prior to the instant motion, I issued a Scheduling Order (Docket Item 75) which provided, among other things, that any amended pleadings were to be due within sixty days after the Court's ruling on class certification and that, if class certification were granted, all non-expert witness discovery was to be completed within ninety days after the Court's ruling on class certification (Scheduling Order, dated February 13, 2009 ("Feb. 13 Order")). On March 19, 2009, after plaintiffs filed the motion to amend their complaint, I issued a superceding Scheduling Order which set a briefing schedule for further submissions concerning the motion and directed that all non-expert witness discovery be completed within ninety days of the Court's decision on class certification (Scheduling Order, dated March 19, 2009 ("Mar. 19 Order")).

III. Analysis

A. General Standards

Applicable to a Motion to Amend

The standards applicable to a motion to amend a pleading are well settled and require only brief review. Leave to amend a pleading should be freely granted when justice so requires. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007); Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 603-04 (2d Cir. 2005); Dluhos v. Floating & Abandoned Vessel, Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998); Gumer v. Shearson, Hamill & Co., 516 F.2d 283, 287 (2d Cir. 1974). "Nonetheless, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) [would prejudice] the opposing party... or (4) would be futile." Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303 (S.D.N.Y. 1996) (Kaplan, D.J.), aff'd, 116 F.3d 465 (2d Cir. 1997); see McCarthy v. Dun & Bradstreet Corp., supra, 482 F.3d at 200; Ellis v. Chao, 336 F.3d 114, 126-27 (2d Cir. 2003); Montefiore Med. Ctr. v. Am. Prot. Ins. Co., 00 Civ. 3235 (LTS), 2003 WL 21108261 at *1 (S.D.N.Y. May 14, 2003) (Swain, D.J.); Am. Home Assurance Co. v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. 1997) (Kaplan, D.J.). The Court of Appeals has repeatedly noted that the trial court has broad discretion in ruling on a motion to amend. E.g., Gurary v. Winehouse, 235 F.3d 792, 801 (2d Cir. 2000); Local 802, Assoc. Musicians v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998); Guzman v. Bevona, 90 F.3d 641, 649 (2d Cir. 1996); see generally Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000).

To the extent a proposed amendment would add new parties, the motion is technically governed by Rule 21, which provides that "the court may at any time, on just terms, add or drop a party," rather than Rule 15(a). Fed.R.Civ.P. 21; FTD Corp. v. Banker's Trust Co., 954 F. Supp. 106, 109 (S.D.N.Y. 1997) (Stein, D.J.). However, "'the same standard of liberality' applies under either Rule." FTD Corp. v. Banker's Trust Co., supra, 954 F. Supp. at 109, citing Fair Hous. Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972) and Expoconsul Int'l, Inc. v. A/E Sys., Inc., 145 F.R.D. 336, 337 n.4 (S.D.N.Y. 1993) (Preska, D.J.); see also Sly Magazine, LLC v. Weider Publ'ns L.L.C., 241 F.R.D. 527, 532 (S.D.N.Y. 2007) (Casey, D.J.); Chowdhury v. Haveli Rest., Inc., 04 Civ. 8627 (RMB)(JCF), 2005 WL 1037416 *1-*2 (S.D.N.Y. May 3, 2005) (Francis, M.J.).

B. Defendants' Arugments

1. Undue Delay

Defendants first argue that the motion should be denied because of ...


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