The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
Plaintiffs seek leave to amend their Complaint in order for the Plaintiff Stephen C. Pierce to seek compensatory damages, the Plaintiffs to pursue punitive damages against Defendant Mirch, and to plead a Monell claim*fn1 against the City of Troy. Dkt. No. 24, Mot. to Amend Compl., dated June 4, 2010. The Defendants oppose the Motion. Dkt. No. 25, John B. Casey, Esq. Aff., June 18, 2010. For the following reasons, the Motion is granted.
Although the Court assumes the parties' familiarity with the facts of this litigation, a brief recitation is warranted.
In March 2008, the Plaintiff offered to display artist Wafaa Bilal's digital work, "Virtual Jihadi" at the Sanctuary of Independent Media. Defendant Mirch, who was also the Commissioner of Public Works for the City of Troy, issued a press release and appeared on a radio talk show denouncing Bilal's work and requesting that the Plaintiffs retreat from showing this exhibit and subsequently participated in a public protest against the display. Upon the opening of the display, Troy's Department of Public Works performed an unscheduled inspection of the Sanctuary's building, issued a citation identifying code violations, and directed that there should be no assembly for any reason until the alleged code violations are corrected. See generally Dkt. No. 1, Compl.
Plaintiffs allege that Defendants' retaliatory use of their law enforcement authority violated Plaintiffs' fundamental rights to free speech, assembly, due process and equal protection under the First, Fifth, and Fourteenth Amendments of the United States Constitution as well as provisions of the New York State Constitution. Id.
Defendants dispute Plaintiffs' allegations and assert several affirmative defenses and a counterclaim for reasonable attorney fees, pursuant to 42 U.S.C. § 1988. Dkt. No. 8, Ans.
There are three primary bases for Plaintiffs' Motion to Amend. Initially, Plaintiffs demanded a declaratory judgment, permanent injunctive relief, nominal damages, and reasonable attorney fees. Compl. at Wherefore Clause. Apparently, upon further evaluation of Plaintiff Pierce's deposition on June 24, 2008, at which he advised the Defendants that he contemplated seeking psychiatric or psychological treatment, suffered emotional and mental distress, elevated blood pressure, and further adding by the proposed Amended Complaint that he suffered headaches, stress, and insomnia, he wishes to modify his quest for damages from nominal to compensatory. Dkt. No. 24, Proposed Am. Compl. at ¶¶ 10, 16, 53, Wherefore Clause, & Ex. B, Pierce's Dep., dated June 24, 2008, at pp. 167-68. Next, Plaintiffs propose allegations that an award of punitive damages against Defendant Mirch may be warranted. In this respect, Plaintiffs allege that Mirch, in his capacity as Commissioner of Public Works, was personally involved and orchestrated the issuance of the citation with the intent of preventing the public from viewing Bilal's exhibit and its message, and acted recklessly and with callous indifference to the Plaintiffs' constitutional rights. For these reasons, Plaintiffs wish to pursue punitive damages. Id., Proposed Am. Compl. at ¶¶ 10, 16, 36, 42, 54, & Wherefore Clause. Lastly, Plaintiffs assert that the City of Troy has a custom and policy of using code enforcement to stifle opposing political viewpoints, and Defendant Mirch, as Commissioner of Public Works, had final policy making authority to circumscribe Plaintiffs' constitutional rights by directing the issuance of the citation and closure of the building as a place of public assembly. Id. at ¶¶ 49-51.
A. Motion To Amend Standard
FED. R. CIV. P. 15(a) states, in pertinent part, that leave to amend a pleading should be "freely given when justice so requires." Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003). Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue prejudice to the non-movant, futility of amendment, or where the movant has repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002) (citing Chill v. Gen. Elec. Co., 101 F.3d 263, 271-72 (2d Cir. 1996)). District courts are vested with broad discretion to grant a party leave to amend the pleadings. See Local 802, Assoc. Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998). "The party opposing a motion for leave to amend has the burden of establishing that granting such leave would be unduly prejudicial." New York v. Panex Indus., Inc., 1997 WL 128369, at *2 (W.D.N.Y. Mar. 14, 1997) (citing Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996)); see also Lamont v. Frank Soup Bowl, 2000 WL 1877043, at *2 (S.D.N.Y. Dec. 27, 2000) (citations omitted). This requires the non-movant to "do more than simply claim to be prejudiced." Bryn Mawr Hosp. v. Coatesville Elec. Supply Co., 776 F. Supp. 181, 185 (E.D. Pa. 1991).
Here, Defendants complain that the proposed Amended Complaint should be denied on the grounds that it is untimely, thus causing them to be prejudiced, and that it is futile.
1. Untimely and Prejudice
In determining what constitutes prejudice from the amendment of a pleading, courts within the Second Circuit generally consider "whether the assertion of the new claim or defense would (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Monahan v. New York City Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000) (quoting Block v. First Blood Assoc., 988 F.2d 344, 350 (2d Cir. 1993)). Courts will further consider whether the opponent was otherwise on notice of the new claim, and whether that claim derives from the same facts ...