The opinion of the court was delivered by: Hon. Hugh B. Scott United States Magistrate Judge
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(C) (Docket No. 8*fn1 ). While defendants' motions to dismiss (Docket Nos. 10, 16*fn2 ) were pending, plaintiff submitted his response (Docket Nos. 19, 20), including an Amended Complaint (Docket No. 20). The instant matter addressed herein before the Court are the motion to strike that Amended Complaint by defendants West Valley Environmental Services ("WVES") and David Pritchard (collectively the "WVES defendants") (Docket No. 21*fn3 ) and plaintiff's motion for leave to amend the Complaint (Docket No. 31*fn4 ). Responses to the motion to strike were due by July 15, 2010, and the pending motions (described below) then were deemed submitted on July 15, 2010 (Docket No. 26). Responses to plaintiff's motion for leave to amend were due by August 2, 2010, and the all pending motions then were deemed submitted as of that date (Docket No. 32). Following the WVES defendants' separate motion to dismiss crossclaims (Docket No. 33), all pending motions were deemed submitted as of August 17, 2010 (Docket No. 36).
As stated above, also pending before the Court are two motions to dismiss the original Complaint; first is the motion of the WVES defendants (Docket No. 10), and next, on May 27, 2010, is the motion of defendants Cattaraugus County Sheriff's Office ("Sheriff's Office"), sergeant Bryan Schwabenbauer, and deputy Richard Love (collectively "County defendants") to dismiss (Docket No. 16).
Given the issues surrounding the amendment of the Complaint, this Court considers first the amendment (either granting leave or striking the filed amendment) and this Court had briefed (see Docket Nos. 15, 18, 30, 32, 36) the issue of the dismissal motions (Docket Nos. 10, 16, 33) (depending upon the disposition of plaintiff's proposed amendment herein, those motions will be addressed in a separate Report & Recommendation) and deferred said motions.
This is a civil rights action (with a supplemental state law tortious interference with contract claim) by an employee of a contractor servicing WVES property alleging deprivation of property interest without substantial due process of law, denial of equal protection of the laws, and deprivation of plaintiff's First Amendment rights (Docket No. 1, Compl. ¶¶ 2, 25, 31-64). West Valley Environmental Services contracted with the United States Department of Energy to clean the West Valley Demonstration Project, removing radioactive waste (id. ¶¶ 18, 13-14, 15). Plaintiff contracted with The Krog Corporation to provide snow plowing and other services on properties The Krog Corporation owned, including a facility leased to WVES called the Ashford Office Complex (or "AOC") and had performed these services since 1991 (id. ¶¶ 25, 22-24, 26). The AOC contained WVES's offices (id. ¶ 19).
In mid-December 2007, plaintiff was on AOC premises to test pavement and weather conditions before beginning snow plowing when a Cattaraugus County Sheriff's patrol car pulled into the AOC parking lot (id. ¶¶ 31-33). Plaintiff contends that defendant Cattaraugus County Sheriff's Department sergeant Bryan Schwabenbauer ordered plaintiff to step away from his vehicle (id. ¶ 35). According to plaintiff, he repeatedly identified himself as the snowplow contractor but Schwabenbauer ordered plaintiff to shut up, pushed plaintiff onto the sheriff's patrol car and ordered him to place his hands on the patrol car, kicked his legs apart and conducted a pat down search of plaintiff (id. ¶¶ 37-38). Plaintiff claims that Schwabenbauer demanded to know what plaintiff was doing at the AOC and then proceeded to search plaintiff's vehicle (see id. ¶¶ 39, 41). Plaintiff reported this incident to Cattaraugus County Sheriff's Captain Robert Buchardt and defendant deputy Richard Love but declined to file a formal complaint (id. ¶¶ 42). Love also was employed by WVES for security (id. ¶ 8).
Almost two years later, on December 9, 2009, plaintiff appeared for work at the AOC when, at approximately 6 am, plaintiff saw a blue flash near an electrical transformer, followed by falling power lines and fires; plaintiff immediately reported this to WVES security (id. ¶¶ 44-45). Plaintiff entered the non-secured front vestibule of the AOC and went no further into secured areas (id. ¶¶ 46, 52). Emergency responders arrived, including defendant Schwabenbauer. Schwabenbauer, when he saw plaintiff on AOC premises, told him (in a profane manner) to leave. (Id. ¶¶ 48, 49.) Plaintiff drove to the south end of the parking lot (id. ¶ 50). Schwabenbauer and Dawn Samborski*fn5 , an agent, employee or contractor of WVES, falsely reported that plaintiff entered secured area of AOC (id. ¶ 53). Plaintiff claims that defendants WVES, Pritchard, Schwabenbauer, and Love invoked federal law (provisions of the Atomic Energy Act) to ban plaintiff from entering the AOC, claiming that he was trespassing (id. ¶¶ 54-56), and to which plaintiff denied trespassing (id. ¶ 57). On December 16, 2009, Love and Pritchard declared to The Krog Corporation that plaintiff would no longer be given access to the AOC, despite the fact that they allegedly knew that plaintiff had not trespassed (id. ¶ 58). Pritchard falsely reported to The Krog Corporation that plaintiff had trespassed (id. ¶ 60). When The Krog Corporation responded that the surveillance security system indicated that plaintiff had not trespassed, Pritchard stated that the electrical outage disabled the system so as to preclude that finding (id. ¶ 61; see id. ¶ 59). Plaintiff points to other eyewitnesses and concludes that the trespass claim was false and that WVES maliciously concluded to the contrary and suppressed or ignored contrary evidence (id. ¶¶ 62-65).
In the first claim of the original Complaint, plaintiff alleges that Schwabenbauer deprived him of his Fourth Amendment rights in conducting an illegal search and seizure of his person and vehicle in December 2007 (id. ¶ 65). The Cattaraugus County defendants allegedly were deliberately indifferent in failing to train Schwabenbauer (id. ¶ 66). Next, in his second claim plaintiff alleges that he was deprived property, his employment with The Krog Corporation, his contract for property maintenance and his liberty interest in his good name, without due process, in violation of the Fifth and Fourteenth Amendments (id. ¶¶ 68-73). He claims in the third claim that defendants retaliated against him for complaining of Schwabenbauer's illegal conduct in 2007, in violation of his First Amendment rights (id. ¶¶ 75-79). He also alleges, in the fourth claim, that this vindictiveness deprived plaintiff of equal protection of laws, in violation of the Fourteenth Amendment (id. ¶¶ 81-84). Finally, plaintiff alleges in the fifth claim, that Pritchard, WVES, Samborksi, Schwabenbauer, and Love tortuously interfered with plaintiff's contractual rights, in violation of New York common law (id. ¶ 86).
The Cattaraugus County Sheriff's Office, deputy Love, and sergeant Schwabenbauer separately answered the Complaint with identical Answers (Docket Nos. 2, 3, 4), also asserting an affirmative defense and cross-claim alleging the negligence of the WVES defendants and Samborski that, if plaintiff recovers from the County defendants, the WVES defendants and Samborski should indemnify the County defendants (e.g., Docket No. 3, Love Ans. ¶ 100).
Before a Scheduling Conference could be set, the WVES defendants filed their motion to dismiss (Docket No. 10), on April 30, 2010.
Plaintiff's Amended Complaint
Plaintiff filed his Amended Complaint (Docket No. 20), arguing that he was amending as of right under Rule 15(a)(1)(A) since WVES and Pritchard had not filed responsive pleadings (Docket No. 19, Pl. Atty. Affirm. ¶¶ 2-4). The First Amended Complaint amends the second claim and asserts that defendants Love, Schwabenbauer, and the Sheriff's Office acted under the color of state law and that WVES had a special relationship with the Sheriff's Office wherein that department rendered security services to WVES (Docket No. 20, Am. Compl. ¶¶ 73-75). Plaintiff concludes that Schwabenbauer and Love acted in concert with the WVES defendants and their acting in concert was done under color of state law (id. ¶ 76) to make all defendants liable under 42 U.S.C. § 1983. Plaintiff specifies that he is seeking relief from the WVES defendants in his amended third and fourth claims (id. ¶¶ 82, 88). The ad damnum clause is also amended to remove the declaratory judgment relief that sought to set forth the rights of the parties (see Docket No. 19, Pl. Memo. at first unnumbered page; compare Docket No. 1, Compl. at 13 with Docket No. 20, Am. Compl. at 14), presumably including the non-party The Krog Corporation.
The County defendants answered this filed Amended Complaint (Docket No. 28), reasserting the cross-claim against the WVES defendants and Samborski (id. ¶ 104) but again not serving Ms. Samborski (cf. id. Cert. of Serv.).
Plaintiff, recognizing the recent amendment to Federal Rule of Civil Procedure 15, discussed below, next moved for an extension of time to reply to the then-pending motions, indicating his intention to move for leave to amend the Complaint (Docket No. 29, Pl. Atty. Affirm. ¶¶ 2-5), and this extension was granted (Docket No. 30). In his motion for leave to amend the Complaint (Docket No. 31), plaintiff reasserts the First Amended Complaint discussed above (id.) and reaffirmed the arguments for the amendment (as well as opposing defense motions to dismiss the original Complaint and to strike the filed amendment) (id., Pl. Atty. Affirm. of July 16, 2010). First, plaintiff argues that, by amending the Complaint, defense motions to dismiss the initial Complaint become moot (id. ¶¶ 3-4) and refers to his earlier memorandum regarding defense opposition for leave to be granted (id. ¶ 5, see also discussion below). He also noted that his filing of the Amended Complaint as of right had to have been filed by June 17, 2010, but he filed it the next day; he thus sought additional time to respond and to file a motion for leave to amend the Complaint (Docket No. 29, Pl. Atty. Affirm. ¶¶ 4-7), which was granted (Docket No. 30) and plaintiff filed his motion for leave to amend (Docket No. 31).
Plaintiff contends that this amendment is not futile and saves plaintiff's claims (Docket No. 31, Pl. Opp'n & Leave to Amend Memo. at 3-5) and he denies that there is any prejudice to defendants asserted in opposing leave to amend and that the other bases for rejecting leave (undue delay, bad faith, dilatory motive, or repeated failure to cure deficiencies) are not present (id. at 2-3). He contends that the WVES defendants acted in concert with state actors, the Cattaraugus County Sheriff's Department, including a contract between the Sheriff's Department and the United States Department of Energy to provide law enforcement services to WVES (id. at 4; Docket No. 31, Pl. Motion, Ex. A (Memorandum of Understanding)). By acting in concert with state actors, plaintiff concludes that WVES defendants could be held liable under § 1983 as state actors (Docket No. 31, Pl. Opp'n & Leave to Amend Memo. at 4-5). As for the necessary party issue, plaintiff's proposed amendment removes declaratory relief from the ad damnum clause, removing the necessity of including The Krog Corporation in this case (id. at 5); furthermore, the cure for non-joinder is adding that party and not dismissal of the action (id. at 6, citing 4 Moore's Federal Practice--Civil §§ 19.04[a] (under Rule 19(a)(2), court must order joinder of non-joined necessary party), 21.04 (2010)); see also 2 Moore's Federal Practice--Civil § 12.35 (2010) (rather than dismiss action, court will allow necessary party to be joined; if that indispensable party cannot be joined, then dismissal is proper).
WVES Defendants' Motion to Strike
After plaintiff filed his Amended Complaint (Docket No. 20), the WVES defendants moved to strike that pleading (Docket No. 21). First, they argue that the amendment is untimely, since it was filed almost two months after defendants filed their motions to dismiss (Docket No. 22, WVES Defs. Atty. Aff. ¶ 3; Docket No. 24, WVES Memo. at 1, 3). Second, they contend that the amendment does not cure the defects in the initial pleading to save it (Docket No. 24, WVES Memo. at 1, 4-8). They charge that the Amended Complaint does not allege any conduct by WVES or Pritchard which denied plaintiff a constitutionally protected right or establish a nexus between them and the Sheriff's Office to support a conspiracy allegation (id. at 1).
WVES Defendants' Motions to Dismiss
Meanwhile, the WVES defendants had moved to dismiss so much of the original Complaint against them, pursuant to Rule 12(b)(6) (failure to state a claim) and (b)(7) (failure to join party) (Docket No. 10). They contend that the Complaint fails to allege that they were acting under color of state law; in fact, the original Complaint alleges that they were acting under ...