The opinion of the court was delivered by: Siragusa, J.
Plaintiff filed its complaint on January 21, 2010, alleging that Defendant was in violation of the Clean Water Act. On March 1, 2010, Defendant filed a motion (Docket No. 2) to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). The Court scheduled oral argument on the motion for June 24, 2010, at 3:00 p.m. On that same day, Plaintiff filed what he titled "Plaintiff's First Amended Complaint" ("amended complaint") (Docket No. 20) without leave of the Court and without consent by Defendant. Subsequently, on July 1, 2010, Defendant moved to strike the amended complaint and to dismiss the original complaint (Docket No. 22). On July 23, 2010, Plaintiff cross-moved for leave to file his amended complaint. (Docket No. 25.) For the reasons stated below, Plaintiff's motion for leave to file an amended complaint is denied and Defendant's motion to strike the June 24, 2010, amended complaint is granted, and Defendant's motion to dismiss the original complaint, is likewise granted.
On March 1, 2010, Defendant filed a motion (Docket No. 2) to dismiss Plaintiff's complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6), contending that Plaintiff lacked capacity and standing to sue, had sent a defective "notice of intent" letter to sue, and that the complaint failed to state a claim upon which relief could be granted. On March 2, 2010, the Court issued a motion scheduling order (Docket No. 15), ordering, inter alia, responding papers to be filed and served on or before April 6, 2010, reply papers to be filed and served on or before May 11, 2010, and for all papers to comply with Local Rule of Civil Procedure 7.1. In its responding papers (Docket No. 16), Plaintiff failed to include a memorandum of law as required pursuant to Local Rule of Civil Procedure 7.1(e). Plaintiff filed only the cover page of a memorandum. In its reply papers (Docket No. 17), filed May 10, 2010, Defendant alerted Plaintiff and the Court that Plaintiff had not filed a memorandum of law and further informed the Court that Plaintiff's attorney had a history of not filing memoranda of law.
Although it was on notice as of May 10, 2010, that its responding papers only included the memorandum cover sheet, instead of filing a complete memorandum of law, Plaintiff waited until June 24, 2010, seventy-six minutes before oral argument was to be had on the motion to dismiss, to file an amended complaint. (Docket No. 20.) As indicated above, Defendant then moved to strike the amended complaint and to dismiss the original complaint (Docket No. 22) and Plaintiff cross-moved for leave to file the amended complaint. (Docket No. 25.)
A. Leave to Amend Complaint
The standard for granting a party leave to amend its pleadings is well established. Federal Rule of Civil Procedure 15(a)(2) reads, in relevant part, "a party may amend its pleading only with the opposing party's written consent or the court's leave. The court should freely give leave when justice so requires." For almost fifty years, the Supreme Court's interpretation of Rule 15(a), as set forth in Foman v. Davis, 371 U.S. 178 (1962), has controlled. In Foman, the Court wrote:
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, 371 U.S. at 182. In a recent decision, the Court of Appeals for the Second Circuit determined, that "leave to amend would be futile because Mortimer's proposed amended complaint did not cure the original complaint's deficiencies." Mortimer Off Shore Servs. v. Fed. Republic of Germany, Nos. 08-1783-cv (L), 08-2358-cv (XAP), __ F.3d __, 2010 WL 2891069, 14, 2010 U.S. App. LEXIS 15235, 4 (2d Cir. 2010). Thus, while leave to amend should generally be freely granted, when the amended complaint does not remedy the flaws of the original complaint, or the decision to amend was made in bad faith, leave to amend should not be granted.
Federal Rule of Civil Procedure 8(a)(2) requires only a short and plain statement of the claim showing that the pleader is entitled to relief, in order to give the defendant fair notice of what the.claim is and the grounds upon which it rests. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do," and "on a motion to dismiss, courts 'are not bound to accept as true a legal conclusion couched as a factual allegation.'" Id. (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
C. Capacity to Bring a Lawsuit
The Federal Rules of Civil Procedure determine who may bring suit in Federal Court. Rule 17(b), which defines the capacity of an unincorporated association to bring suit, states in pertinent part as follows:
Capacity to sue or be sued is determined as follows...(3) for all other parties, by the law of the state where the court is located, except that...[an] unincorporated association with no such capacity under that state's law may sue or be sued in its common name to enforce a substantive right existing under the United States Constitution or laws.
Fed. R. Civ. P. 17(b). In Arbor Hill Concerned Citizens Neighborhood Assoc. v. City of Albany, 250 F. Supp. 2d 48, 61 (N.D.N.Y. 2003), the district court clearly explained that Rule 17 cannot be invoked to grant a plaintiff capacity to sue when State law already provides a means for an unincorporated association to sue:
It is not in dispute that plaintiff is suing "for the purpose of enforcing for or against it a substantive right existing under the. laws of the United States." What is in dispute is whether that fact excuses plaintiff from heeding the provisions of New York State law dealing with the mechanics of a lawsuit involving an unincorporated association. In other words, it must be determined whether subsection (1) is an exception, as plaintiff terms it, to the rule immediately preceding it-that capacity to sue is to be determined by the law of the state in which the district court sits-or whether it applies only when plaintiff is seeking vindication of rights created by federal law and the law of the state in which the district court sits does not grant plaintiff capacity to sue.
It is here found that the latter interpretation controls. One need look no further than the clear language of Fed. R. Civ. P. 17(b).*fn1 Immediately following "partnership or other unincorporated association" is a comma and then the phrase "which has no such capacity by the law of such state." Common rules of grammar and syntax tell us that the use of the comma and then the immediate use of the word "which" evinces an intent to have the phrase refer to the immediately preceding noun-in this case, the noun "unincorporated association." There are no words indicative of an alternative or of an intent to make the phrase optional.
Further, if plaintiff's interpretation were correct, the phrase would be mere surplusage. It would not be needed. The language would simply read "except that a partnership or other unincorporated association may sue or be sued in its common name for the purpose of enforcing for or against it a substantive a ...