The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
REPORT and RECOMMENDATION DECISION ORDER
This case was referred to the undersigned by Honorable Richard J. Arcara on July 13, 2010, for pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motion to dismiss (Doc. No. 7), filed August 25, 2010.*fn2
On July 16, 2009, the parties were involved in a motor vehicle accident ("the accident") in Ohio when a vehicle owned by Defendant Julie K. Peterson ("Julie Peterson"), and operated by Defendant Matthew L. Peterson ("Matthew Peterson") (together, "Defendants"), struck a vehicle operated by Plaintiff Leonard N. Betts ("Plaintiff" or "Betts"). At all times relevant to this action Plaintiff has been a resident of New York, and both Defendants have been residents of Ohio. On June 11, 2010, Plaintiff commenced this action in New York Supreme Court, Erie County, seeking to recover monetary damages for personal injuries Plaintiff sustained in the accident. On July 6, 2010, Defendants served, but did not file in state court, an Answer in which Defendants assert seven affirmative defenses.
On July 9, 2010, Defendants' removed the action to this court (Doc. No. 1) ("Removal Notice"), asserting jurisdiction based on diversity of citizenship. Attached as exhibits to the Removal Notice are the Complaint (Removal Exh. A), and the Answer (Removal Exh. B). Upon electronically filing the removal papers on July 9, 2010, this court's CM/ECF system generated an automatic e-mail message to counsel for both sides, advising the action was automatically referred to this court's Alternative Dispute Resolution program ("ADR") for mediation. On August 3, 2010, Defendants filed an Amended Answer (Doc. No. 4) ("Amended Answer"), asserting as an eighth affirmative defense lack of personal jurisdiction over Defendants.
On August 25, 2010, Defendants filed the instant motion to dismiss for lack of personal jurisdiction (Doc. No. 7) ("Defendants' motion"), supported by the attached affidavits of Julie K. Peterson (Doc. No. 7-2) ("Julie Peterson Affidavit"), Matthew L. Peterson (Doc. No. 7-3) ("Matthew Peterson Affidavit"), Victor M. Wright, Esq. (Doc. No. 7-4) ("Wright Affidavit"), and Exhibits A through C ("Defendants' Exh(s). __"). On October 7, 2010, Plaintiff filed in opposition to Defendants' motion the Attorney Affirmation of Dennis J. Bischof, Esq. (Doc. No. 14) ("Bischof Affirmation"), with attached exhibits A through G ("Plaintiff's Exh(s). __").
According to a Selection of Mediator, filed September 23, 2010 (Doc. No. 10) ("Mediator Stipulation"), the parties stipulated to a mediator and the initial mediation session was scheduled for October 8, 2010. The Mediator Stipulation is signed only by Plaintiff's counsel. On September 28, 2010, Defendants filed a motion seeking an order permitting the Defendants to opt out of participating in the ADR program ("Doc. No. 11) ("Opt-out Motion"). By Decision and Order filed October 1, 2010 (Doc. No. 13) ("D&O"), Judge Arcara denied the Opt-out Motion, without prejudice, as premature given that the first discovery conference had yet to be held.
In further support of Defendants' motion, Defendants filed on October 12, 2010, the Attorney Affidavit of Victor M. Wright, Esq. (Doc. No. 16) ("Wright Reply Affidavit"), with attached exhibits A through H ("Defendants' Reply Exh(s). __"). Oral argument was deemed unnecessary.
Based on the following, Defendants' motion (Doc. No. 7), insofar as it is treated as a motion to file an Amended Answer, is GRANTED, and, insofar as it seeks dismissal for lack of personal jurisdiction, should be GRANTED; Plaintiff's Response, treated as a motion to strike the Amended Answer, should be DENIED.
Defendants move pursuant to Fed.R.Civ.P. 12(b)(2) to dismiss the Complaint for lack of personal jurisdiction in New York. Plaintiff does not dispute Defendants are not subject to personal jurisdiction in New York but, rather, argues that Defendants have waived the personal jurisdiction defense by (1) failing to plead lack of long-arm jurisdiction as an affirmative defense in either the Answer or the Amended Answer, Bischof Affirmation ¶¶ 2-4, 6; (2) the Amended Answer, in which the personal jurisdiction defense is first raised, was untimely filed, id. ¶ 7; and (3) Defendants, by agreeing to participate in the ADR program, and to the scheduling of depositions on October 4, 2010, consented to personal jurisdiction in this action, as evidence by the October 1, 2010 D&O of Judge Arcara denying Defendants' motion to opt out of ADA. Id. ¶¶ 8-9. In further support of Defendants' motion, Defendants assert that lack of long-arm jurisdiction need not be separately pleaded, Wright Reply Affidavit ¶ 7; the Amended Answer was timely, id. ¶¶ 4-6; and that Defendants did not participate in any mediation thereby waiving the defense of lack of personal jurisdiction, id. ¶¶ 9-11. Plaintiff's arguments in opposition to Defendants' motion are without merit.
At the threshold, the court addresses Plaintiff's first argument, Bischof Affirmation ¶ 7, that the Amended Answer was not timely filed. According to Plaintiff, when the Amended Answer was not filed and served until August 3, 2010, more than 20 days after the original Answer was filed, the time in which to amend the original answer as of right had expired under both N.Y. Civil Practice Law and Rules ("N.Y. CPLR"*fn4 ) 3025(a), and Fed.R.Civ.P. 15(a). Id. In opposition to this argument, Defendants explain that although the original Answer is dated July 2, 2010, it was not served until July 6, 2010, after Defendants' counsel returned to his office following the July 4th holiday weekend.*fn5 Wright Reply Affidavit ¶ 4. Further, Defendants served Plaintiff with the Amended Answer on July 26, 2010, twenty days after service of the original Answer, although the Amended Answer was not filed until August 3, 2010. Id. ¶ 5. In support of these averments, Defendants submit a copy of the facsimile confirmation dated July 26, 2010, Defendants' Reply Exh. B, as well as a copy of an e-mail message from Plaintiff's counsel to Defendants' counsel confirming receipt of the Amended Answer. Defendants' Reply Exh. C.
Although Plaintiff was timely served with the Amended Answer on July 26, 2010, it was not filed until August 3, 2010, eight days late. See Fed.R.Civ.P. 15(a)(1) ("Rule 15(a)") (amended pleading as a matter of course required to be filed within 21 days). Defendants provide no explanation for the untimely filing of the Amended Answer, and no reason is obvious from the record. Because of Defendants' belated filing of the Amended Answer, however, the court treats Defendants' motion, in part, as seeking leave to amend the Answer. See Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993) (observing that where defendants filed an amended answer asserting a statute of limitations defense without moving for permission to do so and such filing occurred after expiration of the time to ...