The opinion of the court was delivered by: Leslie G. Foschio United States Magistrate Judge
This case was referred to the undersigned by Hon. William M. Skretny on August 30, 2010, for dipsosition of non-dispositive pretrial matters. The matter is presently before the court on Plaintiff's motion filed February 1, 2011, seeking leave to file an amended complaint (Doc. No. 69), and a motion to intervene filed February 28, 2011, by Associated Brands Inc. (Doc. No. 77).
Plaintiff Michael N. Rich, Jr. ("Plaintiff"), proceeding pro se, commenced this employment discrimination action on September 4, 2008, alleging violations of the Americans with Disabilities Act and breach of contract. Plaintiff specifically claims that on July 9, 2004, Plaintiff's former employer, Associated Brands, Inc. ("Defendant"), terminated Plaintiff's employment based on Plaintiff's disability, and then reneged on a separation agreement ("the contract") which provided that Defendant would consider rehiring Plaintiff in the future. Defendant, a New York corporation, is located in Medina, New York ("New York entity"), and is wholly-owned by Associated Brands Inc., of Ontario, Canada ("Ontario entity"). Collectively, Defendant New York entity and Ontario entity are referred to as "ABI."
On February 1, 2011, Plaintiff filed a motion seeking leave to file an amended complaint (Doc. No. 69) ("Plaintiff's motion"), supported by the attached Affidavit of Michael N. Rich, Jr. ("Plaintiff's Affidavit"), and a copy of the proposed amended complaint ("Proposed Amended Complaint"). On February 28, 2011, Defendant and its parent company, the Ontario entity, filed a motion (Doc. No. 77) ("ABI's motion") to permit the Ontario entity to intervene as a defendant to this action. ABI's Motion is supported by the attached Memorandum of Law in Support of Motion to Permit Intervention ("ABI's Memorandum"), and the Declarations of Sue Barlow (Doc. No. 78) ("Barlow Declaration"), and Joshua Feinstein, Esq. (Doc. No. 79) ("Feinstein Declaration"), also filed on February 28, 2011.
On March 8, 2011, Defendant filed a Memorandum of Law in Opposition to the Plaintiff's Motion to Amend (Doc. No. 85) ("Defendant's Memorandum"). On April 7, 2011, Plaintiff filed a response opposing ABI's motion (Doc. No. 94) ("Plaintiff's Response"). On May 19, 2011, ABI filed a Reply Memorandum of Law in Further Support of Motion to Permit Intervention (Doc. No. 96) ("ABI's Reply"). On June 6, 2011, Defendant filed a Supplemental Memorandum of Law in Opposition to Plaintiff's Motion to Amend (Doc. No. 101) ("Defendant's Supplemental Memorandum"). In further support of his motion, Plaintiff filed on June 17, 2011, Plaintiff filed an affidavit (Doc. No. 105) ("Plaintiff's Reply Affidavit"). Oral argument was deemed unnecessary.
Based on the following, Plaintiff's motion is DENIED in part and GRANTED in part; ABI's motion is GRANTED.
Plaintiff seeks to file an amended complaint to allege a New York common law claim for defamation based on a statement made in an April 28, 2004 e-mail sent by Plaintiff's former supervisor John Mandabach ("Mandabach"), to one Jim Holland ("Holland"), asserting Plaintiff "is being a real jerk and my patience is wearing thin." Plaintiff's Memorandum at 8. Plaintiff also seeks to add factual allegations regarding the events that preceded the original separation agreement as compared to events preceding the July 7, 2004 separation agreement. Id. at 2. In opposition to Plaintiff's motion, Defendant asserts that the proposed defamation claim is futile because it is time-barred, Defendant's Memorandum at 2; Defendant's Supplemental Memorandum at 2-3, and the statement on which such claim is based is mere opinion which is not actionable as defamation, Defendant's Memorandum at 2. Defendant also asserts the factual allegations Plaintiff seeks to add are the same allegations that were dismissed from this action by the Second Circuit on May 28, 2010 (Doc. No. 26), as "time-barred discrimination allegations." Id.
Fed.R.Civ.P. 15 provides that leave to amend a pleading "shall be freely granted when justice so requires." Absent a showing that significant additional discovery burdens will be incurred or that the trial of the matter will be significantly delayed, amendment should be permitted. Block v. First Blood Associates, 988 F. 2d 344, 350 (2d Cir. 1993). An amended complaint may be filed pursuant to Fed.R.Civ.P. 15(a) where the new allegations do not unduly prejudice an opponent, are not the result of undue delay or bad faith, and are not futile. Foman v. Davis, 371 U.S. 178, 181 (1962).
Further, where a requested pleading amendment is futile, "it is not an abuse of discretion to deny leave to amend" to the moving party. Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir.1993). A determination that a proposed claim is futile is made under the same standards that govern a motion to dismiss under Rule 12(b)(6). A.V. By Versace, Inc. v. Gianni Versace, S.p.A., 160 F.Supp.2d 657, 666 (S.D.N.Y.2001). An amendment is futile "if the proposed amended complaint would be subject to 'immediate dismissal' for failure to state a claim or on some other ground." Jones v. New York Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir.1999).
Here, the New York common law defamation claim Plaintiff seeks to add is subject to a one-year limitations period, N.Y.Civ. Prac. L. & R. § 215 (McKinney's 2003), which was triggered on the date the subject statement was first published, i.e., April 28, 2004, and is not renewed each time the statement is republished. Firth v. State of New York, 775 N.E.2d 463, 464-66 (N.Y. 2002). Nor is the New York limitations period for defamation claims tolled pending discovery of the alleged offensive statement. Id. As such, any defamation claim Plaintiff could bring based on the publication of the subject statement accrued on April 28, 2004, i.e., the date Mandabach sent the offending e-mail to Holland. That the statute does not run anew each time ...