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Pamela Smalls v. Robert W. Bright

November 9, 2011


The opinion of the court was delivered by: Marian W. Payson United States Magistrate Judge



The instant action was referred to this Court for the supervision of pretrial discovery and the hearing and disposition of all non-dispositive motions, pursuant to 28 U.S.C. §§ 636(b)(1)(A) and (B). (Docket # 7). Plaintiff Pamela Smalls ("Smalls") has filed a complaint under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000-e et seq., alleging that defendants discriminated against her on the basis of her race and sex. (Docket # 1). Smalls also alleges that she was terminated after complaining that she was not being fully compensated for the hours she worked. (Id. at ¶ 19). Currently pending before this Court are motions by Smalls to amend her complaint and for an extension of time to complete discovery. (Docket ## 28, 46). For the reasons discussed below, both motions are granted.


Initially proceeding pro se, Smalls filed her original complaint on October 29, 2009. (Docket # 1). According to her complaint, Smalls worked as a janitor for defendant Double R. Entertainment LLC, which ran an adult entertainment club called Rick's Tally-Ho. Defendant Robert W. Bright, M.D. ("Dr. Bright") was part-owner of the club. Smalls, who is African American, claims Dr. Bright treated her differently from other employees by prohibiting her from talking on her cell phone while working and refusing to allow her to have help with her job duties. (Id.). In addition, Smalls contends that Dr. Bright harassed her by cursing at her and calling her names. (Id.). Smalls also alleges that she was regularly underpaid for hours she worked and was terminated for complaining about her compensation. (Id.).

Extended once, the court-ordered deadlines for amending the pleadings and completing fact discovery were August 20, 2010 and November 30, 2010, respectively. (Docket ## 16, 25). Well after those deadlines had expired, on June 2, 2011, Smalls retained counsel, who soon thereafter filed the pending motion to amend Smalls's complaint. (Docket ## 43, 44, 46). Smalls's proposed amended complaint seeks to add a claim for race discrimination under 42 U.S.C. § 1981 and claims for unpaid wages and retaliation under the New York Labor Law ("NYLL") and the Fair Labor Standards Act ("FLSA"). (Docket # 46-2).

While proceeding pro se, Smalls participated in court-ordered scheduling conferences and made timely initial disclosures under Rule 26. (Docket ## 10, 12, 26, 40). She also requested documents from defendants, propounded interrogatories and sought to depose Dr. Bright, although her efforts did not result in much of the discovery she requested. Defendants refused to respond to her document requests in their entirety because Smalls had served twenty-seven requests, two more than the local rule then-in-effect permitted.*fn1 (Docket # 46 at ¶ 8; see Docket # 21). In addition, although defendants answered plaintiff's interrogatories, they objected to many as irrelevant.*fn2 (See Docket # 38). Finally, Smalls failed to notice Dr. Bright's deposition until one week before the discovery deadline. According to her, she had incorrectly assumed that she would be permitted to depose him at her deposition, which occurred on November 23, 2010. (Docket # 28). When she discovered her error, she immediately served a notice to depose five individuals including Dr. Bright, which defendants opposed as untimely. (Docket # 31 at ¶¶ 11-12).

Approximately two weeks later, on December 9, 2010, Smalls moved for an extension of discovery in order to depose Dr. Bright. (Docket # 28). On February 11, 2011, defendants opposed plaintiff's motion and moved for summary judgment. (Docket # 30). Smalls opposed the motion for summary judgment in part because she had not received any document discovery from defendants, including time cards, personnel file or records of her hours. (Docket # 37). Smalls now seeks an extension of time to conduct limited discovery relating to her original claims and the newly-asserted claims in the proposed amended complaint. (Docket # 46 at ¶ 10).

Thus, Smalls's request, if served today, would be proper. Further, defendants have not cited, and the Court is unaware of, any authority permitting defendants to refuse to respond to Smalls's document requests on the grounds of numerosity, rather than answering the first twenty-five and objecting to the remainder. See MOORE'S FEDERAL PRACTICE, § 33.30[1] (where interrogatories served number in excess of the twenty-five permitted by Rule 33, the better practice is to respond to the first twenty-five and object to the rest).


I turn first to Smalls's motion to amend her complaint. In deciding a motion to amend filed after the deadline for amending the pleadings has expired, a court must balance the requirements of Rules 15(a) and 16(b) of the Federal Rules of Civil Procedure. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir. 2000). Under Rule 15, "[t]he Court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). Generally, under Rule 15, if the underlying facts or circumstances relied upon by a party seeking leave to amend may be a proper subject of relief, that party should be afforded the opportunity to test the claim on its merits. United States ex rel. Mar. Admin. v. Cont'l Ill. Nat'l Bank and Trust Co. of Chi., 889 F.2d 1248, 1254 (2d Cir. 1989) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). "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 v. Davis, 371 U.S. at 182.

According to Rule 16(b), the district court shall enter a scheduling order setting a deadline for subsequent proceedings in the case, including amendments to the pleadings. Fed. R. Civ. P. 16(b). By limiting the time for amendments, the rule is designed to offer a measure of certainty in pretrial proceedings, ensuring that "at some point both the parties and the pleadings will be fixed." See Fed. R. Civ. P. 16. Advisory Committee's Note (1983 amendment, discussion of subsection (b)). The rule provides that "[a] schedule may be modified only for good cause and with the judge's consent." Fed. R. Civ. P. 16(b)(4); see also Parker v. Columbia Pictures Indus., 204 F.3d at 340.

In Parker, the Second Circuit addressed the showing required of a party moving to amend its pleadings after the time set by the court for filing such motions. 204 F.3d at 340. In that case, the court joined several other circuits in holding that "the Rule 16(b) 'good cause' standard, rather than the more liberal standard of Rule 15(a), governs a motion to amend filed after the deadline a district court has set for amending the pleadings." Id. (internal citations omitted) (collecting cases).

According to the Second Circuit, "despite the lenient standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause." Parker, 204 F.3d at 340. "Good cause," the court reasoned, "depends on the diligence of the moving party." Id.; accord Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009) ("[w]hether good cause exists turns on the 'diligence of the moving party'") (quoting Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)), cert. denied, 131 S. Ct. ...

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