The opinion of the court was delivered by: Matsumoto, United States District Judge:
On January 4, 2011, plaintiff Peter Boda ("plaintiff") brought this action against Detective John Phelan, New York City, and B.M. alleging constitutional claims under 42 U.S.C. § 1983 for false arrest and malicious prosecution as well as state law claims for negligence, malicious prosecution, and defamation. Plaintiff's claims arise out of his March 13, 2009 arrest and subsequent prosecution in state court for crimes involving defendant B.M.'s then seven-year-old daughter, H.B., for which plaintiff was found not guilty by a jury verdict at trial. Presently before the court is defendant B.M.'s motion for leave to amend her answer to assert a statute of limitations defense against plaintiff's defamation claim. Additionally, without previously seeking leave of the court as required by the court's motion practices, plaintiff cross-moves to amend the Amended Complaint to include H.B. as a defendant. Having reviewed the parties' submissions, the record before the court, and the relevant case law, for the reasons set forth below, the court grants defendant B.M.'s motion to amend her answer to include a statute of limitations defense, and denies plaintiff's cross-motion to amend the Amended Complaint to include H.B. as a defendant.
On June 10, 2011, plaintiff filed an Amended Complaint alleging that defendant B.M. "falsely accused plaintiff of molestation knowing said accusations were false" and that such false accusations "were published to third parties . . . on or about March 9, 2009." (ECF No. 7, Amended Complaint ("Am. Compl.") ¶¶ 31-33.) Other than the allegedly defamatory statements published on or about March 9, 2009, there are no other allegations of defamatory statements by B.M. in the Amended Complaint. On September 19, 2011, B.M. filed an answer to the Amended Complaint asserting six affirmative defenses but not a statute of limitations defense. (See ECF No. 22, Defendant B.M's Answer to Amended Complaint.) On May 14, 2012, B.M. informed the court of her request to amend her answer to include a statute of limitations defense, and as plaintiff would not consent to the amendment, the court granted B.M. leave to file her instant motion. (See ECF No. 44, Letter from Nicole Jacoby.)
On July 27, 2012, B.M. filed her motion to amend her answer (see ECF No. 52, Memorandum of Law in Support of Defendant B.M.'s Motion for Leave to Amend Her Answer ("Def. Mem.")), plaintiff filed his opposition to B.M.'s motion to amend as well as his cross-motion to amend the Amended Complaint to include H.B. as a defendant (see ECF No. 54, Memorandum of Law in Opposition to Motion to Amend Answer and Cross Motion to Amend Amended Complaint to Include H.B. as a Party ("Pl. Opp'n")), and B.M. filed a reply brief that also opposed plaintiff's motion to amend (see ECF No. 53, Defendant B.M's Reply Memorandum of Law in Further Support of Her Motion for Leave to Amend Her Answer and Opposition to Plaintiff's Purported Cross-Motion to Amend His Complaint ("Def. Reply")).
I.Defendant B.M.'s Motion to Amend Her Answer to Include a Statute of Limitations Defense A.The Potential Availability of a Statute of Limitations Defense to B.M. Under New York law, the statute of limitations for a defamation claim is one year. N.Y. C.P.L.R. § 215(3); McKenzie v. Dow Jones & Co., 355 F. App'x 533, 535 (2d Cir. 2009) (summary order). The limitations period begins to run from the date of the first publication of the defamatory statement. See Firth v. State, 98 N.Y.2d 365, 369 (N.Y. 2002); see also Liverpool v. Con-Way, Inc., No. 08-CV-4076, 2010 U.S. Dist. LEXIS 122419, at *11 (E.D.N.Y. Nov. 18, 2010); Hanly v. Powell Goldstein, LLP, No. 05 CV 5089, 2007 U.S. Dist. LEXIS 17152, at *15 & n.7 (S.D.N.Y. Mar. 5, 2007) ("New York law . . . is clear that a cause of action in libel accrues when the statements are originally published, not upon plaintiff's discovery.").
For the limited purposes of this motion to amend, it appears that a statute of limitations defense is available to B.M. The only allegations against B.M. relevant to plaintiff's defamation claim involve the publication of certain statements on or about March 9, 2009 (Am. Compl. ¶ 32), and thus the statute of limitations for a defamation claim related to those statements expired on March 9, 2010. Accordingly, because plaintiff's original complaint was filed on January 4, 2011 -- almost ten months after the expiration of the statute of limitations, absent any ground for tolling of the statute of limitations, an affirmative defense on this ground is available to B.M. and may be asserted in an amended answer.
B. The Standard for a Motion to Amend an Answer
A defendant must set forth affirmative defenses in the answer to the complaint, including a statute of limitations defense. See Fed. R. Civ. P. 8(c)(1). Where a party has omitted an affirmative defense in her answer, she may seek the court's leave to amend her answer to include the affirmative defense, which "[t]he court should freely give . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). "The rule in this Circuit has been to allow a party to amend its pleadings in the absence of a showing by the non-movant of prejudice or bad faith." AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)) (internal quotation marks omitted); see also Krupski v. Costa Crociere S. p. A., 130 S. Ct. 2485, 2496 (2010) ("By its terms, Rule 15(a) gives discretion to the district court in deciding whether to grant a motion to amend a pleading . . . ."); Commander Oil Corp. v. Barlo Equip. Corp., 215 F.3d 321, 333 (2d Cir. 2000) ("[I]t is rare for an appellate court to disturb a district court's discretionary decision to allow amendment." (internal quotation marks omitted)).
In determining what constitutes prejudice, the court considers whether the assertion of the statute of limitations defense would: "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction." Block, 988 F.2d at 350.
C.Whether Plaintiff Has Established Prejudice
Although approximately eight months elapsed between the filing of B.M.'s answer to the Amended Complaint and her notification to the court of the statute of limitations defense, there would be little to no prejudice to plaintiff from allowing B.M.'s amendment. First, an amendment of the answer to include a statute of limitations defense would not require plaintiff to expend significant additional resources to conduct discovery and prepare for trial. Plaintiff argues that he is substantially prejudiced because he expended $1,300 to depose B.M. and further questioning of B.M. would be required to adequately defeat B.M's statute of limitations defense. (Pl. Opp'n at 2-3.) Specifically, had the statute of limitations defense been raised earlier, plaintiff asserts that at B.M.'s deposition he would have "inquired[d] of B.M. all of the times that she had made statements about [plaintiff's] inappropriate conduct toward her daughter . . . ."*fn1 (Id. at 2.)
Plaintiff's claim of prejudice is meritless. The only allegation in the Amended Complaint regarding defamatory statements by B.M. relates to statements published in March of 2009 to Detective Phelan and ADA Lauren Parson. If plaintiff knew of other allegedly defamatory statements by B.M., he was required to plead them with specificity in the Amended Complaint. See M.V.B. Collision, Inc. v. Allstate Ins. Co., 728 F. Supp. 2d 205, 223 (E.D.N.Y. 2010) (stating that a complaint asserting a defamation claim is "sufficient only if it adequately identifies the purported communication, and an indication of who made the statement, when it was made, and to whom it was communicated." (internal quotation marks omitted)). Because plaintiff failed to assert any such additional allegations of defamatory statements by B.M. in the Amended Complaint, he cannot now invoke the discovery process as a basis to search for evidence of other possible defamation claims that were not alleged due to the fact that his existing claims may be time-barred. See 287 Franklin Ave. Residents' Ass'n v. Meisels, No. 11-CV-976, 2012 U.S. Dist. LEXIS 72855, at *15 ...