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Hicham Azkour v. Jean-Yves Haouzi

August 27, 2012

HICHAM AZKOUR, PLAINTIFF,
v.
JEAN-YVES HAOUZI, FRANCK MAUCORT, JESSICA COMPERIATI , LITTLE REST TWELVE, INC., SHELDON SKIP TAYLOR ESQ, LAW OFFICES OF SHELDON SKIP TAYLOR, DEFENDANTS.



The opinion of the court was delivered by: Kevin Nathaniel Fox United States Magistrate Judge

MEMORANDUM & ORDER

INTRODUCTION

Before the Court, in this action brought under the Fair Labor Standard Act ("FLSA"), is the plaintiff Hicham Azkour's ("Azkour") pro se motion, pursuant to Federal Rule of Civil Procedure 15(a)(2), for leave to file a fourth-amended complaint. Azkour seeks leave from the Court to amend his third-amended complaint to add a claim pursuant to the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq., alleging that the defendants "engaged in the (1) conduct (2) of a criminal enterprise (3) through a pattern (4) of racketeering activity." The motion is unopposed.

BACKGROUND

Defendant Little Rest Twelve, Inc. ("LRT") operates a restaurant and bar in Manhattan known as Ajna Bar.*fn1 Azkour worked for LRT from October 2009, until his employment ceased in February 2010. During his tenure with LRT, Azkour performed the work of a busboy and food runner. After Azkour's employment with LRT ended, he commenced a civil action against it and members of its management for failing to compensate him fully in accordance with FLSA, and analogous New York laws and regulations, and for retaliating against him. That action is pending. In the instant action, Azkour alleges that defendant Sheldon Skip Taylor (" Taylor"), LRT's former counsel in the pending FLSA action, asked inappropriate questions during Azkour's deposition, made false and defamatory statements about him, and conspired with defendants Jean-Yves Haouzi ("Haouzi"), Franck Maucort ("Maucort") and Jessica Comperiati ("Comperiati") to interfere with his rights.

In the motion at issue, Azkour seeks leave from the court to amend his complaint to add a civil RICO claim, through which he alleges that the defendants "engaged in the (1) conduct (2) of a criminal enterprise (3) through a pattern (4) of racketeering activity." Azkour avers that, [s]ince 2006, [the defendants] have been knowingly, intelligently, and willfully transmitting or causing to be transmitted by means of mail and wire communication in interstate commerce fraudulent and inaccurate customer bills, employee labor reports, and employee earning statements for the purpose of executing [a scheme or artifice to defraud, and for obtaining money by means of false and fraudulent pretenses, representations and promises] and, thus defrauding their patrons and employees alike, including Plaintiff.

Azkour contends that, "in a pattern of organized racketeering, defendants have been defrauding employees of Buddha Bar and Ajna Bar of 50% of their gratuities . . . by using mail and electronic access devices in interstate commerce . . . [and] fraudulently obtained, retained, and misappropriated monies, which . . . must be paid to the wait staff of Buddha Bar and Ajna Bar." According to Azkour, the "Defendants have been defrauding the patrons of Buddha Bar and Ajna Bar by falsely representing to them that all gratuities and service charges paid by them using credit cards and other electronic access devices would and/or will compensate the wait staff's suffered labor and services."

Azkour has filed three versions of his complaint, during the pretrial phase of this litigation. After filing his original complaint, on August 8, 2011, which was never served on any defendant, Azkour filed his first-amended complaint on October 14, 2011, which, on December 16, 2011, was served on Haouzi, Maucort, Comperiati, and LRT. However, on October 20, 2011, prior to serving the first-amended complaint, Azkour filed his second-amended complaint, and never served it on any defendant. On November 3, 2011, Azkour filed a motion for leave to amend his second-amended complaint. In an Order issued on January 31, 2012, the Court determined that Azkour's motion to amend his second-amended complaint was unnecessary, because, at the time he filed his amended pleading "1) 21 days had not elapsed after service of any of his pleadings-he had not served any of his pleadings on any defendant; and 2) 21 days had not elapsed after a responsive pleading or Rule 12(b), (e), or (f) motion had been served . . . ." Accordingly, Azkour was permitted to file his third-amended complaint, as of right, pursuant to Fed. R. Civ. P. 15(a)(1).

If this motion is granted, the pleading Azkour files would be the fourth iteration of his complaint. Azkour does not allege that new information has come to him that prompts him to file the instant motion to amend. It appears that the facts supporting his civil RICO claim were known to him when he filed the original complaint, but he has delayed, until now, in making any attempt to assert the civil RICO claim in this action.

DISCUSSION

The pleadings drafted by a pro se litigant, such as Azkour, are held to less stringent standards than those prepared by attorneys, see Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596 (1972), and are to be construed liberally and interpreted to raise the strongest arguments they suggest. See Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994). In reviewing Azkour's motion to file the proposed fourth-amended complaint, the Court has applied these standards.

Once the time for amending the pleadings as a matter of course expires, "a party may amend its pleading only with the opposing party's written consent or the court's leave, and the court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "Leave to amend, though liberally granted, may properly be denied for: '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.'" Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962)).

Motions to amend, under Rule 15(a)(2), may be made at any stage of the litigation. See 6 Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1487 (3d. 2010). However, a party seeking to amend should bring its motion "as soon as the necessity for altering the pleading becomes apparent," to avoid an allegation of delay. Id. at § 1488; see also Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990) (upholding the district court's decision to deny leave to amend where the plaintiff waited more than 17 months after bringing suit to request leave to amend the pleading, and plaintiff's reason for the delay was ignorance of the law). However, "[m]ere delay . . . absent a showing of bad faith or undue prejudice, does not provide a basis for [a] district court to deny the right to amend." State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (citation omitted). Bad faith exists when a party attempts to amend its pleading for an improper purpose. See Austin v. Ford Models, Inc., 149 F.3d 148, 155 (2d Cir. 1998) (affirming the district court's denial of leave to amend a complaint where plaintiff sought to "erase . . . admissions [made] in [the previous] complaint") (abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S. Ct. 992 (2002). Prejudice may exist, inter alia, when the amendment would: "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; [or](ii) significantly delay the resolution of the dispute . . . ." Monahan v. New York City Dep't of Corrections, 214 F.3d 275, 284 (2d Cir. 2000) (internal quotation marks and citation omitted). In addition, the Second Circuit Court of Appeals has identified prejudice to the opposing party "resulting from a proposed amendment as among the most important ...


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