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Luis A. v. Roadhouse Brick Oven Pizza

October 18, 2012

LUIS A. AMAYA ON BEHALF OF HIMSELF AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
ROADHOUSE BRICK OVEN PIZZA, INC., D/B/A ROADHOUSE BRICK OVEN PIZZA, AND CHARLES HERMAN, AN INDIVIDUAL, DEFENDANTS.



The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge:

MEMORANDUM AND ORDER

In this case brought pursuant to the Fair Labor Standards Act ("FLSA") and the New York Labor Law ("NYLL"), Plaintiff Luis A. Amaya ("Amaya") moves to amend the Summons and Complaint to add an additional entity, Canoe the River, Inc. ("Canoe") as a Defendant [DE 18]. For the reasons that follow, the motion is GRANTED.

I. BACKGROUND

In the original Complaint, Plaintiff alleges that Defendants Roadhouse Brick Oven Pizza, Inc. ("Roadhouse") and Charles Herman ("Herman") were and are employers within the meaning of the FLSA and the NYLL. Compl. [DE 1] ¶¶ 13, 26. Herman is allegedly, among other titles, the owner/operator and president of Roadhouse. Id. ¶¶ 14-21. Plaintiff further asserts that he worked as a kitchen laborer for Defendants for more than seventy (70) hours per week from 2000 through January 2010, id. ¶ 35, that Defendants failed to pay him overtime, id. ¶ 36, and that Defendants did not provide him with required break periods, see id. ¶ 41. The case was brought as a collective action. However, Plaintiff has not moved for certification of the case as a collective action.

In Defendants' Amended Response to Plaintiff's First Set of Interrogatories, Defendants stated the following regarding Canoe:

Interrogatory No. 9: Set forth the following information relating to the entity Canoe the River, Inc.: the name and last known address of any shareholder(s), the type of business it conducted, and whether it employed plaintiff.

Answer No. 9: . . . Subject to and without waiving such objections, Defendants respond as follows: Janet Greco, Vice President, Charles Herman, President; the corporation operated in the food service industry and employed Plaintiff. Each shareholder can be reached c/o Zabell & Associates, P.C.

See Declaration of Ilan Weiser in Support of Plaintiff's Motion to Amend Summons and Complaint [DE 19] ("Weiser Decl."), Ex. 3 at 7. After receiving these Amended Responses on June 29, 2012, Plaintiff sought consent from Defendants' counsel's to amend the Complaint to add Canoe as a party. Pl's. Mem. at 4. Defendants' counsel declined. Id. Thereafter, on July 3, 2012, the deadline set forth in the Case Management and Scheduling Order for amendment of pleadings, Plaintiff filed a letter motion to amend the Complaint to add Canoe as a party. DE 16. The letter motion was denied, without prejudice, because the Court requires motions to amend to be filed as formal motions pursuant to the Federal Rules of Civil Procedure. See Electronic Order dated July 5, 2012. Plaintiff was, however, granted permission "to file the appropriate motion under the Federal Rules provided that the motion is served and filed by July 13, 2012." Id. The instant motion was filed on July 13, 2012.

The exact nature of the relationship between Canoe and Roadhouse is unclear at this juncture. Nevertheless, Plaintiff claims that Canoe and Roadhouse share the exact same office location and are both owned by Defendant Herman. Weiser Decl. ¶¶ 8-9.

II. LEGAL STANDARD

Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party cannot amend as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." Accord Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). A court "should freely give leave when justice so requires" and such leave is in the court's discretion. See Fed. R. Civ. P. 15(a); Grace v. Rosenstock, 228 F.3d 40, 56 (2d Cir. 2000).

Notwithstanding the foregoing principle, leave to amend may be denied where there is "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 the amendment, etc." Williams v. Citigroup Inc., 659 F.3d 208, 213-14 (2d Cir. 2011) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227 (1962)); SCS Commc'n, Inc. v. Herrick Co., 360 F.3d 329, 345 (2d Cir. 2004) ("[U]nder Rule 15(a), leave to amend a pleading may only be given when factors such as undue delay or undue prejudice to the opposing party are absent.")(emphasis in original). "The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial." Fariello v. Campbell, 860 F. Supp. 54, 70 (E.D.N.Y. 1994); see also European Cmty. v. RJR Nabisco, Inc., 150 F. Supp. 2d 456, 502-03 (E.D.N.Y. 2001); Saxholm AS v. Dynal, Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996). The opposing party likewise bears the burden of establishing that an amendment would be futile. See Blaskiewicz v. County of Suffolk, 29 F. Supp. 2d 134, 137-38 (E.D.N.Y. 1998) (citing Harrison v. NBD Inc., 990 F. Supp. 179, 185 (E.D.N.Y. 1998)).

Although not raised in the parties' papers, a motion to amend which seeks to add new parties also implicates Federal Rule of Civil Procedure 21 which provides that "[o]n motion or on its own, the court may at any time, on just terms, add or drop a party." See Garcia v. Pancho Villa's of Huntington Vill., Inc., 268 F.R.D. 160, 165 (E.D.N.Y. 2010). There is, however, little practical difference between Rule 15 and Rule 21 since they both leave the decision whether to permit or deny an amendment to the district court's discretion. Id.; Franco v. Ideal Mortg. Bankers, Ltd., No. ...


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