The opinion of the court was delivered by: Marilyn Dolan GO United States Magistrate Judge
By motion dated June 7, 2012, plaintiff in this wrongful death action moves for leave to file an amended complaint to add three additional defendants.*fn1 See ct. doc. 13.
The claims in this product liability action against Chip Masters Inc. ("Chip Masters") arise from the death of Juan Baten, who was fatally injured on January 24, 2011 when he became entangled in the moving parts of an industrial tortilla dough-processing machine. Plaintiff sued Chip Masters alleging that it was responsible for the manufacture and sale of the machine that caused Mr. Baten's death. Following defendant Chip Masters' failure to appear, the Honorable William F. Kuntz granted plaintiff's motion for default judgment against Chip Masters Inc.
Plaintiff now seeks to add as defendants Alberto Ceja and his son, Albert Ceja, the principal owners and officers of Chip Masters, and Food Equipment Mfg., a non-corporate successor entity to Chip Masters. Plaintiff alleges that Chip Masters ceased operation and that the Cejas resumed business under the name Food Equipment Mfg., also located in California. She points to the fact that the state of California suspended Chip Masters' corporate registration for failure to pay its corporate franchise taxes. Plaintiff further alleges that Food Equipment Mfg., which is owned and controlled by the Cejas, manufactures the same equipment and markets to the same customers as Chip Masters. Plaintiff argues that the Cejas are alter egos of Chip Masters and that Food Equipment Mfg. is a mere continuation of Chip Masters.
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend a pleading should be "freely give[n] . . . when justice so requires." See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321 (1971); Andersen News LLC v. American Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012). Thus, courts should ordinarily grant leave to amend in the absence of bad faith by the moving party, undue prejudice or futility. Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). The decision to grant or deny a request to amend is within the discretion of the district court. Foman, 371 U.S. at 182; Andersen, 680 F.3d at 185.
There is no reason to believe that plaintiff has acted in bad faith or that defendants would be unduly prejudiced by amendment. I also cannot conclude that the allegations are implausible or that the claims are clearly insufficient as a matter of law.
However, I note that Food Equipment Mfg. may not be a suable entity. Plaintiff's counsel states in her affirmation that Food Equipment Mfg. is a "non-corporate entity." Affirmation of Cheryl Felton dated June 7, 2012 (ct. doc. 13) at ¶ 9. Under Rule 17(b) of the Federal Rules of Civil Procedure, the capacity to be sued of an unincorporated association is determined by the law of the forum state. Fed. R. Civ. P. 17(b)(3). In New York, a trade name is not subject to suit. See M.E. Alsett Corp. V. Crosfield Elecs., 1987 WL 7023, at *1 (S.D.N.Y. 1987); Provosty
v. Lydia E. Hall Hosp., 91 A.D.2d 658, 659 (2d Dep't 1982); Little Shop Around the Corner v. Carl, 80 Misc.2d 717, 719 (N.Y. Co. Ct. 1975). In contrast, under California law, unincorporated entities have the capacity to sue and be sued. See Cal. Civ. Proc. § 369.5. If plaintiff ultimately seeks judgment against Food Equipment Mfg., she will have to demonstrate that it can be sued under that name in this Court.
For the foregoing reasons, plaintiff's motion to amend is granted. The amended complaint must be filed by November 14, 2012.*fn2