The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
Now before the Court is Plaintiff's motion (Docket No. [#41]) to supplement the Complaint. The application is denied.
On October 29, 2009, Plaintiff commenced this action. On April 28, 2010, the Honorable Jonathan W. Feldman, United States Magistrate Judge, issued a Scheduling Order [#11], w hich directed that " [a]ll motions to join other parties or to amend pleadings shall be filed by June 30, 2010." The Scheduling Order further directed that " [n]o extension of the above cutoff dates w ill be granted except upon w ritten joint motion, filed prior to the cutoff date, show ing good cause for the extension."
On November 23, 2010,*fn1 Plaintiff filed the subject motion, w hich seeks to supplement the Complaint to add tw o retaliation claims. First, Plaintiff alleges that on July 13, 2009, Corrections Officer Timothy Harvey (" Harvey" destroyed three of his book manuscripts. Second, Plaintiff alleges that on January 21, 2010, Harvey physically assaulted him. Significantly, both of these alleged events occurred w ell before the expiration of the deadline for amending the pleadings. In fact, they both allegedly occurred even before Magistrate Judge Feldman issued his Scheduling Order. How ever, the motion [#41] does not acknow ledge that it w as filed after the deadline for amending pleadings, nor does it offer any explanation for such late filing.
The legal principles applicable to Plaintiff's application w ere recently discussed by another Judge of this Court:
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] w hen 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, 83 S.Ct. 227, 9 L.Ed.2d 222 (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 allow ed, undue prejudice to the opposing party by virtue of allow ance 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 w ill 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 w ith 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 show ing 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 w here 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 Grochow ski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir.2003)), cert. denied, 131 S.Ct. 795 (2010); Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir.2007); Carnrite v. Granada Hosp. Grp., Inc., 175 F.R.D. 439, 446 (W.D.N.Y.1997).
In determining w hether to grant a motion to amend, the Court must w eigh the good cause show n for the delay against the prejudice to the non-movant that w ill result from the amendment. See Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d at 244; Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 46--47 (2d Cir.1983). Considerations of prejudice include w hether the new claim w ould (i) require significant additional discovery; (ii) significantly delay the resolution of the dispute; or (iii) prevent the non-moving party from bringing a timely action in another jurisdiction. Block v. First Blood Assoc., 988 F.2d 344, 350 (2d Cir.1993) (collecting cases). " How ever, the absence of prejudice to a nonmoving party does not alone fulfill the good cause requirement of Rule 16(b)." Woodw orth v. Erie Ins. Co., 2009 WL 3671930, * 3 (W.D.N.Y.2009) (emphasis omitted) (internal citations omitted).
Yates v. Cunningham, NO. 08-CV-6346CJS, 2012 WL 4473260 at * 1-3 (W.D.N.Y. Sep. 7, 2012) (Payson, M.J.), report and recommendation adopted by ...