The opinion of the court was delivered by: Bloom, United States Magistrate Judge:
Plaintiffs move to amend the complaint in this Fair Labor Standards Act ("FLSA") action for a second time to add two new defendants, Iyad Saleh and Mercury Delivery Services. For the reasons set forth below, it is respectfully recommended that plaintiffs' motion to amend should be granted in part and denied in part.
Plaintiffs commenced this action on September 9, 2011 against Enjoy Food Corp. doing business as C-Town*fn1 and Maxwell Bristol. (Docket entry 1.) On January 16, 2012, plaintiffs amended the complaint, adding defendants Ahmad Saleh and Immortal Rise, Inc. doing business as C-Town, ("C-Town") and removing defendant Bristol. (Docket entry 12, Am. Compl.) Plaintiffs allege that C-Town and Ahmad Saleh failed to pay them the statutory minimum wage, overtime compensation, and "spread of hours" wages in violation of the FLSA and New York labor law. (Am. Compl. ¶ 25.)
On May 31, 2012, the Court adopted the parties' proposed scheduling order (docket entry 21) which states in pertinent part: "No additional parties may be joined after August 16, 2012, without leave of the Court," and "All Rule 23 pre-class certification fact discovery shall be completed on or before October 16, 2012." At the parties' request (docket entries 39, 44, 45), the Court extended the agreed upon discovery deadline three times until January 29, 2013.
On January 9, 2013, plaintiffs filed a pre-motion conference request, seeking leave to amend the complaint to add two new defendants: Mercury Delivery Services, Inc. ("Mercury") and Iyad "William" Saleh ("Iyad").*fn2 (Docket entry 48.) Defendants opposed the request (docket entry 49) and plaintiffs replied (docket entry 50). On January 14, 2013, the Honorable Roslynn
R. Mauskopf referred plaintiffs' request to me; and on January 15, 2013, I set a briefing scheduling for plaintiffs' motion. Plaintiffs now move to amend the complaint (docket entries 52-53), and defendants oppose the motion (docket entries 54-55).
I.GOOD CAUSE UNDER FED.R.CIV.P.16
Plaintiffs' instant motion is governed by Rule 16 of the Federal Rules of Civil Procedure. "Where, as here, a scheduling order governs amendments to the complaint, 'the lenient standard under Rule 15(a), which provides leave to amend shall be freely given, must be balanced against the requirement under Rule 16(b) that the Court's scheduling order shall not be modified except upon a showing of good cause.'" Holmes v. Grubman, 568 F.3d 329, 334--35 (2d Cir. 2009) (citations omitted) (quoting Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (internal quotation marks omitted)). Whether good cause exists turns on the "diligence of the moving party." Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000). "[T]he movant must show that the deadlines [could] not be reasonably met despite its diligence." Fahmy v. Duane Reade, Inc., 04 Civ. 1798 (DLC)(GWG), 2005 U.S. Dist. LEXIS 20929, at *10 (S.D.N.Y. Sept. 26, 2005) (quoting Rent-A-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003)). While diligence is the primary consideration, it is not the only one. The Court in exercising its discretion may consider other factors including prejudice. Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir. 2007).
Plaintiffs argue that they only discovered facts sufficient to allege that Iyad Saleh and Mercury were "employers" within the meaning of the FLSA on November 27, 2012, during Iyad's deposition. (Docket entry 53, "Pls.' Mem." 6.) Under the FLSA, an employer is defined as "any person acting directly or indirectly in the interest of an employer in relation to an employee." 29 U.S.C. § 203(d). To determine whether an individual defendant is an employer within the meaning of the FLSA, the Court considers a variety of factors including whether the person "(1) had the power to hire and fire the employees; (2) supervised and controlled employee work schedules or conditions of employment; (3) determined the rate and method of payment; and (4) maintained employment records." Leal v. Masonry Servs., 12-CV-588 (DLI)(VVP), 2013 U.S. Dist. LEXIS 19142, at *7 (E.D.N.Y. Feb. 12, 2013) (citing Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999)). "The regulations promulgated under the FLSA expressly recognize that a worker may be employed by more than one entity at the same time." Cano v. DPNY, Inc., 287 F.R.D. 251, 258 (S.D.N.Y. 2012) (quoting Zheng v. Liberty Apparel Co., 355 F.3d 61, 66 (2d Cir. 2003)); see also 29 C.F.R. § 791.2 ("A single individual may stand in the relation of an employee to two or more employers at the same time under the Fair Labor Standards Act . . . ."). The Court evaluates plaintiffs' claims as to each defendant below.
Plaintiffs fail to demonstrate that the August 16, 2012 deadline to join Iyad could not have reasonably been met despite their diligence. Plaintiffs' first set of interrogatories asked defendants to identify the individual(s) "who authorized and/or effectuated payments to, and generated and maintained payroll records for" plaintiffs, "over[saw], manag[ed], and enforce[ed] Defendants' employment and compensation policies," and "generated and maintained time records and work schedules." (Docket entry 55, Defs.' Ex. H, ¶¶ 7-9.) On July 31, 2012,*fn3 defendants' response to these interrogatories identified "Iyad Saleh." (Id.) Thus, plaintiffs discovered facts sufficient to allege Iyad was an employer within the meaning of the FLSA on July 31, 2012, two weeks before the August 16, 2012 deadline.*fn4
"[T]he good cause standard [of Rule 16] is not satisfied when the proposed amendment rests on information 'that the party knew or should have known, in advance of the deadline." Lamothe v. Town of Oyster Bay, 08 Civ. 2078 (ADS)(AKT), 2011 U.S. Dist. LEXIS 120843, at *16 (E.D.N.Y. Oct. 19, 2011) (citing Sokol Holdings, Inc. v. BMB Munai, Inc., No. 05 Civ. 3749 (KMW)(DF), 2009 U.S. Dist. LEXIS 72659, at *24 (S.D.N.Y. Aug. 17, 2009)). Moreover, plaintiffs inexplicably did not seek leave to amend the complaint until January 9, 2012, more than five months after discovery had revealed Iyad as plaintiffs' employer and more than four months after the deadline for joinder had passed. Plaintiffs fail to proffer any reason for this delay. Accordingly, plaintiffs fail to show that they were diligent here. See Int'l Media Films, Inc., 2008 U.S. Dist. LEXIS 121636, at *15-16 (finding lack of diligence where plaintiff moved to amend seven months after the joinder date and five months after discovery revealed defendant's role); see also Rent-A-Center, Inc., 215 F.R.D. at 104-05 (plaintiff failed to show ...