The opinion of the court was delivered by: Marilyn Dolan GO United States Magistrate Judge
Defendant Anthony Batiste in this Federal Tort Claims Act ("FTCA"), 28
U.S.C. § 2671, et seq. action arising out of a May 9, 2011 car
accident moves for leave to file an amended cross-complaint to add
claims against the United States for personal injuries.*fn1
See ct. doc. 17.
On May 9, 2011, plaintiff was a passenger in defendant Batiste's vehicle when it was involved in an accident with a government vehicle. Plaintiff commenced this action on June 4, 2012 alleging claims against the government and Batiste. On September 17, 2012, Batiste filed an Answer and a cross-claim against the United States for property damage. Ct. doc. 8.
At an initial conference held on December 14, 2012, the Court issued a scheduling order setting April 17, 2013 as the deadline to file an application to amend the pleadings and/or join additional parties.
On September 6, 2011, Batiste filed an administrative claim for personal injuries. Ct. doc. 17, Exh. D. The government denied Batiste's administrative claim on August 27, 2012. On January 18, 2013, the parties requested a stay of discovery in anticipation of Batiste bringing a claim against the government in this litigation. See ct. doc. 15. This Court granted a stay until March 15, 2013 as to depositions only and granted Batiste leave to amend his cross-claim until March 15, 2013. See electronic order dated January 18, 2013.
Batiste's attorney for his personal injury claims, who had not previously appeared in this action, states that he discovered for the first time on April 18, 2013 that the deadline for leave to amend was set for April 17, 2013. Batiste's new attorney appeared for a conference held on April 19, 2013 and requested permission to modify the scheduling order to amend Batiste's cross-claim. The United States opposes Batiste's application on the grounds that he has failed to act with diligence and has not shown good cause for an extension.
Rule 15(a) of the Federal Rules of Civil Procedure provides that the Court should freely grant leave to amend a pleading 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)). Delay alone does not justify denial of leave to amend. See Ruotolo v. City of N.Y., 514 F.3d 184, 191 (2d Cir. 2008); Rachman Bag Co. v. Liberty Mutual Ins. Co., 46 F.3d 230, 234 (2d Cir. 1995); Richardson Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987). "The concepts of delay and undue prejudice are interrelated -- the longer the period of unexplained delay, the less will be required of the non-moving party in terms of showing prejudice." Davidowitz v. Patridge, 2010 U.S. Dist. LEXIS 42322, at *5 (S.D.N.Y. 2010). In evaluating whether prejudice would result from amendment, a court considers whether the proposed amendment would: "(1) require the opponent to expend significant additional resources to conduct discovery and prepare for trial;
(2) significantly delay the resolution of the dispute; or (3) prevent the plaintiff from bringing a timely action in another jurisdiction." Monahan v. N.Y. City Dept. of Corr., 214 F.3d 275, 284 (2d Cir. 2000) (citing Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). Ultimately, the decision to grant or deny a request to amend is within the discretion of the district court. Foman, 371 U.S. at 182; John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994).
A further consideration in determining whether leave to amend should be granted here are the limitations in Rule 16(b). Kassner v. 2nd Avenue Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007). The more lenient standard under Rule 15(a) must be balanced against Rule 16(b)'s good cause requirement. See Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009); Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003). Although "the primary consideration is whether the moving party can demonstrate diligence[, i]t is not, however, the only consideration." Kassner, 496 F.3d at 244. "[O]ther relevant factors includ[e], in particular, whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants." Id.
Finally, "the general policy behind allowing crossclaims is to avoid multiple suits and to encourage the determination of the entire controversy among the parties before the court with a minimum of procedural steps." 6 Charles Alan Wright et al., Federal Practice & Procedure § 1431, at 267-68 (3d ed. 2010). In determining whether to allow a cross-claim pursuant to Rule 13(g), "courts balance the interests of judicial economy and the general policy of avoiding multiple suits relating to the same events against the possibilities of prejudice or surprise to the other parties and decide the question of timeliness accordingly." Id. at 285.
The United States argues that Batiste has not demonstrated diligence because his new counsel knew about this action since January 2013 and was on notice of the deadline for amendment by virtue of the publicly available docket sheet. The United States further contends that its counsel communicated with new plaintiffs' counsel on April 8, 2013 but counsel did not seek to amend until the conference held on April 19, 2013.
Although the government relies on the March 15, 2013 deadline to argue lack of diligence, the deadline for seeking leave to amend did not expire until April 17, 2013. Batiste had been given leave to file his amended cross-complaint by March 15, ...