DECISION AND ORDER
H. KENNETH SCHROEDER, Jr., Magistrate Judge.
This matter was referred to the undersigned by the Hon. Richard J. Arcara, in accordance with 28 U.S.C. § 636(b), for all pretrial matters and to hear and report upon dispositive motions. Dkt. #111.
Plaintiff commenced this action pursuant to 42 U.S.C. § 1983, alleging that during his pretrial detention at the Erie County Holding Center ("ECHC"), and Erie County Correctional Facility ("ECCF"), beginning in 2006 and continuing through February of 2008, he was denied appropriate medical care for his chronic mastoiditis; denied reasonable accommodations for his severe hearing loss; and disciplined for failing to obey an order he could not hear. Dkt. #7.
By Order entered May 31, 2011, the Court granted plaintiff's motion to appoint counsel. Dkt. #87.
Currently before the Court is plaintiff's motion to amend the complaint and extend the Case Management Order. Dkt. #98. For the following reasons, the motion is granted in part.
Good Cause for late amendment - Fed.R.Civ.P 16(b)
Defendants argue that the motion to amend should be denied because plaintiff has not demonstrated good cause for his failure to amend prior to the deadline set forth in the Court's Case Management Order. Dkt. #100, p.4.
Plaintiff declares that the delay of less than four months was due to appointed counsel's diligent attempts to review documents and obtain additional discovery from defendants and third parties to ascertain proper defendants and appropriate causes of action. Dkt. #97, ¶¶ 20, 23 & 26. Plaintiff notes that defendants have not yet been able to provide plaintiff's entire institutional medical file or medical records from other providers such as the Erie County Medical Center and Buffalo Hearing and Speech, despite their prior possession of an authorization from plaintiff to do so; that the Commission on Corrections and the ECHC have yet to respond to plaintiff's request pursuant to the Freedom of Information Law; and that it was only upon receiving medical records and other documents pursuant to their independent efforts that counsel possessed a good faith basis for the proposed amended complaint. Dkt. #102, pp.3-6. Given the ongoing paper discovery and the lack of depositions of any defendants, plaintiff asserts that the amendments to the complaint will neither prejudice the defendants nor delay the prosecution of this action. Dkt. #102, pp.7-8.
Fed.R.Civ.P 16(b) requires that the district court enter a scheduling order setting deadlines for, inter alia, amendment of pleadings and completion of discovery. The scheduling order cannot not be modified except by leave of the district court upon a showing of good cause. Fed.R.Civ.P 16(b). "[T]he rule is designed to offer a measure of certainty in pretrial proceedings, ensuring that at some point both the parties and the pleadings will be fixed." Parker v. Columbia Pictures Indus, 204 F.3d 326, 339-340 (2d Cir. 2000) (internal citation omitted). Accordingly, "a person seeking to amend a pleading after the date specified in a scheduling order must first show good cause' for the amendment under Rule 16(b)." Tschantz v. McCann, 160 F.R.D. 568, 571 (N.D. Ind. 1995).
"Good cause' means that scheduling deadlines cannot be met despite a party's diligence." Carnrite v. Granada Hosp. Group, Inc., 175 F.R.D. 439, 446 (W.D.N.Y. 1997); see Parker, 204 F.3d at 340 ("finding of good cause' depends on the diligence of the moving party."); Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992) ("Rule 16(b)'s good cause' standard primarily considers the diligence of the party seeking the amendment."). Good cause can be established when a party does not discover a basis to amend the pleadings or add parties until the scheduling order's deadline to do so has passed. See Oxaal v. Internet Pictures Corp., 00CIV1863, 2002 WL 485704 (N.D.N.Y. Mar. 27, 2002) (good cause established where, subsequent to scheduling order deadline for amendment of pleadings, Federal Circuit decision "established new rule of law" which defendant sought to assert as a defense in his amended answer); Deghand v. Wal-Mart Stores, 904 F.Supp. 1218 (D. Kansas 1995) (good cause established where defendant did not supplement its disclosure under Rule 26 to reveal letter suggesting defamation of plaintiff until the deadline for moving to amend the pleadings or add parties had passed); Robinson v. Colonie, 91-CV-1355, 1993 WL 191166 (N.D.N.Y. June 3, 1993) (good cause established where plaintiffs did not learn that they had confused the identity of defendants until they observed defendants at deposition, which was conducted subsequent to scheduling order deadline for filing amended pleadings).
In the instant case, in light of counsel's declaration of diligent attempts to obtain and review plaintiff's extensive medical records and public documents relating to the management of the ECHC and ECCF and applicable standards for accommodating inmates with hearing loss, the Court finds good cause for the filing of the motion to amend the complaint subsequent to the deadline set forth in the Case Management Order.
Leave to Amend the Complaint - Fed.R.Civ.P 15(a)
Fed. R. Civ. P. 15(a) provides that a party may amend a pleading by leave of court or by written consent of the adverse party. Leave to amend is to be "freely granted" unless the party seeking leave has acted in bad faith, there has been an undue delay in seeking leave, there will be unfair prejudice to the opposing party if leave is granted, or the proposed amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); Fed. R. Civ. P.15(a). "Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend." Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). "Absent a showing that significant additional discovery burdens will be incurred or that the trial of the matter will be significantly delayed, amendment should be permitted." W.R. Grace & Co. v. Zotos Int'l, Inc., 98-CV-838, 2000 WL 1843282 (W.D.N.Y. Nov. 2, 2000). The decision to grant or deny a motion for leave to amend a pleading is within the discretion of the district court. Foman, 371 U.S. at 182.
"An amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6)." Lucente v. Int'l Business Machines, Corp., 310 F.3d 243, 258 (2d Cir. 2002). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, ...