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Balk v. New York Institute of Technology and Infotec Corp.

United States District Court, E.D. New York

March 24, 2014

DENNIS BALK, Plaintiff,


A. KATHLEEN TOMLINSON, Magistrate Judge.


Plaintiff Dennis Balk ("Plaintiff" or "Balk") seeks leave to amend his Second Amended Complaint to add Dr. Mohamed Y. Hussein ("Dr. Hussein") as an individually named defendant, pursuant to FED. R. CIV. P. 16 (b), 15(a) and 15(c). See Pl.'s Ltr. Mot. to Amend the Second Am. Compl. ("Pl.'s Mot.") [DE 113]. Balk brought this employment discrimination and breach of contract action against Defendants New York Institute of Technology ("NYIT") and Infotec Corporation ("Infotec") (collectively, "Defendants"). He seeks to add Dr. Hussein as a defendant based upon recently discovered evidence that Dr. Hussein is the "alter ego" of Defendant Infotec. Id. at 1. The Defendants have not submitted any opposition to the motion. Judge Bianco referred Plaintiff's motion to this Court after conducting a pre-motion conference with counsel. See DE 115. For the reasons set forth below, the Plaintiff's motion to amend the Second Amended Complaint is GRANTED, in part, and DENIED, in part.


A. The Allegations

Plaintiff, who was formerly employed as the Director of the Computer Graphics Department at NYIT's campus in Bahrain, claims that Defendants NYIT and Infotec discriminated against him on the basis of his race, religion, and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. Second Amended Complaint ("SAC") ¶¶ 58-69, 87-101 [DE 83]. Additionally, Plaintiff asserts claims for breach of contract against NYIT, unlawful interference with contractual rights against Infotec, and conspiracy to defraud against both Defendants. Id. ¶¶ 70-86, 150-139.

B. Relevant Procedural History[1]

Plaintiff filed his original Complaint against Defendants on February 1, 2011. See Compl. [DE 1]. On May 23, 2011, NYIT filed a motion to dismiss the Complaint. DE 11. On June 13, 2011, Plaintiff moved for entry of default against Infotec for failing to appear or otherwise move in response to the Complaint. DE 15. On that same day, Plaintiff filed his First Amended Complaint ("FAC") pursuant to FED. R. CIV. P. 15(a)(1)(B). DE 16.

The Clerk of the Court entered a certificate of default against Infotec on June 20, 2011. DE 17. That notation of default was later vacated by stipulation of the parties, which Judge Bianco "so-ordered" on August 4, 2011. DE 35. In the August 4, 2011 stipulation, counsel for Infotec accepted service of Plaintiff's FAC, among other things. Id. In a separate stipulation "so-ordered" by Judge Bianco on August 26, 2011, Infotec agreed to respond to the FAC no later than September 22, 2011. DE 39. Infotec filed its Answer on September 22, 2011. DE 41.

An Initial Conference was held before this Court on October 26, 2011, at which time NYIT requested a stay of discovery until the disposition of its motion to dismiss. See DE 45 ¶ 5. In light of the pending motion, the Court granted the request in part and stayed discovery, except for limited paper discovery, pending Judge Bianco's decision on the motion. Id. A Limited Case Management and Scheduling Order was then entered. DE 46. The parties were advised to contact this Court within five days of Judge Bianco's decision if the motion was denied in whole or in part so that a full scheduling order could be implemented. DE 45 ¶ 5. Notably, the Court explained that

[u]nder existing Second Circuit case law, any amendments or modifications to this Order or to the accompanying Case Management and Scheduling Order must be approved in advance by the Court. Therefore, the parties are not free to grant each other extensions of any deadline set forth in these Orders. All requests for extensions or modifications of any deadlines stated in these Orders must be made by letter motion to the Court in advance of the expiration of the deadline. The parties are directed to my Individual Practice Rules for further information.

Id. ¶ 12.

On January 11, 2012, Judge Bianco heard oral argument on NYIT's motion to dismiss the Complaint. DE 59. After consideration of the parties' respective positions, Judge Bianco denied NYIT's motion to dismiss and granted Plaintiff leave to file the FAC within thirty days. Id.

This Court then held a Telephone Status Conference with counsel on January 18, 2012. DE 65. Of particular significance was the Court's directive that "[i]f any party wishes to amend its pleadings after the responses to written discovery have been evaluated, then counsel must file a letter request for a pre-motion conference to Judge Bianco for purposes of moving to amend no later than February 29, 2012." Id. ¶ 3. Again, the parties were reminded that any amendments to the scheduling order must be approved in advance by the Court. Id. ¶ 9.

As a result of the Conference, the Court issued an Amended Case Management and Scheduling Order ("CMSO") on January 18, 2012, which also set forth guidelines concerning any modification of the discovery deadlines as well amendment of the pleadings. DE 66. The Court advised the parties in its CMSO that these deadlines would "be enforced, and will only be modified upon a timely showing of good cause." Id. at VI(a) (emphasis in original). Moreover, the Court explained that "[a] request for an extension of any deadline submitted less than 30 days before that deadline will be considered untimely and will not be granted absent extraordinary circumstances." Id. at VI(b). The parties were given until February 29, 2012 to seek leave to join additional parties or amend the pleadings. Id. at I.

On February 10, 2012, NYIT filed its Answer to the FAC. DE 70. Thereafter, by means of a letter-motion dated February 24, 2012, Plaintiff requested an extension of time until March 30, 2012 to amend the pleadings or join additional parties. DE 71. On February 27, 2012, the Court granted the extension. See Feb. 27, 2012 Electronic Order.

In accordance with Judge Bianco's directives, on March 29, 2012, Plaintiff filed a letter-motion, annexing the proposed amended pleading, seeking leave to file the SAC. DE 80. NYIT's counsel confirmed that it consented to the filing of the SAC in an April 12, 2012 letter. DE 81. Judge Bianco granted Plaintiff leave to file its SAC on April 19, 2012. DE 82. Judge Bianco further directed NYIT to interpose its answer to the SAC by May 9, 2012 and cautioned that if Infotec failed to file an answer within the time period required in the Federal Rules of Civil Procedure, Plaintiff may move for default judgment against Infotec on the SAC. Id. [2] The next day, on April 20, 2012, Plaintiff filed the SAC. DE 83. NYIT filed its Answer to the SAC on May 9, 2012. DE 90.

Both Plaintiff and NYIT filed separate letters on July 19, 2012 seeking an extension of time to complete discovery and for an adjournment of the deadline to initiate the dispositive motion process. DE 94, 95. Based on the circumstances presented, the Court granted that request, extending the discovery deadline to October 1, 2012 and the deadline for initiating the dispositive motion process to October 14, 2012. See July 20, 2012 Electronic Order. The Court advised the parties that all other deadlines set forth in the CMSO remained in effect. Id. Subsequently, the parties requested three brief extensions of time to complete discovery - each of which was granted by the Court - and discovery was ultimately closed on October 11, 2012. See DE 99, 103, 104; see also Oct. 9, 2012 Electronic Order.

C. Plaintiff's Motion to Amend to Add Dr. Hussein

On November 15, 2012, Plaintiff filed a letter request for a pre-motion conference before Judge Bianco seeking leave to (1) modify the Court's March 30, 2012 deadline for the joinder of additional parties and amendment of pleadings and (2) serve and file the proposed Third Amended Complaint. See Pl.'s Mot. at 1; See Proposed Third Amended Complaint annexed as Ex. "1" ("TAC") to the Pl.'s Mot. [DE 113-1]. Counsel for Plaintiff argues that he has (1) good cause for modification of the Court's joinder/amendment deadline, (2) the TAC is a legally sufficient pleading, and (3) the allegations against Dr. Hussein in the TAC "relate back" within the meaning of FED. R. CIV. P. 15(c)(1)(C)(ii). The Defendants have not submitted any opposition to the motion. During a November 20, 2012 conference with the parties, Judge Bianco referred Plaintiff's motion to amend to this Court for decision. See DE 115.[3]


Under the Federal Rules of Civil Procedure, where a court has adopted a discovery scheduling order, as in the instant action, it may only "be modified for good cause and with the judge's consent." FED. R. CIV. P. 16(b)(4). "Where a scheduling order has been entered, 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.'" Gullo v. City of New York, No. 12 Civ. 4523, 2013 WL 5433367, *1 (2d Cir. 2013) (quoting Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003)). Determining whether a party has established "good cause" within the meaning of Rule 16(b) is dependent upon the party's diligence. Eberle v. Town of Southampton, No. 12 Civ. 4472, 2013 WL 6198298, at *2 (E.D.N.Y. Nov. 27, 2013); Digennaro v. Whitehair, 467 Fed.Appx. 42, 44 (2d Cir. 2012). The balancing act between Rules 15(a) and 16(b) is necessary to prevent a scheduling order from being rendered meaningless and undermine a court's ability to manage its docket. Eberle, 2013 WL 6198298, at *2.

Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party cannot amend as a matter of course, "a party may amend its pleading only with the opposing party's written consent or the court's leave." See FED. R. CIV. P. 15(a); see also Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991); Barber v. Hornbeck Offshore Operators, LLC, No. 11 Civ. 5520, 2014 WL 1010993, at *5 (E.D.N.Y. Mar. 17, 2014); M.E.S., Inc. v. Liberty Mut. Sur. Group, No. 10 Civ. 2798, 2014 WL 46622, at *8 (E.D.N.Y. Jan. 6, 2014). Leave to amend is within the court's discretion. Krupski v. Costa Crociere S. p. A., 130 S.Ct. 2485, 2489 (2010) (Rule 15(a) "gives a district court discretion to decide whether to grant a motion to amend a pleading before trial."); MHANY Mgmt. v. County of Nassau, 843 F.Supp.2d 287, 340 (E.D.N.Y. 2012) (noting that "it is ultimately within the sound discretion of the court whether to grant leave to amend"). A court "should freely give leave when justice so requires." FED. R. CIV. P. 15(a); Iqbal v. Ashcroft, 574 F.3d 820, 822 (2d Cir. 2009) (quoting FED. R. CIV. P. 15(a)); Grace v. Rosenstock, 228 F.3d 40, 56 (2d Cir. 2000) (same); Guideone Specialty Mut. Ins. Co. v. Hapletah, No. 05 Civ. 1401, 2006 WL 1455468, at *1 (E.D.N.Y. May 24, 2004) (Rule 15(a) "provides for a liberal amendment of pleadings."). "Amendments are generally favored because they tend to facilitate a proper decision on the merits." MHANY Mgmt., 843 F.Supp.2d at 340; Allstate Ins. Co. v. Elzanaty, 916 F.Supp.2d 273, 302 (E.D.N.Y. 2013) (same) (citing Sokolski v. Trans Union Corp., 178 F.R.D. 393, 396 (E.D.N.Y. 1998)).

Notwithstanding the foregoing principles, leave to amend may be denied where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc." Williams v. Citigroup Inc., 659 F.3d 208, 213-214 (2d Cir. 2011) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); SCS Commc'n, Inc. v. Herrick Co., Inc., 360 F.3d 329, 345 (2d Cir. 2004) (noting that under Rule 15(a), "leave to amend a pleading may only be given when factors such as undue delay or undue prejudice to the opposing party are absent") (emphasis in original).

"To determine what constitutes prejudice, the Court considers whether the amendment would: (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiffs from bringing a timely action in another jurisdiction." Hernandez v. Immortal Rise, Inc., No. 11 Civ. 4360, 2013 WL 1703529, at *4 (E.D.N.Y. Apr. 19, 2013) (internal quotations omitted) (citing Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir.1993)); Themis Capital, LLC v. Democratic Republic of Congo, No. 09 Civ. 1652, 2013 WL 1687198, at *4 (S.D.N.Y. Apr. 18, 2013) (same).

In assessing a futility, courts must analyze "whether a proposed pleading would be able to withstand a dispositive pretrial motion." Themis Capital, 2013 WL 1687198, at *6 (citing Parker v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir. 2000); Touchtunes Music Corp. v. Rowe Int'l Corp., 847 F.Supp.2d 606, 621 (S.D.N.Y. 2012)). With respect to these factors, "[t]he party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial or futile." See Cummings-Fowler v. Suffolk ...

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