United States District Court, E.D. New York
MEMORANDUM AND ORDER
A. KATHLEEN TOMLINSON, Magistrate Judge.
Plaintiff Sondra Erdogan ("Plaintiff") seeks leave to amend her Section 1983 Complaint against Defendants Nassau County, the Nassau County Executive, Nassau County Sheriff's Department, Edward Reilly (Sheriff of Nassau County from June through December of 2007) ("Defendant Reilly"), Michael Sposato (Sheriff of Nassau County from February 22, 2008 to present) ("Defendant Sposato") (collectively, the "County Defendants"), and Nassau County Grievance Officer Mark Barber ("Defendant Barber"). See DE 45. In sum, Plaintiff seeks to add two of Defendant Barber's supervisors as defendants. See generally id. The County Defendants oppose the motion. See DE 47. For the reasons set forth below, Plaintiff's motion is DENIED.
At the time of the acts giving rise to the Complaint, Plaintiff was a female inmate at the Nassau County Correctional Center ("NCCC"). Compl. [DE 1] ¶ 15. Defendant Barber was a Corrections Officer at the NCCC. Id. ¶ 14. Plaintiff alleges that during her time as an inmate at NCCC, she was "raped and... repeatedly and continuously sexually abused" by Defendant Barber. Id. ¶ 15. Plaintiff asserts that Defendant Barber "kissed [Plaintiff's] lips... touched her breasts and other intimate parts" and "engage[d] in sexual intercourse with her." Id. ¶¶ 17-19. Moreover, Plaintiff claims Defendant Barber had access to a private office which he would use to engage in sexual contact with her. Id. ¶ 24.
Plaintiff filed her Complaint on December 15, 2010, alleging (i) violations of her Eighth Amendment right to be free from cruel and unusual punishment; (ii) supervisory liability under Section 1983 against Sheriff Reilly and Sheriff Sposato; and (iii) Section 1983 Monell liability against Nassau County. Compl. ¶¶ 39-61. Around the same time, two similar complaints were filed by other plaintiffs who also alleged abuse by Defendant Barber while serving time at the NCCC. See Bridgwood v. Cnty. of Nassau, et al., No. 10-cv-830; Stamile v. Cnty of Nassau, et al., No. 10-cv-2632.
On April 15, 2011, the County Defendants moved to stay all proceedings in this matter and the two related matters based on ongoing criminal proceedings commenced by the Nassau County District Attorney's Office against Defendant Barber. DE 10. Judge Feuerstein granted the County Defendants' motion on April 19, 2014. DE 11. On August 28, 2012, Plaintiff's counsel informed the Court that the criminal trial against Defendant Barber had concluded. DE 18. Stemming from his conduct involving the Plaintiff, Defendant Barber was convicted of Sexual Abuse in the Second Degree, Receiving Reward for Official Misconduct, and eleven counts of Official Misconduct. Id. The parties subsequently submitted a proposed discovery schedule in all three cases and Judge Feuerstein referred the matters to this Court to oversee discovery. DE 12, 20. The Court held an Initial Discovery Conference with the parties in this case and the related matters on January 9, 2013. DE 21. The Court determined that the three related matters would be consolidated solely for purposes of discovery. Id. An Initial Case Management and Scheduling Order was then entered setting forth the applicable discovery deadlines. Id.; DE 32. The deadline for joinder of additional parties and amendment of pleadings was March 8, 2013. DE 32.
On March 5, 2013, the County Defendants submitted a letter motion to this Court requesting that all discovery be stayed pending the resolution of Defendant Barber's appeal of his criminal conviction. DE 25. Plaintiff Erdogan opposed the motion, requesting that the Court sever her action from the other actions consolidated for discovery purposes in order to allow discovery to proceed in her case. DE 28. The Court denied, without prejudice, the County Defendants' motion to stay, and allowed the Defendants to seek leave to renew before Judge Feuerstein. DE 36. Defendants never renewed their motion before Judge Feuerstein. Thus, the Court hereby deems MOOT Plaintiff's motion to sever.
Plaintiff filed a motion to amend the Complaint on March 19, 2013, pursuant to Fed.R.Civ.P. 15. See Mem. of Law in Supp. of Mot. to Am. Pleadings ("Pl.'s Mem.") [DE 45-1] at 4. Plaintiff seeks to add two of Defendant Barber's supervisors as defendants, namely, Nassau County Corrections Officers Corporal William Bailey ("Bailey") and Captain James Ford ("Ford") (collectively, the "Proposed Defendants"). Id. Plaintiff alleges (i) violations of her Eighth Amendment right to be free from cruel and unusual punishment and (ii) supervisory liability under Section 1983 against Bailey and Ford. See Proposed Amended Compl. ("PAC"), attached as Ex. 2 to Pl.'s Mem. [DE 45-2] ¶ ¶ 41-57. The County Defendants oppose the motion, arguing, inter alia, that Plaintiff has not demonstrated the requisite personal involvement of Bailey and Ford. See DE 47. On April 12, 2013, pursuant to 28 U.S.C. § 636(c), the parties filed a Consent to the Jurisdiction of a U.S. Magistrate Judge for all purposes and the case was then reassigned to this Court. DE 40, 44.
II. STANDARD OF REVIEW
A. Rule 15(a)
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); Guity v. Uniondale Union Free School Dist., NO. CV 12-1482, 2014 WL 795576, at *3 (E.D.N.Y. Feb. 27, 2014). Leave to amend is within the Court's discretion. Krupski v. Costa Crociere S. p. A., 130 S.Ct. 2485, 2489 (2010) (noting that Rule 15(a) "gives a district court discretion to decide whether to grant a motion to amend a pleading before trial"); MHANY Mgmt. v. Cnty. 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. CV 2005-1401, 2006 WL 1455468, at *1 (E.D.N.Y. May 24, 2004) (noting that Rule 15(a) "provides for a liberal amendment of pleadings").
Where a proposed amendment adds a new party, the Court also looks to Rule 21, "which provides that [o]n motion or on its own, the court may at any time, on just terms, add or drop a party.'" Allstate Ins. Co. v. Elzanaty, No. 11-cv-3862, 2013 WL 65986, at *23 (E.D.N.Y. Jan. 7, 2013) (noting that where a proposed amendment adds a new party, "the propriety of the amendment is governed by F. R. Civ. P. 21") ( citing Fed.R.Civ.P. P. 21; Garcia v. Pancho Villa's of Huntington Vill., Inc., 268 F.R.D. 160, 165 (E.D.N.Y. 2010); City of Syracuse v. Onondaga Cty., 464 F.3d 297 (2d Cir. 2006)). "Although Rule 21 contains no restrictions on when motions to add or drop parties must be made, the timing of the motion may influence the court's discretion in determining to grant it. Thus, the court typically will deny a request that comes so late in the litigation that it will delay the case or prejudice any of the parties to the action." Allstate, 2013 WL 65986, at *23 (citing City of Syracuse, 464 F.3d at 308). "Rule 21 grants the court broad discretion to permit the addition of a party at any stage in the litigation." Allstate, 2013 WL 65986, at *23 (citing Sullivan v. West New York Res., Inc., No. 01 Civ. 7847, 2003 WL 21056888, at * 1 (E.D.N.Y. Mar. 5, 2003)). In general, in deciding whether to permit the addition of a defendant, courts apply the "same standard of liberality afforded to motions to amend pleadings under Rule 15." Allstate, 2013 WL 65986, at *23 (citing Soler v. G & U, Inc., 86 F.R.D. 524, 528 (S.D.N.Y.1980)); Hai Yang Liu v. 88 Harborview Realty, LLC, No. 11 Civ. 1033, 2014 WL 1053719, at *6 n.1 (S.D.N.Y. Mar. 12, 2014).
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, 83 S.Ct. 227, 9 L.Ed.2d 222 (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 CV 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). "The party opposing the motion for leave to amend has the burden of establishing that an amendment would be prejudicial." Fariello v. Campbell, 860 F.Supp. 54, 70 (E.D.N.Y. 1994); Saxholm AS v. Dynal, Inc., 938 F.Supp. 120, 123 (E.D.N.Y. 1996).
Futility "turns on 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)). The opposing party likewise bears the burden of establishing that an amendment would be futile. See Balk v. New York Institute of Technology, No. CV 11-509, 2013 WL 6990767, at *5 (E.D.N.Y. Sept. 30, 2013); Blaskiewicz v. County of Suffolk, 29 F.Supp.2d 134, 137-8 (E.D.N.Y. 1998) (citing Harrison v. NBD Inc., 990 F.Supp. 179, 185 (E.D.N.Y. 1998)).
B. Rule 16(b)
Moreover, where, as here, a motion to amend is filed after a deadline set by the Court's Order, the motion is also subject to the more demanding standard of Rule 16(b), which requires "good cause" for leave to amend. See Parker, 204 F.3d at 340; Ricciardi v. Kimco Facilities Servs. Corp., No. 10-CV-5731, 2012 WL 6761533, at *1 (E.D.N.Y. June 12, 2012) adopted by 2013 WL 42416 (E.D.N.Y. Jan. 3, 2013); Alexander v. Westbury Union Free Sch. Dist., 829 F.Supp.2d 89, 117 (E.D.N.Y. 2011); Sokol Holdings, Inc., v. BMB Munai, Inc., 05-CV-3749, 2009 WL 2524611, at *7 (S.D.N.Y. Aug. 14, 2009). "Under Rule 16(b)... the mere absence of prejudice, bad faith, futility, or similar factors is not sufficient to constitute good cause.'" Rapture Shipping Ltd. v. Allround Fuel Trading Chemoil B.V., No. 03-CV-738, 2006 WL 3057294, at *2 (S.D.N.Y. Oct. 27, 2006) (citing Carnrite v. Granada Hospital Group, Inc., 175 F.R.D. 439, 448 (W.D.N.Y 1997)).
Pursuant to Rule 16(b), the court must enter a scheduling order setting deadlines for subsequent proceedings in the case, including "the time to join other parties [and] amend 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 pleading will be fixed." See Parker, 204 F.3d at 339-40 (internal quotations omitted); accord Ricciardi, 2012 WL 6761533, at *1. In certain cases, however, the court may determine that a deadline "cannot reasonably be met despite the diligence of the party seeking the extension." Parker, 204 F.3d at 339 (internal quotations omitted). "In such cases, where the moving party has demonstrated good cause, the court may grant leave to amend the scheduling order to extend the deadline." Id .; see 246 Sears Road Realty Corp. v. Exxon Mobil Corp., No. 99-CV-889, 2012 WL 4174862, at *9 (E.D.N.Y. Sept. 18, 2012).
"Good cause in this context depends on the diligence of the moving party, and, to satisfy the standard, the movant must demonstrate that is has been diligent in its effort to meet the Court's deadlines." Sokol, 2009 WL 2524611, at *7 (internal citations and quotations omitted); see Enzymotec Ltd. V. NBTY, Inc., 754 F.Supp.2d 527, 536 (E.D.N.Y. 2011); Spinelli v. Sec'y of Dep't of Interior, No. CV 99-8163, 2006 WL 1790077, *1 (E.D.N.Y. June 27, 2006) (finding of good cause requires that "the moving party must, at a minimum, make a showing of diligence") (citing Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir. 2003)). "In other words, the party must show that, despite its having exercised diligence, the applicable deadline could not have been reasonably met." Sokol, 2009 WL 2524611, at *7 (citing Rent-A-Center Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003)).
A party is not considered to have acted diligently where the proposed amendment is based on information that the party knew, or should have known, in advance of the motion deadline. See Parker, 204 F.3d at 340-41; Sokol, 2009 WL 2524611, at *8. In determining whether the good cause standard is met, "the primary consideration is whether the moving party can demonstrate diligence[, ]" but that is not the only consideration. Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007). "The district court, in the exercise of its discretion under Rule 16(b), also may consider other relevant factors including, in particular, whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants." Id. at 243-44; Guity, 2014 WL 795576, at *4 (same); Salomon v. Adderley Indus., Inc., ___ F.Supp.2d ___, 2013 WL 4308569, at *2 (S.D.N.Y. Aug. 16, 2013) (same).
C. Rule 15(c)
When an amended pleading changes a party or a party's name and the statute of limitations has run, the party seeking the amendment must also comply with Rule 15(c). Krupski, 130 S.Ct. at 2489. Rule 15(c)(1) provides in pertinent part that an amendment relates back to the date of the original pleading when:
(B) the amendment asserts a claim or defense that arose out of the conduct, transaction or occurrence set out - or attempted to be set out - in the original pleading; or
(C) the amendment changes the party or the naming of the party against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied and if, within the period provided by Rule 4(m) for serving the summons and ...