United States District Court, E.D. New York
MARILYN D. GO, Magistrate Judge.
In this action brought under 42 U.S.C. § 1983, plaintiff Jakwan Rivers has moved for leave to file a Second Amended Complaint to supplement the First Amended Complaint with allegations regarding events that occurred following the filing of this action and to assert an additional claim of retaliation against defendants New York City Housing Authority ("NYCHA"), John Rhea, Local 237 International Brotherhood of Teamsters ("Local 237) and Gregory Floyd.
The claims in this action arise from the employment, union activities and political activities of plaintiffs Jakwan Rivers and Debra Crenshaw. Mr. Rivers began working for defendant New York City Housing Authority ("NYCHA") in 1998 and at that time became a member of defendant Local 237 International Brotherhood of Teamsters ("Local 237"). Am. Compl. ¶¶ 12-13. Rivers was later elected to the position of Shop Steward within the union and subsequently employed by Local 237 as a Business Agent. Id . ¶¶ 15, 17. In 2008, in response to what he perceived as deficiencies with union governance under the leadership of defendant Gregory Floyd, Rivers founded a business association called "Members for Change, " which aspired to oust Mr. Floyd from presidency of the union, elect Mr. Rivers and other preferred candidates to leadership positions of the union and support William Thompson in his mayoral bid. Id . ¶¶ 28-30. Plaintiff Debra Crenshaw was a fellow NYCHA employee who joined Members for Change and engaged in political activities in support of the group's agenda. Id . ¶¶ 82, 86.
Both plaintiffs allege that the defendants conspired to retaliate against them for their political activities, by, inter alia, subjecting them to excessive disciplinary actions and false disciplinary reports, id. ¶¶ 40, 53, 73, 75, 90-96, 98-103; terminating Mr. Rivers from his union position, id. ¶¶ 43; assigning plaintiffs to burdensome job assignments for which they were not trained and received inadequate support arising from his transfer to a different work location, id. ¶¶ 46-51, 54-66, 69, 74, 77, 89; endangering Mr. Rivers by disclosing his full name to residents of a housing development where he worked in 2010, id. ¶ 67; denying plaintiffs' claims for workers' compensation in 2010, id. ¶¶ 81, 105; revoking Ms. Crenshaw's supervisory authority, id. ¶ 89; denying Ms. Crenshaw's request for leave to tend to her and her husband's medical conditions, id. ¶¶ 104; and terminating Ms. Crenshaw's employment. Id . ¶ 106. Plaintiffs also contend that defendant Melethil Alexander sexually assaulted Ms. Crenshaw.
Plaintiff Rivers commenced this action on October 18, 2011. He then filed an amended complaint on February 28, 2012, on consent, to add Debra Crenshaw as plaintiff, to assert additional claims and to join Carl Walton, Melethil Alexander and Remilda Ferguson as defendants.
This Court originally set a fact discovery deadline of September 28, 2012 and extended the deadline to January 18, 2013 at a conference on November 28, 2012. By letter motion filed on December 28, 2012, Jonathan Friedman, who was then counsel of record for plaintiffs, moved, on consent, for a further extension of discovery to February 12, 2013 in order to conduct three additional depositions. Although granting this motion in light of defendants' consent, this Court cautioned "[n]o further extensions absent a showing of utmost diligence." Nonetheless, plaintiffs sought a further extension on February 7, 2013 due to departure of Mr. Friedman from Borrelli & Associates. As new counsel for plaintiffs admitted, notices of depositions had not yet been sent for the three depositions previously sought. This Court reluctantly granted the request and extended discovery to March 1, 2013 to conduct the three depositions. After a further extension of fact discovery to March 20, 2013 to conduct one of the three depositions due to scheduling problems encountered, the parties completed discovery by the deadline. At a pre-motion conference held on April 18, 2013, Judge Matsumoto set a schedule for briefing summary judgment motions contemplated by defendants.
On April 30, 2013, plaintiffs filed the instant second motion to amend. This Court required them to supplement with, inter alia, a proposed pleading. Plaintiffs then filed a proposed supplemental complaint and additional submissions.
Plaintiff Rivers now seeks pursuant to Fed.R.Civ.P. 15(d) to add allegations of retaliation that occurred subsequent to the filing of this complaint and to re-open discovery. Sec. Mot. to Amend (ct. doc. 48), at 2-3. Plaintiff Rivers alleges that he was arrested for driving while intoxicated in November 2012, which he promptly reported to NYCHA's Office of the Inspector General, as required by NYCHA Guidelines. Prop. Sec. Am. Compl. (ct. doc. 54) ¶¶ 108-09. He asserts that in April 2013, a union trustee named Curtis Scott warned Randy Thorne, a member of Members for Change, that Mr. Rivers should not run in the upcoming union election because Mr. Scott had "stuff" on Mr. Rivers, including information regarding Mr. Rivers's arrest in November 2012. Id . ¶¶ 110-14. Shortly after this conversation, plaintiff Rivers learned that posters had been hung in several NYCHA housing development buildings and found some which bore the caption "Is this whom you want to be the next President of Local 237" and contained photocopied sections of his arrest report with his personal information. Id.¶¶ 115-18. Plaintiff contends that NYCHA must have disclosed the fact of his arrest to Local 237. Id . ¶¶ 143-45.
In opposing plaintiff's motion, NYCHA, Mr. Rhea, Ms. Finkelman and Ms. Jasper (altogether "NYCHA defendants") argue that the supplemental pleadings fail to allege that the NYCHA defendants took any tortious actions related to the April 2013 events and that re-opening discovery now would prejudice defendants by delaying decision of summary judgment motions, briefing of which is currently stayed. See NYCHA Resp. to Mot. to Amend (ct. doc. 50), at 2. Local 237, Mr. Floyd, Mr. Alexander, Carl Walton and Remilda Ferguson (altogether "Union defendants") argue that the amendment is futile because the Union defendants are private actors and cannot be held liable under § 1983. See Union Resp. to Mot. to Amend (ct. doc. 49), at 2. The Union defendants also contend that plaintiff fails to establish that he was the victim of any adverse employment action as a result of the April 2013 events. Id.
On January 24, 2014, plaintiff's counsel wrote in a two page letter that "Defendants Local 237 and the NYCHA have continued with their coordinated targeting of Plaintiff Rivers" and point to his transfer from his current work assignment after return from worker's compensation leave, even though he had been elected shop steward. See ct. doc. 61. He also charges that NYCHA failed to provide Rivers accommodations requested under the Americans with Disabilities Act and deducted amounts from his paychecks, while the Union failed to respond to Rivers's requests for assistance. Id . NYCHA stated in response that Rivers was assigned to a different location because he had been on an extended leave of absence of eleven months from August 2, 2012 through June 25, 2013, that plaintiff did not receive a portion of his pay because his leave had been exhausted and that plaintiff has filed a complaint with the New York Commission on Human Rights. See ct. doc. 63. The Union stated that a different shop steward was elected when Rivers was on leave and the Union had no involvement in accommodations under the ADA and paycheck deductions. See ct. doc. 62.
Since more than twenty-one days elapsed between plaintiffs' service of the complaint on defendants and the filing of this motion and plaintiffs have already filed one amended complaint, Mr. Rivers must obtain leave of the Court before he may amend the complaint. Fed.R.Civ.P. 15(a). In this instance, plaintiff is proceeding under Rule 15(d), which permits a party to "serve a supplemental pleading setting out any transaction, occurrence, or event that happened after the date of the pleading." Fed.R.Civ.P. 15(d). The Court "may permit" a party to file a supplemental pleading "on just terms." Id.
In order to be successful on a motion to supplement, the movant must allege "supplemental facts [that] connect the supplemental pleading to the original pleading." Weeks v. New York State (Div. of Parole), 273 F.3d 76, 88 (2d Cir. 2001) (citing Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995)), abrogated on other grounds by Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002). The Second Circuit has stated that a motion to supplement should be granted "where such supplementation will promote the economic and speedy disposition of the controversy between the parties, will not cause undue delay or trial inconvenience, and will not prejudice the rights of any other party." Borndholdt v. Brady, 869 F.2d 57, 68 (2d Cir. 1989). Thus, aside from the additional requirement of a connection between the supplemental and original pleadings, the standards for examining a Rule 15(d) motion to supplement are essentially the same as for a Rule 15(a) motion to amend. See, e.g., Cancel v. Goord, 2002 WL ...