United States District Court, N.D. New York
MEMORANDUM-DECISION and ORDER
RANDOLPH F. TREECE, Magistrate Judge.
Presently before this Court is pro se Plaintiffs' Omnibus Motion seeking various relief. Dkt. No. 59, Pls.' Mot., dated Jan 9, 2014. The best the Court can discern, Plaintiffs seek (1) to join another party to this litigation, (2) to compel Defendant Equifax to serve responses to Plaintiffs' Request for Admission, (3) to compel Defendant Deily, Mooney & Glastetter LLP (hereinafter DMG) to comply with Plaintiffs' Discovery Demands, (4) from the Court, to provide detailed instructions on how to survive a motion for summary judgment, and (5) permission to file electronically. The only Defendant to respond to this Omnibus Motion is DMG. Dkt. No. 61, Richard Maider Esq., Affirm., dated Jan. 14, 2014. Previously, DMG sought a court conference in order to compel Plaintiffs to respond to DMG's Demands for Production, Interrogatories, and Request for Admissions. See Dkt. No. 55. DMG's Requests will be considered within this Memorandum-Decision and Order. See Dkt. No. 71, Text Order, dated April 10, 2014.
I. Plaintiffs' Motion to Amend their Complaint to Join a Party
In their Memorandum of Law, Plaintiffs claim that CBC Company, d/b/a Innovis, is a credit reporting agency that may have reported "false and harmful information" about them, i.e., that Plaintiffs defaulted on an auto lease. Dkt. No. 59-1, Pls.' Mem. of Law at pp. 2-3. Accompanying the Memorandum of Law is a proposed summons and verified complaint. See Dkt. Nos. 59-2, Ex. C.
FED. R. CIV. P. 15(a) states, in pertinent part, that leave to amend a pleading should be "freely given when justice so requires." Tocker v. Philip Morris Co., Inc., 470 F.3d 481, 491 (2d Cir. 2006); Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). Indeed, leave to amend should be denied only in the face of undue delay, bad faith, undue prejudice to the non-movant, futility of amendment, or where the movant has repeatedly failed to cure deficiencies in previous amendments. Foman v. Davis, 371 U.S. 178, 182 (1962); Kropelnicki v. Siegel, 290 F.3d 118, 130 (2d Cir. 2002) (citing Chill v. Gen. Elec. Co., 101 F.3d 263, 271-72 (2d Cir. 1996)). District courts are vested with broad discretion to grant a party leave to amend the pleadings. SCS Commc'n, Inc. v. Herrick Co., Inc., 360 F.3d 329, 345 (2d Cir. 2004) (citing Foman v. Davis, 371 U.S. at 182, for the proposition that an "outright refusal to grant the leave without any justifying reason... is not an exercise of discretion [but]... merely [an] abuse of that discretion and inconsistent with the spirit of the Federal Rules"); see also Local 802, Assoc. Musicians of Greater New York v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998). "The party opposing a motion for leave to amend has the burden of establishing that granting such leave would be unduly prejudicial." Media Alliance, Inc. v. Mirch, 2010 WL 2557450, at *2 (N.D.N.Y. June 24, 2010) (quoting New York v. Panex Indus., Inc., 1997 WL 128369, at *2 (W.D.N.Y. Mar. 14, 1997)); see also Lamont v. Frank Soup Bowl, 2000 WL 1877043, at *2 (S.D.N.Y. Dec. 27, 2000) (citations omitted). This requires the non-movant to "do more than simply claim to be prejudiced." Breyette v. Amedore, 205 F.R.D. 416, 417 (N.D.N.Y. 2002) (quoting Bryn Mawr Hosp. v. Coatesville Elec. Supply Co., 776 F.Supp. 181, 185 (E.D. Pa. 1991)).
As noted above, Rule 15(a) of the Federal Rules of Civil Procedure generally governs the amendment of complaints, but in the case of proposed amendments where new defendants are to be added, the Court must also look to Rules 18-20 and 21. United States v. Commercial Bank of North America, 31 F.R.D. 133, 135 (S.D.N.Y. 1962) (finding that Rule 21 governs when Rules 18, 19, and/or 20 are involved); Ward v. LeClaire, 2008 WL 182206, at *3 (N.D.N.Y. Sept. 26, 2007) (citing United States v. Chilstead Building Co., No. 96-CV-0641 (N.D.N.Y. Nov. 7, 1997) (McAvoy, C.J.) (citations omitted)). Rule 21 states that a party may be added to an action "at any time [and] on just terms." FED. R. CIV. P. 21. Rule 21 is "intended to permit the bringing in of a person, who through inadvertence, mistake or for some other reason, had not been made a party and whose presence as a party is later found necessary or desirable." Phillips v. Lavalley, 2013 WL 1681422, at *5 (N.D.N.Y. Mar. 1, 2013) (quoting United States v. Commercial Bank of North America, 31 F.R.D. at 135). The addition of parties under Rule 21 is guided by the same liberal standard as a motion to amend under Rule 15. See Ward v. LeClaire, 2008 WL 182206, at *3; Varela v. Cnty. of Rensselaer, 2012 WL 1355212, at *7 (N.D.N.Y. Apr. 18, 2012) (quoting Fair Housing Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y. 1972)).
The appropriate review standard is a motion to dismiss pursuant to Rule 12(b)(6). On a motion to dismiss, the allegations of the complaint must be accepted as true. See Cruz v. Beto, 405 U.S. 319, 322 (1972). Nevertheless, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The trial court's function "is merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980).
A motion to dismiss pursuant to Rule 12(b)(6) may not be granted so long as the plaintiff's complaint includes "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547 (2007); Ashcroft v. Iqbal, 556 U.S. at 678 (citing Twombly ). In that respect, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice." Iqbal at 678 (citation omitted). "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." Id., 556 U.S. at 678. This plausibility standard "is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, in spite of the deference the court is bound to give to the plaintiff's allegations, it is not proper for the court to assume that "the [plaintiff] can prove facts [which he or she] has not alleged or that the defendants have violated the... laws in ways that have not been alleged." Assoc. Gen. Contractors of California, Inc. v. California State Council of Carpenters, 459 U.S. 519, 526 (1983). The process of determining whether a plaintiff has "nudged [his] claims... across the line from conceivable to plausible, " entails a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. at 680.
Plaintiffs' proposed complaint is deficient. In order to meet the Rule 12(b)(6) standard, there must be "enough facts to state a claim to relief that is plausible on its face." Although the captions included in the proposed summons and verified complaint list CBC Company Inc., d/b/a Innovis, CBC Company is not identified as a party within the proposed amended complaint nor are there factual allegations against this specific reporting agency. At best, this proposed amended complaint repeats verbatim the contents of the original Complaint without expounding any facts relative to CBC Company. See Dkt. No. 1, Compl. In fact, the proposed amended complaint identifies only the three original credit bureau Defendants - Trans Union, Experion, and Equifax. See id. at ¶ 36. Adding Innovis to the headers does not cure the factual insufficiency and employing the term Credit Bureaus does not meet the Iqbal standard or state a cause of action against CBC Company. It would be improper for the Court to assume from what has been presented that the Plaintiffs can prove any facts against CBC Company. Even if the Court was to adopt Plaintiffs' Memorandum of Law's conclusory statement that "Innovis knowingly reported false and harmful information, " such would not suffice to advance this purported claim from conceivable to plausible. Accordingly, Plaintiffs' Motion to Join CBC Company is denied without prejudice.
II. Motion to Compel Discovery from Equifax
Plaintiffs argue that Equifax has refused to provide any responses to Plaintiffs' Discovery Demands, which included Notices to Admit. Pls.' Mem. of Law at p. 1. It appears that two sets of Combined Demands may have been served upon Equifax. See Dkt. No. 59-2, Exs. at pp. 25-31, Demands, dated Oct. 9 & 14, 2013. Because Equifax has not responded to the Notices to Admit, Plaintiffs assert that they should be deemed admitted, "paving the way for this Court to enter summary judgment against them, sua sponte. " Pls.' Mem. of Law at p. 1.
During a telephone Conference held on November 27, 2013, Equifax advised the Court that it had entered into a stipulation of settlement with Plaintiffs, which Plaintiffs deny. Equifax further advised the Court that it intended to enforce the stipulated settlement. Based upon the parties' disagreement over the existence of a settlement, the Court directed Equifax to file a motion to the attention of Judge McAvoy. Dkt. No. 54, Order, dated Nov. 27, 2013, at p. 2. Indeed, Equifax filed a Motion to Dismiss and Enforce Settlement, Dkt. No. 56, Equifax Mot. to Dismiss, dated Dec. 27, 2013, and that Motion was fully briefed, Dkt. Nos. 60, Pls.' Opp'n, dated Jan. 9, 2014; 62, Equifax's Reply, dated Jan. 30, 2014. On April 14, 2014, Judge McAvoy issued a Decision and Order denying, inter alia, Equifax's Motion to Dismiss. Dkt. No. 73.
Until Judge McAvoy issued a decision on the Motion to Dismiss, this Court was prepared to find that it would be premature to address this aspect of Plaintiffs' Motion to Compel while there is a dispositive motion pending. The Court's greatest concern was that if Equifax's pending Motion to Dismiss and Enforce Settlement was granted, such decision would invariably and inextricably render any ruling that this Court would make relative to responding to Plaintiffs' Discovery Demands and Notices to Admit moot. Prudence then would have compelled this Court to reserve on this Motion to Compel until such time Judge McAvoy has rendered a decision on the Motion to Dismiss.
However, Judge McAvoy has dismissed Equifax's Motion, Dkt. No. 73, and, at this juncture, Equifax remains a Defendant. Therefore, Equifax must account for its responses or lack of responses to Plaintiffs' Requests for Admission. Accordingly, Equifax is directed to provide to this Court its Responses to Plaintiffs' Request or, if such responses do not exist, serve said responses upon Plaintiffs within five days of the filing date of this Memorandum-Decision and Order.
III. Motion to Compel Discovery from DMG
Plaintiffs assert that DMG refuses to fully comply with their Demands, and, "particularly [has] falsely alleged that they played no role whatsoever... concerning the subject auto lease[.]" They find DMG's replies to be "disingenuous." Pls.' Mem. of Law at p. 2. Attached to Plaintiffs' Memorandum of Law are DMG's Responses to Plaintiffs' Combined Interrogatories, Production and Request for Admissions. Dkt. No. 59-2, unnumbered Ex.
DMG's Opposition notes, inter alia, that (1) Plaintiffs failed to confer with it before filing this Motion; (2) it complied with Plaintiffs' first and second request for discovery; (3) it provided all of the requested documents; and (4) immediately after the November 26 conference, Attorney Deilly spoke with Jeffrey Gaul about the sufficiency of the responses to which Gaul stated that they were "acceptable in their current form." Dkt. No. 61, Deilly Affirm. at ¶¶ 5, 7, 8, & 9. Lastly, DMG asserts that "Plaintiffs' Motion appears to be intended for an improper purpose by forcing DMG ...