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Nicholas v. City of New York

United States District Court, S.D. New York

June 12, 2017

JASON B. NICHOLAS, Plaintiff,
v.
THE CITY OF NEW YORK, Defendants.

          OPINION AND ORDER

          J. PAUL OETKEN 'United States District Judge

         Plaintiff Jason B. Nicholas, an independent photojournalist, filed this action pro se against Defendants William Bratton, Stephen Davis, Michael DeBonis, and the City of New York on December 8, 2015. (Dkt. No. 2.) Following an unsuccessful motion for emergency relief, the Court granted Nicholas leave to file an amended complaint. (Dkt. No. 48 (“FAC”); Dkt. No. 51.) Defendants then moved to dismiss the operative complaint, and this Court denied that motion. (Dkt. No. 85.)

         Nicholas now moves for leave to amend a second time. (Dkt. No. 88.) Defendants oppose the motion, and, following a flurry of letters, the Court heard oral argument on the question of whether the proposed second amended complaint runs afoul of a settlement and signed release in another action. (See Dkt. No. 93; Dkt. No. 94; Dkt. No. 95.) For the reasons that follow, Nicholas's motion for leave to amend is granted in part and denied in part.

         I. Background

         Familiarity with this case's history and its factual background is presumed and is discussed in more detail in this Court's Opinion and Order of February 27, 2017. See Nicholas v. City of N.Y., No. 15 Civ. 9592, 2017 WL 766905 (S.D.N.Y. Feb. 27, 2017). In sum, Nicholas alleges that Defendants abridged his newsgathering and revoked his press credential on October 30, 2015 (and then failed to return the credential or provide Nicholas a fair hearing in the weeks and months that followed). In his first amended complaint, Nicholas also chronicled several other run-ins with Defendants to provide a factual basis for his Monell claims.

         Procedurally, as relevant here, on February 27, 2017, this Court denied Defendants' motion to dismiss the operative first amended complaint. See Nicholas, 2017 WL 766905. In its Opinion and Order denying Defendants' motion, the Court included the following footnote:

Nicholas also discusses [Deputy Commissioner, Public Information (“DCPI”) Lieutenant Eugene] Whyte as a putative defendant, but has failed to name Whyte in the caption or to serve him. Any claims against Whyte, to the extent Nicholas purports to assert them, are therefore dismissed without prejudice based on failure to serve. Nicholas may seek leave to amend his pleadings to include Whyte if he wishes.

Id. at *4 n.1 (internal citations omitted). Thereafter, Nicholas moved for leave to file a second amended complaint. (Dkt. No. 88.)

         The proposed second amended complaint (Dkt. No. 88-1 (“SAC”)) makes several changes to the pleadings: It adds Whyte to the caption as a defendant and lists him as a party (id. ¶ 14); it describes Whyte as “approv[ing], acquesc[ing] to, condon[ing] and enforce[ing]” the alleged policy of abridging newsgathering, a claim previously brought against other Defendants (id. ¶ 8; FAC ¶ 6); it includes some additional description of Whyte's conduct across the incidents of abridged newsgathering (see SAC ¶¶ 6-7); and it purports to bring new causes of action against Whyte arising from run-ins on September 17, 2014, and January 4, 2015, separate and apart from the October 30, 2015, incident at the heart of this case (id. ¶¶ 162-63).

         II. Legal Standard

         “The Court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). “This permissive standard is consistent with [the Second Circuit's] ‘strong preference for resolving disputes on the merits.'” Williams v. Citigroup Inc., 659 F.3d 208, 212-13 (2d Cir. 2011) (quoting New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005)). “Motions to amend should therefore be denied only for good reasons, including undue delay, bad faith or dilatory motive, undue prejudice to the non-moving party, or futility.” Gordon v. City of N.Y., No. 14 Civ. 6115, 2016 WL 4618969, at *3 (S.D.N.Y. Sept. 2, 2016) (citing Burch v. Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)). Pro se submissions, in particular, must be construed liberally and read “to raise the strongest arguments they suggest.” Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003).

         III. Discussion

         Defendants oppose Nicholas's motion for leave to amend on futility grounds-they argue chiefly that the res judicata effect of the settlement terms in another case brought by Nicholas in this District against some of the same Defendants (as well as a general release he signed in connection with that case) precludes the claims he seeks to add to this action. (Dkt. No. 89.) See Nicholas v. City of N.Y., No. 15 Civ. 9896. Nicholas, for his part, argues that the settlement he agreed to was not so broad as to prevent the amendments he proposes in his second amended complaint here and that the general release he signed in connection with that case was not valid. (Dkt. No. 93; Dkt. No. 95.)

         In settling the earlier suit against the City of New York, the Stipulation of Settlement, dated October 17, 2016, provides that the City of ...


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