United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE.
Ashraf Khodeir and Rasha Elgahsh, on behalf of themselves and
their children, have sued defendants Marwan Sayyed
(“Marwan”) and Subhi Sayyed
(“Sayyed”), alleging violations of the Fair
Housing Act, as well various state law causes of action.
After plaintiffs amended their Complaint and Sayyed filed an
Answer to that Amended Complaint, Sayyed filed an Amended
Answer and Counterclaims. Plaintiffs now move to strike
Sayyed's Amended Answer and Counterclaims or, in the
alternative, to dismiss Sayyed's
first address plaintiffs' motion to strike Sayyed's
Amended Answer and Counterclaims. Concluding that this motion
should be denied, we then address the basis for the
Court's subject matter jurisdiction and plaintiffs'
motion to dismiss.
MOTION TO STRIKE ANSWER AND COUNTERCLAIMS
October 11, 2015, plaintiffs filed a complaint against
defendants alleging violations of the Fair Housing Act, 42
U.S.C. § 3601 et seq., and various state law
causes of action. See Complaint, filed Nov. 6, 2015
(Docket # 1) (“Compl.”). Plaintiffs allege that
the defendants, acting as plaintiffs' landlords,
discriminated against plaintiffs on the basis of family
status, harassed them, unlawfully evicted them, and destroyed
their property. See Compl. ¶ 1. After Sayyed
moved to dismiss the original Complaint, see Notice
of Motion, filed Jan. 15, 2016 (Docket # 14), plaintiffs
filed an Amended Complaint, see Amended Complaint
and Jury Demand, filed Feb. 5, 2016 (Docket # 20) (“Am.
Compl.”). Defendants moved to dismiss the Amended
Complaint, as well as to strike certain statements from the
Amended Complaint. See Notice of Motion, filed Feb.
26, 2016 (Docket # 21); Notice of Motion, filed Feb. 26, 2016
(Docket # 26). These motions were denied on September 28,
2016. See Memorandum & Order, filed Sept. 28,
2016 (Docket # 44).
order denying the motion to dismiss required defendants to
file their answers to plaintiffs' Amended Complaint
within thirty days, or October 28, 2016. See
Memorandum & Order, filed Sept. 28, 2016 (Docket # 44),
at 28. Sayyed filed his first Answer in this case on October
28, 2016. See Defendant Subhi Sayyed's Answer to
Amended Complaint, filed Oct. 28, 2016 (Docket # 46)
(“Answer”). The Answer included no counterclaims.
failed settlement conference, the Court issued a Scheduling
Order on May 22, 2017, pursuant to Federal Rule of Civil
Procedure 16 that included a provision stating as follows:
“The parties may move to amend the pleadings or join
any other parties no later than June 2, 2017.”
Scheduling Order, filed May 22, 2017 (Docket # 56)
(“Scheduling Order”), at 1. On June 2, 2017,
Sayyed filed an Amended Answer to the Complaint that included
counterclaims for breaches of contract, fraud, and assault.
See Defendant Subhi Sayyed's Amended Answer to
Amended Complaint and Counterclaims, filed June 2, 2017
(Docket # 57).Prior to filing his Amended Answer, Sayyed
did not file a motion to amend his Answer. Sayyed has since
stated in his opposition brief to the instant motion that he
is moving to amend his Answer, see Def. Mem. at 7-8,
though he has not actually filed a notice of motion as
contemplated by Local Civil Rule 6.1.
contend that Sayyed's Amended Answer and Counterclaims
should be struck because Sayyed failed to timely move for
leave to amend his Answer. See Pls. Mem. at 3-4.
Plaintiffs do not argue that a motion to amend, if filed on
the day Sayyed filed his Amended Answer, would have been
untimely under the Scheduling Order. Instead, they argue that
the Amended Answer is untimely because it was not accompanied
by a motion to amend.
we do not fault plaintiffs for raising this issue, we find it
appropriate to sua sponte extend Sayyed's time
to file the motion to amend to the date of the filing of his
memorandum of law. We do this because Sayyed filed the
Amended Answer by the deadline contained in the Court's
Scheduling Order and the filing itself made plain that Sayyed
was seeking to amend his Answer. Not only do we possess the
power to extend the deadline, it has been held that a court
“has the discretion to grant leave to amend sua
sponte” even when the amending party has
“not moved for leave to amend the [pleading].”
S. Ill. Laborers' & Emp'rs Health &
Welfare Fund v. Pfizer Inc., 2009 WL 3151807, at *1 n.3
(S.D.N.Y. Sept. 30, 2009) (citations omitted). This
discretion includes the ability to retroactively grant a
party leave to file an amended pleading. See Levisohn,
Lerner, Berger & Langsam v. Med. Taping Sys., Inc.,
20 F.Supp.2d 645, 648 (S.D.N.Y. 1998).
as discussed at length in Fresh Del Monte Produce, Inc.
v. Del Monte Foods, Inc., 304 F.R.D. 170, 176 (S.D.N.Y.
2014), “a district court has discretion to consider
Rule 15(a) factors notwithstanding the failure to show good
cause for violating a Rule 16(b) deadline.” Rule 15 of
the Federal Rules of Civil Procedure mandates that a court
“should freely give leave [to amend] when justice so
requires.” Fed.R.Civ.P. 15(a)(2). The policy behind
this rule is that “[l]iberal amendment promotes
judicial economy by making it possible to dispose of all
contentions between parties in one lawsuit.”
Bilt-Rite Steel Buck Corp. v. Duncan's Welding &
Corr. Equip., Inc., 1990 WL 129970, at *1 (E.D.N.Y. Aug.
24, 1990) (citing Jenn-Air Prods. Co. v. Penn Ventilator,
Inc., 283 F.Supp. 591, 594 (E.D. Pa. 1968)). The Court
may deny leave to amend for “good reason, ” which
normally involves an analysis of the factors articulated in
Foman v. Davis, 371 U.S. 178, 182 (1962): undue
delay, bad faith, futility of amendment, or undue prejudice
to the opposing party. See, e.g.,
McCarthy v. Dun & Bradstreet Corp., 482 F.3d
184, 200 (2d Cir. 2007) (citing Foman, 371 U.S. at
law is clear that “[m]ere delay . . . absent a showing
of bad faith or undue prejudice does not provide a basis
for a district court to deny the right to amend.”
State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d
843, 856 (2d Cir. 1981) (citing Howey v. United
States, 481 F.2d 1187, 1190-91 (9th Cir. 1973); and
Middle Atl. Utils. Co. v. S.M.W. Dev. Corp., 392
F.2d 380, 384 (2d Cir. 1968)). On the issue of prejudice, a
court considers, “among other factors, whether an
amendment would require the opponent to expend significant
additional resources to conduct discovery and prepare for
trial or significantly delay the resolution of the
dispute.” Ruotolo v. City of New York, 514
F.3d 184, 192 (2d Cir. 2008) (internal quotation marks
omitted) (quoting Block v. First Blood Assocs., 988
F.2d 344, 350 (2d Cir. 1993)). Obviously, “[u]ndue
prejudice arises when an amendment comes on the eve of trial
and would result in new problems of proof.”
Id. (internal quotation marks and alteration
omitted) (quoting Fluor Corp., 654 F.2d at 856).
However, mere allegations that an amendment “will
require the expenditure of additional time, effort, or money
do not themselves constitute undue prejudice.”
Christians of Cal., Inc. v. Clive Christian N.Y.,
LLP, 2014 WL 3605526, at *5 (S.D.N.Y. July 18, 2014)
(internal quotation marks and alterations omitted) (quoting
A.V. by Versace, Inc. v. Gianni Versace, S.p.A., 87
F.Supp.2d 281, 299 (S.D.N.Y. 2000)).
the Foman factors suggest that leave to amend should
be denied. There is no basis to believe that Sayyed's
failure to move for leave to amend by the deadline was the
result of bad faith. Indeed, the fact that Sayyed filed his
Amended Answer by the deadline this Court set for moving for
leave to amend suggests that he was merely mistaken as to the
Court's requirements for amending his Answer. The timing
of the filing also does not suggest that there has been any
undue delay. Plaintiffs point to no prejudice resulting from
the delay in making the motion to amend. At the time of
Sayyed's filing, the parties had only just made their
initial disclosures, and discovery was not scheduled to close
until months later. See Scheduling Order at 1. As
for futility, that issue is resolved in the next section in
the context of plaintiffs' motion to dismiss. In sum, all
other Foman factors favor permitting Sayyed to amend
the Court nunc pro tunc grants Sayyed leave to file
the Amended Answer and Counterclaims that he filed on June 2,
SUBJECT MATTER JURISDICTION AND PLAINTIFFS' MOTION TO
Facts Alleged in the Amended Answer and
purpose of deciding plaintiffs' motion to dismiss
Sayyed's Counterclaims, the Court assumes that the
factual allegations in Sayyed's Amended Answer and
Counterclaims are true and draws all reasonable inferences in
his favor. See, e.g., Steginsky v.
Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014) (citation
alleges that on February 1, 2014, Khodeir and Elgahsh entered
into a written agreement (the “Agreement”) to
rent Apartment 1R at 2150 Chatterton Avenue in the Bronx.
See Counterclaims ¶ 6. Sayyed signed the
Agreement as “landlord.” See id. The
Agreement obligated Khodeir and Elgahsh to pay $1, 400 per
month to use and occupy the apartment. See id. It
also obligated Khodeir and Elgahsh to pay $25 per week for
any late rent payments and to pay “all legal
costs.” See id. ¶ 8. The Agreement
provided that no more than five persons would reside in the
apartment. See id. ¶ 7. At the time they signed
the Agreement, Khodeir and Elgahsh told Sayyed that they had
two children, and that four persons in total would reside in
the apartment. See id. ¶ 14. They paid Sayyed
$2, 800 in cash as payment for rent for February and March
2014. See id. ¶ 9.
their signing of the Agreement, plaintiffs stayed in the
apartment until November 15, 2014. See id. ¶
20. Sayyed alleges that Khodeir and Elgahsh breached the
Agreement in several respects during that time. First, Sayyed
alleges that Khodeir and Elgahsh failed to pay any rent after
their initial $2, 800 payment. See id. ¶¶
19, 21. He also alleges that plaintiffs allowed seven
individuals to reside in the apartment. See id.
¶¶ 11, 17.
Sayyed alleges that Khodeir assaulted him on October 16,
2014. See id. ¶ 23. Sayyed alleges that he and
Khodeir were in the apartment on that date when Khodeir
shoved him against the wall, strangled him, and threatened to
“cut [his] throat like ISIS.” Id.
Khodeir was subsequently arrested and charged with several
state law criminal offenses. See id. In connection
with the prosecution of these charges, Sayyed was granted
orders of protection on October 19, 2014, and June 15, 2015.
prayer for relief, Sayyed states that he is seeking,
inter alia, “actual and compensatory damages
in an amount to be determined at trial” and