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Cotto v. The City of New York

United States District Court, S.D. New York

June 20, 2018

ANGELO COTTO, Plaintiff,

          Counsel for plaintiff: Chukwuemeka Nwokoro Nwokoro & Associates, P.C.

          Counsel for defendants: Curt P. Beck Corporation Counsel of the City of New York



         Plaintiff Angelo Cotto commenced this § 1983 action in November 2016 against the City of New York and several of its police officers. He now moves, pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, for leave to file a second amended complaint. For the reasons we describe below, his motion is granted in part and denied in part.

         I. BACKGROUND

         Plaintiff filed his initial complaint in this action on November 7, 2016, naming as defendants the City of New York, Detective David Terrell, Police Officers Jose Nunez, Omar Tejada, and Alberto Delrosario, and Police Officers John Does 1 to 10. Compl. at 1, Dkt. No. 1. Plaintiff alleged that, on January 27, 2014, March 5, 2014, July 3, 2014, October 19, 2015, December 10, 2015, and April 24, 2016, Terrell and others arrested and detained him without probable cause because his mother refused Terrell's romantic advances. See, e.g., Id. ¶¶ 11, 13-25. Plaintiff was also repeatedly charged with criminal offenses after the arresting officers “forwarded false allegations” of criminal conduct on the plaintiff's behalf to the Bronx District Attorney's Office. See, e.g., Id. ¶¶ 15-18. Plaintiff's initial complaint asserted claims under 42 U.S.C. § 1983 for (1) false arrest and imprisonment, and malicious prosecution against Terrell and the John Doe defendants with respect to each of the first five arrests; (2) denial of a fair trial against Terrell with respect to each of the first five arrests; (3) excessive force against Terrell, Nunez, Tejada, and Delrosario with respect to the final arrest, on April 24, 2016; and (4) a Monell v. Department of Social Services, 436 U.S. 658 (1993), claim against the City of New York. See Compl. ¶¶ 100-314.

         In February 2017, defendants moved to stay this action pending resolution of the criminal case arising out of plaintiff's April 2016 arrest, the only arrest for which the resulting criminal charges had not already been dismissed. See Dkt. No. 20. In opposing the requested stay, plaintiff withdrew his excessive force claim, the sole cause of action with respect that arrest. See Dkt. No. 21. Thus, in an April 4, 2017 Order, we denied defendants' motion to stay the action and directed plaintiff to file an amended complaint reflecting his withdrawn excessive force claim by April 25, 2017. See Dkt. No. 25. Plaintiff filed his first amended complaint three days later. See First Amended Complaint (“Am. Compl.”), Dkt. No. 26.

         On December 12, 2017, plaintiff filed a pre-motion letter seeking leave to amend his complaint once more, this time to (1) terminate as defendants Nunez, Tejada, and Delrosario, against whom he no longer asserts causes of action; and (2) identify the John Doe defendants who allegedly arrested him as Pier Luigi Castaldo (on January 27, 2014), Bravo Zayas (on March 5, 2014), Christopher Britton (on July 3, 2014), Matthew Velger (October 19, 2015), and Christina Barrientos (on December 10, 2015). See Dkt. No. 38.

         After this Court granted him leave to do so, plaintiff filed the instant motion on January 29, 2018, yet failed to attach a draft second amended complaint. In addition to the proposed amendments previewed in his pre-motion letter, plaintiff's motion also seeks leave to “add more detailed factual allegations to bolster the plausibility” of his Monell claim. Pl.'s Mem. Law Supp. Mot. Leave Amend Compl. (“Pl.'s Supp.”) 2. Defendants filed an opposition brief on February 12, 2018, see Defs.' Mem. Law Opp'n Pl.'s Mot. Amend Compl. (“Defs.' Opp'n”), to which plaintiff failed to reply.[1]


         A. Standard of Review

         Motions for leave to amend are governed by Rule 15 of the Federal Rules of Civil Procedure, which provides that leave shall be “freely give[n] . . . when justice to requires.” Fed.R.Civ.P. 15(a)(2). The decision to grant leave, however, is ultimately “within the sound discretion of the district court.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). “A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.”[2] Id.

         Defendants do not oppose plaintiff's motion to the extent it seeks to terminate Nunez, Tejada, and Delrosario as defendants. Defendants do, however, oppose the remainder of plaintiff's motion on three separate grounds: (1) failure to attach a copy of the proposed second amended complaint to the instant motion; (2) bad faith, in seeking leave to amend in response to a Rule 11 safe harbor notice; and (3) futility, as certain claims against the newly identified defendants are time-barred. We proceed to consider each argument in turn.

         B. Failure to Attach Proposed Second Amended Complaint

         Defendants posit that plaintiff's motion should be denied at the threshold for failing to attach a draft of his proposed second amended complaint to his motion. Plaintiff, having also ...

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