United States District Court, E.D. New York
TRUSTEES OF THE UNITED PLANT AND PRODUCTION WORKERS LOCAL 175 BENEFITS FUND, Plaintiff,
MANA CONSTRUCTION GROUP, LTD., The Estate of MARK FELDMAN, PATRYCIA FELDMAN, as executor of the Estate of MARK FELDMAN, NATALE F. CARDINO, and JOHN DOE COMPANY, Defendants.
REPORT AND RECOMMENDATION
Rosario Lindsay United States Magistrate Judge.
the Court, on referral from District Judge Seybert, is
Plaintiff's letter motion for leave to amend the
Complaint to substitute U.S. Specialty Insurance Company and
Fidelity and Deposit Company of Maryland for John Doe Company
in the caption and complaint. No opposition to the motion has
been filed, and the only Defendants that have appeared in the
action, the Estate of Mark Feldman and Patrycia Feldman, as
executor of the Estate of Mark Feldman, have consented to the
amendment. For the reasons stated below, the undersigned
recommends that the motion be granted.
original complaint in this action, filed on July 27, 2018,
alleges violations of Section 301 of the Labor Management
Relations Act of 1947, 29 U.S.C. § 185, Sections
502(a)(3) and 515 of the Employee Retirement Income Security
Act, as amended ("ERISA"), 29 U.S.C. §§
132[a] and 1145 and breach of contract. The Estate of Mark
Feldman and Patrycia Feldman, as executor of the Estate of
Mark Feldman filed an answer to the complaint on November 30,
2018. No other party has appeared in this action. An initial
conference was held on February 6, 2019 and a scheduling
order was entered at that time. By letter dated September 12,
2019, Plaintiff notified the Court that they had reached a
settlement with the Estate of Mark Feldman and Patrycia
Feldman, as executor of the Estate of Mark Feldman, and they
will be dismissed from this action, although no motion
seeking dismissal of the claims has been filed. In that same
letter, plaintiff also advised the Court that Natale Cardino
had been discharged from this matter in bankruptcy. On
October 15, 2019, Plaintiff requested a certificate of
default be entered against Mana Construction Group, LTD. The
certificate was entered by the Clerk of the Court on October
16, 2019. No motion for default judgment has been filed.
now seeks to file an amended complaint substituting U.S.
Specialty Insurance Company and Fidelity and Deposit Company
of Maryland for John Doe Company.
deadline for motions to amend in this matter was May 6, 2019.
ECF No. 10. The instant motion to amend was not filed until
October 18, 2019, five months after the deadline had passed.
Federal Rule of Civil Procedure (“Rule”) 15
provides that “[t]he court should freely give leave [to
amend] when justice so requires.” Fed.R.Civ.P.
15(a)(2). Generally, a motion to amend should be denied
“only for reasons such as undue delay, bad faith,
futility of the amendment or prejudice to the other
party.” Crippen v. Town of Hempstead, No.
07-CV-3478 (JFB)(ARL), 2013 WL 2322874, at *1 (E.D.N.Y. May
22, 2013); see Burch v. Pioneer Credit Recovery,
Inc., 551 F.3d 122, 126 (2d Cir.2008) (per curiam)
(“[M]otions to amend should generally be denied in
instances of futility, undue delay, bad faith or dilatory
motive, repeated failure to cure deficiencies by amendments
previously allowed, or undue prejudice to the nonmoving
party.”). Nevertheless, where, as here, a Court has
issued a scheduling order, pursuant to Rule 16, such an order
“may be modified only for good cause.”
Fed.R.Civ.P. 16(b). Thus, “despite the lenient standard
of Rule 15(a), a district court does not abuse its discretion
in denying leave to amend the pleadings after the deadline
set in the scheduling order where the moving party has failed
to establish good cause.” Parker v. Columbia
Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).
as the movant, has the burden of proving good cause.
Ahmed v. Astoria Bank, No. 14-CV-4595, 2015 WL
4394072, at *2 (E.D.N.Y. July 16, 2015). “[A] finding
of ‘good cause' depends on the diligence of the
moving party.” Parker, 204 F.3d at 340.
“A party has not acted diligently where the proposed
amendment to the pleading is based on information that the
party knew, or should have known, in advance of the deadline
sought to be extended. Ahmed, 2015 WL 4394072, at *2
(citations and internal quotation marks omitted).
“Although diligence is the primary focus of a
‘good cause' analysis, a court may, in its
discretion, also consider other factors, such as whether
‘allowing the amendment of the pleading at this stage
of the litigation will prejudice defendants.'”
Id. (quoting Kassner v. 2nd Ave Delicatessen
Inc., 496 F.3d 229, 244 (2d Cir. 2007)). Once a court
determines that good cause has been satisfied, the court then
turns to whether the liberal standards of Rule 15 have been
to the Court's initial Scheduling Order, Plaintiff's
deadline to amend the pleadings was May 6, 2019. Plaintiff
argues that good cause is established because by letter dated
November 25, 2018 and filed on ECF on December 10, 2018,
Defendant Cardino advised the Court that there were no bonds
issued in connection with this matter. ECF No. 6. However,
Plaintiff claims to have learned that there were, in fact,
bonds issued by U.S. Specialty Insurance Company and/or
Fidelity and Deposit Company of Maryland and has submitted a
FOIL request to the New York City Parks Department to obtain
copies of the bonds. Plaintiff does not explain how or when
it learned of the existence of the bond.
assessing whether to permit amendment of the pleadings after
a deadline set by the court, the ‘primary consideration
is whether the moving party can demonstrate diligence. It is
not, however, the only consideration,' as the district
court, ‘in the exercise of its discretion under Rule
16(b), also may consider other relevant factors including, in
particular, whether allowing the amendment of the pleadings
at this stage of the litigation will prejudice
defendants.'” Pinyuk v. Cbe Grp., No.
17-cv-5753 (RRM)(CLP), 2019 U.S. Dist. LEXIS 71899, 2019 WL
1900985, at *2 (E.D.N.Y. Apr. 29, 2019) (citing
Kassner, 496 F.3d at 243). Because there has been
virtually no discovery in this matter, the primary wrongdoer
is insolvent and Defendant Cardino has been discharged the
Court finds there will be no prejudice to Defendants if the
late amendment is allowed. Thus, the motion will be
considered pursuant to the standards of Rule 15.
discussed above, a motion to amend should be denied only for
reasons such as undue delay, bad faith, futility of the
amendment or prejudice to the other party. No opposition to
the motion has been filed, and presently, the Court is aware
of no reason why the amendment should not be allowed to go
forward. However, in the event the ERISA claims, which are
not, and cannot, be asserted against the newly added
Defendants are dismissed, this Court will be required to
undertake an analysis of its jurisdiction to hear the
remaining claims on the bond.
it is respectfully recommended that Plaintiff's motion to
amend be granted.
of this Report and Recommendation is being electronically
served by the Court on the parties. Any objections to this
Report and Recommendation must be filed with the Clerk of the
Court with a courtesy copy to the undersigned within 14 days.
Failure to file objections within this period waives the
right to appeal the District Court's Order. See 28 U.S.C.
§ 636(b)(1); Fed R. Civ. P 72; Mejia v. Roma
Cleaning, Inc., No. 17-3446, 2018 U.S. App. LEXIS 28235,
2018 WL 4847199, at *1 (2d Cir. Oct. 5, 2018)
("Plaintiff has waived any objections to the
Magistrate's finding" by failing to timely object);
Wagner & Wagner, ...