United States District Court, S.D. New York
L. CARTER, JR. UNITED STATES DISTRICT JUDGE
Judith Schaper brings this action against Defendants the
Bronx Lebanon Hospital Center and Carol Wilson (collectively,
the "Defendants"), alleging claims of retaliation
and hostile work environment in violation of Title VII of the
Civil Rights Act of 1964 ("Title VII"), the New
York State Human Rights Law ("NYSHRL") and the New
York City Human Rights Law ("NYCHRL"). See
Compl, ECF No. 1. On September 30, 2019, the Court denied
Defendants' motion for summary judgment. See ECF
No. 82. In that order, the Court stated
Plaintiffs opposition to the motion for summary judgement
adds discrimination claims of disparate treatment under Title
VII, NYSHRL and NYCHRL. Although Plaintiffs Second Cause of
Action is characterized as a discrimination claim under Title
VII, it cannot be construed as a claim of disparate treatment
because it is limited to a claim of hostile work environment.
See Compl. At 9. ("Defendants have
discriminated against the Plaintiff due to her race by
subjecting Plaintiff to a hostile work environment.").
The Complaint otherwise does not include claims of disparate
treatment and accordingly, the court will not address these
discrimination claims. See Thomas v. Egan, 1
Fed.Appx. 52, 54 (2d Cir. 2001) (citations omitted) ("A
claim must be set forth in the pleadings, in order to give
defendants fair notice of the nature of the plaintiffs claim.
Thus, it is inappropriate to raise new claims for the first
time in submissions in opposition to a summary judgment
motion."). However, Plaintiff may request leave to amend
Id. at n. 1.
on October 8, 2019, Plaintiff filed a pre-motion conference
letter requesting leave to file a motion to amend her
complaint. See ECF No. 83. Defendants opposed the
pre-motion conference letter request on October 14, 2019.
See ECF No. 84. For the purpose of efficiency, the
Court deemed Plaintiffs pre-motion conference letter as a
motion to amend her complaint and ordered Defendants to
submit a letter brief in opposition to Plaintiffs motion by
November 12, 2019. See ECF No. 85. Because the
Defendants failed to respond to said order by the Court
ordered deadline, on December 12, 2019, the Court issued an
order to show cause as to why Plaintiffs letter should not be
treated as unopposed. See ECF 86. That same day, the
Defendants filed an opposition brief setting forth their
position. See ECF No. 87.
to Federal Rules of Civil Procedure 15(a)(1) a party may
amend its complaint once without leave of court up to 21 days
after the service of either a responsive pleading or various
Fed.R.Civ.P. 12 motions. See Fed. R. Civ. P.
15(a)(1). After that time has expired, any amendment requires
the consent of the opposing parties or leave of court.
See Fed. R. Civ. P. 15(a)(2). Rule 15(a)(2) states
"the court should freely give leave when justice so
requires." Id. The Supreme Court has instructed
that "this mandate is to be heeded." Foman v.
Davis, 371 U.S. 178, 182 (1962). However, it is
ultimately "within the sound discretion of the court
whether to grant leave to amend." John Hancock Mut.
Fife Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458,
462 (2d Cir. 1994) (citing Foman, 371 U.S. at 178).
Where "the moving party has unduly delayed or acted in
bad faith, the opposing party will be unfairly prejudiced if
leave is granted, or the proposed amendment is futile"
courts in this circuit have denied motions to amend a
complaint. Agerbrink v. Model Serv. LLC, 155
F.Supp.3d 448, 452 (S.D.N.Y. 2016).
Defendants argue that Plaintiffs motion should be denied
because she has exercised undue delay and a dilatory motive,
and the defendants would be unduly prejudiced if the Court
were to grant the request. The Court disagrees. Although it
is true that discovery closed and the court rendered a
decision on Defendants' motion for summary judgment,
'"mere delay' is not, of itself, sufficient to
justify denial of a Rule 15(a) motion." Parker v.
Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir.
2000); see also State Teachers Retirement Board v. Fluor
Corp., 654 F.2d 843, 856 (2d Cir. 1981) ("Mere
delay, however, absent a showing of bad faith or undue
prejudice, does not provide a basis for a district court to
deny the right to amend"). Here, Plaintiff believed her
complaint included a claim of disparate treatment. This
belief appears to be genuine considering Plaintiff addressed
disparate treatment in her opposition brief to
Defendants' summary judgment motion. Because Defendants
have failed to make a showing of bad faith, and as described
below they have not demonstrated undue prejudice, the Court
finds that this delay is not sufficient to deny Plaintiffs
determining what constitutes 'prejudice, '" the
Second Circuit has considered "whether the assertion of
the new claim or defense would '(i) require the opponent
to expend significant additional resources to conduct
discovery and prepare for trial; (ii) significantly delay the
resolution of the dispute; or (iii) prevent the plaintiff
from bringing a timely action in another
jurisdiction.'" Monahan v. New York City
Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000)
(citing Block, 988 F.2d 988 F.2d 344, 350 (2d Cir.
1993)). Here, Plaintiff indicated that there is no need for
further discovery because she simply intends to add
previously obtained information to her complaint.
Accordingly, the Defendants would not be required to expend
significant additional resources. Furthermore, there will not
be significant delay in the resolution of the dispute since a
trial has not yet been scheduled.
reasons set forth above, Plaintiff is GRANTED leave to amend
her complaint for the limited purpose of adding a disparate
treatment claim. Plaintiff must file an amended complaint on
or before January 10, 2020.