Opinion
00 Civ. 2728 (HBP)
March 29, 2002
MEMORANDUM OPINION AND ORDER
This is a civil rights action in which the plaintiff, who was proceeding pro se at the time the original complaint and the amended complaint were filed, asserts claims under the Americans with Disabilities Act, 42 U.S.C. § 12112-12117, the Employees Retirement Income Security Act and the anti-discrimination provisions of New York's Executive Law and the New York City Administrative Code. Defendants move f or judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Plaintiff, who is now represented by counsel, opposes defendants' motion and has filed a cross-motion pursuant to Fed.R.Civ.P. 15(a) to file a second amended complaint. Defendants oppose the cross-motion, principally on the ground of futility. The parties' have consented my exercising plenary jurisdiction in this matter pursuant to 28 U.S.C. § 636(c).
Although some of defendants' arguments appear, at least preliminarily, to be substantial, given the fact that both the original and the amended complaint were drafted by plaintiff while she was proceeding pro se, I conclude that the more appropriate course of. action is. to permit the filing of a second amended complaint, drafted by counsel, and then determine whether plaintiff's claims are legally viable. Although it would have been more desirable for plaintiff to file her proposed second amended complaint with her cross-motion so that the issue of futility could be addressed, defendants have cited no controlling authority imposing such a requirement. Since permission to file a second amended complaint should be granted unless "it appears beyond doubt that the plaintiff can plead no set of facts that would entitle him to relief," Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001), I believe it would be imprudent in this case to attempt to assess the viability of a pleading that is, as yet, non-existent. See generally DeCarlo v. Fry, 141 F.3d 56, 62 (2d Cir. 1998) (permitting the filing of an amended complaint because, among other things, plaintiff had recently obtained pro bono counsel).
Citing Ricciuti v. New York City Trans. Auth., 941 F.2d 119, 123 (2d Cir. 1991), defendants claim that plaintiff "must disclose" her proposed amendments with her motion and argue that her failure to do so requires that the motion to amend be denied (Defendants' Reply Memorandum, dated January 4, 2002, at 22). Although I entirely agree that it is better practice for a party to file a copy of the proposed amended pleading with the party's motion to amend, Ricciuti at the page cited by defendants imposes no such requirement, and plaintiff's motion cannot, therefore, be denied on this ground.
Accordingly, defendants' motion for judgment on the pleadings (Docket Item 21) is denied without prejudice to renewal and plaintiff's cross-motion to file a second amended complaint (Docket Item 25) is granted. No later than April 24, 2002, plaintiff is directed-to serve and file her second amended complaint. To avoid any possible misunderstanding, this Order is without prejudice to a renewed motion by defendants to dismiss or for judgment on the pleadings for any of the reasons asserted in the instant motion or for any other legal defect.
SO ORDERED