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noting that, while Rule 15's liberal amendment standard should be balanced with Rule 16(b)'s “good cause” standard for modifying deadlines, “the Second Circuit in Parker did not mandate that the ‘good cause’ standard automatically apply in every case, but rather, upheld a trial court's discretion to deny a late application for failing to meet the ‘good cause’ requirement under Rule 16(b)”
Summary of this case from Moroughan v. Cnty. of SuffolkOpinion
No. CV 2003-4522 (CBA) (MDG).
January 27, 2005
REPORT AND RECOMMENDATION
Plaintiff Joanne Calabro brings this action for personal injuries suffered in an automobile accident with defendant Philip Stone. After conclusion of discovery, plaintiff moved for leave to amend the complaint to have her husband, Daniel Calabro, join as party plaintiff and assert a claim for loss of services which allegedly resulted from her surgery in September 2004. She also seeks to increase her ad damnum.
Although the application was made in a letter motion addressed to me, I am issuing this ruling on a report and recommendation basis since some courts have treated a magistrate judge's determination of a motion to amend as a dispositive matter subject to de novo review under Rule 72(b) of the Federal Rules of Civil Procedure. See, e.g., Chimarev v. TD Waterhouse Investor Services, Inc., 280 F.Supp.2d 208 (S.D.N.Y. 2003) (conducting de novo review of a magistrate judge's report and recommendation); Dais v. Lane Bryant, Inc., NO. 97CIV2011 (PKL)(RLE), 2000 WL 145755 (S.D.N.Y. Feb. 8, 2000) (treating a magistrate judge's determination of a motion to amend on futility grounds as a dispositive matter).
But see, Kilcullen v. New York State Dept. of Transp., 55 Fed.Appx. 583, 584, 2003 WL 151251. at *2 (2d Cir. 2003) (referring to motion to amend as a non-dispositive matter that may be referred to a magistrate judge for decision pursuant to 28 U.S.C. § 636(b)(1)(A)); Marsh v. Sheriff of Cayuga County, 36 Fed.Appx. 10, 2002 WL 1159631 (2d Cir. 2002) (holding "that the magistrate judge acted within his authority in denying this motion to amend the complaint") (citing Maurice v. State Farm Mut. Auto. Ins. Co., 235 F.3d 7, 9 n. 2 (1st Cir. 2000));U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099 (9th Cir. 1985); see also Johnson v. Doe, 33 Fed.Appx. 584, 2002 WL 730849 (2d Cir. 2002) (reviewed magistrate judge's order on motion to amend without questioning the magistrate judge's authority); Northern Assurance Co. of America v. Square D. Co., 201 F.3d 201 (2d Cir. 2000) (same); Sidari v. Orleans County, 169 F.Supp.2d 158 (W.D.N.Y. 2000) (reviewing a magistrate judge's decision on motions to supplement and amend under the "clearly erroneous" standard in rule 72(a)).
DISCUSSION
Rule 15(a) of the Federal Rules of Civil Procedure provides for liberal amendment of pleadings and directs that leave to amend a complaint shall be "freely given when justice so requires." See Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 330 (1971); Grace v. Rosenstock, 228 F.3d 40 (2d Cir. 2000),cert. denied, 121 S. Ct. 1362 (2001). Similarly, Rule 21 provides that "[p]arties may be . . . added by order of the court . . . at any stage of the action and on such terms as are just." Determinations regarding joinder or amendment are based on the same equitable considerations ultimately left to the district court's discretion. Savine-Rivas v. Farina, No. CV-90-4335, 1992 U.S. Dist. LEXIS 11524 (E.D.N.Y. 1992) (citing Kalman v. Berlyn Corp., 914 F.2d 1473, 1479 (Fed. Cir. 1990)), clarified, 1991 WL 345039 (Fed. Cir. Mar. 4, 1991); First City Nat'l Bank Trust Co. v. Federal Dep. Ins. Co., 730 F. Supp. 501, 515 (E.D.N.Y. 1990). The decision to grant or deny a request to amend is within the discretion of the district court. Foman v. Davis, 371 U.S. 178, 182 (1962); John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994). Absent evidence of undue delay, bad faith, undue prejudice to the opposing party, or futility, amendment should be granted.Foman, 371 U.S. at 182.Defendant opposes amendment on the ground that the deadline set for seeking leave to file an amended pleading expired on January 23, 2004 and that plaintiff has not established good cause for an extension of the original deadline. It argues that plaintiff was not diligent in making the application because she was aware as early as March 2004 that she would need surgery.
Defendant is correct that the Second Circuit in Parker v. Columbia Pictures, 204 F.3d 326 (2d Cir. 2000), recognized that the liberal pleading requirements in Rule 15(a) must be balanced "with Rule 16(b)'s requirement that scheduling orders `shall not be modified except upon a showing of good cause.'" Id. at 339 (quoting Fed.R.Civ.P. 16(b)). However, the Second Circuit inParker did not mandate that the "good cause" standard automatically apply in every case, but rather, upheld a trial court's discretion to deny a late application for failing to meet the "good cause" requirement under Rule 16(b). See Parker, 204 F.3d at 241.
In any event, this Court finds "good cause" for extending the time for seeking leave to amend. Even though plaintiff was anticipating having the surgery, her husband would have no basis to assert the proposed new claim until after the outcome of the surgery was known. Nor does this Court find that plaintiff inexcusably delayed in filing the instant motion, even if she and her husband should have reasonably known that her husband had a viable claim last March. As the Second Circuit has repeatedly noted, "[m]ere delay . . . absent a showing of bad faith or undue prejudice" is not a basis for denying the right to amend. State Teachers Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); see also Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995).
Finally, the Court finds no prejudice since defendant will be given an opportunity to conduct discovery regarding the claim of Daniel Calabro. See Hampton Bays Connection Inc. v. Duffy, 212 F.R.D. 119, 123 (E.D.N.Y. 2003) (no prejudice even where discovery was closed and witnesses would have to be re-deposed);see also Monahan v. New York City Dept. of Corrections, 214 F.3d 275, 284 (2d Cir. 2000) ("the fact that one party has spent time and money preparing for trial will usually not be deemed prejudice sufficient to warrant a deviation from the rule broadly allowing amendment to pleadings").
CONCLUSION
For the foregoing reasons, I respectfully recommend that plaintiff's motion for leave to file an amended complaint be granted and that discovery be re-opened to give defendant an opportunity to conduct discovery relating to the new claim.
A copy of this report and recommendation is being electronically filed on this date. Any objections must be filed electronically on or before February 10, 2005. A courtesy copy must be send to Judge Amon. Failure to file objections within the specified time waives the right to appeal the district court's order. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).