Opinion
01-CV-0757E(Sr).
May 26, 2004
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Presently before the Court are plaintiffs' motions for leave to file an amended complaint and a motion to compel discovery. For the reasons stated hereinbelow, plaintiffs' motions will be denied.
Familiarity with the facts of this case is presumed. Plaintiffs Paula and Bruce Cramer commenced this Title VII action October 25, 2001 against their former employer, Fedco Automotive Components Company, Inc. ("Fedco"). The Complaint alleges, inter alia, that (1) Paula was subjected to a hostile working environment and retaliated against after she complained of alleged discriminatory treatment and (2) Bruce was retaliated against as a result of Paula's complaints. On December 3, 2002, the undersigned issued a Scheduling Order, in which it was ordered that all discovery be completed by October 17, 2003 and that any motions for summary judgment be served and filed by November 17, 2003. Plaintiffs filed a motion to compel discovery and their first motion for leave to file an amended complaint on October 17, 2003. Plaintiff subsequently filed a second motion for leave to file an amended complaint on December 4, 2003. Defendant then filed a motion for summary judgment on December 19, 2003.
Such motion, which has been fully briefed and argued by the parties, is pending before the Court and will be resolved by a subsequent Order.
Plaintiffs seek to amend their complaint to add Transpro, Inc., Go/Dan, Inc., Stant Corporation, the Gates Corporation and Tomkins, PLC. Plaintiffs seek to add Transpro and Go/Dan because "they may be potentially liable as successor corporations to Defendant [Fedco]." Oct. 17, 2003 Aff. of Josephine A. Greco, Esq. ¶ 8. Plaintiffs seek to add Stant, Gates and Tomkins because they have reason to believe that Fedco was controlled at various times by all three entities. Dec. 4, 2003 Greco Aff. ¶¶ 13-16. Plaintiffs contend that such control was "exerted over Defendant FEDCO by its parent companies, Stant and later Gates, which were both owned by Tomkins, PLC." Id. ¶ 13. Plaintiffs also seek to compel defendant to respond to their First Set of Interrogatories and their First and Second Requests for the Production of Documents.
On December 31, 2002, Fedco's assets were purchased by Go/Dan, which is a subsidiary of Transpro.
Plaintiffs assert that they learned of such control from the deposition testimony of Nancy Neale, who was Fedco's Director of Human Resources.
Defendant did not respond to plaintiffs' first interrogatory requests because the requests purportedly exceeded the 25-question limit of FRCvP 33(a).
In opposition to the motions to amend, defendant argues, inter alia, that (1) plaintiffs cannot adequately explain the untimeliness of their motions and (2) defendant will be prejudiced by plaintiffs' motions to amend. With regard to plaintiffs' motion to compel discovery, defendant contends that it is without merit and untimely and that plaintiffs' are unfairly trying to extend the discovery deadline.
Pursuant to Rule 15(a) of the Federal Rules of Civil Procedure ("FRCvP"), leave to amend a complaint "shall be freely given when justice so requires." Leave to amend is usually given in the absence of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed [or] undue prejudice to the opposing party by virtue of allowance of the amendment * * *." Foman v. Davis, 371 U.S. 178, 182 (1962). Nonetheless, the decision whether to grant such a motion remains within this Court's discretion. John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994). Moreover, while delay alone does not usually warrant denial of leave to amend, this Court has discretion to deny leave to amend "where the motion is made after an inordinate delay, no satisfactory explanation is offered for the delay, and the amendment would prejudice the [non-moving party]." Cresswell v. Sullivan Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).
The Court notes initially that although FRCvP 21 governs a party's attempt to add a new party through an amended pleading — see FRCvP 21 ("Parties may be dropped or added by order of the court on motion by any party * * * at any stage of the action and on such terms as are just.") —, the Court follows the "same standard of liberality afforded to motions to amend pleadings under [FRCvP] 15." Soler v. G U, Inc., 86 F.R.D. 524, 527-528 (S.D.N.Y. 1980).
Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-235 (2d Cir. 1994).
Plaintiffs' motions to amend will be denied. First, plaintiffs have not provided a reasonable justification for the delay in moving to amend. Plaintiffs attempt to explain the lateness of their motions by arguing that (1) initial discovery was delayed until the beginning of 2003 and (2), with regard to Go/Dan and Transpro, they were prevented from seeking to add them as defendants because defendant refused to respond to their discovery demands. However, as pointed out by defendant, plaintiffs were put on notice of Go/Dan's purchase of Fedco's assets as early as January of 2003. And by their own admission, plaintiffs need only "demonstrate that there is the potential that the successor corporations could be liable." Pls.' Oct. 17, 2003 Mem. of Law, at 7. Thus, plaintiff could have sought to add Go/Dan and Transpro via an amended complaint as soon as it learned in January of 2003 that Go/Dan and Transpro could be potentially liable as successor corporations. Moreover, plaintiffs' reliance on defendant's purported noncompliance with their discovery demands is unreasonable considering that plaintiffs did not take any substantial steps to resolve defendant's refusal to respond to its First Set of Interrogatories until September of 2003. With regard to Stant, Gates and Tomkins, plaintiffs assert that they only learned of the nature of their relationships with Fedco from the deposition of Nancy Neale, which occurred after the discovery deadline. However, plaintiffs have not offered credible reasons for waiting so long to conduct Neale's deposition. There is nothing to indicate that plaintiff was prevented from taking Neale's deposition within the discovery period.
Plaintiffs were put on such notice through the receipt of a copy of a January 14, 2003 letter to the Court from defendant's counsel, Robert A. Doren, Esq. See November 26, 2003 Rooney Aff. ¶ 4, Ex. A.
Second, and more importantly, defendant would be unduly prejudiced if the Court were to grant the motions to amend. "In determining whether Defendants would be prejudiced by the amendment, the Court considers whether the addition of the * * * proposed defendants `would: (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; [or] (ii) significantly delay the resolution of the dispute.'" SEB S.A. v. Montgomery Ward Co., 2002 WL 31175244, at *4 (S.D.N.Y. 2002) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). Moreover, an amendment is considered to be highly prejudicial if discovery has already been completed. See, e.g., Krumme v. Westpoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998). "One of the most important considerations in determining whether amendment would be prejudicial is the degree to which it would delay the final disposition of the action." Ibid. (quotation marks and citation omitted). Granting plaintiffs' motions to amend would not only require defendant to expend additional resources to conduct additional and substantial discovery but it would also delay the final disposition of this action. If plaintiffs were allowed to add the proposed defendants, additional discovery will be required regarding each defendant's relationship with Fedco. In addition, final disposition of this case will be significantly delayed because of the prospect of additional motions that would undoubtedly be filed by the new defendants. Such discovery and motions, and the resulting delays, could have been avoided had such issues been explored during the discovery period. Lastly, allowing the plaintiffs to amend their Complaint at this late stage of the case would arguably moot defendant's pending motion for summary judgment, thereby possibly causing further delays in the disposition of this case.
In sum, although FRCvP 15(a) and 21 allow for a liberal amendment policy, the Court will deny plaintiffs' motions to amend due to the combination of their unsatisfactory explanations for the excessive delays in filing such motions and the resulting prejudice to defendant if such amendments were allowed. See Zahra v. Town of Southold, 48 F.3d 674, 685-686 (2d Cir. 1995) (affirming denial of leave to amend because undue delay existed where motion to amend was filed 2.5 years after case commenced and three months before trial); NAS Elecs., Inc. v. Transtech Elecs. PTE Ltd., 262 F. Supp. 2d 134, 150-151 (S.D.N.Y. 2003) (denying leave to amend pleading on the grounds that, inter alia, (1) the moving party waited nearly two years to seek leave to file an amended Complaint, (2) the amendment would be prejudicial to defendant because it was sought after the allowable discovery period and (3) because discovery would have to be reopened for the proposed new defendants); Cuccolo v. Lipsky, Goodkin Co., 1994 WL 381596, at *1-2 (S.D.N.Y. 1994) (denying leave to amend pleading on the grounds that, inter alia, (1) such amendment would require additional discovery after the time for discovery had ended, (2) the motion was untimely inasmuch as it was made one and one-half years after plaintiffs possessed information that would have permitted them to seek to amend and (3) plaintiffs lacked a satisfactory explanation for the delay); H.L. Hayden Co. of N.Y., Inc. v. Siemens Med. Sys., Inc., 112 F.R.D. 417, 419-421 (S.D.N.Y. 1986) (denying leave to amend because additional discovery would be necessitated and because allowing the amended pleading to be filed would further delay the disposition of the case and rejecting movant's argument that it had not sought to add the newly proposed defendant earlier because most of the relevant discovery warranting such an addition had not taken place until late in the discovery period).
Turning to plaintiffs' motion to compel discovery, plaintiffs' seek to compel defendant to respond to (1) their First Set of Interrogatories, (2) Request Nos. 63-65 of their First Request for Production of Documents and (3) their Second Request for Production of Documents ("Second Request"). Plaintiffs' motion with regard to Requests Nos. 63-65 is mooted inasmuch as they seek information pertaining to the liability of the parent corporations discussed above. The request for compliance with the Second Request will be denied because the Second Request was served by plaintiff the same day as the motion to compel compliance therewith was filed with the Court — to wit, October 17, 2003, which was the last day of the discovery period. Plaintiff therefore cannot certify that they conferred with defendant in a good faith effort to secure compliance with their demand as required by FRCvP 37(a)(2)(A). In addition, plaintiffs' Second Request would serve as a vehicle to circumvent the court-imposed discovery deadline without any reasonable justification to do so. With respect to plaintiffs' First Set of Interrogatories, the parties dispute whether such exceeds FRCvP 33(a), which pertinently provides that written interrogatories are not to exceed twenty-five in number, including discrete subparts, without leave of the Court. Defendant contends that the First Set of Interrogatories exceeds the limit because, although it includes 25 separate interrogatory requests, many of the requests included several subparts. Although FRCvP 33(a) provides that "discrete subparts" should be counted as separate interrogatories, the Rule does not define "discrete subparts." Guidance, however, is provided in a Advisory Committee Note, which states:
"Each party is allowed to serve 25 interrogatories upon any other party, but must secure leave of court (or a stipulation from the opposing party) to serve a larger number. Parties cannot evade this presumptive limitation through the device of joining as `subparts' questions that seek information about discrete separate subjects. However, a question asking about communications of a particular type should be treated as a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately for each such communication." Advisory Committee Note to 1993 Amendment to FRCvP 33.
FRCvP 37(a)(2)(A) states that "[i]f a party fails to make a disclosure required by Rule 26(a), any other party may move to compel disclosure and for appropriate sanctions. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the party not making the disclosure in an effort to secure the disclosure without court action."
"Courts have held that interrogatory subparts are to be counted as discrete subparts if they are not logically or factually subsumed within and necessarily related to the primary question." Krawczyk v. City of Dallas, 2004 WL 614842, at *2 (N.D. Tex. 2004) (quotation marks and citations omitted). Thus, "[i]f the first question can be answered fully and completely without answering the second question, then the second question is totally independent of the first and not factually subsumed within and necessarily related to the primary question." Ibid. On the other hand, multiple interrelated questions may constitute "a single interrogatory even though it requests that the time, place, persons present, and contents be stated separately." Yeager v. Corinthian Colls., Inc., 2002 WL 1976773, at *3 (E.D. La. 2002). With such principles in mind, it is clear that plaintiffs' First Set of Interrogatories includes more than twenty-five interrogatory requests. Eighteen of the twenty-five individual interrogatory requests include several subparts and most of the subparts cannot be fairly characterized as so closely interrelated to the first part of the numbered request as to constitute a single interrogatory. See Nov. 26, 2003 Rooney Aff., Ex. A. Therefore, plaintiffs' motion to compel a response thereto will be denied because it exceeds the 25-interrogatory limit of FRCvP 33(a).
It should also be noted that defendant has maintained its position that plaintiffs' First Set of Interrogatories did not comply with FRCvP 33(a) since it first objected to such in February 2003. Defendant complied with FRCvP 33(b) by objecting to the entire interrogatory request in writing within 30 days. See Nov. 26, 2003 Rooney Aff., Ex. B. The onus was therefore on plaintiffs to take steps to compel compliance therewith. Plaintiffs had several months thereafter in which to move to compel discovery. Plaintiffs have not provided sufficient reasons why they waited until the last day of the discovery period to make such a motion. Such delay militates in favor of denying their motion to compel.
Accordingly, it is hereby ORDERED that plaintiffs' first and second motions for leave to amend their Complaint are denied and that plaintiffs' motion to compel defendant to respond to their discovery demands is denied.