MEMORANDUM ORDER

GLASSER, United States District Judge

SUMMARY

This action concerns a "drug mule," plaintiff William Kanyi ("Kanyi"), who was caught at JFK International Airport on March 30, 1998, attempting to import 51 bags of heroin into the United States. Kanyi swallowed the 51 heroin bags before boarding a flight to JFK from his home country of Guyana. Kanyi alleges that he was "forced" to undergo surgery to remove the heroin bags from his alimentary tract. On September 22, 1999, Kanyi commenced this action against the United States, Mary Immaculate Hospital, and a number of physicians who treated him at the hospital, asserting that (i) his Fourth Amendment Right to be free of unlawful searches and seizures was violated, (ii) the defendants were negligent in performing the operation, and (iii) the defendants committed assault and battery.

Kanyi now moves the Court for leave to amend his complaint, pursuant to Rule 15 of the Federal Rules of Civil Procedure. For the reasons set forth below, Kanyi's motion is denied.

BACKGROUND

The factual background of this case is set forth in a prior opinion of the Court see Kanyi v. United States, No. 99-CV-5851, 2001 WL 1590513 (E.D.N.Y. Nov. 7, 2001), familiarity with which is assumed.

In March of 2001. after the close of substantial discovery — including the videotaped deposition of Kanyi prior to his deportation to Ghana — each of the defendants moved for summary judgment. In response, Kanyi not only opposed the motions, but also moved for leave to amend his complaint. The Court ordered the parties to address the motion to amend before the motion for summary judgment.

Kanyi's proposed amended complaint differs in two ways from his original complaint. First, the proposed amended complaint adds as a Bivens claim against U.S. Customs Inspectors Joseph Cangro and James Dennington. Second, the proposed amended complaint adds claims for intentional infliction of emotional distress and negligent infliction of emotional distress against all defendants. (See Proposed Amended Compl., annexed to Polycarpe Reply Aff. as Ex. 1.)

The defendants oppose Kanyi's motion on two grounds. First, each of the defendants argues that Kanyi's new claims are deficient, and thus leave to amend should be denied on the ground that the amendment would be futile. Next, the defendants argue that leave to amend the complaint now — more than two years after the complaint was filed, well after discovery closed, and after the defendants moved for summary judgment — should be denied because it will prejudice the defendants.

DISCUSSION

I. Motion to amend principles

The decision whether to grant or deny a motion for leave to amend a complaint is within the sound discretion of the Court, see, e.g., O'Hara v. Weeks Marine, Inc., ___ F.3d ___ 2002 WL 483539, at *11 (2d Cir. Apr. 1, 2002) (citation omitted); Krumme v. Westpoint Stevens, Inc., 143 F.3d 71, 88 (2d Cir. 1998) (citations omitted), though leave to amend should be "freely given when justice so requires," Fed.R.Civ.P. 15(a). "[C]onsiderations of undue delay . . . and prejudice to the opposing party [are] touchstones of a district court's discretionary authority to deny leave to amend." O'Hara, 2002 WL 483539, at *11 (citing Barrows v. Forrest Labs., Inc., 742 F.2d 54, 58 (2d Cir. 1984)). However, delay alone is insufficient; the delay must be the product of bad faith or result in "undue prejudice" to the opposing party. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). Nevertheless, "the longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice." Id. (quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983)). As the Second Circuit recently stated, "the 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' other parties. . . ." Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000) (citations omitted). The burden is on the party seeking to amend to provide a satisfactory explanation for the delay. Cresswell v. Sullivan Cromwell, 922 F.2d 60, 72 (2d Cir. 1990).

Courts evaluate a number of factors in determining whether a proposed amendment will result in "prejudice" to the opposing party or parties. One factor considered is whether the opposing parties would be required to expend significant additional resources to conduct discovery and prepare for trial on the new claim. See Block, 988 F.2d at 350. Additionally, "[o]ne 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." Krumme, 143 F.3d at 88: accord Grace, 228 F.3d at 54. Accordingly, "[p]rejudice is especially likely to exist if the amendment involves new theories of recovery or would require additional discovery." 3 James Win. Moore et al., Moore's Federal Practice § 15.15[2] (3d ed. 2000). Finally, the Second Circuit has noted that a proposed amended complaint is "especially prejudicial . . . [when] discovery ha[s] already been completed and [the non-movant] ha[s] already filed a motion for summary judgment." Krumme, 143 F.3d at 88 (quoting Ansam Assocs., Inc. v. Cola Petroleum. Ltd., 760 F.2d 442, 446 (2d Cir. 1985)).

II. The motion for leave to amend must be denied

Evaluating Kanyi's motion for leave to amend in light of the above principles, it is clear that :he motion must be denied. With regard to the intentional and negligent infliction or emotional distress claims. Kanyi offers no explanation why he waited over two years to first allege such claims. Furthermore, the basis of these claims is exactly the same as that raised in Kanyi's original complaint — the defendants' intentional and/or negligent decisions to compel Kanyi to undergo surgery. (See Proposed Am. Compl. ¶¶ 66, 70.) Kanyi therefore cannot seriously argue that he was unaware of the facts underlying these claims. In fact, Kanyi repeatedly concedes this point. (See, e.g., Pl. Mem. at 41 ("It cannot seriously be argued that the claims contained in the Amended Complaint do not arise from the same conduct . . . that formed the basis of plaintiffs original complaint."); Pl. Reply at 30 ("The facts supporting plaintiffs claims have been part of this litigation from the outset.").) Accordingly, Kanyi has unduly delayed asserting these claims.

Moreover, the defendants would be prejudiced by adding these claims, for numerous reasons. First, including these claims will delay resolution of this action. The defendants would be required to withdraw their previously filed summary judgment motions, and re-brief those motions to include the new claims, thus delaying either (i) the dismissal of this case on summary judgment, or (ii) the trial of Kanyi's claims, if the summary judgment motions were to be denied.

Additionally, discovery likely would have to be reopened to properly address these claims. For example, a claim of negligent infliction of emotional distress requires a plaintiff to demonstrate that the defendant breached a duty which unreasonably endangered the plaintiffs physical safety, causing the plaintiff emotional distress. See Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996) (citations omitted). Thus, it would be necessary to address whether the surgery performed on Kanyi "unreasonably" endangered his physical safety. It is unlikely that any of the discovery obtained in this case up to this point has directly addressed that issue, and, in addition, resolution of the issue could require the submission of expert reports addressing this subject. Similarly, the parties likely would need discovery with respect to the intentional infliction of emotional distress claim. Such a claim requires proof that the defendant intended to cause severe emotional distress to the plaintiff, see Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999), but discovery in this case likely has not focused on the intent of the parties. Further, because Kanyi has been deported, he is no longer available to be deposed, and thus the defendants cannot further explore these new allegations. Finally, Inspector Dennington has not been deposed, nor has he otherwise participated in the discovery process; declining to reopen discovery would therefore effectively deprive Dennington of his opportunity to participate in fact finding. For these reasons, and in light of the lesser showing the defendants must make concerning prejudice at this stage of the proceedings, Kanyi's motion for leave to amend to add these claims must be denied.

The Court reaches the same result with respect to adding a Bivens claim against Inspectors Cangro and Dennington. Kanyi attempts to justify his delay in bringing this claim by suggesting that the delay was "due solely to the fact that the government did not produce the one piece of documentary evidence that supports plaintiffs claim until after the depositions of the U.S. Customs Inspectors." (Pl. Mem. at 43.) The document to which Kanyi refers supposedly demonstrates conclusively that "the inspectors intended to conduct the surgical search on his person from the outset." (Id.) Although the Court is not convinced that this document somehow irrefutably supports his Bivens claim, Kanyi's explanation is, in any event, simply insufficient to explain why he did not assert his Bivens claim in his original complaint. Indeed, Kanyi himself admits that "[f]rom the outset of the litigation, [he] alleged that the Inspectors specifically told him that they would have surgery performed on him for bringing the pellets of heroin into this country." (Id. at 42.) As this is concededly the factual basis for his Bivens claim, there is simply no reason that Kanyi could not have asserted that claim at the time he filed the original complaint. Furthermore, under these facts, any purported delay in the receipt of discovery materials is insufficient to justify seeking amendment to a complaint. See Wechsler v. Hunt Health Sys., Ltd., 186 F. Supp.2d 402, 418 (S.D.N.Y. 2002) (allegation that party discovered new evidence insufficient to justify leave to amend when defendants had "long been aware" of conduct underlying new claims); cf. Ansam, 760 F.2d at 446 ("Ansam's sole justification for the belated request to amend its . . . complaint is that its counsel prior to March, 1983 had failed to conduct substantive discovery. Ansam alleges that it was only after new counsel was substituted in March, 1983, that it discovered the information that formed the basis of its newly proposed claim. However, this is simply an insufficient reason for prejudicing [the defendant] by forcing it to proceed to trial, post-discovery, on a new complaint.").

As with the intentional and negligent infliction of emotional distress claims, adding the Bivens claim at this stage of the proceedings will prejudice the defendants. As noted above, the summary judgment briefs will have to be substantially amended, and discovery — including discovery from Dennington, who heretofore has not participated in the discovery process — would likely have to be reopened to, among other things, determine specifically what role Cangro and Dennington each played in the alleged deprivation of Kanyi's constitutional rights. See, e.g., Hendrickson v. United States Attorney Gen., No. 91 CIV 8135, 1994 WL 23069, at *3 (S.D.N.Y. Jan. 24, 1994) (Bivens claim subject to dismissal without specific allegations of "direct and personal responsibility on the part of the named defendants in regard" to constitutional deprivation) (citation omitted); Lee v. Carlson, 645 F. Supp. 1430, 1436 (S.D.N.Y. 1986) (same), abrogated on other grounds by McGann v. State of N.Y., 74 F.3d 672, 675 (2d Cir. 1996). Accordingly, and again taking into consideration the fact that the defendants need not make a substantial showing of prejudice at this stage of the proceedings, Kanyi's motion for leave to amend to add a Bivens claim also must be denied.

CONCLUSION

For the foregoing reasons, Kanyi's eleventh-hour motion for leave to amend the complaint is denied.