Opinion
No. 04 Civ. 3024 (BSJ) (MHD).
November 16, 2005
MEMORANDUM ORDER
Plaintiff Aurelio Miller has filed a new motion, which seeks various forms of relief, based upon a purported recent encounter between Miller and the man who was allegedly responsible for his termination by the Phillips Bryant Park Hotel. Although plaintiff's motion papers are somewhat inconsistent in describing the relief he seeks, we understand that he asks to amend the complaint to add a claim for battery based on the recent incident and to amend the joint pretrial order to include two new witnesses and two new exhibits, including a videotape of the encounter and a police report.
We start with the application to amend the complaint. Plaintiff currently asserts claims against his former employer and Mr. Frank Alessio, his former supervisor, for discriminatory work conditions and discriminatory termination of his employment. His allegations and the pertinent evidence concern events that took place several years ago at the hotel, and they focus principally on whether the defendants were acting for non-discriminatory reasons in ending plaintiff's employment or were instead motivated, at least in substantial part, by racial animus.
Plaintiff also asserts a common-law claim for intentional infliction of emotional distress.
In seeking to add a new claim, plaintiff fails to proffer a proposed amended pleading, a failure that, by itself, might justify denial of the motion. In any event, even if we disregard that omission, we are compelled to deny this aspect of the motion.
According to plaintiff's proffered declaration, in late September 2005, while working as a bouncer at a downtown nightclub, he encountered Mr. Alessio, who was in the line awaiting admission to the night club. Plaintiff asserts that Alessio reiterated a racially tinged comment that he had previously made when plaintiff was working at the hotel and that he subsequently threatened harm to plaintiff if Miller pursued his lawsuit. Miller contends that this encounter was recorded by a video camera maintained by the night club and that two other club employees witnessed some part of the event. ( See id. at ¶ 4). Based on these allegations, he seeks to assert a state-law claim of battery. (Pltff's Memorandum of Law at 2).
According to plaintiff, Alessio said "Well, you're still a scary looking Black Negro." (Declaration of Aurelio Miller, executed Oct. 14, 2005, at ¶ 3).
Plaintiff alleges that Alessio said "Aurelio! You better drop the case or you're going to get hurt." ( Id. at ¶ 4).
Rule 15 (a) of the Federal Rules of Civil Procedure commands that motions to amend are generally to be liberally granted, a principle reinforced by the Supreme Court and lower federal courts. See, e.g., Foman v. Davis, 371 U.S. 178, 182 (1962); Jin v. Metropolitan Life Ins. Co., 310 F.3d 84, 101 (2d Cir. 2002). Nonetheless, amendment is properly denied in appropriate circumstances, such as when the proposed amendment would be futile, see, e.g., Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001); Jones v. New York State Div. of Military and Naval Affairs, 166 F.3d 42, 50 (2d Cir. 1999); Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995), or when the amendment would unduly prejudice another party. See Foman, 371 U.S. at 182; Dluhos v. Floating and Abandoned Vessel, 162 F.3d 63, 69 (2d Cir. 1998).
Miller's proposed amendment fails for futility. First, the allegations reflected in his declaration do not amount to a claim for battery. To state a viable battery claim, plaintiff must allege an intentional touching that was without the consent of the plaintiff. See, e.g., Wende C. v. United Methodist Church, 4 N.Y.3d 293, 298, 794 N.Y.S.2d 282, 284 (2005). The description offered by plaintiff contains no such allegation. Moreover, even if we were intent upon discerning other possible claims implied by his account, we would be stumped. The alleged racially tinged comment by Alessio may be indicative of some hostility to plaintiff based on his race — and might therefore be pertinent to plaintiff's current claims — but it does not itself give rise to a civil claim. As for Alessio's alleged reference to the current lawsuit, any vague threat to plaintiff may conceivably also be admissible (although the precise theory of admissibility is still obscure), but plaintiff fails to suggest a legal theory under which it may be transformed into a viable independent claim.
Apart from the substantive futility of the motion to amend, it fails as well because we would lack jurisdiction over such a state-law claim. Jurisdiction currently rests on the federal nature of plaintiff's Title VII claims. Although plaintiff may be assumed to rely upon the supplemental-jurisdiction statute to provide a basis for asserting the proposed battery claim, that provision authorizes assertion of jurisdiction over a non-diverse state-law claim only if the state claim is "so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367 (a). "Two claims constitute the `same case or controversy' when they arise from `a common nucleus of operative fact.'" Bray v. City of New York, 356 F. Supp.2d 277, 282 (S.D.N.Y. 2004) (citing Jones v. Ford Motor Credit Corp., 358 F.3d 205, 213-14 (2d Cir. 2004)).
Plaintiff's proposed new claim concerns an isolated incident that occurred long after the close of the events that form the basis for his current claims, and involves conduct by one of the current defendants (a former employee of the defendant hotel) that is quite different from the conduct that forms the basis for the current claims. Plainly, then, the proposed new claim does not "arise from `a common nucleus of operative fact.'" Id. Hence, if plaintiff is intent on pursuing this claim, he must do so in state court.
The balance of plaintiff's motion seeks to amend the joint pretrial order in two respects. One modification would add, as witnesses, two employees of the nightclub who assertedly observed a portion of the interaction between plaintiff and Alessio. In support of that request, plaintiff offers identically worded signed statements by these two individuals — identified as Ramon Laranzo and Darren Dumetz — corroborating plaintiff's account of Alessio's threatening comment. Plaintiff also seeks to add to his list of proposed exhibits a videotape that assertedly recorded some of the night club encounter and a police report allegedly created in the wake of the encounter with Alessio.
The main premise for the proposed amendments of the pretrial order appears to be plaintiff's demand for leave to assert a new claim for battery. Our denial of his application to assert such a claim plainly undercuts one rationale for amending the pretrial order.
Nonetheless, we have noted that the alleged racial comment by Alessio, if proven, could conceivably be relevant to the current claims. The proffered statements by the two non-party nightclub witnesses, however, do not refer to their having overheard any such comment. Rather, their only pertinent personal observation was of the alleged statement by Alessio threatening plaintiff if he did not drop the lawsuit.
As we have noted, it is not altogether clear whether Alessio's alleged statement will prove to be admissible. Nonetheless, in the event that plaintiff obtains a trial-court ruling that the statement is admissible despite the absence of any claim based on the recent encounter between plaintiff and Alessio, he should be permitted to proffer these two witnesses at trial to corroborate his account of Alessio's remark. Since the event occurred after the completion of the original joint pretrial order, we grant plaintiffs' motion to amend that order to permit the listing of these two witnesses. In doing so, as we have already implied, we do not rule or admissibility, a determination that is within the discretion of the trial court.
Consistent with this ruling, defendants will be permitted to conduct brief depositions of each of these affiants before the start of the trial.
With respect to the requested addition of the videotape and police report as proposed exhibits, again we are offered no clear showing as to their relevance, and defendants' counsel, having reviewed the videotape, claims to find nothing relevant in it. We are not in a position to make trial evidentiary rulings, however, and merely hold that plaintiff may amend his portion of the joint pretrial order to include the videotape and police report as proposed exhibits. This will permit him to argue the admissibility question before the trial judge.
Although we could, at least in theory, review the tape and make a recommendation as to admissibility, that would be a most inefficient way of proceeding, both because our ruling would be subject to de novo review (probably requiring a second judicial officer to view the tape) and because relevance may turn upon the actual scope and substance of the trial record, which has not yet been created.
CONCLUSION
For the reasons noted, plaintiff's motion to amend the complaint is denied, and his motion to amend the joint pretrial order is granted.