Opinion
No. 99 Civ. 12482 (JSM) (HBP).
December 20, 2000.
OPINION AND ORDER
I. Introduction
Defendant Frank Soup Bowl, Inc., moves for leave to amend its answer pursuant to Fed.R.Civ.P. 15(a). For the reasons set forth below, the motion to amend is granted.
II. Facts
Defendant is a restaurant located in Bronx, New York. Plaintiff was employed by defendant as a chef from approximately 1991 to 1998. In substance, plaintiff alleges that defendant unlawfully retaliated against him after he filed a complaint with the Department of Labor alleging that defendant failed to pay appropriate overtime wages. Plaintiff claims that in response to his complaint, defendant began to harass him verbally, unlawfully withhold money from his weekly paycheck and unjustifiably issue plaintiff written warnings and wrongful write-ups. Plaintiff's complaint asserts claims under the Fair Labor Standards Act of 1938, as amended, 29 U.S.C. § 207, 215(a)(3), 216(b), and 260, and the New York Labor Law §§ 190-99, 215, 652 and 663, including the wage order entitled "Miscellaneous Industries and Occupations," pursuant to 12 N.Y.C.R.R. § 142-3.2.
As initially filed, defendant's answer asserted the following affirmative defenses: (1) plaintiff failed to state a cause of action upon which relief can be granted; (2) plaintiff voluntarily quit his job following a suspension due to poor job performance and (3) plaintiff failed to exhaust his administrative remedies. Defendant now seeks to amend its answer to include the affirmative defenses of lack of subject matter jurisdiction, statute of limitations, and plaintiff's failure to give proper notice of the lawsuit to the attorney general as required by section 215 of the New York Labor Law. Defendant also seeks to amend certain responses to plaintiff's complaint.
III. Analysis
The standards applicable to a motion to amend a pleading are well settled and require only brief review. Leave to amend a pleading should be freely granted when justice so requires. Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182 (1962); Dluhos v. The Floating Abandoned Vessel, Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998); Gumer v. Shearson, Hammill Co., 516 F.2d 283, 287 (2d Cir. 1974). "Nonetheless, the Court may deny leave if the amendment (1) has been delayed unduly, (2) is sought for dilatory purposes or is made in bad faith, (3) the opposing party would be prejudiced, or (4) would be futile." Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303 (S.D.N.Y. 1996), aff'd, 116 F.3d 465 (2d Cir. 1997). Accord American Home Assurance Co. v. Jacky Maeder (Hong Kong) Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. 1997). Delay alone, in the absence of bad faith or prejudice, is usually not sufficient reason for denying a motion to amend. Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995); State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981); Middle Atlantic Utils. Co. v. S.M.W. Dev. Corp., 392 F.2d 380, 384 (2d Cir. 1968). The Court of Appeals has repeatedly noted that the trial court has "broad" discretion in ruling on a motion to amend. Local 802, Associated Musicians v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998); Krumme v. Westpoint Stevens Inc., 143 F.3d 71, 88 (2d Cir.), cert. denied, 525 U.S. 1041 (1998). See generally Grace v. Rosenstock, 228 F.3d 40, 53-54 (2d Cir. 2000).
Defendant's proposed amendment would add three affirmative defenses as well as modify certain responses made to plaintiff's complaint. Plaintiff opposes these amendments, claiming prejudice and that defendant waived these affirmative defenses by not raising them in its original answer. However, a defendant's failure to raise all affirmative defenses in its initial answer does not inevitably result in a waiver. "As long as amendment of the pleadings does not prejudice plaintiff's, defendants will not be precluded from adding additional defenses . . ." Ragin v. Harry Macklowe Real Estate Co., 126 F.R.D. 475, 478 (S.D.N Y 1989) (defendants permitted to amend answer and raise numerous affirmative defenses, including statute of limitations); accord Gutman v. Equidyne Extractive Indus. 1980 Petro/Coal Program I, 769 F. Supp. 121 (S.D.N.Y. 1991); Fiske v. Church of St. Mary of the Angels, 802 F. Supp. 872 (W.D.N.Y. 1992). Furthermore, "amendments seeking to insert or correct matters about which parties should have known but did not know are plainly within the scope of Rule 15(a)." Gutman v. Equidyne Extractive Indus. 1980 Petro/Coal Program I, supra, 769 F. Supp. at 124, quoting Hanlin v. Mitchelson, 794 F.2d 834, 841 (2d Cir. 1986).
In determining whether the nonmovant has suffered prejudice, the Court must consider whether the amendment would: (1) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (2) significantly delay the resolution of the dispute or (3) prevent the plaintiff from bringing a timely action in another jurisdiction. Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993). Accord Whelan v. Bank United, 97 Civ. 0479 (LMM) (AJP), 1999 WL 285502 at *3 (S.D.N.Y. May 6, 1999); Herbert Constr. Co. v. Titan Indem. Co., 94 Civ. 1261 (RLC), 1996 WL 254859 at *2 (S.D.N.Y. May 15, 1996). Plaintiff bears the burden of establishing that an amendment to the answer would be prejudicial. Herbert Constr. Co., supra, 1996 WL 254859 at *2 n. 3.
In this case, plaintiff merely states that "[he] would be unfairly prejudiced if the Court were to permit Defendant to amend its Answer at this late stage of the litigation." (Memorandum of Law in Opposition to Defendant's Motion to Amend Complaint at ¶ 6). Plaintiff fails to offer any explanation of how he would be prejudiced if defendant's motion is granted i.e., what other discovery he would have taken had this amendment been included in defendant's original answer or what additional discovery plaintiff would have to take as a result of the amendment. Plaintiff's conclusory allegation of prejudice fails to demonstrate a valid basis to deny defendant's motion to amend, and defendant's motion is, therefore, granted.
Plaintiff has not opposed defendant's motion on the ground of futility, and I have not, therefore, considered the viability of any of the affirmative defenses. Thus, I express no opinion concerning the validity of the defenses.
IV. Conclusion
Accordingly, for all the foregoing reasons, defendant's motion to amend the answer is granted. Defendant is directed to serve and file its amended answer within ten (10) days of the date of this Opinion and Order.