Opinion
CV 10-5371 (JS)(ARL)
06-12-2012
JOHN RICCIARDI, et al., Plaintiffs, v. KIMCO FACILITIES SERVS. CORP., et al., Defendants.
REPORT AND RECOMMENDATION
LINDSAY, Magistrate Judge
Before the court is the plaintiffs' letter application dated May 24, 2012, seeking leave to amend the complaint pursuant to Federal Rules of Civil Procedure 15(a) in order to (1) add and/or remove purported facts related to plaintiff and defendants to conform to the facts revealed during discovery, see First Proposed Amended Compl., ¶¶ 7, 17-19, 70, 107, 117, 120-27, 151; (2) add allegations of unpaid wages for time spent driving and/or chauffeuring to and from each work site, see id., ¶¶ 33, 37, 55; (3) add an allegation of emotional distress, see id., ¶¶ 130, 153; (4) increase the amount of damages sought for each cause of action; (5) remove Kimco Delaware, Inc. as a defendant; and (6) remove plaintiff Porfirio Arriola's retaliation claims. The defendants oppose the motion contending that (1) the plaintiffs have not made a showing of "good cause" to amend the complaint as is required by Fed. R. Civ. P. 16(b) and (2) the plaintiffs have unduly delayed making the instant application, therefore, prejudicing the defendants. The undersigned agrees with the defendants and recommends that the motion be denied.
By Order dated March 29, 2011, the district court dismissed the parties Kimco Delaware, Inc. and The Kimco Corporation from this action. See Order, dated March 29, 2011 (J. Seybert). Accordingly, plaintiffs' motion to amend the complaint to remove Kimco Delaware, Inc. as a defendant is denied as moot.
By Orders dated April 20, 2012, the district court dismissed with prejudice all retaliation claims asserted by Plaintiff Porfirio Arriola. See Orders, dated April 20. 2012 (J. Seybert). Accordingly, plaintiff's motion to amend the complaint to remove plaintiff Arriola's retaliation claims is denied as moot.
In addition to plaintiffs' letter application dated May 24, 2012, plaintiffs mailed a letter dated May 24, 2012 to the undersigned attaching as an exhibit a confidential document in support of plaintiffs' letter application to amend the complaint pursuant to the protective order entered in this case. The envelope bore a label stating "Confidential Material Submitted Under Seal". Although plaintiffs may make an motion for leave to e-file a sealed document pursuant to the protective order, no such application has been made. The undersigned has neither read nor considered the supplemental letter. Counsel is advised that instructions on filing sealed documents on ECF in civil cases are located at www.nyed.uscourts.gov. --------
By order dated April 5, 2011, the court established a discovery schedule that required any motions to amend the pleadings be made by July 20, 2011. No such motions were made. At the parties' requests, the court extended the discovery deadlines five times, none of which affected the July 20, 2011 deadline for amending the pleadings. By order dated May 18, 2011, and upon consultation with the district judge, the undersigned extended the discovery deadline to June 29, 2012 and stated that no further extensions would be granted. By motion dated May 24, 2012, approximately ten months after the court's deadline to amend the pleadings, plaintiffs filed the instant motion to amend the complaint. The plaintiffs contend that the amendments, which they characterize as nothing more than "relatively minor proposed amendments to the complaint," are necessary to (i) conform the complaint to the facts revealed during discovery, (ii) clarify the nature of the compensatory damages sought by plaintiffs, (iii) remediate the complaint to specify the nature of the compensatory damages plaintiffs are entitled to seek under the FLSA and New York State Labor Law (viz. a claim for emotional distress), and (iv) formally specify/increase the amount of damages in their prayer for relief. The plaintiffs further contend that the defendants would not be unduly prejudiced because the plaintiffs have all been deposed and have responded to discovery, and thus defendants would need to expend only minimal discovery, if any, if the proposed "marginally" amended complaint was granted.
Although plaintiffs seek to amend the complaint pursuant to Rule 15(a), the plaintiffs' motion was made some ten months after the deadline for making such motions, and thus the motion must be determined under Rule 16(b)'s good cause standard rather than the more liberal standard of Rule 15. See Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000), DeSantis v. Roz-ber, Inc., 51 F.Supp. 2d 244, 247 (E.D.N.Y. 1999). Rule 16(b) requires that deadlines be set for proceedings such as joinder of parties and amendment of pleadings. By limiting the time for amendments, "the rule is designed to offer a measure of certainty in pretrial proceedings, ensuring that 'at some point both the parties and the pleadings will be fixed.'" Parker, 204 F.3d at 339 (quoting Fed. R. Civ. P. 16 advisory committee's note (1983 amendment, discussion of subsection (b)). In some cases, the court may determine that the deadline cannot be met despite the parties' diligence, and may grant leave to extend the deadline. The rule plainly states, however, that a scheduling order "shall not be modified except upon a showing of good cause." As such, the Second Circuit has held that "despite the lenient standard of Rule 15(a), the district court does not abuse its discretion in denying leave to amend the pleading after the deadline set in the scheduling order where the moving party has failed to establish good cause." Id. at 340.
Here, the plaintiffs have not established good cause, nor have they even attempted to make such a showing. The plaintiffs do not provide an adequate explanation for why they are first seeking to amend the complaint ten months after the deadline for doing so, nor do they address Rule 16's good cause standard. While the plaintiffs argue that leave to amend pleadings should be "freely given when justice so requires" and that "many of the proposed changes relate to facts revealed and/or confirmed relatively recently during the discovery process and therefore will not prejudice the defendants," these are not the standards that apply. Moreover, even if the court were to consider the undue delay and prejudice arguments asserted by plaintiffs, their arguments would fail. The plaintiffs' characterization of the proposed amendment as "relatively minor" fails to appreciate the additional discovery that would be required for the two proposed additional substantive claims, viz., for facts related to unpaid wages related to travel time and for allegations related to purported emotional distress, and the potential need for an extension of the discovery deadlines. Accordingly, the undersigned recommends that the plaintiffs' motion to amend the complaint be denied.
OBJECTIONS
A copy of this Report and Recommendation is being electronically filed on the date below. Any objections to this Report and Recommendation must be filed with the Clerk of the Court with a courtesy copy to the undersigned within 14 days of service. Failure to file objections within this period waives the right to appeal the District Court's Order. See 28 U.S.C. §636(b)(1); FED. R. CIV. P. 72; Ferrer v. Woliver, 2008 WL 4951035, at *2 (2d Cir. Nov. 20, 2008); Beverly v. Walker, 118 F.3d 900, 902 (2d Cir. 1997); Savoie v. Merchants Bank, 84 F.3d 52, 60 (2d Cir. 1996). Dated: Central Islip, New York
June 12, 2012
/s/_________
Arlene R. Lindsay
United States Magistrate Judge