Tatem v. Perelmuter

Filing 53

ORDER granting 33 Motion to Amend/Correct. For the reasons described in the attached Ruling and Order, the motion to amend is GRANTED. Signed by Judge Victor A. Bolden on 1/19/2021. (Millat, C.)

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 1 of 16

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DARNELL TATEM,
Plaintiff,
v.

No. 3:18-cv-00382 (VAB)

BRIAN PERELMUTER,
Defendant.
RULING AND ORDER ON MOTION FOR LEAVE TO AMEND
Darnell Tatem (“Plaintiff”), currently incarcerated at the Garner Correctional Institution,
sued Brian Perelmuter (“Defendant”), alleging that Dr. Perelmuter was deliberately indifferent to
his medical needs, in violation of 42 U.S.C. § 1983, during Mr. Tatem’s time at the Cheshire
Correctional Institution, where he was previously incarcerated. Compl., ECF No. 1 (Mar. 5,
2018). After the Court dismissed Mr. Tatem’s Complaint without prejudice in an Initial Review
Order, see ECF No. 9 (Oct. 25, 2018) (“IRO”), Mr. Tatem, proceeding pro se, filed an Amended
Complaint against Dr. Perelmuter. See Pro Se Prisoner Civil Rights Compl., ECF No. 11 (Dec.
18, 2018) (“Am. Compl.”); Order, ECF No. 14 (Sept. 9, 2019).
Mr. Tatem, now assisted by counsel, has moved for leave to file a Second Amended
Complaint and for an order joining Regina Landesberg as a defend ant. Mot. for Leave to Amend
Compl. and to Join Party Def., ECF No. 33 (May 14, 2020) (“Pl.’s Mot.”); Mem. of L. in Supp.
of Mot. for Leave to Amend Compl. and to Join Party Def., ECF No. 34 (May 14, 2020) (“Pl.’s
Mem.”). Dr. Perelmuter objections to the motion. Defs.’ Obj. to Pl.’s Mot. to File Second
Amended Compl., ECF No. 35 (May 21, 2020) (“Def.’s Obj.”).
For the reasons set forth below, Mr. Tatem’s motion to amend will be GRANTED.

1

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 2 of 16

I.

FACTUAL AND PROCEDURAL BACKGROUND
The Court presumes familiarity with the factual background of this case, which is set

forth in the Court’s Initial Review Order. See IRO at 1–3. As the IRO notes in detail, Mr.
Tatem’s original Complaint generally alleged that Dr. Perelmuter, who Mr. Tatem alleged was a
State of Connecticut employee, was deliberately indifferent to a mass in the lower left side of his
jaw when he allegedly neglected to follow up with Mr. Tatem with regard to the results of a CT
scan, and that this deliberate indifference constituted a violation of § 1983. Id. at 6; see Compl.
In its IRO, the Court dismissed the Complaint on several grounds, including that Mr.
Tatem had not set forth “well-pleaded allegations that Dr. Perelmuter participated in Mr. Tatem’s
initial diagnosis or follow-up care,” or any “allegations that Dr. Perelmuter treated Mr. Tatem,
that Dr. Perelmuter submitted the request for testing of the mass, that Dr. Perelmuter received the
results of the CT scan, or that Dr. Perelmuter was in any other way responsible for Mr. Tatem or
the care of his jaw.” IRO at 6–7. The Court granted Mr. Tatem leave to file a motion to reopen,
accompanied by an Amended Complaint, that, to suffice to reopen the case, “would need to
plead facts clarifying the involvement of Dr. Perelmuter as well as allegations that would clarify
how Mr. Tatem’s injuries are fairly traceable to Dr. Perelmuter’s conduct.” Id. at 8 (internal
quotation marks omitted).
On December 18, 2018, Mr. Tatem moved to reopen the case against Dr. Perelmuter and
filed an Amended Complaint. Am. Compl. In the Amended Complaint, Mr. Tatem alleged, inter
alia, that Dr. Perelmuter’s “reckless and erroneous deprivation in not seeing [him] for months
after [his] arrival at Cheshire . . . was the causation of [a] new growth in [his] jaw,” id. at 4 ¶ 25;
that Dr. Perelmuter’s “actions w[ere] malicious and woefully short of ordinary standards of
medical care,” id. ¶ 26; that “[a]fter [a] CT scan showed the depth and severity of [his] injury and

2

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 3 of 16

[he] returned to Cheshire[,] Dr. Perelmuter was culpable for not taking immediate remedial
action to prevent the degradation of [his] injury,” id. at 5 ¶ 29; that Mr. Tatem was shown during
a later doctor’s visit “evidence of the diagnosis that was forwarded to [Dr.] Perelmuter on or
about July 15, 2015,” id. at 6 ¶ 34, but Dr. Perelmuter “never followed up with [the University of
Connecticut]’s recommended treatment or any treatment of his own,” id. ¶ 35; and that this
“reckless action[] allowed a mass to form in and around [his] left jawbone,” id. at 6 ¶ 39, which
resulted in an infection and subsequent medical care, id. at 7 ¶ 40.
On May 23, 2019, Mr. Tatem moved for appointment of counsel. Mot. to Appoint
Counsel, ECF No. 12 (May 23, 2019).
On September 19, 2019, the Court granted Mr. Tatem’s motion to reopen. Order, ECF
No. 14 (Sept. 19, 2019).
That same day, the Court granted Mr. Tatem’s motion to appoint counsel. Order, ECF
No. 16 (Sept. 19, 2019).
On September 23, 2019, the Court appointed pro bono counsel John Cordani to represent
Mr. Tatem. Order, ECF No. 18 (Sept. 23, 2019).
On January 8, 2020, the Court issued an initial scheduling order, setting the deadline for
joinder of parties for May 15, 2020, the close of discovery for October 9, 2020, and the due date
for dispositive motions for November 13, 2020. Initial Scheduling Order, ECF No. 27 (Jan. 8,
2020) (“Initial Scheduling Order”).
On February 27, 2020, Dr. Perelmuter filed an Answer to the Complain t. Answer, ECF
No. 31 (Feb. 27, 2020).

3

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 4 of 16

On May 14, 2020, Mr. Tatem moved to amend or correct the Amended Complaint and to
join Dr. Landesberg as a party defendant, Pl.’s Mot.; Pl.’s Mem., and attached a proposed
Second Amended Complaint, see Second Am. Compl., ECF No. 33-1 (May 14, 2020).
On May 21, 2020, Dr. Perelmuter objected to Mr. Tatem’s motion to amend. Def.’s Obj.
On May 28, 2020, Mr. Tatem replied to Dr. Perelmuter’s objection. Pl.’s Reply in Supp.
of His Mot. for Leave to Amend Compl. and to Join Party Def., ECF No. 36 (May 28, 2020)
(“Pl.’s Reply”).
On June 30, 2020, the parties filed a joint motion to amend the scheduling order. Joint
Mot. to Amend Scheduling Order, ECF No. 37 (June 30, 2020).
On July 1, 2020, the Court granted the motion to amend the scheduling order, setting the
end of discovery for January 15, 2021 and the due date for dispositive motions at February 19,
2021. Order, ECF No. 38 (July 1, 2020).
On October 8, 2020, the parties filed another joint motion to amend the scheduling order.
Joint Mot. to Amend Scheduling Order, ECF No. 40 (Oct. 8, 2020).
On October 9, 2020, the Court granted the motion to amend the scheduling order and
adopted a revised schedule, setting the end of discovery for February 26, 2021 and the due date
for dispositive motions at April 2, 2021. Order, ECF No. 41 (Oct. 9, 2020).
On October 20, 2020, the Court scheduled a video-conference motion hearing for Mr.
Tatem’s motion to amend for November 24, 2020. Notice, ECF No. 43 (Oct. 20, 2020).
On November 9, 2020, Mr. Tatem filed a motion alleging ineffective assistance of
counsel.1 Mot. for Ineffective Assistance of Counsel, ECF No. 44 (Nov. 9, 2020).

Mr. Tatem also that same day filed a “Motion for Synthesis.” Mot. for Synthesis, ECF No. 45 (Nov. 9, 2020). On
January 19, 2021, the Court denied both the motion for synthesis and the motion for ineffective assistance of counsel
as moot. See Order, ECF No. 52 (Jan. 19, 2021).
1

4

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 5 of 16

On November 20, 2020, Mr. Cordani filed a motion to withdraw as attorney. Pl.’s
Counsel’s Mot. to Withdraw as Counsel, ECF No. 46 (Nov. 20, 2020).
On November 22, 2020, the Court denied without prejudice the motion to withdraw on
the ground that the motion to withdraw had not identified whether counsel had, as required by
the Local Rules, provided notice to Mr. Tatem that “failure to either engage successor counsel or
file a pro se appearance would result in a dismissal or default being entered against [him].”
Order, ECF No. 47 (Nov. 22, 2020) (quoting D. Conn. L. Civ. R. 7(e)). The Court noted that it
would not be inclined to appoint new counsel, as it had “every confidence that Mr. Tatem would
be effectively represented by his assigned counsel.” Id.
That same day, in light of Mr. Tatem’s filings and counsel’s motion to withdraw as
attorney, the Court canceled the hearing on Mr. Tatem’s motion to amend and indicated it would
resolve the motion on the parties’ written submissions. Order, ECF No. 48 (Nov. 22, 2020).
On November 23, 2020, Mr. Tatem moved for a writ of manumission. Mot. for Writ of
Manumission, ECF No. 49 (Nov. 23, 2020).
On November 24, 2020, counsel for Mr. Tatem filed a supplemental memorandum to the
motion to withdraw, noting that counsel had further discussed the matter with Mr. Tatem, “no
longer believe[d] a conflict of interest exists,” and would continue to represent him in the case.
Pl.’s Counsel’s Suppl. Mem. re: Mot. to Withdraw as Counsel (Doc. 46), ECF No. 50 at 1 (Nov.
24, 2020).
On November 25, 2020, the Court denied Mr. Tatem’s writ of manumission in light of
counsel’s response regarding the motion to withdraw. Order, ECF No. 51 (Nov. 25, 2020).

5

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 6 of 16

II.

STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 15(a), “[a] party may amend its pleading once as a

matter of course within: (A) 21 days after serving it, or (B) if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier.” Fed. R. Civ. P. 15(a)(1).
“In all other cases, a party may amend its pleading only with the opposing party’s written
consent or the court’s leave. The court should freely give leave when justice so requires.” Fed. R.
Civ. P. 15(a)(2).
The district court has broad discretion to decide a motion to amend. See Local 802,
Assoc. Musicians of Greater N.Y. v. Parker Meridien Hotel, 145 F.3d 85, 89 (2d Cir. 1998).
However, if a court chooses to deny leave to amend, it must give some “justifying reason” for
doing so. Foman v. Davis, 371 U.S. 178, 182 (1962). Reasons for denying leave to amend
include “undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by
virtue of allowance of the amendment, [or] futility of amendment[.]” Id.; see also Lucente v. Int’l
Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002) (noting leave to amend may be denied
when amendment is “unlikely to be productive,” such as when an amendment is “futile” and
“could not withstand a motion to dismiss [under] Fed. R. Civ. P. 12(b)(6)”); Park B. Smith, Inc.
v. CHF Indus. Inc., 811 F. Supp. 2d 766, 779 (S.D.N.Y. 2011) (“While mere delay, absent a
showing of bad faith or undue prejudice, is not enough for a district court to deny leave to
amend, the longer the period of an unexplained delay, the less will be required of the nonmoving
party in terms of a showing of prejudice.” (internal quotation marks omitted)). The Court will
“only deny a motion to amend if it is clear on the face of the pleadings that the claims would be

6

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 7 of 16

barred by the statute of limitations, and if the issue would not need to be more fully briefed.”
Hybrid Athletics, LLC v. Hylete, LLC, No. 3:17-cv-1767, 2018 WL 4323816, at *4 (D. Conn.
Sept. 10, 2018).
“While the party seeking to amend its pleading must explain any delay, the party
opposing the amendment ‘bears the burden of showing prejudice, bad faith, and futility of the
amendment.’” United States ex rel. Raffington v. Bon Secours Health Sys., Inc., 285 F. Supp. 3d
759, 766 (S.D.N.Y. 2018) (quoting Grant v. Citibank (S.D.), N.A., No. 10 Civ. 2955 (KNF),
2010 WL 5187754, at *6 (S.D.N.Y. Dec. 6, 2010)).
A party may be joined as a defendant under the Federal Rules of Civil Pro cedure if “(A)
any right to relief is asserted against them jointly, severally, or in the alternative with respect to
or arising out of the same transaction, occurrence, or series of transactions or occurrences; and
(B) any question of law or fact common to all defendants will arise in the action.” Fed. R. Civ. P.
20(a)(2).
III.

DISCUSSION
Mr. Tatem may not amend the Complaint as of right because Mr. Tatem has previously

amended his Complaint, see Am. Compl., and because Dr. Perelmuter filed an Answer on
February 27, 2020, more than twenty-one (21) days before the date his motion to amend was
filed. See Answer; Fed. R. Civ. P. 15(a)(1) (“A party may amend its pleadings once as a matter
of course within 21 days after serving it, or . . . 21 days after service of a responsive pleading or
21 days after service of a motion under 12(b), (e), or (f), whichever is earlier.”).
Mr. Tatem argues that there is good cause to again amend his Complaint because,
“[s]ubsequent to the filing of his Complaint,” he “was able to review discovery provided by Dr.
Perelmuter,” including “[m]edical records . . . [which] demonstrate that Dr. Regina Landesberg

7

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 8 of 16

was involved in coordinating the CT scan and in knowing the follow-up was required due to the
results of the scan, along with Dr. Perelmuter.” Pl.’s Mem. at 1-2, 3. Mr. Tatem argues that
“[b]ased upon these recently uncovered facts, [he] has a reasonable basis to assert a claim against
Dr. Landesberg for deliberate indifference to [his] serious medical needs and in violation of his
civil rights under 42 U.S.C. § 1983.” Id. at 2. He argues that “[t]here has been no undue delay or
bad faith” and that the timing of the request is “reasonable and understandable under the
circumstances,” as when he filed his Amended Complaint, “counsel had not yet been appointed
and discovery had not yet begun.” Id. at 3.
Mr. Tatem also notes that under the Court’s initial scheduling order, he was still, at the
time of filing, within the time limit to amend the pleadings and join other parties. Id. at 3 (citing
Initial Scheduling Order). Finally, Mr. Tatem argues that the claim against Dr. Landesberg
“directly relates to the transactions and occurrences at issue in [his] [] Amended Complaint,” as
his claim under 42 U.S.C. § 1983 “arises from Dr. Landesberg’s and Dr. Perelmuter’s actions
when they coordinated [Mr.] Tatem’s CT scan in 2015 and when they knew follow-up was
required after [his] scan and together failed to do so.” Id. at 4.
Dr. Perelmuter sets forth several arguments in opposition to Mr. Tatem’s motion to
amend. See Def.’s Obj. First, Dr. Perelmuter argues that “any modification of the [C]omplaint
after July 2018” would “fall outside of the applicable statute of limitations” under § 1983. Def.’s
Obj. at 3-4. Dr. Perelmuter argues further that the claims against Dr. Landesberg can only be
properly brought if these claims “relate back” to the original Complaint under Federal Rule of
Civil Procedure 15(c)(1)(C), which he argues Mr. Tatem cannot satisfy because “the proposed
Defendant will be prejudiced by the amendment being granted,” id. at 4, and “the proposed
Defendant was not on notice as the Plaintiff does not appear to have mistakenly named

8

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 9 of 16

defendants in his original action,” but rather, Mr. Tatem “had access to his own medical records”
and therefore his failure to name Dr. Landesberg “cannot be characterized as a mistake,” id. at 45 (quoting Barrow v. Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1995)).
On reply, Mr. Tatem argues that the statute of limitations objection “cannot be addressed
at the pleading stage.” Pl.’s Reply at 2. Mr. Tatem argues further that his claim is not barred for
several reasons, including that he plans to argue at a later stage of the proceeding that (1) “the
amendment relates back to the original Complaint under Rule 15(c)(1) of the Federal Rules of
Civil Procedure,” id. at 2-6; (2) “any applicable statute of limitations was tolled for fraudulent
concealment under Conn. Gen. Stat. § 52-595,” id. at 6-7; and (3) Mr. Tatem “can avail himself
of the continuing course of conduct doctrine, an independent ground for tolling the statute of
limitations,” id. at 7-8.
The Court agrees.
Because § 1983 does not establish its own statute of limitations, federal courts instead
“select the state statute of limitations ‘most analogous’ and ‘most appropriate.’” Owens v. Okure,
488 U.S. 235, 239 (1989) (internal citations omitted). The Supreme Court has recognized that
“for statute-of-limitations purposes, ‘§ 1983 claims are best characterized as personal injury
actions.’” Lounsbury v. Jeffries, 25 F.3d 131, 133 (2d Cir. 1994) (quoting Wilson v. Garcia, 471
U.S. 261, 280 (1985)).
“The statute of limitations for tort claims set forth in Connecticut General Statutes § 52577 applies to claims brought [under] section 1983.” Santiago v. Hamden Conn. Police Dep’t,
No. 3:19-cv-1659 (KAD), 2019 WL 6497003, at *2 (D. Conn. Dec. 3, 2019) (citing Lounsbury,
25 F.3d at 134). Section 52-577 establishes a three-year statute of limitations for claims that runs
from “the date of the act or omission complained of.” Id. (quoting Conn. Gen. Stat. § 52-577).

9

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 10 of 16

Though statute of limitations arguments are ordinarily raised as an affirmative defense, a
district court may dismiss a complaint if the allegations demonstrate that the relief sought is
barred by the applicable statute of limitations. See Walters v. Indus. & Comm. Bank of China,
Ltd., 651 F.3d 280, 293 (2d Cir. 2011) (“[A]lthough the statute of limitations is ordinarily an
affirmative defense . . .[,] district courts may dismiss an action sua sponte on limitations grounds
in certain circumstances where the facts supporting the statute of limitations defense are set forth
in the papers plaintiff himself submitted[.]” (internal citations and quotation marks omitted)).
The allegations against Dr. Perelmuter derive from acts and omissions that allegedly
occurred beginning on July 2, 2015. Am. Compl. at 3 ¶ 11. Therefore, under the statute of
limitations applicable in Connecticut to § 1983 actions, the three-year period expired in July
2018. See Conn. Gen. Stat. § 52-577. Mr. Tatem does not contend that the three-year period
applies, but argues instead that, upon further factual development, he will be able to establish
that the claim against Dr. Landesberg relates back to the original complaint under Federal Rule
of Civil Procedure 15(c)(1). Pl.’s Reply at 3-6.
Under Rule 15(c)(1), an amendment to a pleading relates back to the date of the original
pleading when
(A) the law that provides the applicable statute of limitations allows
relation back;
(B) the amendment asserts a claim or defense that arose out of the
conduct, transaction, or occurrence set out--or attempted to be
set out--in the original pleading; or
(C) the amendment changes the party or the naming of the party
against whom a claim is asserted, if Rule 15(c)(1)(B) is satisfied
and if, within the period provided by Rule 4(m) for serving the
summons and complaint, the party to be brought in by
amendment:

10

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 11 of 16

(i)

received such notice of the action that it will not be
prejudiced in defending on the merits; and

(ii)

knew or should have known that the action would have
been brought against it, but for a mistake concerning the
proper party's identity.

Fed. R. Civ. P. 15(c)(1).
The Second Circuit has held that the provision applicable here, Rule 15(c)(1)(C), allows
for an amended pleading to relate back to the date of the original pleading if four conditions are
met: “(1) the claim must have arisen out of conduct set out in the original pleading”; “(2) the
party to be brought in must have received such notice that it will not be prejudiced in
maintaining its defense”; “(3) that party [knew or] should have known that, but for a mistake of
identity, the original action would have been brought against it”; and “[(4)] the second and third
criteria are fulfilled within [the period provided by Rule 4(m) for serving the summons and
complaint], and . . . the original complaint [was] filed within the limitations period.” Ceara v.
Deacon, 916 F.3d 208, 211 (2d Cir. 2019) (first, third and fourth alterations in original).
The parties do not dispute that the claim against Dr. Landesberg arises out of conduct set
out in the original pleading, or that the original Complaint was filed within the limitations period.
See Def.’s Obj., Pl.’s Reply. Instead, Dr. Perelmuter argues that Dr. Landesberg will be
prejudiced by the amendment being granted, as Dr. Perelmuter has already filed an appearance
and Answer, Def,’s Obj. at 4, and that Mr. Tatem did not, under the third condition, fail to name
Dr. Landesberg as a “mistake,” because he “had access to his own medical records and he was
the individual receiving treatment, [and thus] it cannot be said he was mistaken as to the
identities of Brian Perelmuter and Regina Landesberg,” id. at 4-5.
With respect to prejudice, the Court considers factors including “whether an amendment
would require the opponent to expend significant additional resources to conduct discovery and
11

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 12 of 16

prepare for trial or significantly delay the resolution of the dispute.” Ruotolo v. City of N.Y., 514
F.3d 184, 192 (2d Cir. 2008) (internal quotation marks omitted). “Undue prejudice arises,” for
example, “when an amendment comes on the eve of trial and wou ld result in new problems of
proof.” Id. (quoting State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981))
(internal quotation marks and alteration omitted). Still, “allegations that an amendment will
require the expenditure of additional time, effort, or money do not themselves constitute undue
prejudice.” Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 304 F.R.D. 170, 174-75
(S.D.N.Y. 2014)). “[T]he fact that the opposing party will have to undertake additional
discovery, standing alone, does not suffice to warrant denial of a motion to amend a pleading.”
Id. (quoting United States ex rel. Mar. Admin. v. Cont’l Ill. Nat’l Bank & Tr. Co. of Chi., 889
F.2d 1248, 1255 (2d Cir. 1989)).
Though Dr. Perelmuter had already filed an Answer as of the time of the filing of Mr.
Tatem’s motion for leave to amend, see Answer, Mr. Tatem was, as of the time of filing his
motion, within the time limit prescribed by the Court to join other parties, see Initial Scheduling
Order (setting a deadline of May 15, 2020). Beyond the assertion that Dr. Perelmuter had already
filed an Answer on his behalf, see Def.’s Obj. at 4, Dr. Perelmuter fails to set forth any reason for
how joining Dr. Landesberg within the time limit prescribed by the Initial Scheduling Order
would prejudice her in maintaining her defense, particularly as discovery in this matter remained
ongoing at the time of filing and remains ongoing now. See Order, ECF No. 41 (setting February
26, 2021 for the end of discovery).
Accordingly, Defendant “has not demonstrated that, at this stage of the litigation, before
dispositive motions have been addressed, amendment would cause [him (or Dr. Landesberg)]
prejudice.” Hybrid Athletics, LLC, 2018 WL 4323816, at *3.

12

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 13 of 16

With respect to Mr. Tatem’s failure to name Dr. Landesberg in his original Complaint or
Amended Complaint, Mr. Tatem claims that the basis for the amendment to add Dr. Landesberg
was “uncovered in reviewing the discovery only recently provided by Dr. Perelmuter,” medical
records which Mr. Tatem argues “reflect that Dr. Landesberg coordinated with [Dr.] Perelmuter
in ordering a CT scan of [Mr.] Tatem’s jaw and in knowing that follow-up after [Mr.] Tatem’s
CT scan was necessary.” Pl.’s Mem. at 3. Though Defendant argues that “the fact that [Mr.
Tatem] had access to his own medical records and [] was the individual receiving treatment,” and
therefore could not have been mistaken “as to the identities of Brian Perelmuter and Regina
Landesberg,” Defendant has not carried his burden of showing that Mr. Tatem’s medical records
definitively showed Dr. Landesberg’s involvement in the manner now alleged by Mr. Tatem;
that Mr. Tatem had knowledge of Dr. Landesberg’s involvement in the manner now alleged by
Mr. Tatem; or that even if Mr. Tatem was aware of Dr. Landesberg’s “identity,” Def.’s Obj. at 4 5, he was aware in any way of the alleged coordination between Drs. Perelmuter and Landesberg
with respect to his care. See Pl.’s Reply at 4 (“[Mr.] Tatem did not know at the time that he filed
his original [C]omplaint, or even when he filed his [Amended] [C]omplaint, that Dr. Landesberg
played the role that she did in the treatment of his medical condition.”).
Mr. Tatem argues that he only discovered this information after reviewing the discovery
materials provided to him in February 2020, Pl.’s Mem. at 3, and the Court sees no reason not to
credit this assertion, or to consider this claim against Dr. Landesberg as having been brought in
bad faith. See Hybrid Athletics, LLC, 2018 WL 4323816, at *3 (“Hybrid asserts that it uncovered
information during fact discovery that will support its allegations that Hylete knew [relevant
information]. . . . The Court accepts Hybrid’s assertion and will not deny the motion to amend

13

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 14 of 16

based on undue delay, as the Court does not find evidence that Hybrid delayed out of bad
faith.”).
With respect to notice, Mr. Tatem argues that he “should be given an opportunity to
develop evidence that [Dr.] Landesberg had sufficient notice of the lawsuit,” because counsel for
Dr. Perelmuter “would presumably represent Dr. Landesberg as well,” and indeed, Dr.
Perelmuter’s counsel, in his capacity as such, “decided to oppose [Mr.] Tatem’s proposed
Amended Complaint by asserting a statute of limitations defense on behalf of [Dr.] Landesberg.”
Pl.’s Reply at 3-4. In Mr. Tatem’s view, “[t]he Attorney General’s Office likely knew or should
have known that any medical providers involved in making decisions regarding [Mr.] Tatem’s
serious medical condition between 2015 and 2016 could be named as defendants in the suit,” and
these identities were “uniquely accessible to [Dr. Perelmuter’s counsel].” Id. at 4.
Courts in this District have held that “[w]hile any newly identified defendants must have
had notice of the plaintiff’s allegations against them prior to the end of the limitations period to
meet the requirements of Rule 15(c), notice may be imputed to those defendants if both they and
one or more of the originally named defendants ‘are represented by the same attorney.’”
Archibald v. City of Hartford, 274 F.R.D. 371, 380 (D. Conn. 2011) (quoting Byrd v. Abate, 964
F. Supp. 140, 146 (S.D.N.Y. 1997)). “In order to impute such notice to the new defendant
through his attorney, however, the plaintiff must demonstrate that the attorney knew or should
have known that the additional defendant would be added to the existing suit.” Id. (quoting Byrd,
964 F. Supp. at 146)).
In this case, Assistant Attorney General Steven M. Barry, who represents Dr. Perelmuter,
has not indicated whether he will or does currently represent Dr. Landesberg, but signed his
objection on behalf of “Defendants, Brian Perelmuter, et al.,” Def.’s Obj. at 5, and has asserted

14

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 15 of 16

that Dr. Landesberg will be prejudiced by the amendment being granted, id. at 4, all of which
indicates that he likely will represent Dr. Landesberg as the action proceeds. Moreover, Mr.
Tatem’s original Complaint contained significant detail discussing the medical treatment he
received in July 2015, and the infection that allegedly resulted. See Compl. As in Archibald, the
identities of other individuals involved in Mr. Tatem’s care were “uniquely accessible to [Dr.
Perelmuter’s counsel], who could have (and should have) consulted . . . records and interviewed
. . . employees” involved in the matter. 274 F.R.D. at 380 (internal quotation marks omitted).
Additionally, as this Court has observed, “arguments over the statute of limitations,
especially as they involve the defense of laches or equitable tolling, are better addressed at a later
stage of th[e] case,” as a court “would only deny a motion to amend if it is clear on the face of
the pleadings that the claims would be barred by the statute of limitations, and if the issue would
not need to be more fully briefed.” Hybrid Athletics, LLC, 2018 WL 4323816, at *4.
Accordingly, Mr. Tatem should be provided an opportunity, upon a more fully developed record,
to argue that his claim against Dr. Landesberg relates back to the date of the original Complaint.
To be clear, the Court does not reach a conclusion today as whether Mr. Tatem’s claims against
Dr. Landesberg definitively “relate back” under Rule 15(c). Instead, the Court finds only that Dr.
Perelmuter has not carried his burden of proving the futility, prejudice or bad faith of Mr.
Tatem’s proposed Second Amended Complaint such that leave to amend should not be granted.
See Bon Secours Health Sys., Inc., 285 F. Supp. 3d at 766. As a result, the Court need not, and
does not, address Mr. Tatem’s other arguments with respect to the statute of limitations.

15

Case 3:18-cv-00382-VAB Document 53 Filed 01/19/21 Page 16 of 16

IV.

CONCLUSION
For the reasons explained above, the Court GRANTS the Motion for Leave to Amend.
SO ORDERED at Bridgeport, Connecticut, this 19th day of January, 2021.
/s/ Victor A. Bolden
Victor A. Bolden
United States District Judge

16