Lekic v. 222 East 8th Street LLC et al

Filing 18

ORDER granting 8 Motion to Amend/Correct/Supplement. Plaintiffs motion to amend is granted, but his claims for violations under New York Labor Law are limited to claims for overtime violations dating back to February 21, 2006. Ordered by Magistrate Judge Marilyn D. Go on 9/25/2012. (Proujansky, Josh)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DZEVDET LEKIC,
Plaintiff,
ORDER
CV 2011-1242 (ARR)(MDG)

- against -

222 EAST 8TH STREET LLC, et al.
Defendants.
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Plaintiff in this action asserts claims against defendants
for failure to pay minimum wages and overtime wages in violation
of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. (the
“FLSA”) and New York Labor Law.

Plaintiff seeks to amend his

complaint to expand the time frame for which he asserts claims
for failure to pay overtime under New York law.

Defendants

oppose such an amendment on the ground of prejudice.

BACKGROUND
Plaintiff commenced this action on March 16, 2011.

In his

complaint, plaintiff alleged that he worked for defendants from
June 1, 2007 to July 9, 2009 as a porter, janitor, handyman and
building superintendent but was paid less than minimum wage and
was not paid one and one-half times his regular hourly wage for
overtime hours.

On February 21, 2012, the eve of the close of discovery,
plaintiff filed a letter requesting a pre-motion conference in
connection with an anticipated motion for leave to file an
amended complaint.

See ct. doc. 8.

By his proposed amended

complaint, plaintiff sought to withdraw his claims to recover
unpaid minimum wages and to expand the time period from 2007-2009
to 2005-2009 for plaintiff’s claims for unpaid overtime and
spread of hours pay under New York Labor Law.

Plaintiff

characterized his failure originally to include his claims
relating to his employment during 2005 and 2006 as “clerical
errors.”

See id.

Defendants oppose that aspect of the proposed

amendments that would expand the time frame of the claims on the
ground of undue prejudice.

At a conference held on April 2,

2012, the Court invited the parties to supplement their
submissions to address whether the proposed amended claims would
relate back to the filing of the original complaint.
DISCUSSION
Rule 15(a) of the Federal Rules of Civil Procedure provides
that the Court should freely give leave to amend a pleading when
justice so requires.

See Zenith Radio Corp. v. Hazeltine

Research, Inc., 401 U.S. 321 (1971); Andersen News LLC v.
American Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012).

Thus,

courts should ordinarily grant leave to amend in the absence of
bad faith by the moving party, undue prejudice or futility.
Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000);
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Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993) (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)).
justify denial of leave to amend.

Delay alone does not

See Ruotolo v. City of N.Y.,

514 F.3d 184, 191 (2d Cir. 2008); Rachman Bag Co. v. Liberty
Mutual Ins. Co., 46 F.3d 230, 234 (2d Cir. 1995); Richardson
Greenshields Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir.
1987).

“The concepts of delay and undue prejudice are

interrelated -- the longer the period of unexplained delay, the
less will be required of the non-moving party in terms of showing
prejudice.”

Davidowitz v. Patridge, 2010 U.S. Dist. LEXIS 42322,

at *5 (S.D.N.Y. 2010).

In evaluating whether prejudice would

result from amendment, a court considers whether the proposed
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.”

Monahan v. N.Y. City Dept. of Corr., 214 F.3d

275, 284 (2d Cir. 2000) (citing Block v. First Blood Assocs., 988
F.2d 344, 350 (2d Cir. 1993)).

Ultimately, the decision to grant

or deny a request to amend is within the discretion of the
district court.

Foman, 371 U.S. at 182; John Hancock Mut. Life

Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir.
1994).
Defendants argue that they would be prejudiced by
plaintiff’s

delay in seeking to amend the complaint.
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They point

to the fact that since the start of this case and throughout
discovery, the parties have focused discovery solely on the
period of 2007 to 2009 alleged in the original complaint.
Defendants claim that permitting amendment would necessitate “a
significant amount of additional discovery,” including document
production, interrogatories and the re-deposition of plaintiff.
Plaintiff has responded that he would seek written discovery and
not any additional depositions if amendment is permitted.
Plaintiff filed his request to amend two days before the
extended deadline for the completion of discovery.

Plaintiff

offers no explanation other than “clerical error” for his failure
to request amendment sooner, even though he was clearly aware of
the facts necessary to allege claims relating to the earlier
period at the time he filed the original complaint.

An

attorney’s failure to recognize a potential cause of action does
not excuse a delay in seeking amendment.

See 380544 Canada Inc.

v. Aspen Tech., Inc., 2011 WL 4089876, at *5 (S.D.N.Y. 2011);
Davidowitz, 2010 WL 1779279, at *4.
On the other hand, defendants do not claim bad faith by
plaintiff in delaying amendment.

Although the delay here was

avoidable and should not be condoned, the length of the delay is
not substantial and defendants are not prejudiced beyond the
costs associated with re-opening discovery.

Importantly,

plaintiff has offered to pay for any incremental expenses caused
by the late amendment.

Other than supplemental document
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discovery and the continuation of plaintiff’s deposition,
defendants were unable to identify any other discovery that would
be required by plaintiff’s additional claims relating to his
employment for 2005 and 2006.
Critically, as plaintiff also points out, since amendment
relates only to his claims under New York law, he would still be
able to file a complaint in state court asserting claims for the
new period proposed if leave to amend is not granted.

Thus, any

prejudice would be offset by the greater efficiency in having the
related state and federal claims adjudicated in one action.
A further consideration in determining whether leave to
amend should be granted are the limitations in Rule 16(b), an
issue not raised by either party.

Kassner v. 2nd Avenue

Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007).

At the

initial conference on June 23, 2011, the parties advised that
neither had any intention of amending, as reflected in the
scheduling order issued.
6/23/11.

See minute entry for conference on

"[W]here, as here, the parties convey to the court that

there will be no further amendments after the court's
case-management conference, Rule 16's “good cause” standard
applies even though the resulting scheduling order does not
specifically contain a deadline for amending the pleadings.”
Point 4 Data Corp. v. Tri-State Surgical Supply & Equipment,
Ltd., 2012 WL 2458060, at *6 (E.D.N.Y. 2012).

Thus, this court

"must exercise its discretion under Rule 16(b) to determine
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whether the scheduling order should be modified so as to allow an
amended complaint."

Kassner, 496 F.3d at 244.

The more lenient

standard under Rule 15(a) must be balanced against Rule 16(b)’s
good cause requirement.

See Holmes v. Grubman, 568 F.3d 329,

334-35 (2d Cir. 2009); Grochowski v. Phoenix Constr., 318 F.3d
80, 86 (2d Cir. 2003).
Although "the primary consideration is whether the moving
party can demonstrate diligence[, i]t is not, however, the only
consideration."

Kassner, 496 F.3d at 244.

"[O]ther relevant

factors includ[e], in particular, whether allowing the amendment
of the pleading at this stage of the litigation will prejudice
defendants."

Id.

As discussed, the prejudice to defendant is

not substantial in light of the limited additional discovery
sought by plaintiff and the fact plaintiff could readily commence
a state court action asserting the same state law claims as
proposed.

Also, although defendant may have relied on the claims

as originally pled, it clearly knew before plaintiff sought leave
to amend that plaintiff also was employed by it during the
earlier period covered by the proposed amended complaint.

Thus,

this Court exercises its discretion to extend the scheduling
order to permit plaintiff to file an amended complaint.
At a conference with the parties, the Court raised, sua
sponte, the question of whether the amended claims should relate
back to the date of the filing of the original complaint.

Since

the statute of limitations under New York Labor Law is six years,
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absent relation back, any claim for overtime before February 21,
2006,* six years before plaintiff filed his motion, would be time
barred.

See N.Y. Labor Law § 198(3).

Under Rule 15(c)(2), an amendment to a pleading relates back
to the date of the original pleading when the amendment asserts a
claim that “arose out of the conduct, transaction or occurrence
set out” in the original pleading.

Fed. R. Civ. P. 15(c)(1)(B).

“[T]he central inquiry is whether adequate notice of the matters
raised in the amended pleading has been given to the opposing
party within the statute of limitations by the general fact
situation alleged in the original pleading.”

Slayton v. Am.

Express Co., 460 F.3d 215, 228 (2d Cir. 2006) (internal quotation
and citation omitted).

Rule 15(c) also permits relation back if

“the law that provides the applicable statute of limitations
allows relation back.”

Fed. R. Civ. P. 15(c)(1)(a).

Here, plaintiff seeks to amend the complaint to include
overtime violations under the New York Labor Law dating back to
2005.

Under the analogous FLSA, a separate cause of action

accrues with each paycheck for which additional compensation is
claimed.

See Godlewska v. HDA, 2006 WL 1422410, at *4 (E.D.N.Y.

2006); Soler v. G & U, Inc., 86 F.R.D. 524, 528 (S.D.N.Y. 1980);
cf. Pollis v. New Sch. for Soc. Research, 132 F.3d 115, 118 (2d
Cir. 1997) (each discriminatory paycheck constitutes “a discrete,

*

See infra for discussion that the statute of limitations is
tolled upon filing of a motion to amend.

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individual wrong rather than a single and indivisible course of
action”).

Any alleged failure to pay overtime in 2005 will

require proof of different albeit very similar acts.

Plaintiff’s

proposed new claims cannot be said to be part of the same
transaction or series of transactions as the failure to pay in
2007.

Unlike the situation where a proposed amendment involves a

new claim brought under a different legal theory based on the
same facts, the allegations relating to 2005 would require
different evidence from the proof of allegations relating to
2007.

Even though plaintiff’s expanded claims in his proposed

amended complaint are based on the same statutes and same type of
conduct as alleged in the original complaint, they are
nonetheless based on an “entirely distinct set” of factual
allegations.

See Slayton, 460 F.3d at 228.

Moreover, permitting relation back to six years before the
commencement of this action would be unfair to defendants since
they could not have expected that plaintiff would later add
claims for a period of his employment beyond the statute of
limitations.

In his complaint, plaintiff alleged facts relating

only to the 2007 through 2009 time period and sought in his first
prayer for relief “compensation for the entire period of his
employment since June 01, 2007."

Compl. at 7.

Since nothing in

the complaint gave notice to defendants that plaintiff would be
seeking damages for an earlier and broader time period, relation
back is not appropriate.

See Morse/Diesel, Inc. v. Fidelity and
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Deposit Co. of Maryland, 1995 WL 358627, at *6-*7 (S.D.N.Y.
1995).
For the same reasons, I find that plaintiff’s amended claims
do not relate back under New York law.

New York law permits

relation back “unless the original pleading does not give notice
of the transactions, occurrences, or series of transactions or
occurrences, to be proved pursuant to the amended pleading.

N.Y.

C.P.L.R. § 203(f); Shefa Unlimited, Inc. v. Amsterdam & Lewinter,
49 A.D.3d 521, 522 (2d Dep’t 2008).

Plaintiff’s original

complaint alleging overtime violations from 2007 to 2009 did not
give notice of violations occurring from 2005 to 2007.
In sum, plaintiff is granted leave to amend the complaint to
add claims for overtime violations dating back to February 21,
2006.

The date of the filing of the motion to amend is the date

the action was commenced for statute of limitations purposes
since the defendant is on notice of the new claims as of the
filing of the motion.

See Rothman v. Gregor, 220 F.3d 81, 96 (2d

Cir. 2000); In re Methyl Tertiary Butyl Ether Prods. Liab.
Litig., 2007 WL 2979642, at *4 (S.D.N.Y. 2007); Northbrook Nat.
Ins. Co. v. J & R Vending Corp., 167 F.R.D. 643, 648 (E.D.N.Y.
1996).

Under New York law, the filing of a motion to amend also

tolls the statute of limitations until the date of entry of the
order granting leave to amend.

Rogers v. Dunkirk Aviation Sales

& Serv., Inc., 818 N.Y.S.2d 717, 717-18 (4th Dep't 2006) (citing
Perez v. Paramount Commc’ns, 92 N.Y.2d 749, 754–756 (1999)).
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CONCLUSION
For the foregoing reasons, plaintiff’s motion to amend is
granted, but his claims for violations under New York Labor Law
are limited to claims for overtime violations dating back to
February 21, 2006.
SO ORDERED.
Dated:

Brooklyn, New York
September 25, 2012
/s/
MARILYN DOLAN GO
UNITED STATES MAGISTRATE JUDGE

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