Linkov v. Golding et al
ORDER granting 31 Motion to Amend/Correct/Supplement. See attached Order. Ordered by Magistrate Judge Lois Bloom on 4/10/2014. (Sullivan, Meghan)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
12 CV 2722 (FB)(LB)
- against DAVID GOLDING,
BLOOM, United States Magistrate Judge:
Plaintiff filed a letter motion to amend the complaint in this copyright infringement
action and defendant opposed. (ECF Nos. 30, 31, 34, 35.) For the reasons set forth below, the
Court grants plaintiff leave to file the proposed Amended Complaint.
The underlying facts of this action are detailed in the Court’s Report recommending that
defendant’s motion to vacate the default be granted and that his answer be filed nunc pro tunc.
(ECF No. 17.)
After this Report and Recommendation was adopted, the Court held an initial
conference, during which I directed plaintiff to file any motion to amend by February 7, 2014.
Instead of filing a motion, plaintiff filed a letter attaching the proposed Amended Complaint.
The proposed Amended Complaint adds two sentences to the Original Complaint. First, the
Amended Complaint states that Milton Tanenbaum was dismissed from this action. (Proposed
Amended Compl. ¶ 3.) Second, plaintiff states that his rights are protected by Registration No.
Pau 3-707-063 from the United States Copyright Office. (Proposed Amended Compl. ¶ 5.)
Defendant opposes the amendment on three grounds: (a) plaintiff failed to file a motion
in support of his request to amend; (b) the amendments fail to state a claim; and (c) the
remainder of the proposed amended complaint (essentially the original complaint) fails to meet
the pleading standards set forth in Rules 8 and 9(b) of the Federal Rules of Civil Procedure.
(ECF No. 35.) Defendant requests that plaintiff “not be granted leave to file its amended
complaint and it should be directed to withdraw its original complaint.” (Id. at 2.)
Rule 15(a) of the Federal Rules of Civil Procedure instructs that leave to amend should
be “freely give[n] . . . when justice so requires.” Fed. R. Civ. P. 15(a). The Court may deny a
motion to amend for reasons such as “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, futility of amendment,
etc.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting Foman v. Davis,
371 U.S. 178 (1962)).
The Court finds no bad faith, undue delay, or prejudice to defendant by permitting
amendment – and defendant alleges none. Although defendant asserts that the amendment
would be futile, he also requests that the original complaint should be “withdrawn” because it
fails to meet the minimal pleading standards. In light of the fact that the proposed Amended
Complaint adds two sentences to the Original Complaint and defendant asserts that both
complaints are insufficient under the Federal Rules, the Court finds the better course here is to
permit amendment, without prejudice to defendant moving to dismiss the Amended Complaint.
The Court, however, admonishes plaintiff’s counsel for failing to include a notice of motion and
memorandum of law in support of his request to amend as required by Local Civil Rule 7.1.
Counsel shall abide by Local Civil Rule 7.1 in the future or he shall be subject to sanctions.
For the reasons set forth above, plaintiff’s motion to amend is granted. Defendant shall
respond to the Amended Complaint by May 14, 2014. Should defendant seek permission to
move to dismiss in lieu of filing an answer, he shall request a pre-motion conference in
accordance with Judge Block’s Individual Motion Practices and Rules by May 14, 2014.
United States Magistrate Judge
Dated: April 10, 2014
Brooklyn, New York
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