Weaver v. Warrington et al

Filing 92

MEMORANDUM & ORDER, For the foregoing reasons, plaintiff's motion for leave to amend is denied. The Clerk of Court is directed to mail a copy of this order to the pro se plaintiff. So Ordered by Judge Eric N. Vitaliano on 10/17/2018. (c/m to pro se, c/m electronica via cm/ecf) (Lee, Tiffeny)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

LASHANA WEAVER,
Plaintiff,
MEMORANDUM & ORDER

-against14-CV-7097(ENV)
(ST)
BENTLEY WARRINGTON,
Defendant.
X

VITALIANO,D.J.

On December 4,2014, plaintiff Lashana Weaver initiated this action, bringing a variety

of claims arising from her employment with the New York City Department of Education.
Compl.(ECF No. 1). She has since fired her attorney and chosen to proceed pro se. Weaver

now requests leave to file a second amended complaint.^ PL's Br. in Supp. of Mot.for Leave to
Amend(ECF No. 85)("Mot."). She seeks to add three defendants and to reinstate several claims
that were previously dismissed. Id. For the reasons set forth below,the motion is denied.
Discussion

In her original complaint, plaintiff sued Bentley Warrington and the New York City

Department of Education, advancing an assortment ofemployment discrimination claims against
both defendants, as well as a state-law malicious prosecution claim against Warrington. Weaver

filed an amended complaint on July 17,2015, Am.Compl.(ECF No. 25), which defendants
moved to dismiss on August 18, 2015, Mot. to Dismiss(ECF No. 28). Following oral argument,

'Although plaintiff filed only a memorandum in support of a motion for leave to amend and did
not file a motion, out ofthe solicitude owed to pro se litigants, the Court will treat plaintiffs
brief as a motion.

on October 1,2015,the Court(per Gleeson, J.) dismissed all claims except the malicious

prosecution claim against Warrington, which was deemed a § 1983 claim. Minute Entry &
Order (Oct. 1,2015). Focused by the dismissal order,the parties began the discovery process.

Finally, after nearly four years oflitigation, on August 21,2018, Magistrate Judge Tiscione
ordered that discovery close by September 11,2018 and that any dispositive motion practice
commence by October 11,2018. Order Granting Mot. for Extension of Time(Aug. 21,2018).

Then, on September 28,2018, apparently mistaking Judge Tiscione's directive as a suggestion
rather than a scheduling order. Weaver sought to turn back the hands oftime and filed this
motion to rekindle lost claims.

In short, her motion is untimely, and she has not offered a speck of good cause to excuse

it. "Where a scheduling order has been entered, the lenient standard under Rule 15(a), which

provides leave to amend 'shall be freely given,' must be balanced against the requirement under
Rule 16(b)that the Court's scheduling order 'shall not be modified except upon a showing of

good cause.'" Grochowski v. Phoenix Constr., 318 F.3d 80,86(2d Cir. 2003)(first quoting Fed.
R. Civ. P. 15(a); and then quoting Fed. R. Civ. P. 16(b)); see also Zahra v. Town ofSouthold,48
F.3d 674,685(2d Cir. 1995)(noting that "[u]ndue delay" is a "reason[] to deny leave" to

amend). Here, Magistrate Judge Tiscione set a deadline of September 11, 2018 for the close of
discovery, and weeks after that deadline and more than a month after its scheduling. Weaver
filed a motion that, if granted, would cause not a simple delay in the schedule but a reopening of

discovery. That is one reason why,not surprisingly, courts in this circuit routinely hold that
motions to amend are untimely when filed after the close of discovery. See, e.g., McCarthy v.
Dun & Bradstreet Corp.,482 F.3d 184,202(2d Cir. 2007); Williams v. WoodhullMed. &
Mental Health Ctr., No. lO-cv-1429(NGG)
(LB),2012 WL 555313, at *3 n.4(E.D.N.Y. Jan. 31,

2012), adopted,2012 WL 567028(E.D.N.Y. Feb. 16,2012); Simon v. City ofNew York, No. 09cv-1302(ENV)
(RER),2011 WL 317975(E.D.N.Y. Jan. 3,2011). adopted, 2011 WL 344757

(E.D.N.Y. Feb. 1,2011). In Williams and McCarthy,the already concluded discovery had
spanned almost two years before plaintiffs motion. In Simon,the untimely proposed
amendment came after litigation of only one year. Here, with nearly four years having elapsed

and discovery having closed, plaintiffs motion cannot be characterized as anything close to
timely.

In light ofthat finding,the Court must determine whether Weaver has shown good cause
for her delay. "A finding of good cause depends on the diligence ofthe moving party."

Grochowski, 318 F.3d at 86(citing Parker v. Columbia Pictures Indus., 204 F.3d 326,340(2d

Cir. 2000)). Consequently, with timing a determining feature,"[a] party fails to show good
cause when the proposed amendment rests on information that the party knew,or should have
known,in advance ofthe deadline." Levy v. Young Adult Inst., Inc., No. 13-cv-2861 (JPO)(SN),
2014 WL 6611454, at *10(S.D.N.Y. Nov. 21,2014). Weaver concedes that "[t]he alleged facts

[of her hypothetical amended complaint^] were entirely known - and, in fact, in existence -at
the time [she] filed [her] original complaint." Mot. at 17. Indeed,the parties Weaver seeks now
to sue as defendants were previously identified and listed as witnesses. Moreover, by plaintiffs

account. Judge Gleeson had recommended joining them as defendants as early as October 1,
2015. See Mot. at 6. In other words. Weaver allowed this litigation to plod along for four years,

with discovery opening and closing, before springing an amended complaint as defendants
finalized dispositive motions, and with no explanation of why she could not have amended

^ To make matters worse, plaintiff did not file a proposed amended complaint with her motion.

earlier. Cf. Levy,2014 WL 6611454, at *3("To show good cause, a movant must demonstrate ..
. that despite the movant's effort, the deadline to amend the pleadings could not have been
reasonably met.").

As for the "new" claims Weaver seeks to add, certainly, it must not, and does not, escape

notice that they are the very claims that Judge Gleeson dismissed over three years ago. Mere

reassignment ofthe case to a successorjudge does not reopen issues already decided by the

predecessor. It most definitely does not constitute good cause excusing the untimeliness of a
proposed amendment to the complaint. If anything, the opposite is true, especially given the still
standing declaration that the claims are implausible. See generally Bell Atl Corp. v. Tv^ombly,
550 U.S. 544,570, 127 S. Ct. 1955, 167 L. Ed. 2d 929(2007)(explaining that the standard on a

Rule 12(b)(6) motion is whether a complaint "state[s] a claim to relief that is plausible on its

face"). Plaintiff has made no showing that claims that once could not even survive the threshold
test of 12(b)(6) are now not only plausible but compelling enough to justify prolonging this four-

year-old litigation journey. Furthermore, the record does not indicate that Judge Gleeson granted
Weaver leave to amend the first incarnation ofthese claims when he dismissed them from the

amended complaint. But, in the face ofthat order. Weaver, still then represented by counsel, did
not move timely for reconsideration nor did she make any other motion seeking leave to amend
the dismissed claims she now seeks to add in her proposed second amended complaint. In this

settled posture, absent a showing of good cause, it would contravene the law ofthe case to allow
plaintiff to join those claims that were previously dismissed.

Lastly, it is obvious that defendants would be significantly prejudiced if plaintiff were
granted another opportunity to amend. In McCarthy,the Second Circuit held that amendment of
the complaint"would have prejudiced defendants because the amendment was sought at a late

stage ofthe litigation, after the close of discovery and after defendants had moved for summary

judgment." McCarthy,482 F.3d at 190. Defendants here have endured much lengthier litigation
than the defendants in McCarthy. Additionally, although Weaver filed her motion before
defendants served their motion for summary judgment, her motion came less than two weeks
before defendants' motion was due, presumably during the preparation ofthe motion.

Evidencing the contemporaneousness and real harm of Weaver's untimely motion, defendants
served their motion for summary judgment hard on the heels ofthe motion Weaver filed. By any

measure, clearly, it would be highly prejudicial to require defendants to suffer through further
discovery or to rewrite that motion and have resolution exponentially delayed, all without any

showing of good cause for delay or even plausibility ofany amendment. Therefore, in these
circumstances,further amendment ofthe complaint is barred.
Conclusion

For the foregoing reasons, plaintiffs motion for leave to amend is denied.
The Clerk of Court is directed to mail a copy ofthis order to the pro se plaintiff.
So Ordered.

Dated: Brooklyn, New York
October 17, 2018

s/Eric N. Vitaliano
ERICN. VITALIANO

United States District Judge