Amaya v. Roadhouse Brick Over Pizza, Inc. et al
ORDER granting 18 Motion to Amend/Correct/Supplement. The Amended Complaint must be filed on ECF and served on Canoe within 14 days. The parties are directed to proceed to Courtroom 910 for a brief conference with this Court after their hearing before Judge Wexler on October 23, 2012. SEE ATTACHED ORDER for additional information. Ordered by Magistrate Judge A. Kathleen Tomlinson on 10/18/2012. (Sofio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LUIS A. AMAYA on behalf of himself and all
others similarly situated,
- against CV 11-5453 (LDW) (AKT)
ROADHOUSE BRICK OVEN PIZZA, INC.,
d/b/a ROADHOUSE BRICK OVEN PIZZA,
and CHARLES HERMAN, an individual,
A. KATHLEEN TOMLINSON, Magistrate Judge:
In this case brought pursuant to the Fair Labor Standards Act (“FLSA”) and the New
York Labor Law (“NYLL”), Plaintiff Luis A. Amaya (“Amaya”) moves to amend the Summons
and Complaint to add an additional entity, Canoe the River, Inc. (“Canoe”) as a Defendant [DE
18]. For the reasons that follow, the motion is GRANTED.
In the original Complaint, Plaintiff alleges that Defendants Roadhouse Brick Oven Pizza,
Inc. (“Roadhouse”) and Charles Herman (“Herman”) were and are employers within the meaning
of the FLSA and the NYLL. Compl. [DE 1] ¶¶ 13, 26. Herman is allegedly, among other titles,
the owner/operator and president of Roadhouse. Id. ¶¶ 14-21. Plaintiff further asserts that he
worked as a kitchen laborer for Defendants for more than seventy (70) hours per week from 2000
through January 2010, id. ¶ 35, that Defendants failed to pay him overtime, id. ¶ 36, and that
Defendants did not provide him with required break periods, see id. ¶ 41. The case was brought
as a collective action. However, Plaintiff has not moved for certification of the case as a
In Defendants’ Amended Response to Plaintiff’s First Set of Interrogatories, Defendants
stated the following regarding Canoe:
Interrogatory No. 9: Set forth the following information relating to
the entity Canoe the River, Inc.: the name and last known address of
any shareholder(s), the type of business it conducted, and whether it
Answer No. 9: . . . Subject to and without waiving such objections,
Defendants respond as follows: Janet Greco, Vice President, Charles
Herman, President; the corporation operated in the food service
industry and employed Plaintiff. Each shareholder can be reached c/o
Zabell & Associates, P.C.
See Declaration of Ilan Weiser in Support of Plaintiff’s Motion to Amend Summons and
Complaint [DE 19] (“Weiser Decl.”), Ex. 3 at 7. After receiving these Amended Responses on
June 29, 2012, Plaintiff sought consent from Defendants’ counsel’s to amend the Complaint to
add Canoe as a party. Pl’s. Mem. at 4. Defendants’ counsel declined. Id. Thereafter, on July 3,
2012, the deadline set forth in the Case Management and Scheduling Order for amendment of
pleadings, Plaintiff filed a letter motion to amend the Complaint to add Canoe as a party. DE 16.
The letter motion was denied, without prejudice, because the Court requires motions to amend to
be filed as formal motions pursuant to the Federal Rules of Civil Procedure. See Electronic
Order dated July 5, 2012. Plaintiff was, however, granted permission “to file the appropriate
motion under the Federal Rules provided that the motion is served and filed by July 13, 2012.”
Id. The instant motion was filed on July 13, 2012.
The exact nature of the relationship between Canoe and Roadhouse is unclear at this
juncture. Nevertheless, Plaintiff claims that Canoe and Roadhouse share the exact same office
location and are both owned by Defendant Herman. Weiser Decl. ¶¶ 8-9.
Rule 15(a) of the Federal Rules of Civil Procedure provides that in cases where a party
cannot amend as a matter of course, “a party may amend its pleading only with the opposing
party’s written consent or the court’s leave.” Accord Lucente v. Int’l Bus. Machs. Corp., 310
F.3d 243, 258 (2d Cir. 2002); Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991). A court
“should freely give leave when justice so requires” and such leave is in the court’s discretion.
See Fed. R. Civ. P. 15(a); Grace v. Rosenstock, 228 F.3d 40, 56 (2d Cir. 2000).
Notwithstanding the foregoing principle, leave to amend may be denied where there is
“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 the amendment, etc.” Williams v. Citigroup Inc., 659
F.3d 208, 213-14 (2d Cir. 2011) (quoting Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227
(1962)); SCS Commc’n, Inc. v. Herrick Co., 360 F.3d 329, 345 (2d Cir. 2004) (“[U]nder Rule
15(a), leave to amend a pleading may only be given when factors such as undue delay or undue
prejudice to the opposing party are absent.”) (emphasis in original). “The party opposing the
motion for leave to amend has the burden of establishing that an amendment would be
prejudicial.” Fariello v. Campbell, 860 F. Supp. 54, 70 (E.D.N.Y. 1994); see also European
Cmty. v. RJR Nabisco, Inc., 150 F. Supp. 2d 456, 502-03 (E.D.N.Y. 2001); Saxholm AS v. Dynal,
Inc., 938 F. Supp. 120, 123 (E.D.N.Y. 1996). The opposing party likewise bears the burden of
establishing that an amendment would be futile. See Blaskiewicz v. County of Suffolk, 29 F.
Supp. 2d 134, 137-38 (E.D.N.Y. 1998) (citing Harrison v. NBD Inc., 990 F. Supp. 179, 185
Although not raised in the parties’ papers, a motion to amend which seeks to add new
parties also implicates Federal Rule of Civil Procedure 21 which provides that “[o]n motion or
on its own, the court may at any time, on just terms, add or drop a party.” See Garcia v. Pancho
Villa’s of Huntington Vill., Inc., 268 F.R.D. 160, 165 (E.D.N.Y. 2010). There is, however, little
practical difference between Rule 15 and Rule 21 since they both leave the decision whether to
permit or deny an amendment to the district court’s discretion. Id.; Franco v. Ideal Mortg.
Bankers, Ltd., No. 07-CV-3956, 2009 WL 3150320, at *3 n.3 (E.D.N.Y. Sept. 28, 2009) (citing
Savine Rivas v. Farina, No. 07-CV-3956, 1992 WL 193668, at *1 (E.D.N.Y. Aug. 4, 1992)).
Defendants argue that Plaintiff’s motion should be denied because: (1) the motion is
untimely; (2) the motion is prejudicial; and (3) the proposed amendment is futile. The Court will
address each argument in turn.
As to timeliness, Defendants argue that there have been “ongoing discussions regarding
Plaintiff’s error in pleading” since the action was commenced on November 8, 2011 and, as a
result, Plaintiff should have sought leave to amend prior to July 2012. Defs.’ Mem. at 3-4.
Defendants further contend that Plaintiff knew about the existence of Canoe prior to Defendants’
service of their Amended Response to Plaintiff’s First Set of Interrogatories in June 2012 and, as
proof of this fact, point to Plaintiff’s reference to Canoe in his discovery demand served the
previous month. Id. at 4. On this point, Plaintiff states that while he was aware of the existence
of Canoe prior to the service of Defendants’ Amended Response to Plaintiff’s First Set of
Interrogatories, he sought to confirm that Canoe was the entity which employed Plaintiff prior to
seeking leave to amend. Pl’s. Reply Mem. at 2. Plaintiff also argues that Defendants’ initial
refusal to answer an interrogatory asking whether Canoe was Plaintiff’s employer contributed to
the delay. Id.
Plaintiff’s motion is timely. Although the initial filing was procedurally defective,
Plaintiff sought leave to amend by the July 3, 2012 deadline for joinder of additional parties set
forth in the Case Management and Scheduling Order. See DE 15, DE 16. Thereafter, Plaintiff
filed a formal motion to amend by the Court-extended deadline of July 13, 2012. See Electronic
Order dated July 5, 2012; DE 18. Plaintiff did not receive confirmation that Canoe was
Plaintiff’s employer until the service of Defendants’ Amended Response to Plaintiff’s First Set of
Interrogatories on June 29, 2012. Pl’s. Mem. at 4.1 Although Plaintiff was apparently aware of
the existence of Canoe prior to the receipt of Defendants’ Interrogatory Responses, there is
nothing in the record which suggests that Plaintiff knew definitively that Canoe was the entity
which employed Plaintiff. Seeking confirmation of this fact through an interrogatory response
prior to bringing a party into a lawsuit is not construed as a dilatory tactic by this Court. See
Defendants state that their Amended Response to Plaintiff’s First Set of Interrogatories
was issued on June 11, 2012. Defs.’ Mem. at 5. The Amended Response, however, was signed
by counsel for Defendants on June 29, 2012. See Weiser Decl., Ex. 3. Even if the Amended
Response was served on June 11, 2012, the Court would not consider waiting until July 3, 2012
to seek leave to constitute undue delay. As an aside, the Court notes that although the parties
represented in their status report to the court submitted August 16, 2012 that “both defendants’
and plaintiff’s interrogatory responses have been certified by the clients as to their accuracy and
completeness,” DE 23, Defendants’ Amended Response is not signed by the Defendants.
Franco, 2009 WL 3150320, at *3 (granting leave to amend to add new defendants in FLSA case
where plaintiff learned of the existence of additional employers in discovery).
Regarding the claim of prejudice, Defendants maintain that the proposed amendment will
necessitate further discovery. Defs.’ Mem. at 5. “[T]he adverse party’s burden of undertaking
discovery, standing alone, does not suffice to warrant denial of a motion to amend a pleading.”
Bernhard v. Central Parking Sys. of New York, Inc., 282 F.R.D. 284, 291 (E.D.N.Y. 2012)
(quoting United States v. Continental Ill. Nat’l Bank & Trust of Chicago, 889 F.2d 1248, 1255
(2d Cir. 1989)). In Garcia v. Pancho Villa’s of Huntington Village, Inc., the Court granted the
plaintiffs leave to amend notwithstanding the fact that the addition of new defendants would
require the re-deposition of the three plaintiffs and that the costs of the new discovery would ruin
the defendants financially. 268 F.R.D. at 166. Here, there is no claim of financial calamity or
other exigent circumstances. Moreover, the deadline for the completion of discovery is
November 27, 2012. While Defendants argue that the addition of Canoe “will necessitate further
discovery,” Defs.’ Mem. at 5, Defendants fail to specify what that discovery is or why it cannot
be completed by the existing deadline.
Defendants’ final argument is that the proposed amendment is futile. Without citing a
single case, Defendants make the following argument regarding futility:
On one hand, Plaintiff relies on the precept that a worker may be
employed by more than one entity for purposes of the FLSA or
NYSLL, on the other hand, Plaintiff admits that Defendant Charles
Herman sold the business known as “Roadhouse Brick Oven Pizza”
to a third party on or about January 25, 2010. However, the fact that
Roadhouse was sold does not bear upon the identity of Plaintiff’s
former employer. It is clear from the facts adduced herein that (1)
Plaintiff had one employer, (2) Plaintiff sued the wrong entity, and
that (3) Plaintiff failed to correct the error.
Defs.’ Mem. at 6. It is unclear exactly what Defendants are arguing here. Plaintiff’s claims are
asserted for the period running from 2000 through January 2010 – thus, the sale of Roadhouse on
January 25, 2010 is largely irrelevant. To the extent that Defendants argue that Canoe is not
Plaintiff’s employer, this is a factual dispute that the Court will not resolve on a motion to
For the foregoing reasons, Plaintiff’s motion to amend the Complaint is GRANTED. The
Amended Complaint must be filed on ECF and served on Canoe within 14 days. The Court
further finds that “amending” the summons is not the appropriate step procedurally here. See
Osrecovery, Inc. v. One Group Int’l, Inc., 234 F.R.D. 59 (S.D.N.Y. 2005) (noting that Fed. R.
Civ. P. 4(a) permits amendments of the summons to address minor or technical issues such as
misspelling a defendant’s name). Instead, at the time the Plaintiff files the Amended Complaint,
counsel should also request a new summons for Canoe from the Clerk’s Office.
The parties are directed to proceed to Courtroom 910 for a brief conference with this
Court after their conference before Judge Wexler on October 23, 2012.
Finally, Defendants’ requests to recover costs and expenses incurred to date in discovery
and for an award of costs and legal fees incurred in connection with opposing this motion are
Dated: Central Islip, New York
October 18, 2012
/s/ A. Kathleen Tomlinson
A. KATHLEEN TOMLINSON
U.S. Magistrate Judge
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