Williams v. Town of Hempstead et al
MEMORANDUM of DECISION & ORDER denying 55 Motion to Amend/Correct/Supplement. SO ORDERED that the Court finds that Rule 16(b) properly applies to the instant motion, and further finds that the Plaintiff has failed to demonstrate good cause for his lack of timeliness. The Plaintiff's motion to amend the complaint is denied in its entirety. Ordered by Judge Arthur D. Spatt on 10/18/2017. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION & ORDER
-againstTOWN OF HEMPSTEAD, H2M
ARCHITECTS, ENGINEERS, LAND
SURVEYING AND LANDSCAPE
ARCHITECTURE, D.P.C., GAPPSI, INC.,
MGP LANDSCAPE CONSTRUCTION, LLC
d/b/a GAPPSI, L&G RUGGIERO, INC., and
10/18/2017 3:38 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
Attorney for the Plaintiff
591 Stewart Avenue, Suite 400
Garden City, NY 11530
By: Bradley R. Siegel, Esq., Of Counsel
BERKMAN HENOCH PETERSON PEDDY & FENCHEL, P.C.
Attorney for the Defendant Town of Hempstead, & Raymond Schwarz
100 Garden City Plaza
Garden City, NY 11530
By: Joseph E. Macy, Esq.
Donna A. Napolitano, Esq.
Kaitlyn A. Costello, Esq., Of Counsel
L’ABBATE BALKAN COLAVITA & CONTINI LLP
Attorney for the Defendant H2M Architects
1050 Franklin Avenue
Garden City, NY 11530
By: Richard Metli, Esq., Of Counsel
CANFIELD MADDEN & RUGGIERO LLP
Attorney for the Defendant Gappsi, Inc., & MGP Landscape Construction, LLC
1461 Franklin Avenue
Garden City, NY 11530
By: John Ruggiero, Esq., Of Counsel
LAWRENCE V. CARRA
Attorney for the Defendant L&G Ruggiero, Inc.
114 Old Country Road
Mineola, NY 11501
By: Lawrence V. Carra, Esq., Of Counsel
SPATT, District Judge.
On April 22, 2016, Philip Williams (“Williams” or the “Plaintiff”), filed a complaint
against the defendants, Town of Hempstead (the “Town”), H2M Architects, Engineers, Land
Surveying and Landscape Architecture, D.P.C. (“H2M”), Gappsi Inc. (“Gappsi”), MGP
Landscape Construction, LLC d/b/a/ Gappsi, L&G Ruggiero, Inc. (“L&G”), and Raymond
Schwarz (“Schwarz”), (collectively, the “Defendants”). The complaint sets forth fourteen causes
of actions stemming from the demolition of the Plaintiff’s property, located at 27 Garden City
Boulevard, Hempstead, NY pursuant to Chapter 90 of the Town’s Code. The Plaintiff alleges
that since the filing of the complaint, discovery has yielded additional facts that require: (1)
adding information to the Plaintiff’s procedural due process claim; (2) adding claims of fraud,
fraud by omission, malpractice, and an additional negligence claim; (3) adding Michel Bonacasa,
Roy Gunther, and John Rotkamp as defendants; and (4) refining his request for a declaratory
judgment that Chapter 90 of the Town of Hempstead Town Code is unconstitutional because it is
void for vagueness.
On June 7, 2016, H2M answered the complaint and asserted various cross claims. Eight
days later, on June 15, 2016, L&G answered the complaint and asserted its own cross claims
against various defendants.
On June 21, 2016, the Town and Schwarz answered the complaint and asserted cross
On July 27, 2016, the Plaintiff and the Defendants appeared before Magistrate Judge
Anne Shields for an initial conference. Magistrate Judge Shields issued a scheduling order, ECF
No. 39-1, which among other things, set the deadline for any motions to amend the pleadings or
join new parties as September 12, 2016. On September 12, 2016, the Plaintiff filed a motion
requesting an extension of the deadline for joinder or amendment from September 12, 2016 to
October 12, 2016. ECF No. 42. Magistrate Judge Shields granted this request on October 4,
On February 15, 2017, the Plaintiff again filed a request to extend the deadline to amend
the pleadings or add additional parties, this time as part of a broader request to extend time to
complete discovery. The Plaintiff requested that he have until March 15, 2017 to move to amend
the pleadings or add additional parties to his complaint. The next day, February 16, 2017,
Magistrate Judge Shields issued an electronic order that granted the Plaintiff an extension as to
the discovery deadlines, but did not provide additional time to amend the pleadings.
On July 19, 2017, the Plaintiff filed the instant motion to amend the complaint, pursuant
to Rule 15(a)(2) of the Federal Rules of Civil Procedure (“Rules” or “FED. R. CIV. P.”).
Fact discovery in this case is scheduled to be completed on October 23, 2017 with
dispositive motion practice to begin on November 15, 2017.
For the reasons set forth below, the motion by the Plaintiff is denied.
A. The Legal Standard
FED. R. CIV. P. 15(a), which typically governs a motion to amend a complaint, states, in
relevant part, “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). Unless there is a showing of bad faith, undue delay, futility or undue prejudice to the
non-moving parties, the district court should grant leave to amend. Foman v. Davis, 371 U.S.
178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110
(2d Cir. 2001) (internal citations omitted); Hemphill v. Schott, 141 F.3d 412, 420 (2d Cir. 1998).
The decision on whether to grant a motion to amend rests within the sound discretion of the
district court. Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 603-04 (2d Cir.
2005); Hemphill, 141 F.3d at 420.
Furthermore, where, as here, the proposed amended complaint adds new parties, FED. R.
CIV. P. 21 also typically governs. Rule 21 explains that “[o]n motion or on its own, the court
may at any time, on just terms, add or drop a party.” FED. R. CIV. P. 21; see also City of
Syracuse v. Onondaga Cty., 464 F.3d 297, 308 (2d Cir. 2006) (“Although Rule 21 contains no
restrictions on when motions to add or drop parties must be made, the timing of the motion may
influence the court’s discretion in determining to grant it.” (internal citations and quotations
The Court has discretion to determine whether or not to add a party, regardless of the
stage of the litigation. Sullivan ex rel. Pointer, Cleaners & Caulkers Welfare Pension & Annuity
Funds v. W. New York Residential, Inc., No. 01-cv-7847, 2003 WL 21056888, at *1 (E.D.N.Y.
Mar. 5, 2003). A leave to amend to assert claims against an additional defendant should only be
denied for the same enumerated reasons as set forth under Rule 15. DeFazio v. Wallis, No. 05cv-5712, 2006 WL 4005577, at *1 (E.D.N.Y. Dec. 9, 2006) (Spatt, J.) (internal citations
When a pretrial scheduling order has been entered by the Court, as is the case here, that
specifies the deadline for a party’s ability to amend a pleading, “the lenient standard under Rule
15(a) … 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) (quoting FED. R. CIV. P. 16(b)); see also Holmes v.
Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (“Where, as here, a scheduling order governs
amendments to the complaint … the lenient standard under Rule 15(a) … 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.” (internal citations and quotations omitted)); FED. R. CIV.
P. 16(b) (“A schedule may be modified only for good cause and with the judge’s consent.”).
As a result, a plaintiff is required to demonstrate good cause under Rule 16(b) to modify
a scheduling order, irrespective of whether Rule 15(a) may be satisfied. See Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007); Parker v. Columbia Pictures Indus., 204
F.3d 326, 340 (2d Cir. 2000). The good cause standard is based primarily on the “diligence of
the moving party.” Holmes, 568 F.3d at 335 (citing FED. R. CIV. P. 16(b) advisory committee’s
note); accord Presbyterian Church of Sudan v. Talisman Energy, Inc., 582 F.3d 244, 267 (2d
Cir. 2009). “[T]he movant must show that the deadlines cannot be reasonably met despite its
diligence.” Rent-A-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y.
2003) (internal citations omitted); see also Perfect Pearl Co., Inc. v. Majestic Pearl & Stone,
Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012) (“To show good cause, a movant must
demonstrate that it has been diligent, … meaning that despite its having exercised diligence, the
applicable deadline could not have been reasonably met.” (internal citations and quotations
Good cause is not present “when the proposed amendment rests on information that the
party knew, or should have known, in advance of the deadline.” Enzymotec Ltd. v. NBTY, Inc.,
754 F. Supp. 2d 527, 536 (E.D.N.Y. 2010) (internal citations and quotations omitted). “[I]n the
exercise of its discretion under Rule 16(b), [the Court] also may consider other relevant factors
including, in particular, whether allowing the amendment of the pleading at this stage of the
litigation will prejudice the defendants.” Kassner, 496 F.3d at 244; accord Ratcliffe v. Pradera
Realty Co., No. 05-civ.-10272, 2007 WL 3084977, at *1 (S.D.N.Y. Oct. 19, 2007).
Rule 16(b) is designed to create certainty in pretrial proceedings and ensure that “at some
fixed point both the parties and the pleadings will be fixed.” Parker, 204 F.3d at 339-40 (citing
FED. R. CIV. P. 16 advisory committee’s note). If the Court were to consider Rule 15(a) without
taking into account the good cause standard required under Rule 16(b), it “would render
scheduling orders meaningless and effectively would read Rule 16(b) and its good cause
requirement out of the Federal Rules of Civil Procedure.” Id. at 340.
In this case, the Plaintiff was required to request leave to amend the complaint on or
before October 12, 2016. As previously stated, Williams did not file the instant motion until July
19, 2017. As such, the Court must apply the good cause standard of Rule 16(b) in this case.
B. Good Cause
Pursuant to Rule 16(b)(3)(A), October 12, 2016 was the deadline for the Plaintiff to
request to amend the complaint or add additional parties. The Plaintiff filed the instant motion in
July 2017, more than nine months after the Court’s imposed deadline and has failed to justify
such an extensive delay. See, e.g., Kontarines v. Mortg. Elec. Registration Sys., Inc., No. 15-cv2206, 2016 WL 3821310, at *4 (E.D.N.Y. July 12, 2016) (good cause is not met when the
Plaintiff filed a motion to amend 11 months after the court imposed deadline for amending
pleadings); Rent-A-Center, 215 F.R.D. at 104 (denying motion to amend that was filed four
months after the court’s scheduling order deadline).
The Plaintiff contends that he has good cause to amend his complaint despite the passage
of more than nine months since the deadline for amendments to the pleadings established by
Magistrate Judge Shields’s scheduling order. In an attempt to rationalize such an extended
delay, Williams reasons that a series of clerical and attorney errors prevented the Plaintiff’s
counsel from ensuring that the deadline did not pass. See, e.g., Memorandum of Law in Reply to
Defendants Town of Hempstead and Raymond Schwarz’s Opposition to Plaintiff’s Motion to
Amend Complaint Pursuant to Federal Rule of Civil Procedure 15(a)(2) (“Plaintiff’s Town
Reply”) at 2 (“After receiving the February 16, 2017 [Scheduling] Order, this office calendared
the new discovery dates, however, we did not realize that the Order was silent as to the time for
joinder and amendment.”). However, counsel’s inability to keep track of this Court’s deadlines
on multiple occasions only enhances the Town’s claims that the Plaintiff lacks good cause.
Furthermore, with the exception of the Plaintiff’s proposed challenge of the Town’s Code
for vagueness, this is not a case where new information collected during discovery revealed a
new basis for bringing new or refined claims. An examination of the complaint reveals that the
Plaintiff was aware of the factual basis for this motion to amend at the time of the original
complaint. See, e.g., Complaint ¶ 48 (“According to Defendant Schwarz, an employee or agent
of Defendant Town partially fell through the roof of the Premises and Defendant Town
misrepresented the damage to the roof by failing to document this fact in Defendant Town’s
records and by failing to mention that an employee or agent of Defendant Town falling through
the roof and created a hole in the roof at a public Chapter 90 hearing in order to obtain
authorization to demolish the premises.”).
Other than the proposed changes to the Plaintiff’s constitutionality challenge against the
Town’s Code, the remainder of the changes are based on facts that were present in the original
complaint. The Court finds that the Plaintiff’s proposed amendments rest on information “that
the party knew, or should have known, in advance of the [Court’s] deadline.” Sokol Holdings,
Inc. v. BMD Munai, Inc., No. 05-cv-3749, 2009 WL 2524611, at *7 (S.D.N.Y. Aug. 14, 2009)
(internal citations omitted). Therefore, Williams did not “act with sufficient diligence,” id., to
satisfy Rule 16(b)’s good cause standard.
Concerning the remaining request to amend regarding the vagueness challenge to Chapter
90 of the Town’s Code, the Plaintiff concedes in his reply brief that Schwarz’s deposition
revealed that those charged with enforcing the statute were allegedly unable to interpret it. See
Plaintiff’s Town Reply at 4 (“It was further revealed during the deposition of Schwarz, the
Supervisor of Inspection Services, that the individuals charged with enforcing Chapter 90 of the
[Town] Code … were unable to adequately interpret the statute.”). Although Williams asserted
that only after “further reviewing Chapter 90” did it become apparent that the statute was
unconstitutionally vague, the Plaintiff failed to explain why it took him an additional eight
months to reach that conclusion. Such a delay is the antithesis of the diligence required by the
good cause standard, as defined by Rule 16(b).
Furthermore, regardless of whether the Plaintiff acquired new information from
discovery, the Plaintiff’s conduct during discovery demonstrated a lack of “good cause” required
under Rule 16(b). Williams failed to move the Court to amend his complaint in October 2016,
when he was required to do so. Further, the Plaintiff has not taken any steps to amend the
complaint since February 2017, when Williams requested an extension of time to complete
discovery. This was more than six months before the filing of the instant motion. Even if the
Court accepts counsels’ reasoning for failure to properly calendar the Court’s orders, the Plaintiff
has still offered no satisfactory reason why he did not seek to amend the pleading in March 2017.
Williams’s sole justification for the failure to file the instant motion in a timely manner
was that “[a]dditional factual information has arisen as a result of said discovery, necessitating
the amendment to the Complaint.” Memorandum of Law in Support of Plaintiff’s Motion to
Amend Complaint Pursuant to Federal Rule of Civil Procedure 15(a)(2) at 2. After filing the
original complaint, the Plaintiff asserts that although the Town produced significant discovery in
2016 and Williams received interrogatory responses from Schwarz in November 2016, such
information “needed explanation through many hours of deposition testimony.” Plaintiff’s Town
Reply at 3.
However, all of the relevant discovery that the Plaintiff cites in response occurred in late
2016 and the first few months of 2017. See, e.g., Plaintiff’s Town Reply Exs. E (dated 2/13/17),
G (dated 12/20/16), H (dated 2/28/17), J (dated 11/21/16). The last relevant deposition that the
Plaintiff mentions in his briefing occurred on March 20, 2017, which was well before the time
this motion was filed. See Plaintiff’s Town Reply at 3-4. In other words, by the Plaintiff’s own
admission, he had sufficient discovery by February/March 2017 to move this Court to amend the
complaint. The Plaintiff’s counsel’s reasoning is insufficient to explain why he waited so long
after completing what he admits was enough discovery, to raise with the Court the matter of
amending the complaint. See, e.g., iMedicor, Inc. v. Access Pharm., Inc., 290 F.R.D. 50, 53
(S.D.N.Y. 2013) (good cause not met because plaintiff was aware of requisite information eight
months before its motion to amend); McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 201
(2d Cir. 2007) (good cause not met when “Plaintiffs became aware of the need to consider a
possible claim … more than seven months before moving to amend their complaint”).
Williams has not shown, as he was required to, that he diligently sought to comply with
this Court’s scheduling order.
He therefore lacks the good cause necessary to amend the
complaint. See, Grochowski, 318 F.3d at 86; see also Johnson v. Mammoth Recreations, Inc.,
975 F.2d 604, 609 (9th Cir. 1992) (“If [a] party was not diligent, the [good cause] inquiry should
end.”). Compliance with Rule 16’s good cause standard “is a threshold matter which may
obviate the Rule 15 analysis.” Goureau v. Goureau, No. 12-civ-6443, 2013 WL 1499404, at *2
(S.D.N.Y. Apr. 10, 2013). Thus, the Plaintiff’s failure to demonstrate good cause precludes the
need for the Court to address Rule 15 or Rule 21. See, e.g., Otegbade v. New York City Admin.
for Children Servs., No. 12-civ.-6298, 2015 WL 851631, at *4 (S.D.N.Y. Feb. 27, 2015) (“And
the Court declines to reach the issue of prejudice, as it has exercised its discretion to decide
Plaintiff’s application to amend under the ‘good cause’ standard of Rule 16(b).” (internal
For the foregoing reasons, the Court finds that Rule 16(b) properly applies to the instant
motion, and further finds that the Plaintiff has failed to demonstrate good cause for his lack of
timeliness. The Plaintiff’s motion to amend the complaint is denied in its entirety.
It is SO ORDERED:
Dated: Central Islip, New York
October 18, 2017
__/s/ Arthur D. Spatt__
ARTHUR D. SPATT
United States District Judge
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