Carrieri v. Town of Rotterdam et al

Filing 32

SUMMARY ORDER - That Carrieri's cross motion for leave to amend the amended complaint (Dkt. No. 24) is GRANTED. That Carrieri shall, in accordance with the requirements of, among other things, Fed. R. Civ. P. 8(a) and N.D.N.Y.L.R. 7.1(a)(4), file a second amended complaint within fourteen (14) days of the date of this Summary Order. That the Motion to Dismiss of the Town and Buffardi (Dkt. No. 20) is DENIED with leave to renew within fourteen (14) days after the filing of the second amended complaint. That Griesemer's Motion to Dismiss (Dkt. No. 22) is DENIED with leave to renew within fourteen (14) days after the filing of the second amended complaint. That, if the defendants elect not to seek dismissal of the second amended complaint, they must file the appropriate responsive pleadings within the time alloted by the rules. That the parties contact Magistrate Judge Hummel to schedule further proceedings in accordance with this order. Signed by Chief Judge Gary L. Sharpe on 11/21/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
VICKI CARRIERI,
Plaintiff,

1:13-cv-332
(GLS/CFH)

v.
TOWN OF ROTTERDAM et al.,
Defendants.
________________________________
SUMMARY ORDER
Plaintiff Vicki Carrieri commenced this action against defendants
Town of Rotterdam, Michael Griesemer, in his capacity as the public works
coordinator for the Town of Rotterdam Department of Public Works, and
Harry Buffardi, in his capacity as the Supervisor of the Town of Rotterdam,
alleging sexual harassment and retaliation related to her employment with
the Town pursuant to Title VII of the Civil Rights Act of 19641 and the New
York State Human Rights Law,2 and a claim under 42 U.S.C. § 1983
related to the same underlying conduct. (Am. Compl. ¶¶ 15-16, 23, 84120, Dkt. No. 16.) Pending are defendants’ motions seeking dismissal of

1

See 42 U.S.C. §§ 2000e-2000e-17.

2

See N.Y. Exec. Law §§ 290-301.

the amended complaint, and the cross motion of Carrieri for leave to
amend her amended complaint. (Dkt. Nos. 20, 22, 24.) For the reasons
that follow, defendants’ motions to dismiss are denied with leave to renew,
and Carrieri’s motion for leave to amend is granted.
As relevant here, Federal Rule of Civil Procedure 15 allows a party
not otherwise permitted to amend its pleading to do so with leave of the
court. See Fed. R. Civ. P. 15(a)(2). The Rule mandates that “[t]he court
should freely give leave when justice so requires.” Id. Nonetheless, “[a]
district court has discretion to deny leave for good reason, including futility,
bad faith, undue delay, or undue prejudice to the opposing party.”
McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007).
“The non-moving party bears the burden of establishing why leave to
amend should not be granted.” Linares v. Richards, No. 08-CV-3243,
2009 WL 2386083, at *9 (E.D.N.Y. Aug. 3, 2009).
Here, defendants have not offered sufficient justification for denying
Carrieri’s motion for leave to amend her amended complaint. Indeed,
defendants attempt to place the onus on Carrieri to demonstrate a “good
reason” for amendment. (Dkt. No. 28, Attach. 2 at 7; Dkt. No. 30 at 11-12.)
Defendants’ other arguments—suggesting, among other things, prejudice
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to them—are similarly unavailing. (Dkt. No. 28, Attach. 2 at 6-8; Dkt. No.
30 at 8-12.) This litigation is in its infancy; discovery has not yet
commenced nor have responsive pleadings been filed. Accordingly,
Carrieri’s motion is granted, and she shall file her second amended
complaint within fourteen (14) days of the date of this Summary Order. It
follows that defendants’ motions to dismiss are denied; however, those
motions are denied with leave to renew within fourteen (14) days after
Carrieri’s filing of her second amended complaint. If defendants elect not
to challenge the second amended complaint by motion to dismiss, they
must file the appropriate responsive pleadings within the time allotted by
the rules.
ACCORDINGLY, for the foregoing reasons, it is hereby
ORDERED that Carrieri’s cross motion for leave to amend the
amended complaint (Dkt. No. 24) is GRANTED; and it is further
ORDERED that Carrieri shall, in accordance with the requirements
of, among other things, Fed. R. Civ. P. 8(a) and N.D.N.Y. L.R. 7.1(a)(4),
file a second amended complaint within fourteen days (14) of the date of
this Summary Order; and it is further
ORDERED that the motion to dismiss of the Town and Buffardi (Dkt.
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No. 20) is DENIED with leave to renew within fourteen (14) days after the
filing of the second amended complaint; and it is further
ORDERED that Griesemer’s motion to dismiss (Dkt. No. 22) is
DENIED with leave to renew within fourteen (14) days after the filing of the
second amended complaint; and it is further
ORDERED that, if defendants elect not to seek dismissal of the
second amended complaint, they must file the appropriate responsive
pleadings within the time allotted by the rules; and it is further
ORDERED that the parties shall contact Magistrate Judge Hummel
to schedule further proceedings in accordance with this order; and it is
further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
November 21, 2013
Albany, New York

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