Romero v. Napoli

Filing 62

OPINION AND ORDER: Petitioner's motion to file an amended petition is denied without prejudice to a renewed petition that either annexes a copy of the proposed amended petition or sets forth a detailed description of the proposed amendments. (Signed by Magistrate Judge Henry B. Pitman on 4/1/2013) Copies Mailed By Chambers. (ft)

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DOCUMBNT

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ELECI'R.ONICAlLY FILED
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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7/1-:­

UBALDO ROMERO,
08 Civ. 8380 (CM) (HBP)

Petitioner,

OPINION
AND ORDER

-againstDAVID NAPOLI, Superintendent
for Southport Correctional
Facility,
Respondent.

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PITMAN, United States Magistrate Judge:

By notice of motion dated November 16, 2012
Item 58), petitioner moves to

(Docket

le an amended petition.

For the

reasons set forth below, petitioner's motion is denied without
prejudice.
Petitioner is currently in the custody of the New York
State Department of Corrections and Community Supervision, having
been convicted of two counts of murder in the second degree and
sentenced to two consecutive sentences of twenty-five years to
life.

The petition

ses three claims:

insufficient to sustain the verdict;

(1) the evidence was

(2) petitioner's double

jeopardy rights were violated by his second trial because the
evidence offered at petitioner's

rst trial, which ended in a

hung jury, was insufficient to sustain a conviction, and (3)

petitioner was deprived of due process because the indictment
failed to allege the essential elements of an offense and,
there

, failed to apprise petitioner of the charges he had to

confront at trial.

Respondent has offered compelling arguments

that the first claim fails on the merits and that the latter two
claims are procedurally barred.
Peti
amended pe
speci

oner has not submitted a copy of the proposed

tion with the present motion nor does he describe

c amendments petitioner seeks to make.

Rather all that

tioner offers is a vague statement that wishes lito clarify or
amplify

claim attempted to be set forth in the original

pleadings"

(Petitioner's Affirmation in Support of his Motion to

Amend, dated November 16, 2012, annexed to the Notice of Motion
(Docket Item 58),

~

3).

Although leave to amend a pleading must be"
give[n]

. . . when just

so requires,

II

ly

Fed.R.Civ.P. 15 (a) (2),

no litigant has an unfettered right to amend a pleading, where,
as here, a responsive pleading has actually been served.

Leave

to amend may be denied for a variety of reasons, "undue delay,
bad faith,

futility of the amendment, and perhaps most important,

the resulting prejudice to the opposing party."

State Teachers

Retirement Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981).
Thus, a party seeking to serve and file an amended complaint,
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after the time to amend as a matter of right has expired, ordi­
narily files a proposed amended pleading with his motion to
amend.

Where, as here, the movant fails to file a copy of the

proposed amended pleading (or at least a detailed description of
the proposed amendments) with his motion to amend, it is impossi­
ble to assess whether leave to amend should be granted and the
motion to amend is ordinarily denied without prejudice to a
renewed motion accompanied by a copy of the proposed amended
pleading.

Zito v. Leasecomm Corp., 02 Civ. 8072 (GEL), 2004 WL

2211650 at *25 (S.D.N.Y. Sept. 30, 2004)

(Lynch, then D.J., now

Cir. J.), guoting Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y.
1993)

(Lowe, D.J.); National Fire & Marine Ins. Co. v. Railroad

Resource & Recovery, Inc., 93 Civ. 6379 (RLC), 1994 WL 606049 at
*1 (S.D.N.Y. Nov. 3, 1994)

(R.L. Carter, D.J.); Sanders v.

Grenadier Realty, Inc., 08 Civ. 3920 (WHP), 2009 WL 1270226 at
(S.D.N.Y. May 6, 2009), aff'd, 367 F. App'x 173 (2nd Cir. 2010);
Santiago v. Steinhart, 89 Civ. 2069 (RPP) , 1993 WL 106302 at *4
(S.D.N.Y. Apr. 5, 1993)

(Patterson, D.J.).

There does not appear

to be any reason to depart from that practice in this case.
Accordingly, petitioner's motion to file an amended
petition is denied without prejudice to a renewed petition that

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either annexes a copy of the proposed amended petition or sets
forth a detailed description of the proposed amendments.
Dated: New York, New York
April 1, 2013
SO ORDERED

HENRY P MAN
United States Magistrate Judge
Copies mailed to:
Mr. Ubaldo Romero
DIN 02-A-1716
Wende Correctional Facility
3040 Wende Road
Alden, New York 14004-1187
Susan
iner, Esq.
Assistant District Attorney
New York County
One Hogan Place
New York, New York 10013

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