Ni v. Tian Yu Inc. et al
OPINION AND ORDER: Accordingly, for all the foregoing reasons, plaintiff's motion to amend the complaint is denied. This Order is, of course, without prejudice to the claims asserted in Docket No. 11 Civ. 6483. (Signed by Magistrate Judge Henry B. Pitman on 11/13/2012) Copies Transmitted by Chambers. (tro)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
KONG SHUN NI,
11 Ci v. 6483 (KBF) (HBP)
-againstTIAN YU INC., doing business as
"Aki Sushi" and ZHAO YU CHEN,
jointly and severally,
PITMAN, United States Magistrate Judge:
By motion dated September 19, 2012, plaintiff moves for
an Order pursuant to Rule 15 of the Federal Rules of Civil
Procedure granting leave to file an amended complaint (Docket
For the reasons set forth below, the motion is denied.
This is an action brought under the Fair Labor Stan
dards Act, 29 U.S.C.
in which plaintiff, a former
worker at defendants' restaurant, alleges that he was not paid
the minimum wage and did not received "time and a half" for his
Plaintiff also alleges parallel claims under the
New York Labor Law.
Discovery is closed and the deadline for the
filing or summary judgment motions has also passed (Order of the
Honorable Barbara S. Jones, United States District Judge, dated
August 6, 2012 (Docket Item 17).
It appears that the case is (or
should be) ready for trial.
Plaintiff's proposed amendment would add three new
plaintiffs -- Lai Yoong Low, Bin Xie and Ji Hui Zhang -- who
allege to have claims similar to Ni's.
The proposed amended
complaint would also substitute Qiu Ju Chen ("Qiu")
Chen ("Zhao") as a defendant.
for Zhao Yu
The motion papers do not explain
why plaintiff seeks to substitute Qiu
Plaintiff filed his motion to amend on September 19,
Approximately one week after the present motion was filed
and before defendants had responded, plaintiff's attorney filed
an FLSA action on behalf of Lai Yoong Low, Bin Xie and Ji
Zhang against Tian Yu Inc., doing business as "Aki Sushi Restau
rant, Inc.," and Qiu (Docket No. 11 Ci v. 6483)
(the "6483 Ac
The 6483 Action contains the same claims plaintiff seeks
to add here, and the 6483 Action was accepted by Judge Jones as
being related to this action.
Both actions have also now been
transferred to the Honorable Katherine B. Forrest, United States
District Judge, as related cases.
Although motions to amend are usually viewed with a
great deal of liberality, granting the motion here would serve no
id purpose and has the potential for delaying the resolution
of the claims of the original parties.
The principal argument offered by plaintiff is that an
amendment to the complaint would obviate the need for Lowe, Xie
and Zhang to file their own action.
They have, however,
paid the filing fee and commenced their own action.
cost saving may have formerly been possible in this regard is no
There is no reason to believe that it will be
cheaper or more efficient for Lowe, Xie and Zhang to pursue their
claims as part of this action instead of in a separate action.
In addition, permitting the amendment will delay the
resolution of Ni's claims.
Ni's claims are currently ready for
Permitting the amendment will require that the new
defendant be served, file an answer or Rule 12 motion and conduct
discovery of Ni and the new plaintiffs.
Although there is
authority that delay alone, in the absence of prejudice, is an
insufficient basis on which to deny a motion to amend, Rachman
Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir.
1995); Middle Atl. Until. Co. v. S.M.W. Dev. Corp., 392 F.2d 380,
384 (2d Cir. 1968), nevertheless, when the motion to amend is
made at as late a stage as the motion here, some explanation for
the delay is necessary.
Reisner v. Gen. Motors Corp., 511 F.
Supp. 1167, 1172 (S.D.N.Y. 1981)
91 (2d Cir. 1982)
(Goettel, D.J.), aff'd,
(delay in seeking to amend pleading requires
some explanation); see also Grochowski v. Phoenix Const., 318
F.3d 80, 86 (2d Cir. 2003)
ct court did not abuse discre
tion in denying leave to amend under Rule 16 when movant had
delayed over a year, discovery was complete and a summary judg
ment motion was pending); Presbyterian Church of Sudan v. Talis
man Energy, Inc., 453 F. Supp. 2d 633, 680 (S.D.N.Y. 2006),
aff'd, 582 F.3d 244 (2d
(very difficult to show good
cause to amend pleading when movant waited until summary judgment
stage to request leave to amend).
Plaintiff here offers no
explanation for his delay in seeking to amend the complaint.
Because (1) the proposed new plaintiffs have
commenced their own action,
(2) it does not appear that granting
the amendment will promote efficiency,
(3) granting the amendment
will delay the resolution of Ni's claims and (4) plaintiff's
offer no explanation for the delay, the motion is denied. 1
lIf Judge Forrest determines that it will be more efficient
to try Ni's claims simultaneously with the claims of Lowe, Xie
and Zhang, I note that that goal can still be accomplished
(continued ... )
Accordingly, for all the foregoing reasons, plaintiff's
motion to amend the complaint is denied.
This Order is, of
course, without prejudice to the claims asserted in Docket No. 11
New York, New York
November 13, 2012
United States Magistrate Judge
Copies transmitted to:
Brandon D. Sherr, Esq.
Law Of ce of Justin A. Zeller, P.C.
New York, New York 10007
John Troy, Esq,
John Troy & Associates
41 5 Kissena Boulevard
Flushing, New York 11355
Benjamin B. Xue, Esq.
Brian J. Shenker, Esq.
Xue & Associates, P.C.
New York, New York 10013
1( ••• continued)
through an Order of consolidating the two actions pursuant to
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