Frederick v. Pinnacle Financial Services et al

Filing 130

ORDER denying 120 Motion TO JOIN JOHN AND JANE DOE DEFENDANTS PURSUANT TO RULE 20(a). Here, Plaintiff seeks to amend the complaint to substitute named CEOs and attorneys for John and Jane Doe CEOs and attorneys. In its September 17, 2015 Memoran dum and Order, the Court dismissed the claims against the CEOs and attorneys initially named in the Second Amended Complaint (David Ginzburg, Tina Vincelli, Ronald Greene, and Charlotte Zehnder) pursuant to Federal Rule of Civil Procedure 12(b)(6). S ee Dkt. No. 102 at 10, 12, 22. The allegations against the remaining John and Jane Doe CEOs and attorneys in the Second Amended Complaint are identical to the claims already dismissed by the Court. See Sec. Am. Comp. at 17-19, 29, 41-43. For this rea son, it would be futile to allow amendment of the complaint to substitute names for the John and Jane Doe Defendants because "the proposed new claim[s] cannot withstand a 12(b)(6) motion to dismiss for failure to state a claim." Milanese, 244 F.3d at 110. For these reasons, Plaintiffs motion is denied. This resolves Dkt. No. 120. (As further set forth in this Order.) (Signed by Judge Alison J. Nathan on 10/30/2015) (kko)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Ezekiel Frederick,
Plaintiff,
14-CV-5460 (AJN)

-vORDER
Capital One (USA) N.A.,
Defendant.

ALISON J. NATHAN, District Judge:
On October 20, 2015, Plaintiff, proceedingpra se, filed a motion pursuant to Federal
Rule of Civil Procedure 20(a) to join ten "Defendants originally listed as John and Jane Doe
Defendants" in his Second Amended Complaint. See Dkt. No. 120. Plaintiffs Second Amended
Complaint already includes specific allegations against the John and Jane Doe Defendants
referenced in Plaintiffs October 20, 2015 motion. See Sec. Am. Comp. at 3-8. As a result, it
appears that Plaintiff seeks to amend his complaint pursuant to Rule 15 to substitute named
individuals for the John and Jane Doe Defendants. 1 See Hogan v. Fischer, 738 F.3d 509, 518 (2d
Cir. 2013) (amending complaint to substitute named individual for "John Doe" defendant is
governed by Rule 15).
Leave to amend under Rule 15 "shall be freely given when justice so requires." Fed. R.
Civ. P. 15(a). However, leave to amend need not be granted when amendment would be futile.
See Farnan v. Davis, 371 U.S. 178, 182 (1962). At this stage, "leave to amend will be denied as
futile only ifthe proposed new claim cannot withstand a 12(b)(6) motion to dismiss for failure to
state a claim." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001).

1 At

the moment, Plaintiff does not know the names of these individuals, but instead requests discovery to
determine their identities. See Dkt. No. 120. Because the Court finds that amendment would be futile even if
Plaintiff possessed the relevant names, it need not address Plaintiffs request for discovery.

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Here, Plaintiff seeks to amend the complaint to substitute named CEOs and attorneys for
John and Jane Doe CEOs and attorneys. In its September 17, 2015 Memorandum and Order, the
Court dismissed the claims against the CEOs and attorneys initially named in the Second
Amended Complaint (David Ginzburg, Tina Vincelli, Ronald Greene, and Charlotte Zehnder)
pursuant to Federal Rule of Civil Procedure 12(b)(6). See Dkt. No. 102 at 10, 12, 22. The
allegations against the remaining John and Jane Doe CEOs and attorneys in the Second
Amended Complaint are identical to the claims already dismissed by the Court. See Sec. Am.
Comp. at 17-19, 29, 41-43. For this reason, it would be futile to allow amendment of the
complaint to substitute names for the John and Jane Doe Defendants because "the proposed new
claim[s] cannot withstand a 12(b)(6) motion to dismiss for failure to state a claim." Milanese,
244 F.3d at 110.
For these reasons, Plaintiffs motion is denied. This resolves Dkt. No. 120.

SO ORDERED.

Dated:

October~' 2015
New York, New York
United States District Judge

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