Innis et al v. The City of New York et al
Filing
29
OPINION AND ORDER re: 26 FIRST MOTION for Leave to File Complaint First Amended Complaint filed by Rashard Innis, Anthony Hernandez, Felix Collado, Rasheed Innis, Larry Daily, Charles Cherry. Accordingly, for all the foregoing reasons, plaintiffs' motion to file an amended complaint (Docket Item 26) is granted. (Signed by Magistrate Judge Henry B. Pitman on 10/24/2017) Copies Transmitted by Chambers. (mro)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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RASHEED INNIS, et al.,
Plaintiffs,
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1 7 Ci v . 3 2 3 (LT S ) (HB P)
OPINION
AND ORDER
-againstTHE CITY OF NEW YORK, et al.,
Defendants.
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PITMAN, United States Magistrate Judge:
I.
Introduction
Plaintiff moves for an Order pursuant to Fed.R.Civ.P.
15 permitting the filing of an amended complaint adding eleven
defendants.
For the reasons set forth below, the motion is
granted.
II.
Facts
This is a civil rights action brought pursuant to 42
U.S.C.
§
1983.
l
In pertinent part, plaintiffs allege that on or
about October 30, 2015 they were present in an apartment in the
Bronx, New York when the defendant police officers forced their
way into the apartment, allegedly threatening to shoot plaintiffs
if they did not grant access to the apartment.
Plaintiffs allege
that defendants then conducted a warrantless search of the
apartment, used excessive force against the plaintiffs and
arrested the plaintiffs on false charges which were ultimately
dismissed.
As noted above, the proposed amended complaint seeks to
add eleven defendants to the action.
It does not alter the
material allegations of the complaint.
III.
Analysis
The standards applicable to a motion to amend a pleading are well settled and require only brief review.
Leave to
amend a pleading should be freely granted when justice so requires.
Fed.R.Civ.P. 15(a); Foman v. Davis, 371 U.S. 178, 182
(1962); Medina v. Tremor Video, Inc., 640 F. App'x 45, 47 (2d
Cir. 2016)
(summary order); Loreley Fin.
(Jersey) No. 3 Ltd. v.
Wells Fargo Sec., LLC, 797 F.3d 160, 190 (2d Cir. 2015); Dluhos
v. Floating & Abandoned Vessel, Known as "New York", 162 F.3d 63,
69 (2d Cir. 1998); Gurner v. Shearson, Hammill & Co., 516 F.2d
283, 287 (2d Cir. 1974).
This "permissive standard .
. is
consistent with [the] strong preference for resolving disputes on
the merits."
Loreley Fin.
(Jersey) No. 3 Ltd. v. Wells Fargo
Sec., LLC, supra, 797 F.3d at 190 (internal quotation marks
omitted) .
11
[M]otions to amend should generally be denied in
2
instances of futility, undue delay, bad faith or dilatory motive,
repeated failure to cure deficiencies by amendments previously
allowed, or undue prejudice to the non-moving party."
Burch v.
Pioneer Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)
(per curiam), citing Foman v. Davis, supra, 371 U.S. at 182;
accord American Home Assurance Co. v. Jacky Maeder (Hong Kong)
Ltd., 969 F. Supp. 184, 187-88 (S.D.N.Y. 1997)
(Kaplan, D.J.);
see also Lee v. Regal Cruises, Ltd., 916 F. Supp. 300, 303
(S.D.N.Y. 1996)
1997)
(Kaplan, D.J.), aff'd, 116 F.3d 465 (2d Cir.
(summary order), citing Foman v. Davis, supra, 371 U.S. at
182.
A proposed amended complaint is futile when it fails to
state a claim.
AEP Energy Servs. Gas Holding Co. v. Bank of
Am., N.A., 626 F.3d 699, 726 (2d Cir. 2010); Health-Chem Corp. v.
Baker, 915 F.2d 805, 810 (2d Cir. 1990); Mina Inv. Holdings Ltd.
v. Lefkowitz, 184 F.R.D. 245, 257 (S.D.N.Y. 1999)
(Sweet, D.J.);
Parker v. Sony Pictures Entm't, Inc., 19 F. Supp. 2d 141, 156
(S.D.N.Y. 1998)
(Kaplan, D.J.), aff'd in pertinent part, vacated
in part on other grounds sub nom., Parker v. Columbia Pictures
Indus., 204 F.3d 326 (2d Cir. 2000).
See generally Dluhos v.
Floating & Abandoned Vessel, Known as "New York", supra, 162 F.3d
at 69-70.
The party opposing the amendment has the burden of
demonstrating that leave to amend would be futile.
3
Staskowski v.
County of Nassau, No. 05-CV-5984
(SJF) (WDW), 2007 WL 4198341 at
*4 (E.D.N.Y. Nov. 21, 2007); Lugosch v. Congel, No. 00-CV-784,
2002 WL 1001003 at *1 (N.D.N.Y. May 14, 2002), citing Blaskiewicz
v. County of Suffolk, 29 F. Supp. 2d 134, 137-38 (E.D.N.Y. 1998).
An amendment to a complaint may, therefore, be denied
as futile if a defendant can show that there is no "set of facts
consistent with the allegations in the complaint" which would
entitle the plaintiff to relief.
550 U.S. 544, 563
(2007).
Bell Atlantic Corp. v. Twombly,
A proposed amended complaint is not
futile when the "[f]actual allegations [are sufficient] to raise
a right to relief above the speculative level on the assumption
that all of the allegations in the complaint are true."
Bell
Atlantic Corp. v. Twombly, supra, 550 U.S. at 555.
It is well settled that a court's review of the viability of a proposed amended complaint is generally limited to the
"four corners of [the] complaint."
See Pani v. Empire Blue Cross
Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998); Arnold v. Research
Found. for State Univ. of N.Y., 216 F. Supp. 3d 275, 284
(E.D.N.Y. 2016); Joinnides v. Floral Park-Bellerose Union Sch.
Dist . , No . CV 12 - 5 6 8 2 (JS ) (AKT) , 2 O15 WL 14 7 6 4 2 2 at * 15 ( E . D . N . Y .
Mar. 31, 2015).
It is also well settled that in determining
whether a proposed amended complaint is futile, the court must
assume the truth of the allegations set forth therein.
4
Panther
Partners Inc. v. Ikanos Commc'ns, Inc., 681 F.3d 114, 119 (2d
Cir. 2012); Wallace v. Warden of M.D.C., 14 Civ. 6522
2016 WL 6901315 at *3
(S.D.N.Y. Nov. 23, 2016)
Max Impact, LLC v. Sherwood Grp., Inc.,
2012 WL 3831535 at *2
(Pitman, M.J.);
09 Civ. 902
(S.D.N.Y. Aug. 16, 2012)
(PAC) (HBP),
(LMM) (HBP),
(Pitman, M.J.);
Edwards v. City of New York, No. 07-CV-5286 (CPS) (RML), 2009 WL
1910740 at *2
(E.D.N.Y. June 29, 2009); Da Cruz v. Towmasters of
N.J., Inc., 217 F.R.D. 126, 128 n.l
(E.D.N.Y. 2003); Binder v.
National Life of Vt., 02 Civ. 6411 (GEL), 2003 WL 21180417 at *2
(S.D.N.Y. May 20, 2003)
(Lynch, then D.J., now Cir. J.); Gabourel
v. Bouchard Transp. Co., 901 F. Supp. 142, 144
(S.D.N.Y. 1995)
(Chin, then D.J., now Cir. J.).
To the extent a proposed amendment would add new
parties, the motion is technically governed by Rule 21, which
provides that "the court may at any time, on just terms, add or
drop a party."
Fed.R.Civ.P. 21; Otegbade v. New York City Admin.
for Children Servs., 12 Civ. 6298 (KPF), 2015 WL 851631 at *2
(S.D.N.Y. Feb. 27, 2015)
(Failla, D.J.); FTD Corp. v. Banker's
Tr. Co., 954 F. Supp. 106, 109 (S.D.N.Y. 1997)
However,
(Stein, D.J.).
"the same standard of liberality" applies under Rule 21.
Otegbade v. New York City Admin. for Children Servs., supra, 2015
WL 851631 at *2; FTD Corp. v. Banker's Tr. Co., supra, 954 F.
Supp. at 109, citing Expoconsul Int'l, Inc. v. A/E Sys., Inc.,
5
145 F.R.D. 336, 337 n.4 (S.D.N.Y. 1993)
(Preska, D.J.) and Fair
Hous. Dev. Fund Corp. v. Burke, 55 F.R.D. 414, 419 (E.D.N.Y.
1972); see Sly Magazine, LLC v. Weider Publ'ns L.L.C., 241 F.R.D.
527, 532 (S.D.N.Y. 2007)
(Casey, D.J.); Chowdhury v. Haveli
Rest., Inc., 04 Civ. 8627 (RMB) (JCF), 2005 WL 1037416 at *l
(S.D.N.Y. May 3, 2005)
(Francis, M.J.).
Defendants oppose the motion as to seven of the eleven
new defendants -- Jesse Hernandez, Francisco Grullon, Margarette
Gulinello, Charles Davis, Frantz Louis, Keith Stewart and Nizimba
Williams (the "Opposing Defendants") -- on the ground that these
individuals were not actually involved in the alleged conduct
that gives rise to the claims.
The Opposing Defendants argue
that the proposed amendment is, therefore, futile and prejudicial.
The Opposing Defendants' futility and prejudice arguments are both grounded on a factual contention that contradicts
the allegations in the proposed amended complaint.
Although
personable involvement is unquestionably required for liability
under Section 1983, Farid v. Ellen, 593 F.3d 233, 249 (2d Cir.
2010); Farrell v. Burke, 449 F.3d 470, 484
(2d Cir. 2006), the
factual issue of whether a proposed new defendant was actually
personally involved in a constitutional tort cannot generally be
resolved in the procedural context of a motion to amend.
6
As the
authorities cited above teach, in resolving the present motion, I
must assume the truth of the allegations in the proposed amended
complaint unless they are contradicted by judicially noticeable
facts.
New York ex rel. Khurana v. Spherion Corp., 15 Civ. 6605
(JFK), 2017 WL 1437204 at *3 (S.D.N.Y. Apr. 21, 2017)
D.J.).
(Keenan,
Because the Opposing Defendants have not demonstrated
that the proposed amended complaint fails to state a claim or
that there are judicially noticeable facts proving that the
allegations in the proposed amended complaint are not plausible,
they have failed to show futility.
The Opposing Defendants' prejudice argument is equally
unconvincing.
The Opposing Defendants do not claim -- and given
the early stage of this litigation, they could not credibly claim
-- that they will be unable to litigate fairly the claims against
them.
Rather, they argue that they are prejudiced by having to
bear the burden of defending claims that will ultimately fail on
the merits.
However,
"complaints of 'the time, effort and money
. expended in litigating [the] matter,' without more,
[do
not] constitute prejudice sufficient to warrant denial of leave
to amend."
Pasternack v. Shrader, 863 F.3d 162, 174 (2d Cir.
2017), quoting Block v. First Blood Assocs., 988 F.2d 344, 351
(2d Cir. 1993); accord Monahan v. New York City Dep't of Corr.,
214 F.3d 275, 284
(2d Cir. 2000); Anderson v. Greene, 14 Civ.
7
10249 (KPF), 2017 WL 3503686 at *15 (S.D.N.Y. Aug. 16, 2017)
(Failla, D.J.).
Finally, the Opposing Defendants assert a passing
objection to the form of the proposed amended complaint.
The
proposed amended complaint does not specify the role of each of
the defendants.
Rather, the proposed amended complaint ascribes
the allegedly unconstitutional conduct to all of the defendants.
For example, the proposed amended complaint alleges:
28.
The individual defendant police officers
forcibly entered the apartment with guns drawn and
seized the plaintiffs.
29. The defendants held the seized plaintiffs at
the location for a lengthy period of time while they
ransacked the apartment.
30. The defendants eventually transported plaintiffs to a police precinct where plaintiffs were detained for many hours before being brought to Central
Booking, where they were further detained.
31. The defendants did not have a warrant to
enter the premises, nor consent to enter the premises,
nor were there any exigent circumstances that the
defendants could reasonably believe would permit their
forcible entry into the premises.
(Proposed Amended Complaint,
~~
28-31, annexed as an exhibit to
the Declaration of Amy Rameau, Esq. dated Oct. 2, 2017 (Docket
Item 26)).
As the foregoing sample demonstrates, plaintiffs have
not set forth the personal involvement of each of the defendants
with specificity.
8
Although the Objecting Defendants raise the issue, they
cite no authorities addressing the validity of such pleading.
My
own research has disclosed only one case addressing the issue
Messina v. Mazzeo, 854 F. Supp. 116, 125-26 (E.D.N.Y. 1994) in
which the Honorable I. Leo Glasser, United States District Judge,
found such collective pleading adequate to allege personal
involvement because it provided the defendants with notice of
what they were alleged to have done.
I agree with the result
reached in Messina; like the complaint in Medina, the complaint
here is sufficient to put defendants on notice of their alleged
wrong doing.
In addition to the reasons offered in Messina for
finding such a pleading sufficient, I also note that Fed.R.Civ.P.
9(b), which requires that certain claims be alleged with particularity, does not, by its terms, apply to Section 1983 actions.
Second, if there were only two defendants, there would be little
question that plaintiffs' collective pleading is valid; logically, there is no reason why it should not also be sufficient
for more than two defendants.
Finally, although specificity
could be gained by compelling plaintiff to repeat the same
allegations with respect to each of the defendants, requiring
such a repetitive pleading would not serve any useful purpose. 1
1
The Opposing Defendants also claim that plaintiffs lack a
(continued ... )
9
IV.
Conclusion
Accordingly, for all the foregoing reasons, plaintiffs'
motion to file an amended complaint (Docket Item 26)
is granted.
1
( • • • continued)
good faith basis for their allegations against them. Given that
I must accept the allegations in the proposed amended complaint
as true, the Opposing Defendants' opposition to a motion to amend
is not an effective vehicle to assert this argument.
Nevertheless, Fed.R.Civ.P. ll(b) provides that:
(b) Representations to the Court.
By presenting to the
court a pleading, written motion, or other paper
whether by signing, filing, submitting, or later
advocating it -- an attorney or unrepresented party
certifies that to the best of the person's knowledge,
information, and belief, formed after an inguiry
reasonable under the circumstances:
*
*
*
(3) the factual contentions have evidentiary
support or, if specifically so identified, will
likely have evidentiary support after a reasonable
opportunity for further investigation or discovery
(Emphasis added.)
This Order is not a finding that any of the
factual allegation in the proposed amended complaint have, or
will have, evidentiary support nor is it a finding that they are
well grounded in fact.
Plaintiffs' counsel may want to reconsider the breadth
of their proposed amended pleading, and defendants' counsel may
want to consider the remedies available under Rule 11 and the
other provisions of Title 28.
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Plaintiffs are directed to serve and file their amended complaint
within 14 days of the date of this Order.
Dated:
New York, New York
October 24, 2017
SO ORDERED
H~~L~
United States Magistrate Judge
Copies transmitted to:
All Counsel
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