Fontoine v. The Permanent Mission of Chile to the United Nations et al

Filing 95

OPINION AND ORDER: re: 79 MOTION for Leave to File Second Amended Complaint. Accordingly, for all the foregoing reasons, plaintiff's motion for leave to file a second amended complaint is granted except with respect to adding "Does 1-20" as defendants, which is denied. Plaintiff is directed to serve and file her second amended complaint within 14 days of the date of this Order. So Ordered. (Signed by Magistrate Judge Henry B. Pitman on 6/14/2019) Copies transmitted(js)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------x

CAROLINA FONTOINE,
17 Civ. 10086 (AT) (HBP)

Plaintiff,

OPINION
AND ORDER

-againstTHE PERMANENT MISSION OF CHILE
TO THE UNITED NATIONS, et al.,
Defendants.
-----------------------------------x

PITMAN, United States Magistrate Judge:

I.

Introduction

Plaintiff moves for an Order pursuant to Rule 15 of the
Federal Rules of Civil Procedure granting leave to file a second
amended complaint (Plaintiff's Notice of Motion and Motion for
Leave to Amend Her Complaint; Memorandum of Law in Support
Thereof, dated Sept. 9, 2018
Memo.")).

(Docket Item ("D.I.")

79)

("Pl.

For the reasons set forth below, the motion is granted

in part and denied in part.

II.

Background

A.

Facts

This is an employment discrimination/retaliation
action.

Plaintiff was employed by defendant The Permanent

Mission of Chile to the United Nations ("the Mission") as a
secretary from July 6, 2015 until June 30, 2017

(Proposed Second

Amended Complaint, annexed to Pl. Memo. as Ex. 1 (D.I. 79-1)
( "SAC" ) ':II ':II 18 , 6 5) .

Plaintiff alleges that during her employment

at the Mission, she was a victim of discrimination on the basis
of sex and consistently harassed by Ambassador Cristian Barros,
Ambassador Carlos Olguin and Chief of Administration Ernesto
Gonzalez (collectively, the "Individual Defendants")

( Facts

Pertaining to Plaintiff's EEOC Complaint, undated, annexed to
Amended Complaint ("Am. Compl.")

(D.I. 4)

("EEOC Facts") at 1-8)

Plaintiff alleges that this harassment began during her
initial interview with the Mission on May 21, 2015 when Olguin
asked her multiple questions concerning her then pending divorce
proceedings, which made her feel uncomfortable (EEOC Facts at 1).
After she was hired on July 6, 2015, plaintiff alleges that
Olguin frequently asked her about her dating life and, on one
occasion, he insisted on rubbing hand lotion on her (EEOC Facts
at 1-2).

In January 2016, Olguin also told plaintiff that a
2

female employee who worked in a different office had "outstanding
physical assets" such as "big breasts and [a] big buttocks" and
that all the men in that office ''were drooling for her"
1).

(EEOC at

Plaintiff alleges that she later learned that this same

female employee was also a divorcee and had filed a formal
complaint of harassment against Olguin (EEOC Facts at 1).
Plaintiff further alleges that after she asked Olguin to stop his
offensive behavior, he began unfairly reprimanding her for
trivial things, such as speaking to diplomats in "informal
Spanish"

(EEOC at 2-3).

On March 6, 2017, plaintiff alleges that

Barros gave her a negative performance evaluation based on false
or unsubstantiated facts, and that Barros, Olguin and Gonzalez
created a "hostile work environment" for plaintiff from that
point until she was terminated on June 30, 2017

(EEOC Facts at 5-

8) •

Plaintiff also contends that she was treated unfairly
because Gonzalez required her to produce a "disability notice"
from her doctor when she reported sick on October 13, 2016 and
February 10, 2017, while other employees were not required to
produce such supporting documentation (EEOC Facts at 4-5).

3

B.

Procedural History

Plaintiff commenced this action prose on December 26,
2017 when she filed a form "Employment Discrimination Complaint"
alleging violations of Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e e t ~ -

("Title VII") and the Family Medical

Leave Act, 29 U.S.C. §§ 2601 e t ~ Dec. 26, 2017

(D.I. 2)

("FMLA")

("Compl.") at 3-4).

(Complaint, dated

A few days later on

January 2, 2018, plaintiff filed an amended form complaint (see
Am. Compl.).

The main difference between these two complaints is

that plaintiff attached her EEOC complaint paperwork to her
amended complaint, which provided more detail with respect to her
discrimination and harassment allegations against defendants.

In

addition, although plaintiff's amended complaint listed the
Mission as a defendant in the caption, she did not list the
Mission as a party in the section entitled "Defendant Information" as she had in her initial complaint (Am. Compl. at 2-3).
On January 22, 2018, the Honorable Analisa Torres,
United States District Judge, construed plaintiff's amended
complaint as also alleging violations of the New York State Human
Rights Law, N. Y. Exec. Law §§ 2 9 6 et ~ .

( "NYSHRL") and the New

York City Human Rights Law, N.Y.C. Admin. Code§§ 8-107 e t ~ ("NYCHRL")

(Order, dated Jan. 22, 2018

4

(D. I.

9)).

On April 5, 2018, Zein E. Obagi, Esq. entered a notice
of appearance on behalf of plaintiff (Notice of Appearance of
Counsel for Plaintiff, dated Apr. 4, 2018

(D.I. 24)).

Mr. Obagi

then filed a pre-motion letter on August 2, 2018 stating plaintiff's intention to amend her complaint and subsequently filed
the present motion on September 9, 2018

(Letter to the Honorable

Analisa Torres from Zein E. Obagi, Esq., dated Aug. 2, 2018

(D.I.

7 3) ; Pl. Memo. ) .

C.

Proposed Second
Amended Complaint

Plaintiff's proposed second amended complaint provides
significantly more detail with respect to her claims of harassment and discrimination (SAC~~ 22-66).

Additionally, it pro-

vides further details concerning plaintiff's employment with
defendants, including an allegation that plaintiff's employment
contract with the Mission was allegedly "governed by the current
legislation of the United States of America"

(SAC~ 18).

The

proposed second amended complaint also adds "Does 1-20" in the
caption of the complaint and sets out allegations against the
Mission in the body of the complaint (SAC~ 2).
Finally, the proposed second amended complaint adds a
claim for "marital based discrimination" under the NYCHRL and

/

5

NYSHRL (SAC~~ 72-81, 95-105) and a claim for "intentional
infliction of emotional distress"

(SAC~~ 136-41).

("IIED") under New York law

While the claims listed in plaintiff's first

amended complaint were asserted against all defendants, her
proposed second amended complaint alleges only IIED against the
Individual Defendants (SAC~~ 136-41).

This claim is based on a

new allegation that the Individual Defendants sent an "anonymous
letter" to plaintiff's new employer on January 6, 2018 stating
that plaintiff had "created major disruption [at the Mission] to
the point that many people suffered the consequences of her lies
and slander"

III.

(SAC~~ 69-71).

Analysis

A.

Applicable Legal Standards

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
Cir. 2016)

( summary order) ; Loreley Fin.

(2d

( 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,

6

69 (2d Cir. 1998); Gurner v. Shearson, Hammill
283, 287

(2d Cir. 1974).

&

Co., 516 F.2d

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).
However,

"motions to amend should generally be denied

in 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)

(P.§.£

curiam), citing Farnan 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)

(Kaplan, D.J.), aff'd, 116 F.3d 465 (2d Cir.

1997)

(summary order), citing Farnan v. Davis, supra, 371 U.S. at

182.

Defendants challenge plaintiff's motion to file a second

amended complaint on the grounds of undue delay, prejudice,
futility and bad faith.

7

B.

Application of the
Foregoing Principles

1.

Undue Delay and Prejudice

Defendants contend that plaintiff should not be
permitted to file her second amended complaint because she is
guilty of undue delay and the defendants have been prejudiced by
this delay (Defendants' Memorandum in Opposition to Motion for
Leave to File a Second Amended Complaint, dated Sept. 25, 2018
( D. I . 8 4)

("Def. Memo. ") at 2 3-2 6) .
A court may "deny leave to amend where the motion is

made after an inordinate delay, no satisfactory explanation is
offered for the delay, and the amendment would prejudice the
defendant."

Cresswell v. Sullivan & Cromwell,

922 F.2d 60, 72

(2d Cir. 1990); accord Hernandez v. BMNY Contracting Corp., 17
Civ. 9375

(GBD), 2019 WL 418498 at *l

(S.D.N.Y. Jan. 17, 2019)

(Daniels, D.J.); Cerni v. J.P. Morgan Sec. LLC,
533, 543-44

(S.D.N.Y. 2016)

(Nathan,

D.J.).

208 F. Supp. 3d

"' [ T] he longer the

period of an unexplained delay, the less will be required of the
nonmoving party in terms of a showing of prejudice."'
First Blood Assocs.,

988 F.2d 344, 350

(2d Cir. 1993), quoting

Evans v. Syracuse City Sch. Dist., 704 F.2d 44,
1983) .

Block v.

47

(2d Cir.

"'Mere delay, however, absent a showing of bad faith or

8

undue prejudice, does not provide a basis for a district court to
deny the right to amend.'"
184, 191,

Ruotolo v. City of New York, 514 F.3d

(2d Cir. 2008), quoting State Teachers Ret. Bd. v.

Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981).
"Amendment may be prejudicial when, among other things,
it would 'require the opponent to expend significant additional
resources to conduct discovery and prepare for trial' or 'significantly delay the resolution of the dispute."'

AEP Energy Servs.

Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725-26 (2d
Cir. 2010), quoting Block v. First Blood Assocs., supra, 988 F.2d
at 350.

Courts are "particularly likely to find prejudice where

the parties have already completed discovery and the defendant
has moved for summary judgment."
App'x 94, 96 (2d Cir. 2013)

Werking v. Andrews, 526 F.

(summary order)

(collecting cases).

As described above, plaintiff filed her first amended
complaint on January 2, 2018, only a week after she commenced
this action, and the only substantive change was the annexation
of her EEOC paperwork.

Plaintiff did not obtain counsel until

April 18, 2018, and filed her pre-motion letter stating her
intention to move to amend her complaint less than four months
later on August 2, 2018.

Given plaintiff's initial prose status

and the relatively short history of this matter, I find that

9

there is no undue delay here. 1
6384

See Jordan v. Ellsworth, 16-CV-

(FPG), 2017 WL 6059889 at *1-*2 (W.D.N.Y. Dec. 7, 2017)

(no

undue delay where a prose plaintiff obtained counsel five months
after she filed her initial complaint and moved to amend her
complaint two months thereafter); Boston v. Taconic Mgmt. Co., 12
Civ. 4077

(ER), 2014 WL 4184751 at *4

(Ramos, D. J.)

(S.D.N.Y. Aug. 22, 2014)

(no undue delay where a pro se plaintiff obtained

counsel over a year after he filed his initial complaint and
moved to amend his complaint five months thereafter); Hall v.
North Bellmore Union Free School Dist., 08-CV-1999 (JS) (ARL),

1

Defendants argue that plaintiff has not shown "good cause"
for the delayed filing of her motion to amend and, thus, her
motion should be denied (Def. Memo. at 5-16). A plaintiff is
required to demonstrate "good cause" where "a [Rule 16]
scheduling order governs amendments to the complaint, and a
plaintiff wishes to amend after the scheduling deadline has
passed." Pasternack v. Shrader, 863 F.3d 162, 174 n.10 (2d Cir.
2017).
Because no scheduling order has been issued in this
matter and no deadlines were ever set, plaintiff's motion to
amend should be evaluated under the more liberal standards of
Rule 15, which does not require a showing of good cause.
Media
Glow Digital, LLC v. Panasonic Corp. of N.A., 16 Civ. 7907
(JFK) (HBP), 2018 WL 6444934 at *4 (S.D.N.Y. Dec. 10, 2018)
(Pitman, M.J.); Tolliver v. Lilley, 12-CV-971 (DAB) (KNF), 2016 WL
5793998 at *2 (S.D.N.Y. Sept. 19, 2016) (Fox, M.J.).
However,
because Judge Torres instructed plaintiff to "address why there
is 'good cause' for amendment" (Order, dated Aug. 10, 2018 (D.I.
77)), I also find that good cause is established by (1)
plaintiff's initial prose status, (2) the fact that newly
retained counsel moved to amend the complaint within four months
of appearing in this matter and (3) the existence of new facts
that arose only after plaintiff filed her first amended
complaint.
10

2010 WL 1049280 at *1-*3 (E.D.N.Y. Mar. 18, 2010)

(no undue delay

where a prose plaintiff obtained counsel nine months after she

filed her initial complaint and moved to amend her complaint four
months thereafter).
Moreover, defendants have not sufficiently alleged that
any of plaintiff's proposed amendments would cause them to suffer
prejudice.

See Commander Oil Corp. v. Barlo Equipment Corp., 215

F.3d 321, 333 (2d Cir. 2000)

(no abuse of discretion in granting

leave to amend after seven year delay in the absence of prejudice).

There is still a factual dispute between the parties over

whether plaintiff has properly served defendants
16-20).

(Def. Memo. at

Thus, defendants have not even filed an answer to

plaintiff's first amended complaint, I have yet to issue a
scheduling order and discovery has not begun.

See Cook v. City

of New York, 243 F. Supp. 3d 332, 356 (E.D.N.Y. 2017)

(no preju-

dice where "plaintiffs [sought] to amend the Complaint for a
second time approximately ten months after filing the original
Complaint,

[but] no depositions ha[d] occurred, no motions for

summary judgment or motions to dismiss ha[d] been filed and a
trial date ha[d] not yet been set, events which would indicate
that the parties ha[d] progressed far beyond the stage of discovery"); Lin v. Toyo Food, Inc., 12 Civ. 7392
4502040 at *3 (S.D.N.Y. Aug. 26, 2016)
11

(KMK), 2016 WL

(Karas, D.J.)

("Although

Defendants complain that the proposed amendment would further
extend the already-lengthy duration of this [case], it bears
mentioning that no motions for summary judgment have been filed,
nor has a trial date been set.")

( internal quotation marks and

citations omitted)).
Furthermore, plaintiff's second amended complaint
merely provides further detail and clarification concerning the
claims that she initially alleged in her complaint and first
amended complaint.

The only new factual allegations set forth by

plaintiff relate to the anonymous letter allegedly sent to
plaintiff's new employer by the Individual Defendants and these
facts arose on January 6, 2018 -- four days after plaintiff filed
her first amended complaint (SAC~~ 69-71).

Thus, there is no

way plaintiff "knew or should have known of the facts upon which
[this] amendment is based when [her] original pleading was
filed."

Hernandez v. BMNY Contracting Corp., supra, 2019 WL

418498 at *l (citation omitted).
Defendants' only argument that granting plaintiff leave
to file a second amended complaint would be prejudicial is that
"[t]he pendency of this has case irritated U.S.-Chile foreign
relations since it was filed, and it has caused unnecessary
turbulence in Santiago, demanding time and resources"
at 25-26).

(Def. Memo.

Defendants do not elaborate on this vague and unsup12

ported assertion.

In any event, the fact that plaintiff's

lawsuit may have caused the Mission difficulty is not sufficient
prejudice to deny her motion to amend.
863 F.3d 162, 174

(2d Cir. 2017)

Pasternack v. Shrader,

("The rule in this Circuit has

been to allow a party to amend its pleadings in the absence of a
showing by the nonmovant of prejudice or bad faith.").

Moreover,

defendants have not shown that filing the proposed second amended
complaint will exacerbate the alleged "turbulence in Santiago."
Accordingly, "[g]iven plaintiff's former status as a
2..£.Q

se litigant, the relatively short span of time between

counsel's appearance and the pre-motion request, and the lack of
any notable prejudice to [defendants]", I find that plaintiff is
not guilty of undue delay and that granting her motion will not
prejudice defendants.

Boston v. Taconic Mgmt. Co., supra, 2014

WL 4184751 at *4.

2.

Futility

Defendants next contend that plaintiff's application to
add an IIED claim and to add "Does 1-20" as defendants should be
denied on futility grounds

(Def. Memo. at 16, 26-27).

A proposed amended complaint is futile when it fails to
state a claim.
N.A.,

AEP Energy Servs. Gas Holding Co. v. Bank of Am.,

626 F.3d 699, 726 (2d Cir. 2010); Health-Chem Corp. v.
13

Baker, 915 F.2d 805, 810 (2d Cir. 1990).

The party opposing the

amendment has the burden of demonstrating that leave to amend
would be futile.

Staskowski v. County of Nassau, No. 05-CV-5984

(SJF) (WDW), 2007 WL 4198341 at *4
(adopting Report

&

(E.D.N.Y. Nov. 21, 2007)

Recommendation); 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 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.
544, 563 (2007).

Bell Atlantic Corp. v. Twombly, 550 U.S.

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 in determining whether a
proposed amended complaint is futile, the court must assume the
truth of the allegations set forth therein.

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
6901315 at *3 (S.D.N.Y. Nov. 23, 2016)
14

(PAC) (HBP), 2016 WL

(Pitman, M.J.); Max

Impact, LLC v. Sherwood Grp., Inc., 09 Civ. 902
WL 3831535 at *2 (S.D.N.Y. Aug. 16, 2012)

(LMM) (HBP), 2012

(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); Binder v. National Life of Vt.,
02 Civ. 6411 (GEL), 2003 WL 21180417 at *2
2003)

(S.D.N.Y. May 20,

(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.).

a.

Intentional Infliction
Of Emotional Distress

Defendants' sole futility argument with respect to
plaintiff's IIED claim is that her claim is "implausible" because
it is nothing more than a "conclusory allegation" and does not
connect defendants to the anonymous disparaging letter to
plaintiff's new employer (Def. Memo. at 27).
Plaintiff alleges that Barros, Olguin and Gonzalez sent
the following unsigned letter to plaintiff's new employer:
It has come to my attention that Mrs. Carolina
Font[o]ine works in your institution.
I would like to
notify you that this individual created major disruption in our organization to the point that many people
suffered the consequences of her lies and slander.
I
join an article from the biggest newspaper in Chile
that reported the problem in its pages.
Be very weary
[sic].
Sincerely.

15

(SAC

c_j[

70).

Plaintiff further alleges that this letter caused

her to suffer "severe emotional distress", "heightened anxiety,
depression, anger and

. paranoia"

(SAC

c_rr

141).

While defendants may be correct that plaintiff will not
ultimately be able to link this anonymous letter to the Individual Defendants, at this stage of the proceedings, I must assume
the truth of the allegations set forth in the proposed second
amended complaint and all factual disputes must be resolved in
favor of plaintiff.

Innis v. City of New York, 17 Civ. 323

(LTS) (HBP), 2017 WL 4797904 at *2 (S.D.N.Y. Oct. 24, 2017)
(Pitman, M.J.); New York ex rel. Khurana v. Spherion Corp., 15
Civ. 6605 (JFK), 2017 WL 1437204 at *3 (S.D.N.Y. Apr. 21, 2017)
(Keenan, D.J.).

Under the applicable deferential standard,

plaintiff has set forth sufficient facts to allege plausibly that
the Individual Defendants sent this letter.

The alleged letter

purports to be from a former employer that has some connection to
Chile.

Defendants, who presumably asked plaintiff about her

prior employment before hiring her, do not claim that plaintiff
had any other employer who fits that profile.
Thus, I find that defendants' have not met their burden
of demonstrating that plaintiff's amended claim of IIED is

16

futile.

Staskowski v. County of Nassau, supra, 2007 WL 4198341

at *4. 2

b.

Does 1-20

Plaintiff lists "Does 1-20" as defendants in the
caption of her proposed second amended complaint, but makes no
factual allegations and asserts no claims against them (see
generally SAC) .

It is well settled that "[w]here a complaint

2

1 note that plaintiff's IIED claim appears problematic on
its face given that it is well settled that in order to state
"an IIED claim, the conduct must be 'so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable
in a civilized society.'" Rich v. Fox News Network, LLC, 322 F.
Supp. 3d 487, 498 (S.D.N.Y. 2018) (Daniels, D.J.), quoting Howell
v. New York Post Co., 81 N.Y.2d 115, 122, 612 N.E.2d 699, 702,
596 N.Y.S.2d 350, 353 (1993)); see also DiRuzza v. Lanza, 685 F.
App'x 34, 36 (2d Cir. 2017) (summary order) ("[a] claim for
[IIED] must satisfy an exceedingly high legal standard").
Specifically, "courts in this Circuit have recognized [ ] [that]
defamatory statements generally cannot constitute the extreme and
outrageous behavior required for an [IIED] claim." Restis v. Am.
Coal. Against Nuclear Iran, Inc., 53 F. Supp. 3d 705, 729
(S.D.N.Y. 2014) (Ramos, D.J.).
Similarly, "courts have held that
false statements or misrepresentations -- even if intentionally
made -- do not rise to the level of extreme and outrageous
conduct." Baraliu v. Vinya Capital, L. P., 07 Civ. 4626 (MHD),
2009 WL 959578 at *12 (S.D.N.Y. Mar. 31, 2009) (Dolinger, M.J.)
(citations omitted).
However, because defendants have failed to
make any of these arguments and considering that it is
defendants' burden to show futility, I cannot rely on them as a
basis to find the proposed second amended complaint futile.
See
Tammaro v. City of New York, 13 Civ. 6190, 2018 WL 1621535 at *11
(S.D.N.Y. Mar. 30, 2018) (Pauley, D.J.) (court cannot dismiss an
action for failure to state a claim on grounds not raised or
briefed by the parties (citations omitted)).
17

fails to contain any substantive allegations concerning a defendant named in the caption, it fails to state a claim as to that
defendant."

Diggs v. City of New York, 17 Civ. 1127 (VEC) (HBP),

2018 WL 5924413 at *3 (S.D.N.Y. Aug. 17, 2018)
(Report

&

Recommendation), adopted at, 2018 WL 4666073 (S.D.N.Y.

Sept. 27, 2018)

(Caproni, D.J.); accord Perkins v. City of New

York, 14 Civ. 3779 (WHP), 2017 WL 1025987 at *2
15, 2017)

(Pitman, M.J.)

(S.D.N.Y. Mar.

(Pauley, D.J.); Myers v. City of New York, 11 Civ. 8525

(PAE), 2012 WL 3776707 at *3 (S.D.N.Y. Aug. 29, 2012)
(Engelmayer, D.J.), aff'd, 529 F. App'x 105 (2d Cir. 2013)
(summary order); Barnes v. Pozzi, 10 Civ. 2254
3155073 at *8

(S.D.N.Y. Aug. 3, 2012)

(JGK), 2012 WL

(Koeltl, D.J.).

Thus, there are no conceivable set of facts that would
entitle plaintiff to relief against these 20 unnamed defendants
and her motion to add them as parties to the action is, therefore, denied.

3.

Bad Faith

Defendants next contend that plaintiff has proceeded in
bad faith because she did not respond to their motion suggesting
that they are entitled to sovereign immunity 3 that was filed on

3

Although defendants titled this motion as a "suggestion of
(continued ... )
18

March 30, 2018 and, instead, moved to amend the complaint (Def.
Memo. at 28-29).

Defendants maintain that this failure to

respond combined with plaintiff's counsel's failure to obtain
admission

.Q£.Q

hac vice for 13 days after he first entered his

notice of appearance and plaintiff's alleged multiple failures to
serve defendants properly gives rise to "only [one] reasonable
inference" which is that "plaintiff's conduct [amounts to an]
endless train of lapses, supposed inadvertencies, and defalcations [that] actually serve a simple strategy -- to vex, obfuscate, and delay, in hopes that the defendants will just relent
and settle"

(Def. Memo. at 28).

Defendants' claim "is exactly the type of conclusory
allegation of bad faith that courts consistently reject."
Agerbrink v. Model Service LLC, 155 F. Supp. 3d 448,
(S.D.N.Y. 2016)

453

(Francis, M.J.); accord Cat3, LLC v. Black

Lineage, Inc., 14 Civ. 5511 (AT) (JCF), 2015 WL 5559569 at *5
(S.D.N.Y. Sept. 21, 2015)

(Francis, M.J.)

(holding that defen-

dants made no showing that plaintiffs acted in bad faith in
bringing a motion to amend where "[i]n conclusory fashion, the

3

continued)
immunity", it essentially amounts to a motion to dismiss based on
sovereign immunity (see Memorandum Supporting the Suggestion of
Immunity of the Republic of Chile, dated Mar. 30, 2018 (D.I.
22)).
( •••

19

defendants assert[ed] that the plaintiffs 'desire to keep Defendants tied up in [ ] costly litigation as long as possible' and
describe the plaintiffs' actions as 'the very definition of bad
faith'"); Blagman v. Apple, Inc., 12 Civ. 5453
WL 2106489 at *3 (S.D.N.Y. May 19, 2014)

(ALC) (JCF), 2014

(Francis, M.J.)

("To the

extent that the defendants claim that [plaintiff's] delay was
, they provide no showing of bad faith apart from

strategic

the delay itself."); Primetime 24 Joint Venture v. DirecTV, Inc.,
99 Civ. 3307
2000)

(RMB) (MHD), 2000 WL 426396 at *5 (S.D.N.Y. April 20,

(Dolinger, M.J.)

("[W]hen the opponent of an amendment

asserts that the movant is acting in bad faith, there must be
something more than mere delay or inadvertence for the court to
refuse to allow the amendment.").
Besides arguing that plaintiff was put on notice of the
deficiencies in her complaint when defendants' motion was filed,
defendants fail to explain how plaintiff's moving to amend her
complaint to cure these purported deficiencies was improper or
somehow amounted to bad faith.

Randolph Foundation v. Duncan, 00

Civ. 1172 (AKH) (THK), 2002 WL 32862 at *3
2002)

(Katz, M.J.)

(S.D.N.Y. Jan. 11,

(" [T]he fact that a party may have had evi-

dence to support a proposed amendment earlier in the litigation
does not, by itself, give rise to an inference of bad faith.").
On the contrary, courts routinely allow parties to amend plead20

ings in response to a motion to dismiss.
Ellsworth, 16-CV-6384
Dec. 7, 2017)

See Jordan v.

(FPG), 2017 WL 6059889 at *1-*2

(W.D.N.Y.

(plaintiff's motion to file a second amended

complaint in response to defendant's motion to dismiss on sovereign immunity grounds granted and was not made in bad faith);
Lowe v. Planning

&

Zoning Commission of the Town of Mansfield,

16-CV-381 (JCH), 2017 WL 1375170 at *4

(D. Conn. Apr. 14, 2017)

(plaintiffs' motion to file a third amended complaint in response
to defendants' motion to dismiss was not made in bad faith);
Dollinger v. New York State Ins. Fund, 14-CV-908
WL 8491013 at *l

(N.D.N.Y. Dec. 10, 2015)

(MAD/DEP), 2015

(plaintiff's motion to

file a second amended complaint in response to defendant's motion
for judgment on the pleadings on sovereign immunity grounds
granted and was not made in bad faith).
Defendants also allege that plaintiff exhibited bad
faith by falsely claiming in her motion papers that she did not
seek to add any new parties to her action while re-adding the
Mission as a defendant 4 (Def. Memo. at 29).

Defendants' argument

is based on the fact that plaintiff's amended complaint omitted
the Mission from the section entitled ''Defendant Information."

Defendants also allege bad faith because plaintiff added
"Does 1-20" as new parties; however, as this portion of
plaintiff's motion has already been denied on futility grounds,
need not address this bad faith argument.
4

21

I

Based on this omission, defendants appear to be taking the
position that the Mission was not a party to the amended complaint despite the fact that it was named in the caption and the
amended complaint contained substantive allegations against it.
I need not resolve this dispute because even if plaintiff intentionally or accidentally dropped the Mission as a defendant in
her first amended complaint, re-adding it as a defendant now is
proper under Rule 21, which employs the "same standard of liberality" as Rule 15.

Oteqbade v. New York City Admin. for Children

Servs., supra, 2015 WL 851631 at *2; see also Fed.R.Civ.P. 21
("the court may at any time, on just terms, add or drop a
party") .
All of plaintiff's allegations stem from her employment
as a secretary at the Mission and almost all of the incidents
referenced in her first amended complaint and proposed second
amended complaint took place at the Mission office.

While it is

unclear why plaintiff chose to list the Mission in her first
amended complaint caption and not as a party in the section
entitled "Defendant Information," given plaintiff's prose status
at the time of this filing and her good faith belief that the
Mission remained a party to the action as evidenced by her
attempts to serve it with her summons and complaint multiple

22

times, it is clear that plaintiff was not proceeding in bad
faith.

IV.

5

Conclusion

Accordingly, for all the foregoing reasons, plaintiff's
motion for leave to file a second amended complaint is granted
except with respect to adding "Does 1-20" as defendants, which is
denied.

Plaintiff is directed to serve and file her second

amended complaint within 14 days of the date of this Order.

Dated:

New York, New York
June 14, 2019
SO ORDERED

United States Magistrate Judge
Copies transmitted to:
All Counsel

5

Defendants make numerous other arguments in opposition to
plaintiff's motion to amend including improper service of process
on defendants, substantive arguments with respect to their
pending motion to dismiss and accusations against plaintiff that
she "falsified" documents by inaccurately translating her first
amended complaint from English to Spanish (Def. Memo. at 16-22)
None of these arguments are appropriate bases for opposing a
motion to amend and, thus, I do not address them.
23