Kyle v. Amtrak et al

Filing 62

MEMORANDUM AND ORDER: For the following reasons, themotion is denied. As further set forth by this Order. For the foregoing reasons, plaintiff's motion to amend the complaint is denied. The Clerk of Court is respectfully directed to terminate the pending motion. SO ORDERED. (Signed by Judge Naomi Reice Buchwald on 5/10/2022) (tg)

Case 1:20-cv-05526-NRB Document 62 Filed 05/10/22 Page 1 of 14

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
---------------------------------------X
LEONA KYLE,
Plaintiff,
- against AMTRAK
a/k/a
NATIONAL
RAILROAD
PASSENGER
CORPORATION,
LONG
ISLAND
RAILROAD
d/b/a
MTA
LONG
ISLAND
RAILROAD,
METROPOLITAN
TRANSIT
AUTHORITY,
NEW
YORK
CITY
TRANSIT
AUTHORITY d/b/a MTA NEW YORK CITY
TRANSIT, THE CITY OF NEW YORK and NEW
JERSEY TRANSIT, and Jane Doe, being an
employee of AMTRAK, whose name is
currently unknown to Plaintiff,

MEMORANDUM AND ORDER
20 Civ. 5526 (NRB)

Defendants.
---------------------------------------X
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE
Plaintiff Leona Kyle brings this lawsuit arising out of her
fall on December 23, 2018 on the escalator at Penn Station, New
York.

Presently before the Court is plaintiff’s motion to amend

her complaint for the fourth time.

For the following reasons, the

motion is denied.
I.

Background
A.

Plaintiff’s Accident

On December 23, 2018, plaintiff Leona Kyle, then 81 years
old, travelled via Amtrak from Stanton, Virginia to Penn Station,
New York.

ECF No. 18 (“SAC”) ¶¶ 58-60.

At the time that she

purchased her ticket, plaintiff requested wheelchair assistance

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from Amtrak.

Id. ¶ 65.

Plaintiff alleges that she asked and was

granted assistance from an Amtrak attendant when boarding the train
at Stanton.

Id. ¶ 59.

In the present version of the complaint,

plaintiff alleges that upon arriving at Penn Station, she asked a
female

Amtrak

attendant,

whom

plaintiff

identifies

in

her

complaint as “Jane Doe,” for a wheelchair and assistance in
retrieving her baggage.

Id. ¶ 61.

Plaintiff describes this Jane

Doe in her complaint as “a dark skinned, heavy set, AfricanAmerican woman” who was “wearing an AMTRAK uniform,” id. ¶ 62, and
“at all times an employee of Defendant AMTRAK and at all times
relative to this action, was performing services as the servant
and representative of Defendant AMTRAK,” id. ¶ 18.

Jane Doe

allegedly then instructed plaintiff to take the escalator upstairs
and directed plaintiff to the escalator.

Id. ¶ 63. Plaintiff

proceeded to the escalator, and, as the escalator was ascending,
lost her balance and fell, which resulted in injuries.

Id. ¶ 67.

Plaintiff further alleges that the Jane Doe did not provide her
with assistance after she fell.
B.

Id. ¶ 68.

Procedural History

This action was initially commenced on March 13, 2020, when
plaintiff filed a complaint in the Supreme Court of the State of
New York, New York County against Amtrak, Long Island Railroad,
Metropolitan Transit Authority, New York City Transit Authority,
and New Jersey Transit.

ECF No. 2-3 at 1-2.

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Plaintiff thereafter

Case 1:20-cv-05526-NRB Document 62 Filed 05/10/22 Page 3 of 14

filed an amended complaint in that same court on March 20, 2020.
ECF No. 2-2 at 1.

On July 17, 2020, defendants Amtrak, Long Island

Railroad, and New Jersey Transit removed this case to this Court
on the basis that this Court has original jurisdiction over the
action because defendant Amtrak was created by an Act of Congress
and more than one-half of its capital stock is owned by the United
States.

ECF No. 2 at 2.

Thereafter, on November 17, 2020,

plaintiff filed a second amended complaint.

ECF No. 18.

This

complaint withdrew the claims against the City of New York and the
New York City Transit Authority, SAC ¶ 3, and added claims against
the Jane Doe defendant, id. ¶ 18. Since this case was removed to
this Court, the Court has had four conferences with the parties
and

granted

schedule.
C.

three

substantial

extensions

of

the

discovery

ECF Nos. 33, 46, 61.
Proposed Amendments

Plaintiff now seeks to amend her complaint yet again to allege
that there were actually two different Amtrak employees involved
in the events leading up to her fall, rather than the one Amtrak
employee she had previously sued.

See ECF No. 47-1 (“Mot.”) at 1.

She seeks to name an Amtrak employee named Taja Manning as the
Jane Doe who failed to provide assistance to plaintiff after she
fell down the escalator, and to add another Jane Doe to represent
the Amtrak employee who directed plaintiff to the escalator.

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Id.

Case 1:20-cv-05526-NRB Document 62 Filed 05/10/22 Page 4 of 14

II.

Discussion
A.

Legal Standard

Federal Rule of Civil Procedure 15(a)(2) provides that courts
“should freely give leave” to amend pleadings “when justice so
requires.” Fed R. Civ. P. 15(a)(2). Under that standard, “motions
to amend should generally be denied in instances of futility, undue
delay, bad faith or dilatory motive, . . . or undue prejudice to
the non-moving party.”

Owens v. Textron Fin. Corp., No. 13 Civ.

5948

3887181,

(VB),

2014

WL

at

*4

(S.D.N.Y.

2014), aff’d, 590 F. App’x 83 (2d Cir. 2015).1

July

14,

When the deadline

for filing an amended pleading pursuant to a Court-ordered schedule
has passed, courts in this Circuit balance the more lenient
standard of Rule 15(a) with Rule 16(b) and require the party
seeking to amend a pleading to show good cause.

Velez v. Burge,

483 F. App’x 626, 628 (2d Cir. 2012) (“Although [a] court should
freely give leave [to amend] where justice so requires, this must
be balanced against the requirement under Rule 16(b) that the
Court’s scheduling order shall not be modified except upon a
showing of good cause.”) (internal quotation marks and citation
omitted). Good cause is lacking where the moving party has not

1

Where, as here, an amendment seeks to add a party, we also consider Rule
21 of the Federal Rules of Civil Procedure, which allows addition of a party
“at any time, on just terms.” Fed. R. Civ. P. 21. However, Rule 21 “creates no
additional obstacle, as the showing necessary under Rule 21 is the same as that
required under Rule 15(a) [2].” Soroof Trading Dev. Co. v. GE Microgen, Inc.,
283 F.R.D. 142, 147 (S.D.N.Y. 2012) (internal quotation marks and citation
omitted).

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been diligent in pursuing discovery.

Koller-Gurgigno v. City of

Yonkers, No. 18 Civ 98 (VB), 2020 WL 6729182, at *2 (S.D.N.Y. Nov.
16, 2020) (“Good cause depends on the diligence of the moving party
and is lacking if the proposed amendment rests on information that
the party knew, or should have known, in advance of the deadline.”)
(internal quotation marks and citations omitted).
B.

Application
1.

Good Cause

This Court entered a scheduling order on April 30, 2021, which
established a May 21, 2021 deadline for filing a motion to amend
the pleadings or join parties.
this

late

juncture,

ECF No. 28.

plaintiff

must

show

As such, to amend at
good

cause

why

the

complaint should be amended. Plaintiff has provided no explanation
for her lack of diligence in moving to amend her complaint, and so
has failed to show good cause for either her request to name an
additional Jane Doe or with her request to name Taja Manning.
First, plaintiff does not explain her delay in moving to amend
her complaint to reflect that the Jane Doe she had previously
described was actually an amalgamation of two separate Amtrak
employees.

In fact, it appears from plaintiff’s moving papers

that plaintiff has believed since the time of her accident that
there were two Amtrak employees involved in the events leading up
to

her

fall.

Rather

than

point

to

any

new

information

or

development in discovery, plaintiff’s only explanation for her
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delay in amending the complaint is that plaintiff did not disclose
the fact that there were two Amtrak employees to her counsel until
shortly before the statute of limitations lapsed. Mot. at 6 (“Only
two days before the statute of limitations was set to expire,
Plaintiff was informed by our client that Jane Doe Attendant
referenced in the Second Amended Complaint were two different
individuals.”).2

Where, as here, “[n]o newly discovered facts

motivated these proposed amendments; in fact, plaintiff had been
aware of the factual underpinnings of these claims since the outset
of this litigation,” the plaintiff’s request to amend is properly
denied.

Cty. of Washington v. Ctys. of Warren & Washington Indus.

Dev. Agency, 2 F. App’x 71, 75 (2d Cir. 2001).3
Likewise, plaintiff has failed to show good cause with respect
to the request to name Taja Manning as the prior Jane Doe.
Significantly,

plaintiff

admits

2

that

she

cannot

positively

The Court notes that this sentence is remarkable.
There is only one
plaintiff in a lawsuit, and it is her knowledge, not counsel’s, that is of
significance.
It is counsel’s responsibility to interview their client and
ascertain the facts. Indeed, that investigation is supposed to occur before
the lawsuit is commenced. Counsel’s lack of diligence is not good cause to
amend the complaint.
3
The Court finds it difficult to believe that “the identity of the Amtrak
Jane Doe has always been known to Defendants and information contained readily
in their possession,” Mot. at 6, given that plaintiff has described a Jane Doe
in her three prior complaints that plaintiff now acknowledges is an amalgamation
of two people. Moreover, the description plaintiff now gives of her new proposed
Jane Doe - “a light skinned Black woman,” id., conflicts with her previous
description of the Jane Doe as a “dark skinned . . . African-American” woman,
SAC ¶ 62.
The Court finds no fault in defendants failing to disclose the
identity of a woman who plaintiff now contends does not exist.
The Court
further notes that it is plaintiff, and not any of the currently named
defendants, who is in the best position to have a recollection of the events
around her accident.

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identify Manning as the Amtrak employee who failed to assist her
after her fall, even after reviewing a photo of Manning.
2.

Mot. at

Plaintiff’s only basis for accusing Manning appears to be that

Manning is listed on Amtrak’s incident report as a train attendant
and an eyewitness of her accident, ECF No. 47-3 at 2, and Manning
is African-American, ECF No. 47-3 at 4.

Significantly, there is

no suggestion that defendants failed to adequately respond to any
discovery request designed to identify any Amtrak employee.
Plaintiff’s lack of diligence is further underscored by the
fact that this case has been ongoing for more than twenty months,
during which time the Court has issued numerous extensions to the
discovery schedule and held four separate conferences.

In fact,

during a conference on November 1, 2021, the Court gave plaintiff
the suggestion of asking for photographs of all Amtrak employees
that could have been the Jane Doe in order to determine the Jane
Doe’s identity.

Rather than act on the Court’s suggestion, it

appears that plaintiff’s only attempts to ascertain the Jane Doe’s
identity took place in December 2021, when plaintiff served two
sets of interrogatory requests regarding Manning.
4-8.

ECF No. 47-3 at

Since plaintiff squandered her opportunity to take discovery

to determine the identity or identities of the alleged Jane Doe,
she has not shown good cause.4

Moreover, this Court agrees with

4

While plaintiff’s motion refers to “countless inquiries” to defendants to
determine the identity of the Jane Doe, Mot. at 6, plaintiff does not provide

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defendants that it would be punitive to name as a defendant an
individual whom plaintiff does not recognize as the Jane Doe who
failed to assist her, and thereby put that individual in the
position of having to retain counsel and undertake litigation
expenses.5
2.

Plaintiff’s Proposed Amendments are Unnecessary

There is a second basis on which to deny this motion, namely,
that Plaintiff’s proposed amendments are unnecessary and therefore
“unlikely to be productive.” Lucente v. Int’l Bus. Machines Corp.,
310 F.3d 243, 258 (2d Cir. 2002) (“Where it appears that granting
leave to amend is unlikely to be productive, however, it is not an
abuse of discretion to deny leave to amend.”).

As defendants

argue, plaintiff has alleged that the Jane Doe is an Amtrak
employee acting within the scope of her employment, and thus that
Amtrak would be liable for any negligence of its employees under
the doctrine of respondeat superior.

See ECF No. 50 at 9-10; SAC

¶ 18. Therefore, plaintiff does not need to name Manning or an
additional Jane Doe as a defendant to recover from Amtrak for any
harm caused by an employee in the scope of their employment.

any details regarding the inquiries that would allow the Court to determine
that plaintiff has in fact been diligent.
5

Further, and not without significance, the Court notes that, as plaintiff
cannot identify Manning as the Jane Doe, it is unclear if plaintiff’s counsel
can name Manning consistent with their Rule 11 obligations.

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On reply, plaintiff responds by arguing that she must add
Manning and her additional Jane Doe because she is seeking punitive
damages.

See ECF No. 55 at 6.

Specifically, plaintiff cites to

49 U.S.C. § 28103, which states that punitive damages are available
for actions against Amtrak where “the harm that is the subject of
the action was carried out by the defendant with a conscious,
flagrant indifference to the rights and safety of others.”
U.S.C. § 28103(a)(1).

49

But plaintiff does not explain, and this

Court does not see, any connection between plaintiff’s desire to
recover punitive damages from Amtrak and a need to name individual
defendants.6

Plaintiff’s

additional

reference

to

municipal

immunity under New York law, ECF No. 55 at 6, is even more confusing
as the plaintiff has withdrawn her claims as to the City of New
York and the New York City Transit Authority, SAC ¶ 3.

Since

Amtrak would be ultimately liable for the conduct of plaintiff’s
proposed additional defendants, their addition is unnecessary.
3.

The Motion is Defective and Time Barred

Plaintiff’s proposed amended complaint should be denied for
the independent reason that it is time barred.
6

Defendant argues,

Without the benefit of an amended complaint to review, it is far from
clear what specific actions plaintiff would assert to meet the threshold for
punitive damages. But to the extent that plaintiff is able to recover punitive
damages in this action, and without commenting on the merits of this claim, the
Court does not see why, as a matter of law, she would not be able to do so from
Amtrak. See Williams v. Nat’l R.R. Passenger Corp., No. 12 Civ. 16 (JD) (PRC),
2013 WL 4788119, at *7 (N.D. Ind. Sept. 9, 2013) (holding on a motion to dismiss
that “[a]t this stage of the proceedings, Amtrak has not demonstrated that the
Amtrak Act prohibits a claim of vicarious liability against Amtrak for punitive
damages.”).

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and plaintiff does not dispute, that where a moving party does not
attach

an

amended

complaint

to

a

motion

to

amend

defendant, the statute of limitations continues to run.7

to

add

a

See Fed.

R. Civ. P. 7(b)(1) (A motion must “(B)state with particularity the
grounds for seeking the order; and (C) state the relief sought.”);
see also Smith v. Planas, 151 F.R.D. 547, 550 (S.D.N.Y. 1993)
(holding where plaintiff sought to add a defendant, “[i]n order to
satisfy the prerequisite of particularity [of Rule 7] in a motion
to amend, a complete copy of the proposed amended complaint must
accompany the motion so that both the Court and opposing parties
can understand the exact changes sought.”).

Instead, plaintiff

argues that her claims against the new defendants she seeks to add
are timely because of the relation back doctrine.8
Plaintiff does not contest that she cannot rely on the federal
relation back doctrine to name a Jane Doe.

Under Federal Rule of

Civil Procedure 15(c)(1)(C), an amended complaint relates back to
the original complaint if, inter alia, the party added by the
amendment “knew or should have known that the action would have
been brought against it, but for a mistake. . . .”

7

However, “Rule

We also note that plaintiff failed to comply with Rule 2(b) of this
Court’s Individual Practices, which requires a premotion letter explaining the
proposed motion and requesting a conference before making a motion.
8
We note that plaintiff’s contention on reply that her motion to amend can
be filed outside of the statute of limitations contrasts with much of her moving
brief, which further undermines her good cause arguments. See, e.g., Mot. at
7-8 (“Therefore, using all the resources currently in Plaintiff’s position, and
being up against an impending statute of limitations deadline, Plaintiff has
established good cause. . . .”)

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15(c) does not allow an amended complaint adding new defendants to
relate back if the newly-added defendants were not named originally
because the plaintiff did not know their identities.”

Barrow v.

Wethersfield Police Dep’t, 66 F.3d 466, 470 (2d Cir. 1995),
modified, 74 F.3d 1366 (2d Cir. 1996).

Plaintiff freely admits

that her reason for initially proceeding against the Jane Doe
pseudonymously is that she did not know the Jane Doe’s identity.
SAC at 1 (stating in the caption that this case is brought against
“Jane Doe, being an employee of AMTRAK, whose name in currently
unknown to Plaintiff.”).

Moreover, plaintiff does not allege any

reason that the proposed defendants should have known that an
action would be brought against them.

At most, plaintiff alleges

that Manning observed an accident, and that the proposed Jane Doe
directed plaintiff to the escalator.

Neither of the proposed

defendants thus could have reasonably assumed that they would be
a defendant in a lawsuit.
However, plaintiff claims that she can relate her claims back
under state law. Although this case was removed because this Court
has

original

jurisdiction,

we

consider

state

law

because

in

commenting on Rule 15(c), the Rules Advisory Committee directs
courts to look to the “‘controlling body of limitations law’ — not
merely the limitations law's test for relation back. . .

[i]f

that law affords a more forgiving principle of relation back than
the one provided in [Rule 15(c)], it should be available to save

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Case 1:20-cv-05526-NRB Document 62 Filed 05/10/22 Page 12 of 14

the claim.”

Hogan v. Fischer, 738 F.3d 509, 518 (2d Cir. 2013)

(citations omitted) (emphasis in original).

As plaintiff has

alleged claims under New York State law, see SAC ¶¶ 78-99, we
consider whether plaintiff can avail herself of New York’s relation
back statute, CPLR § 1024.
To benefit from CPLR § 1024, a plaintiff must meet two
criteria: “[f]irst, the party must exercise due diligence, prior
to the running of the statute of limitations, to identify the
defendant by name.

Second, the party must describe the John Doe

party in such form as will fairly apprise the party that [he] is
the intended defendant.”

Fischer, 738 F.3d at 519 (internal

citations and quotation marks omitted).

Plaintiff has failed to

meet either criterion.
First, plaintiff has not acted diligently in her efforts to
identify the Jane Doe defendant by name.

“Section 1024’s ‘due

diligence’ requirement is not forgiving. . . Due diligence is not
exercised by ‘last minute’ or token discovery requests.”

Barrett

v. City of Newburgh, 720 F. App’x 29, 33 (2d Cir. 2017).

To date,

the only concrete steps plaintiff has demonstrated that she has
taken to determine the Jane Doe’s identity are the two sets of
discovery requests she sent in December 2021.
constitute sufficient diligence.

More is required to

See JCG v. Ercole, No. 11 Civ.

6844 (CM) (JLC), 2014 WL 1630815, at *14 (S.D.N.Y. Apr. 24, 2014)
(finding lack of due diligence where, in the three years he had to

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discover the unknown parties, plaintiff waited until the last
minute to submit multiple discovery requests and failed to promptly
seek further discovery).
Second, plaintiff has not “fairly apprise[d]” either Manning
or Jane Doe that she is the intended defendant.
at 519.

Fischer, 738 F.3d

With respect to Manning, Manning could not have known

that she was the Jane Doe in plaintiff’s second amended complaint
because plaintiff describes that Jane Doe as someone she asked for
assistance, and plaintiff now does not allege that she asked
Manning for assistance.

SAC ¶¶ 62-63; Mot. at 6.

Further, the

Jane Doe plaintiff now seeks to add could not know that she was
the intended defendant because plaintiff’s new description of the
Jane Doe alleges that she is “‘a light skinned Black woman’ who
was on the platform when Ms. Kyle off boarded her trains and she
failed to direct or guide Ms. Kyle to the wheelchair to which she
was

entitled,”

Mot.

at

6,

which

similarly

contradicts

the

description that plaintiff had previously given of the Jane Doe.
See SAC ¶¶ 62-65.

Moreover, the Jane Doe plaintiff seeks to add

did not necessarily even observe plaintiff’s accident.

As such,

plaintiff’s claim fails to relate back under either state or
federal law.

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III. Conclusion
For the foregoing reasons, plaintiff’s motion to amend the
complaint is denied.

The Clerk of Court is respectfully directed

to terminate the pending motion.
SO ORDERED.
Dated:

New York, New York
May 10, 2022
____________________________
NAOMI REICE BUCHWALD
UNITED STATES DISTRICT JUDGE

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