Hill v. Griffin et al

Filing 129

BENCH STATEMENT re 126 Letter Request for Amendment. Issued by Hon. Elizabeth A. Wolford on 10/18/2018. (CDH) Docket entry modified on 10/18/2018 to correct "signed" to "issued" (CDH).

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

MICHAEL HILL,
BENCH STATEMENT
Plaintiff,
v.

6:10-CV-06419 EAW

PATRICK GRIFFIN, et al.,
Defendants.

THIS STATEMENT DOES NOT CONSTITUTE A PUBLISHED DECISION AND
ORDER OF THIS COURT. IT IS LIMITED TO THE FACTS OF THIS CASE AND
MAY NOT BE CITED AS PRECEDENTIAL AUTHORITY OR OTHERWISE
USED IN UNRELATED CASES BEFORE THIS OR ANY OTHER COURT, BUT
MAY BE CALLED TO THE ATTENTION OF THIS OR ANY OTHER COURT IN
A SUBSEQUENT STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY
CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR RES JUDICATA.

Plaintiff has made a request pursuant to Federal Rule of Civil Procedure 15(b) to
amend the pleadings in this matter to conform to the proof. In particular, Plaintiff seeks to
amend the pleadings to assert a claim for violation of his right to due process against
Defendants Frederick Butler and James Squires and to assert a claim for violation of his
Eighth Amendment right to be free from cruel and unusual punishment as to Defendant
Squires. Defendants oppose the request, arguing that it has been made well after the
deadline for seeking to amend the pleadings and after the close of proof in this matter. For
the reasons discussed herein, the Court grants Plaintiff’s request to amend the pleadings
with respect to the due process claim against Defendants Butler and Squires and denies

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Plaintiff’s request to amend the pleadings with respect to the Eighth Amendment claim
against Defendant Squires.
Federal Rule of Civil Procedure 15(b) provides:
[w]hen an issue not raised by the pleadings is tried by the parties’ express or
implied consent, it must be treated in all respects as if raised in the pleadings.
A party may move—at any time, even after judgment—to amend the
pleadings to conform them to the evidence and to raise an unpleaded issue.
The Second Circuit has explained that:
The import of Rules 15(a) and (b) combined is that (1) a motion to amend
the pleadings to conform them to the evidence may be made at any time; (2)
if the motion is made during trial, either in response to an objection to
evidence concerning issues not raised by the pleadings or without such an
objection, it may be granted if the party against whom the amendment is
offered will not be prejudiced by the amendment, and it should be granted in
the absence of prejudice if the interests of justice so require; (3) if the motion
is made after trial, and the issues have been tried with the express or implied
consent of the parties, the motion must be granted; (4) if the motion is made
after trial, and the issues have not been tried with the express or implied
consent of the parties, the motion may be granted if the party against whom
the amendment is offered will not be prejudiced by the amendment and
should be granted in the absence of such prejudice if the interests of justice
so require
Hillburn by Hillburn v. Maher, 795 F.2d 252, 264 (2d Cir. 1986); see also Silverstein v.
Penguin Putnam, Inc., 522 F. Supp. 2d 579, 604 (S.D.N.Y. 2007) (“In deciding whether to
allow amendment under Rule 15(b), the essential questions are whether the new issues
were tried by the parties’ express or implied consent and whether the defendant would be
prejudiced by the implied amendment, i.e., whether he had a fair opportunity to defend and
whether he could offer any additional evidence if the case were to be retried on a different
theory.”) (quotation omitted). “As a general matter, [t]he district court has discretion
whether or not to grant leave to amend, and its decision is not subject to review on appeal
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except for abuse of discretion.” Hillburn, 795 F.2d at 264 (quotation omitted and alteration
in original); see also Vermont Plastics, Inc. v. Brine, Inc., 79 F.3d 272, 279 (2d Cir. 1996)
(“Fed. R. Civ. P. 15(b) allows parties to amend their pleadings to conform to the proof
received into evidence at trial. The decision of whether to allow such an amendment is left
to the discretion of the district court judge.”).
As a threshold matter, the Court rejects Defendants’ contention that it cannot grant
Plaintiff’s motion because Plaintiff has not shown good cause for amendment of the
scheduling order pursuant to Federal Rule of Civil Procedure 16(b). It is true that Rule
16(b) “may limit the ability of a party to amend a pleading if the deadline specified in the
scheduling order for amendment of the pleadings has passed.” Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 243 (2d Cir. 2007). However, in this case, the final and
operative scheduling order, entered on February 13, 2018, does not set any deadline for
seeking amendment of the pleadings. (Dkt. 86). While it may be the case that this was
because “no future amendments to the pleadings were contemplated by the parties” at that
time, “the parties’ failure to contemplate future amendments, at a particular time during the
litigation” is not dispositive “in determining a motion to amend, especially in light of the
scope of Rule 15, providing that a pleading may be amended during and after trial.”
Tolliver v. Lilley, No. No. 12 CIV. 971 (DAB), 2016 WL 5793998, at *2 (S.D.N.Y. Sept.
19, 2016), modified on unrelated grounds by Tolliver v. Skinner, 2017 WL 1017649, at *1
(S.D.N.Y. Mar. 13, 2017). Accordingly, the Court finds that Rule 16(b) does not govern
in this case. In any event, even assuming Rule 16(b) did apply, the Court “possesses
inherent authority to control the disposition of the causes on its docket,” Range v. 480-486
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Broadway, LLC, 810 F.3d 108, 113 (2d Cir. 2015) (quotation omitted), which includes the
authority to modify the scheduling order to allow late amendments where there is no
prejudice to the non-moving party. See Roth v. 2810026 Canada Ltd. Ltd., No. 13-CV901A(F), 2017 WL 1337572, at *4 (W.D.N.Y. Apr. 12, 2017) (exercising the court’s
“discretion in controlling the scheduling of the case before it” and allowing late amendment
of pleading).
Turning to the merits of Plaintiff’s Rule 15(b) motion, the Court finds that
Defendants impliedly consented to the trial of Plaintiff’s due process claims against
Defendants Butler and Squires. “[C]onsent [ ] may be implied from the opposing party’s
failure to object, effective engagement, or silent acquiescence.” Myers v. Moore, 326
F.R.D. 50, 62 (S.D.N.Y. 2018) (citations and quotations omitted and alterations in
original). Plaintiff put Defendants on notice prior to the trial that he intended to pursue his
due process claim against Defendants Butler and Squires in his amended Statement of
Claims. (See Dkt. 119). Defendants raised no objection at that time. Moreover, when
discussing Defendants’ motion for judgment as a matter of law under Federal Rule of Civil
Procedure 50, the Court indicated that the due process claim was asserted as to Defendants
Butler and Squires, and Defendants’ counsel did not disagree with that proposition (though
he did argue that no due process claim had been established).

Accordingly, because

Defendants impliedly consented to Plaintiff’s prosecution of a due process claim as to
Defendants’ Butler and Squires, Plaintiff’s request to amend the pleadings is granted in
this respect.

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However, the Court finds that Defendants did not consent, either expressly or
impliedly, to Plaintiff’s assertion of an Eighth Amendment claim against Defendant
Squires. Plaintiff did not previously indicate his intention to pursue this claim, giving
Defendants no meaningful opportunity to object. Moreover, while evidence arguably
relevant to this claim came in at trial, that evidence was also relevant to Plaintiff’s other
claims against Defendant Squires, and so consent cannot be implied from Defendants’ lack
of objection. See Silverstein, 522 F. Supp. 2d at 604 (“consent will not be implied from
the failure to object to evidence that is relevant to both pleaded and unpleaded issues, unless
it was somehow obvious that the party offering the evidence was attempting to raise the
unpleaded issue”).
The Court further finds that it would be prejudicial to Defendant Squires to permit
Plaintiff to amend the pleadings to assert an Eighth Amendment claim against him at this
juncture. Proof in this matter is closed, and Defendant Squires cannot now offer any
evidence relevant to this claim. See Pickwick Entm’t, Inc. v. Theiringer, 898 F. Supp. 75,
78 (D. Conn. 1995) (noting that Rule 15(b) motions “are usually made at the conclusion of
the plaintiff’s case” and explaining that “clearly [the defendant] would be prejudiced by
allowing the amendment as to which []he did not conduct any discovery whatever and did
not cross examine the plaintiff’s witness”). Accordingly, Plaintiff’s request to amend his
pleadings to assert an Eighth Amendment claim as to Defendant Squires is denied.

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