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finding good cause based on, inter alia, counsel's inability to contact client
Summary of this case from Gullo v. City of N.Y.Opinion
10 Civ. 09348 (ALC) (DF)
12-04-2012
AMY B. HUBER, Plaintiff, v. NATIONAL RAILROAD PASSENGER CORPORATION; AMTRAK POLICE OFFICER ("APO") DARYL M. EVANS, APO JOHN DOE 1 through APO JOHN DOE 5, Defendants.
MEMORANDUM AND ORDER
DEBRA FREEMAN, United States Magistrate Judge :
In this civil rights action brought pursuant to 42 U.S.C. § 1983, as well as state and local law, plaintiff Amy B. Huber ("Plaintiff") claims, inter alia, that she was subjected to false arrest, sexual harassment, and the use of unlawful force by defendants National Railroad Passenger Corporation ("Amtrak") and certain Amtrak police officers (collectively, "Defendants"). Currently before the Court is Plaintiff's motion for leave to amend her Complaint, so as to substitute a now-known Amtrak police officer - Gregory Holman ("Holman") - for one of the officers named as a "John Doe" defendant in Plaintiff's original pleading. For the reasons set forth herein, Plaintiffs' motion to amend (Dkt. 14) is granted.
BACKGROUND
A. Factual Background
This action arises from events that took place on the night of December 15, 2009 and the early morning of December 16, 2009, at the Amtrak rail hub in Penn Station, New York. (See Complaint, dated Dec. 15, 2010 ("Compl.") (Dkt. 1), at ¶ 19, 75.) Plaintiff alleges that, while waiting for a New Jersey Transit train at about 11:00 p.m., she witnessed an Amtrak police officer abuse an alleged trespasser and that, when she made it known that she was "paying attention" to the officer's actions, she was in turn assaulted, handcuffed, and detained. (See id., at ¶¶ 22-55.) Plaintiff further claims that, during the period of her detention, which lasted several hours, she was deliberately placed in a room without video surveillance, handcuffed to a wall, and subjected to relentless harassment by a group of Amtrak officers, based on her gender presentation and perceived sexual orientation, causing her both physical and emotional injury. (See id., at ¶¶ 55-80.) Plaintiff also claims that the officer who initially caused her to be arrested made false allegations regarding her conduct, with the knowledge that those allegations would lead to the initiation of criminal charges against her. (Id., at ¶¶ 82-83.) Plaintiff asserts a number of claims against both Amtrak and the officers, including claims for the violation of her rights under the federal constitution, both state and local civil rights laws, and the common law. (See id., at ¶¶ 85-137.)
B. Procedural History
Plaintiff, through counsel, filed her Complaint on December 15, 2010 (Dkt. 1), and the parties proceeded with discovery. At a March 15, 2012 telephone conference with the Court, Plaintiff's counsel indicated a desire to amend the Complaint to substitute Holman for one of the "John Doe" defendants. The Court informed counsel that, if Defendants consented to the amendment, the Court would not require a motion seeking leave to amend. Accordingly, the Court set a preliminary schedule by which Plaintiff would provide Defendants with a proposed Amended Complaint, and Defendants would inform Plaintiff if they were prepared to consent to the amendment.
Based on the schedule set by the Court, Plaintiff was supposed to provide the proposed Amended Complaint to Defendants' counsel by the next day, March 16, 2012 - a deadline volunteered by Plaintiff's counsel. Defendants' counsel was then supposed to inform Plaintiff's counsel by March 23 if Defendants objected to the filing of the proposed amended pleading. In the absence of any objection, Plaintiff was supposed to proceed to file the Amended Complaint the following week (i.e., the week of March 26). If, on the other hand, Defendants objected to the filing, then the parties were supposed to discuss and jointly propose a briefing schedule for a motion to amend.
Despite Plaintiff's counsel's apparent belief that the above-described schedule was feasible, he did not supply Defendants' counsel with the proposed Amended Complaint until March 28, 2012. (Declaration of David B. Rankin, Esq., dated May 30, 2012 (Dkt. 15) ("Rankin Decl."), at ¶ 5.) Then, on April 2, 2012 Defendants' counsel informed the Court and Plaintiff that Defendants would not consent to the amendment. (Declaration of Ronald E. Joseph, Esq., dated June 11, 2012 ("Joseph Decl.") (Dkt. 17), at ¶ 7 and Ex. C.)
As a result, the Court held another telephone conference with counsel on May 18, 2012, and set the following schedule for the briefing of a motion to amend: Plaintiff was directed to file her motion by May 30, 2012; Defendants were directed to file their opposition by June 11, 2012; and Plaintiff was directed to file her reply, if any, by June 15, 2012. The Court informed Plaintiff's counsel that, given his failure to meet the initial deadline for providing the proposed pleading to Defendants' counsel, Plaintiff's motion should not only rely on Rule 15(a) of the Federal Rules of Civil Procedure, which sets out the standard for amendments, but should also address Rule 16(b)(4)'s dictate that a court's scheduling order "may be modified only for good cause."
On May 30, 2012, Plaintiff duly filed her motion to amend. (Dkt. 14.) In connection with the motion, Plaintiff's counsel now explains, in a Declaration made under penalty of perjury and in other motion papers, that, unbeknownst to him, Plaintiff was out of town and unreachable at the time of the March 15 conference, making it impossible for counsel to meet the initial deadline of March 16 for supplying the proposed Amended Complaint to Defendants. (See Rankin Decl., at ¶¶ 10-15; Plaintiff's Memorandum of Law in Support of Her Motion for Leave to File an Amended Complaint, dated May 30, 2012 ("Pl. Mem.") (Dkt. 16), at 1-2; Plaintiff's Memorandum of Law in Further Support of Her Motion to File an Amended Complaint, dated June 15, 2012 ("Pl. Reply Mem.") (Dkt. 19), at 2.) Plaintiff's counsel also suggests that it was highly unusual for him not to be able to communicate promptly with his client, who, he writes, had a "history of quickly responding to counsel's inquiries." (Pl. Mem., at 1.) Counsel declares that, at that particular time, Plaintiff was in a rural location, tending to ill relatives (one of whom was in home hospice care), without regular cell phone service or access to email. (Rankin Decl., at ¶¶ 11-12.) Counsel asks that his initial delay in providing Defendants with Plaintiff's proposed amended pleading be excused because of these unusual circumstances, and further argues that the delay caused no prejudice to Defendants. (See generally Pl. Mem.; Pl. Reply Mem.)
The pages of this Memorandum of Law are not numbered; for ease of reference, the Court has assigned it pages numbers starting with "1" (excluding the cover page).
Defendants, for their part, make much of Plaintiff's initial delay, arguing that Plaintiff has not made a showing sufficient to excuse it. (See Defendants' Memorandum of Law in Opposition to Plaintiff's Motion for Leave To File an Amended Complaint, dated June 11, 2012 ("Def. Mem.") (Dkt. 18), at 5-7.) Defendants further argue that the proposed amendment should, in any event, be denied as futile, as, according to Defendants, the proposed claims against Holman would be subject to dismissal on a summary judgment motion because the allegations about Holman that Plaintiff now seeks to assert are inconsistent with Plaintiff's own deposition testimony. (See id., at 8-9.) Defendants also contend that, in light of Plaintiff's purportedly contradictory testimony, permitting the amendment would cause Defendants undue prejudice, which could be remedied only by re-opening Plaintiff's deposition. (See id., at 9-10.)
DISCUSSION
I. APPLICABILITY OF RULE 16
The first issue for the Court to consider is whether Plaintiff's motion to amend should be denied under Rule 16(b)(4) of the Federal Rules of Civil Procedure, for what Defendants contend is a failure by Plaintiff to demonstrate "good cause" for non-compliance with a scheduling order issued by the Court. (See Def. Mem., at 5-7.) As the Second Circuit has noted:
Where . . . a scheduling order governs amendments to the complaint, . . . the lenient standard under Rule 15(a), which provides leave to amend 'shall be freely given,' 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.'Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (citations and internal quotation marks omitted); see also Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2nd Cir. 2000) (stating that "despite the lenient standard of Rule 15(a), a district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause").
The purpose of Rule 16(b)(4) is "to offer a measure of certainty in pretrial proceedings, ensuring that at some point both the parties and the pleadings will be fixed." Parker, 204 F.3d at 339-40 (citations and internal quotation marks omitted); see also Fed. R. Civ. P. 16 Advisory Committee notes (1983) (discussion of Subdivision (b)). Establishing "good cause" to modify a scheduling order primarily "depends on the diligence of the moving party," which refers to the movant's demonstrated efforts to meet the court's deadlines. Grochowski v. Phoenix Constr., 318 F.3d 80, 86 (2d Cir. 2003) (citing Parker, 204 F.3d at 340); Holmes, 568 F.3d at 335 (citing Grochowski). In other words, the moving party must show that, despite having exercised diligence, the applicable deadline could not reasonably have been met. See Rent-A-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003) (citing Robinson v. The Town of Colonie, No. 91 Civ. 1355, 1993 U.S. Dist. LEXIS 7464 (N.D.N.Y. 1993)); see also Parker, 204 F.3d at 340. While diligence is the primary consideration under Rule 16, a court may also "consider other relevant factors[,] including, in particular, whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants." Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244 (2d Cir. 2007); but see Estate of Ratcliffe v. Pradera Realty Co., No. 05 Civ. 10272 (JFK), 2007 U.S. Dist. LEXIS 78070, at *4 (S.D.N.Y. Oct. 19, 2007) (noting that, standing alone, absence of prejudice to the non-moving party is not sufficient to establish good cause under Rule 16(b) (citation omitted)).
In this case, the Court notes, as a threshold matter, that Plaintiff did not miss a deadline for filing a motion to amend; rather, Plaintiff only missed a deadline for providing opposing counsel with a proposed amended pleading, to see if Defendants would consent to the amendment and thereby avoid unnecessary motion practice. When it came to filing the motion itself, Plaintiff complied with the deadline eventually set by the Court. Further, even if Rule 16(b) should be read to apply to the preliminary schedule that the Court laid out for teeing up a potential motion, Plaintiff has made an adequate demonstration of diligence to establish good cause for the delay. There is no suggestion here that Plaintiff's counsel was anything less than diligent in trying to communicate with his client, and the Court has no reason to disbelieve counsel's statements regarding the legitimate reasons why Plaintiff was, for a period, unreachable. Moreover, the delay in question - of a week and a half - cannot be viewed as material when viewed in the context of the case as a whole. Finally, there is no reason to believe that the delay in question caused Defendants any prejudice.
Accordingly, the Court will proceed to consider Plaintiff's motion, under Rule 15.
II. APPROPRIATENESS OF PLAINTIFF'S PROPOSED AMENDMENT UNDER RULE 15
Under Rule 15(a) of the Federal Rules of Civil Procedure, the standard for amendments is a liberal one; as stated in the Rule, the Court "should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2). Nonetheless, a motion to amend a pleading under Rule 15(a) should be denied "if there is an 'apparent or declared reason - such as undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of an amendment, [or] futility of amendment.'" Dluhos v. Floating and Abandoned Vessel, Known as "New York", 162 F.3d 63, 69 (2d Cir. 1998) (alterations in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)); see also Richardson Greenshields Secs., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987) (citation omitted).
In this case, Defendants argue that, assuming the Court reaches the merits of Plaintiff's motion to amend, the motion should be denied on the dual grounds that (a) the proposed amendment would be futile, and (b) allowing the amendment would be unduly prejudicial to Defendants, in light of the supposed conflict between Plaintiff's proposed new allegations and her deposition testimony. Neither argument is persuasive.
A. Futility of Amendment
When an amendment to a complaint is proposed prior to discovery, the amendment is considered "futile" where the proposed new claim would not withstand a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Oneida Indian Nation v. City of Sherrill, New York, 337 F.3d 139, 168 (2d Cir. 2003), rev'd on other grounds, 544 U.S. 197 (2005); Twisted Records, Inc. v. Rauhofer, No. 03 Civ. 2644 (DF), 2005 U.S. Dist. LEXIS 3313, at *21 (S.D.N.Y. Mar. 3, 2005) (noting that the court may deny leave to amend where the claim to be added would fail to state a claim upon which relief may be granted; collecting cases); see also Posr v. N.Y. State Court Officer, No. 96 Civ. 5200 (CLP), 2006 U.S. Dist. LEXIS 13934, at *63-64 (E.D.N.Y. Mar. 13, 2006) (denying motion to amend because plaintiff failed to state a claim for which relief could be granted on "the facts alleged in the proposed amended complaint"). Where the proposed amended complaint would be subject to "immediate dismissal" for failure to state a claim or on some other ground, courts generally do not permit the amendment. Jones v. New York State Div. of Military & Naval Affairs, 166 F.3d 45, 55 (2d Cir. 1999). On the other hand, where the party seeking to amend "has at least colorable grounds for relief, justice . . . require[s]" that the motion be granted. Ryder Energy Distrib. Corp. v. Merrill Lynch Commodities Inc., 748 F.2d 774, 783 (2d Cir. 1984) (quotations marks and citation omitted).
In the less common case where the Court is asked to review a proposed amendment with the benefit of a full discovery record, a futility analysis is still possible, but it will then turn on the question of whether the proposed amended complaint would be subject to dismissal under Rule 56 of the Federal Rules of Civil Procedure for lack of a genuine issue of material fact. See Fed. R. Civ. P. 56(a); Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (noting that standards for futility depends on stage of litigation at which motion to amend is brought); Montalvo v. Sun Roc Corp., 179 F.R.D. 420, 424 (S.D.N.Y. 1998) (denying plaintiffs' motion for leave to amend the complaint because, based on an admission in the discovery record and absence of contrary evidence, Defendants would be entitled to summary judgment on the amended complaint); see also Republic Nat'l Bank v. Hales, 75 F. Supp. 2d 300, 308 (S.D.N.Y. 1999) (noting that, "in the main, a proposed amendment should be reviewed under a standard analogous to the standard of review applicable to a motion brought under Rule 12(b)(6)," but also noting that "a number of courts have held that a summary judgment standard may [also] be applied and leave to amend denied outright should the party seeking amendment fail to satisfy that standard" (citing, inter alia, Montalvo)).
In this case, Plaintiff wishes to substitute Holman for one of the "John Doe" defendants initially named in her pleading, but Defendants argue that, based on testimony given by Plaintiff at her deposition, she would be unable to establish at trial that Holman committed the acts that Plaintiff now seeks to attribute to him. (See Def. Mem., at 4, 8-9.) More specifically, Defendants point out that, while Plaintiff now seeks to allege that Holman conferred with other officers about holding her in a room without camera surveillance (Rankin Decl., Ex. 1 (Proposed Amended Complaint ("Proposed Am. Compl.")), at ¶ 56), participated with other officers in making "a show about how disgusting they thought it [would be] to search her because of her gender and/or gender presentation" (id., at ¶ 59), and then, after being "selected" by the other officers to search her, proceeded to conduct that search (id., at ¶¶ 60-61), Plaintiff did not testify at her deposition that Holman had engaged in these particular acts.
Defendants' arguments, however, are insufficient to demonstrate that Plaintiff could not prevail on her proposed claims against Holman. First of all, Plaintiff was clear in her deposition that she could identify Holman as someone who had been with her "for hours" during the period of her allegedly unlawful detention (Declaration of Ronald E. Joseph in Opposition to Plaintiff's Motion for Leave to Amend, Ex. B (Plaintiff's Deposition) ("Pl. Dep."), at 116), and that he was one of a group of officers who, together, had engaged in "almost . . . constant," "nonstop" harassment during that period (id., at 119; see also id., at 34-35 (Plaintiff testifying that, during her detention, she was "handcuffed to the wall," and that, for "at least five hours," she was "subjected to a constant barrage of genuinely sadistic, shocking, outrageous, humiliating, homophobic, sexist, and physically threatening comments")). Second, Plaintiff testified to a number of offensive and sexually-harassing statements allegedly made by Holman during her detention (see, e.g., id., at 116 (testifying that Holman asked her "who [she] like[s] to fuck" and "who's at home waiting for [her]"); recalled that Holman "was part of the speculation about what kind of underwear [she] wear[s]" (id.); thought that Holman "might have been the officer [who] suggested that [she] be provided a jock strap" (id.); and recounted how Holman had denied her a telephone call when she refused to answer his questions about her home situation (id., at 120-22). Third, Plaintiff testified that Holman "often got in really close to [her] physically" (id., at 120; see also id., at 122), and "whispered" comments that, in the context of all that she had experienced that night, she perceived as "menacing" (id., at 120, 122). Viewing, as a whole, Plaintiff's testimony about Holman, this Court cannot say that Plaintiff would necessarily be unable to sustain her proposed Section 1983 - or state or city - claims against this defendant, for having knowingly participated in her allegedly unlawful detention, and/or for having failed to intervene to stop the deprivation of her rights by others.
As for any particular factual allegations that Plaintiff now wishes to plead against Holman, but as to which she did not testify at her deposition (such as the allegation that Holman searched her), Plaintiff's deposition should not be read as a precise template for a permissible pleading. This is especially so because Plaintiff's proposed amended pleading is not so plainly "contradicted by" her deposition testimony as Defendants suggest. (See Def. Mem., at 4.)
It is true that, at her deposition, Plaintiff did not appear to recall which "John Doe" officer had searched her (see Pl. Dep., at 36 (stating only that the officer who searched her was "[a] man")), while, in her proposed Amended Complaint, Plaintiff now seeks to allege that the officer who conducted that search was Holman (see Proposed Am. Compl., at ¶ 61). Defendants' counsel, however, never pieced together other aspects of Plaintiff's testimony that pointed, fairly obviously, towards the possibility that Holman was, in fact, the officer Plaintiff meant to accuse of the improper search.
In particular, Defendants' counsel had before him, at the outset of the deposition, Plaintiff's original Complaint, in which she had identified the "John Doe" officer who searched her as Amtrak Police Officer "John Doe" 4 ("APO 4"). (See Compl., at ¶ 61; see also Pl. Dep., at 36 (questioning Plaintiff about this allegation).) Later in the deposition, Plaintiff gave testimony that clearly suggested that "APO 4" was Holman. (Compare Compl., at ¶¶ 70-74 (describing APO 4's conduct as including getting very close to Plaintiff, whispering certain specific comments to her, calling her "Boo," and denying her a telephone call), with Pl. Dep., at 40-41, 115-16, 118-22 (describing same conduct as having been committed by Holman).) Indeed, the allegation in Plaintiff's original Complaint regarding the officer who searched her (Compl., at ¶ 61) ascribed verbal comments to that officer that were identical to those Plaintiff ascribed, at her deposition, to Holman (compare id. (alleging that "Defendant APO 4 searched [Plaintiff], whispering 'WHO DO YOU LIKE TO FUCK? WHAT DO YOU LIKE, BOO? WHO'S WAITING AT HOME FOR YOU, BOO?'") with, e.g., Pl. Dep., at 120-21 (describing Holman as "whispering," and quoting him as having said, "Who's home waiting for you, [B]oo. Who do you like to fuck, [B]oo.").) There is thus no doubt that Plaintiff, at her deposition, at least eventually made a sufficient connection between "APO 4" and Holman to suggest that she would seek to name Holman as that particular "John Doe" officer. At the point when that connection became apparent, Defendants' counsel could have circled back to Plaintiff's earlier, seemingly uncertain testimony regarding the identity of the officer who had searched her, but counsel did not choose to ask a particular follow-up question on that subject.
See also Supplemental Declaration of David B. Rankin, Esq., dated June 15, 2012 (Dkt. 20), Ex. 4 (Plaintiff's Initial Disclosures under Fed. R. Civ. P. 26(a)(1)) (similarly identifying "APO 4" as the officer who referred to Plaintiff as "Boo").
Although Defendants now try to argue that counsel did press Plaintiff for all she could remember about the conduct of Holman, most of counsel's questioning regarding Holman related to what Plaintiff recalled him "saying" to her, during the period of her detention:
Q. Okay. Did [Holman] say anything else to you other than what you have already testified to?
A. Yes. He said many things to me.
Q. What else did he say to you?
A. Well, I am not trying to be difficult, but I was in that room for many hours, and I guess one of the things I need to be really clear about is I was almost never alone, and there was almost a constant - literally almost a constant sort of pattern of harassment. It was just pretty nonstop.
Q. All right.
A. So many things were said. I can try and characterize more of what the officer said, if you would like.(Pl. Dep., at 119-20.) Defendants' counsel only asked one general question to try to confirm that Plaintiff had relayed everything she could recall of Holman's actions, and Plaintiff's answer itself reflected an awareness of the difficulty of giving a complete response:
Q. I would like you to, because I need to know today what he said to you as opposed to being surprised when you take the stand at trial. So if you are going - if there's something that he said that's memorable to you, I need to hear about it today.
A. This particular officer asked me questions about my sexual habits, my underwear, who was home waiting for me. He asked me questions about what I taught, asked me questions about my politics, how I felt about the police. He often got in really close to me physically. He whispered a fair amount. And his manner was different than . . . others . . . .
Q. In what way?
A. He was soft spoken and got in close, and would say, like whispering, "Who do you like to fuck, [B]oo." . . .
Q. Okay. Have you told us everything that you can remember about what [Holman] did to you or said to you while you were a prisoner?(Id., at 128.)
. . .
A. I am just working on - it was many hours. It was many people. And this is a difficult situation. So I think I have told you what I am able to articulate right now. Yes.
This response, especially when viewed in light of Plaintiff's entire deposition, is hardly sufficient to support Defendants' argument that all of Plaintiff's proposed claims against Holman should be disallowed as futile.
This Court takes no position on the question of whether a fully-submitted summary judgment motion would or would not be successful in this case, as that is not the question presently before this Court. All this Court needs to find is that a summary judgment motion, based on Plaintiff's deposition testimony, would not be so certain to be successful as to bar the proposed amendment as futile. --------
B. Prejudice
To assess whether undue prejudice would result from a proposed amendment, a court must consider whether the proposed amendment would "(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) [where a defendant seeks to amend its answer to raise new affirmative defenses] prevent the plaintiff from bringing a timely action in another jurisdiction." Monahan v. New York City Dep't of Corr., 214 F.3d 275, 284 (2d Cir. 2000) (internal quotation marks and citation omitted). None of these concerns are at issue here.
The only "prejudice" argument made by Defendants is that Plaintiff has proposed to amend her Complaint after the completion of her deposition, thereby foreclosing the opportunity for Defendants to question her, before trial, on her amended claims. As Plaintiff points out, however (see Pl. Mem., at 3), if the Court were to allow the amendment, the only material change to Plaintiff's Complaint would be the substitution of Holman for a defendant previously identified as a "John Doe." All of the factual allegations that are present in the proposed Amended Complaint were present in Plaintiff's original Complaint, such that the full scope of the case was known by Defendants well prior to Plaintiff's deposition. The mere identification of a "John Doe" defendant, by a plaintiff who does "not wish to add any factual allegations to the Complaint or add any new causes of action," does not prejudice a defendant or justify denying leave to amend. Bernhard v. Central Parking System of N. Y., Inc., 282 F.R.D. 284, 291-92 (E.D.N.Y. 2012) (granting leave to amend to identify John Doe defendant where "Defendants were aware of these claims from the outset" and additional discovery would likely be unnecessary or at least not "extensive"). Defendants have also failed to show that any "significant" delay - or, indeed, any delay at all - would be caused by the Court's allowance of the proposed amendment. As Plaintiff is not seeking to add any new allegations or new claims, the discovery that has already been conducted should suffice to enable the parties to move forward at the same pace as they would in the absence of the amendment.
On the issue of prejudice, as noted above, Defendants argue that, should the amendment be allowed, they should be permitted to re-open Plaintiff's deposition, so as to prevent the introduction at trial "of unfair surprise testimony." (Def. Mem., at 1; see also id., at 9-10.) Defendants, however, have not demonstrated that they were unable to question Plaintiff fully about her claims at the time of her deposition. Defendants knew of all of Plaintiff's claims; they knew of all of the factual allegations, including those asserted against the "John Does"; and they knew, at that time, that Plaintiff had recognized Holman, from his photograph, as being one of the "John Doe" officers who had allegedly been involved in the alleged events. There was absolutely nothing stopping Defendants' counsel from questioning Plaintiff fully about Holman's role in those events. The fact that Defendants' counsel may have chosen to ask certain questions about Holman's involvement, and not others, does not now demonstrate that additional time, beyond that provided by the Federal Rules or stipulated to by the parties, is "needed to fairly examine the deponent." Fed. R. Civ. P. 30(d)(1). To the extent Plaintiff's deposition testimony may be read to reflect any conflict with her pleaded allegations regarding Holman, or to betray any uncertainty in her recollection of Holman's role in the alleged events, that testimony may, of course, be used by Defendants at a later stage, to impeach Plaintiff's credibility.
In light of the liberal standard for amendment set forth in Rule 15(a), and in the absence of any factor that weighs against amendment here, the proposed amendment will be permitted, in the interest of justice.
CONCLUSION
For all of the foregoing reasons, Plaintiff's motion to amend (Dkt. 14) is granted. Plaintiff is directed to file the Amended Complaint no later than December 7, 2012, and Defendants shall file their Answers to that pleading no later than January 4, 2013.
Defendants' request for an Order permitting the re-opening of Plaintiff's deposition is denied.
Counsel are directed to initiate a telephonic case-management conference with this Court on January 15, 2013, at 11:00 a.m., to discuss the current status of the action and the potential for settlement of Plaintiff's claims. Dated: New York, New York
December 4, 2012
SO ORDERED
/s/_________
DEBRA FREEMAN
United States Magistrate Judge Copies to:
All counsel (via ECF)