Agerbrink v. Model Serv. LLC

155 F.Supp.3d 448

Eva Agerbrink, individually and on behalf of all others similarly situated, Plaintiff,

v.Model Service LLC d/b/a MSA Models and Susan Levine, Defendants.

Model Service LLC d/b/a MSA Models and Susan Levine, Counter Claimants,

v.Eva Agerbrink, Counter Defendant.

14 Civ. 7841 (JPO) (JCF)

United States District Court, S.D. New York.

Signed January 7, 2016

Cyrus E. Dugger, The Dugger Law Firm, PLLC, New York, NY, for Plaintiff.

Evan J. Spelfogel, Jamie Fiedler Friedman, Margaret Casey Thering, Ronald M. Green, Epstein, Becker & Green, P.C., New York, NY, for Defendant.

MEMORANDUM AND ORDER

JAMES C. FRANCIS IV, UNITED STATES MAGISTRATE JUDGE

Eva Agerbrink, on behalf of herself and all others similarly situated, brings this action against Model Service LLC (“MSA”) and Susan Levine. She seeks damages under the Federal Labor Standards Act (“FLSA”) and New York State statutory and common law for alleged violations arising out of her employment. The plaintiff now moves pursuant to Rules 15(a) and 21 of the Federal Rules of Civil Procedure for leave to file a Second Amended Complaint to add a claim for unjust enrichment and to add William Ivers, the Chief Operating Officer of MSA, as an individually-named defendant; the defendants oppose the motion. For the reasons that follow, the motion is granted.

Background

A brief outline of relevant procedural history will suffice for the purposes of this motion; the factual background of this dispute is set forth in greater detail in the June 16, 2015 Order of the Honorable Paul Oetken, U.S.D.J. Agerbrink v. Model Service LLC , No. 14 Civ. 7841, 2015 WL 3750674 (S.D.N.Y. June 16, 2015).

The plaintiff filed this action on September 26, 2014, and filed an amended complaint on January 2, 2015. The defendants moved to dismiss. The Honorable Paul Oetken, U.S.D.J., granted the defendants' motion as to the plaintiff's declaratory judgment claim, but denied it as to her wage and hour claims. Id. at *8. The defendants answered and asserted counterclaims, to which the plaintiff responded on July 23, 2015. At an initial pre-trial conference, I entered a Scheduling Order setting February 29, 2016 as the deadline for completion of fact discovery.

Subsequently, the parties intensely litigated numerous disputes. The plaintiff moved for a corrective notice relating to an email sent by Mr. Ivers to putative class members. Additionally, on four separate occasions the parties requested conferences to address conflicts regarding the purported class size, the adequacy of class representation, and the scope of discovery.

On October 16, 2015, I entered a Discovery Confidentiality Order to facilitate document exchange.

The plaintiff now moves to amend her complaint for a second time to (1) add a claim for unjust enrichment on behalf of a putative class of all MSA models, and (2) add Mr. Ivers as a defendant. The defendants argue that the proposed amendment has been unduly delayed, is made in bad faith, and will be prejudicial.

Discussion

A motion to amend is generally governed by Rule 15 of the Federal Rules of Civil Procedure, which provides that leave to amend a pleading should be freely granted “when justice so requires.” Fed. R. Civ. P. 15(a)(2). Under this liberal standard, a motion to amend should be denied only if the moving party has unduly delayed or acted in bad faith, the opposing party will be unfairly prejudiced if leave is granted, or the proposed amendment is futile. See Foman v. Davis , 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) ; McCarthy v. Dun & Bradstreet Corp. , 482 F.3d 184, 200 (2d Cir.2007) ; In re Alcon Shareholder Litigation , 719 F.Supp.2d 280, 281 (S.D.N.Y.2010).

Where, as here, the plaintiff also seeks to add an additional defendant, Rule 21 of the Federal Rules of Civil Procedure permits such joinder “at any time, on just terms.” Fed. R. Civ. P. 21 ; see also City of Syracuse v. Onondaga County , 464 F.3d 297, 308 (2d Cir.2006). In practice, the standard for deciding whether to permit joinder under Rule 21 is “the same standard of liberality afforded to motions to amend pleadings under Rule 15.” Rush v. Artuz , No. 00 Civ. 3436, 2001 WL 1313465, at *5 (S.D.N.Y. Oct. 26, 2001) (quoting Soler v. G & U, Inc. , 86 F.R.D. 524, 527–28 (S.D.N.Y.1980) ); see also Johnson v. Bryson , 851 F.Supp.2d 688, 703 (S.D.N.Y.2012) (“[T]he showing necessary under Rule 21 is the same as that required under Rule 15(a).”). Thus, the plaintiff's motion should be permitted absent a finding of undue delay, bad faith, prejudice, or futility. The defendants focus their arguments on the issues of delay, bad faith, and prejudice.

A. Delay

In the Second Circuit, “[m]ere delay, [ ] absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” State Teachers Retirement Board v. Fluor Corp. , 654 F.2d 843, 856 (2d Cir.1981) ; see also Parker v. Columbia Pictures Industries , 204 F.3d 326, 339 (2d Cir.2000) (“[W]e have held repeatedly that 'mere delay' is not, of itself, sufficient to justify denial of a Rule 15(a) motion ....”). Where a significant period of time has passed prior to filing a motion to amend, however, the moving party must provide an explanation for the delay. See Park B. Smith, Inc. v. CHF Industries Inc. , 811 F.Supp.2d 766, 779 (S.D.N.Y.2011) (describing burden to explain extended delay and collecting cases).

The premise of the defendants' undue delay argument is that the plaintiff was previously aware of the facts underlying her proposed amendment. (Defendants' Opposition to Plaintiff's Motion to Amend the Complaint a Second Time (“Def. Memo.”) at 1, 5). They claim that she could have asserted her unjust enrichment claim and named Mr. Ivers as a defendant when she filed her initial complaint—thirteen months prior to her motion to amend—or at least in January 2015, when she filed the First Amended Complaint—ten-and-one-half months prior. (Def. Memo. at 1, 5). Simply alleging that the plaintiff could have moved to amend earlier than she did, however, is insufficient to demonstrate undue delay. See Dilworth v. Goldberg , 914 F.Supp.2d 433, 460 (S.D.N.Y.2012) (“[T]he motion to amend will not be denied by reason of plaintiffs' delay in alleging facts that were previously within their knowledge” (footnote omitted)); see also Margel v. E.G.L. Gem Lab Ltd. , No. 04 Civ. 1514, 2010 WL 445192, at *11 (S.D.N.Y. Feb. 8, 2010) (“[T]he 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” other parties.' ” (quoting Grace v. Rosenstock , 228 F.3d 40, 53–54 (2d Cir.2000) )).

Furthermore, the plaintiff has offered plausible explanations for the timing of the instant motion. Specifically, she clarifies that because “the inclusion of [a] claim for unjust enrichment would have potentially complicated the Declaratory Judgment Act claim,” it was only appropriate to add after that claim was dismissed (in June 2015). (Motion for Leave to Amend the Complaint and Caption and to Join William Ivers as a Defendant (“Pl. Memo.”) at 23). She characterizes the decision to bring the unjust enrichment claim on behalf of all MSA models as the logical outgrowth of (1) the defendants' disclosure of the size of the fit model class and (2) “Plaintiff's counsel's independent investigation[ ] that the scope of the proposed expanded class would likely be certifiable, appropriate, and manageable.” (Declaration of Cyrus E. Dugger dated Oct. 19, 2015 (“Dugger Decl.”), ¶¶ 35-36; Pl. Memo. at 23). With respect to adding Mr. Ivers as a defendant, the plaintiff acknowledges that she considered joining him earlier in the litigation. (Pl. Memo. at 24-25). However, she states that her discovery in July 2015 of Mr. Ivers' email to MSA fit models regarding this lawsuit prompted this amendment, as it was “compelling additional evidence that he meets the requirements of an 'employer' under the FLSA and NYLL.” (Pl. Memo. at 25; Dugger Decl., ¶ 38). Lastly, as the plaintiff notes, this action has been intensively litigated to date (Pl. Memo. at 23, 25); in this context, the delay is not substantial.

Indeed, even if, as the defendants contend, the plaintiff had not offered a satisfactory explanation for the delay (Def. Memo. at 5), courts have allowed amendment despite similar—and even much longer—intervals between a party's discovery of relevant facts and filing of an amended pleading, see, e.g. , Richardson Greenshields Securities, Inc. v. Lau , 825 F.2d 647, 653 n. 6 (2d Cir.1987) (collecting cases where leave to amend granted after delays ranging from two to five years); Affiliated FM Insurance Co. v. Liberty Mechanical Contractors, Inc. , No. 12 Civ. 5160, 2013 WL 4526246, at *5 (S.D.N.Y. Aug. 27, 2013) (allowing amendment after nine months despite movant's knowledge of relevant information at time of initial pleading because party “need not prove that they uncovered new facts or law” to receive leave to amend); Valentini v. Citigroup, Inc. , No. 11 Civ. 1355, 2013 WL 4407065, at *7 (S.D.N.Y. Aug. 16, 2013) (finding delay of eighteen months “insufficient ground to warrant denial of [ ] motion to amend” where non-moving party “failed to establish bad faith or undue prejudice”); cf. Duling v. Gristede's Operating Corp. , 265 F.R.D. 91, 98 (S.D.N.Y.2010) (allowing amendment two and one-half years after case began and noting that “even vague or 'thin' reasons [for delay] are sufficient, in the absence of prejudice or bad faith”).

The defendants argue that the plaintiff's delay in “seek[ing] to amend her complaint to add defendants and claims she clearly knew she wished to pursue months before [ ] is a tactic designed to burden [them].” (Def. Memo. at 5). This is exactly the type of conclusory allegation of bad faith that courts consistently reject. See, e.g. , Blagman v. Apple, Inc. , No. 12 Civ. 5453, 2014 WL 2106489, at *3 (S.D.N.Y. May 19, 2014) ...