Tower Props. LLC v. Vill. of Highland Falls & Patrick Flynn

TOWER PROPERTIES LLC, d/b/a NICOLES a/k/a NICOLES CATERING HALL, Plaintiff, v. VILLAGE OF HIGHLAND FALLS and PATRICK FLYNN,individually and as Mayor of the Village of Highland Falls, Defendants.

No. 14 Civ. 4502 (NSR)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

February 7, 2017

OPINION & ORDER

NELSON S. ROMÁN, United States District Judge

Plaintiff Tower Properties LLC ("Plaintiff" or "Nicoles") proceeds in this action on claims alleged pursuant to 42 U.S.C. § 1983 against Defendants the Village of Highland Falls (the "Village") and Mayor Patrick Flynn (the "Mayor"), individually and in his official capacity, asserting violations of Plaintiff's rights to equal protection under the Fourteenth Amendment. Now pending before the Court is Plaintiff's motion for leave to amend the operative complaint. For the following reasons, Plaintiff's motion is GRANTED.

BACKGROUND

The Court presumes the parties' familiarity with the facts alleged in this matter and the procedural history, as set forth in the Opinion and Order dated July 7, 2015 ("Motion to Dismiss Order") dismissing certain of Plaintiff's claims. (See ECF No. 23.) Simply put, Plaintiff alleges it was the target of a campaign of harassment by the Village of Highland Falls, New York, at the behest of its Mayor Patrick Flynn, due to the racial composition of its clientele. Plaintiff argues its entertainment venue, as opposed to the other bars and restaurants in town with majority Caucasian customers, was subjected to more policing and oversight in the hopes it would go out of business, which it eventually did, thus eliminating the influx of African-American and Hispanic customers from surrounding areas into the Village.

I. Procedural History

On July 7, 2015, after a review of Plaintiff's second amended complaint,¹ this Court dismissed, amongst others, Plaintiff's Section 1983 equal protection claim premised on selective enforcement of the Village's "live entertainment" permit requirement. Motion to Dismiss Order at 21. Although Plaintiff was granted the opportunity to amend some of the claims dismissed, amendment of the selective enforcement claim was not specifically considered. Id. at 23, 31-32 (due process claims and Section 1982 claims). Plaintiff filed its third amended complaint on August 4, 2015. (ECF No. 24.)

On September 11, 2015, the parties agreed to, and the Court entered, a Rule 16 scheduling order disallowing the filing of further amended pleadings² and setting the deadline for discovery to conclude as March 31, 2016, though the deadline was later extended to September 9, 2016. (See ECF No. 28; Minute Entry for June 9, 2016 Conference.) On April 1, 2016, Plaintiff indicated its intention to amend the operative complaint yet again to "re-plead its equal protection claim" previously dismissed and to narrow the focus of the action to only the time period related to the selective enforcement of the live entertainment permit requirement. (ECF No. 39.) Accordingly, on April 7, 2016, Plaintiff stipulated to the dismissal with prejudiceof its selective enforcement claim relating to the 2 a.m. curfew, its due process claim, and its Section 1982 claim. (ECF No. 43 (also dismissing any claims for compensatory damages in excess of $5,000—the value of the two events allegedly canceled due to Defendants' delay in granting Plaintiff's permit request).)

Plaintiff's pending motion, fully briefed as of August 1, 2016 (ECF No. 46), seeks leave to file its proposed fourth amended complaint ("PAC") to cure the deficiencies noted in the Court's prior Order with regard to its selective enforcement claim: Plaintiff's failure to allege that the similarly situated establishments were in violation of the permit requirements at the same time that Plaintiff received its violation notice. Motion to Dismiss Order at 21.

II. Supplemental Allegations Relating to the Village's Selective Enforcement of the Live Entertainment Permit Requirement³

Plaintiff provides the following additional information in support of its selective enforcement claim. Specifically, "[d]uring the Mayor's term, there have been at least twenty-one events where [other] [e]stablishments have had live entertainment without a live entertainment permit[.]" (PAC ¶ 29 (providing dates for events at the Fireside Bar & Restaurant, South Gate Tavern, and Loma's Side Street Saloon).) Moreover, the owner of Loma's stated at a Village Board meeting in March 2014 that she had a deejay at her establishment once a month. (Id. ¶ 31.) Therefore, at the time Nicoles was cited for violating the Village's live entertainment permit requirement, none of the other local establishments received a violation notice even though they were also generally in violation of the permit requirement. (Id. ¶ 28.)

The parties have submitted deposition testimony and documentary evidence obtained during discovery that they argue either supports or contradicts these allegations. (See Pl. Aff. Exs. A-L, ECF No. 49; Defs. Aff. Exs. 1-14, ECF No. 47.)

LEGAL STANDARD ON A MOTION TO AMEND THE PLEADINGS

Federal Rule of Civil Procedure 15 governs amendments to pleadings. After the first amendment to a plaintiff's complaint, further amendments are conditioned on either "the opposing party's written consent or the court's leave"—the latter of which should be "freely give[n] . . . when justice so requires." Fed. R. Civ. P. 15(a)(2). Nonetheless, "[r]easons for a proper denial of leave to amend include undue delay, bad faith, futility of amendment, and perhaps most important, the resulting prejudice to the opposing party." State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981) (citing Foman v. Davis, 371 U.S. 178, 182 (1962) ("In the absence of any apparent or declared reason—such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.—the leave sought should . . . be 'freely given.'")).

"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." AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725 (2d Cir. 2010) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). A district court may "deny leave to amend where the motion has been 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). "[T]he longer the period of an unexplained delay, the less will be required of thenonmoving party in terms of a showing of prejudice." Block, 988 F.2d at 350 (quoting Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983)).

"Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for the district court to deny the right to amend." Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008) (quoting State Teachers, 654 F.2d at 856); accord Block, 988 F.2d at 350. But, if during the proceedings the Court enters a Rule 16 scheduling order that further restricts amendments, then "the lenient standard under Rule 15(a) . . . must be balanced against the [stricter] requirement under Rule 16(b)[.]" Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (internal citations omitted). Rule 16(b)(4) provides that "[a] schedule may be modified only for good cause and with the judge's consent," where "'good cause' depends on the diligence of the moving party." Fed. R. Civ. P. 16(b)(4); Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000).

Irrespective of whether undue delay, prejudice, or bad faith can be established, leave to amend may independently be denied "on grounds of futility if the proposed amendment fails to state a legally cognizable claim or fails to raise triable issues of fact." AEP Energy, 626 F.3d at 726 (quoting Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110-11 (2d Cir. 2001)); accord Ruotolo, 514 F.3d at 191 (quoting Foman, 371 U.S. at 182). In other words, "[a]n amendment to a pleading is futile if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)." Lucente v. Int'l Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002). Thus, a court should deny a motion to amend if it does not contain enough factual allegations, accepted as true, to state a claim for relief that is "plausible on its face." Riverhead Park Corp. v. Cardinale, 881 F. Supp. 2d 376, 379 (E.D.N.Y. 2012) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)) (denying motion to add claims as futile).

In determining whether a complaint states a plausible claim for relief, a district court must consider the context and "draw on its judicial experience and common sense." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). It is important to note that "pleading is not an interactive game in which plaintiffs file a complaint, and then bat it back and forth with the Court over a rhetorical net until a viable complaint emerges." In re Merrill Lynch Ltd. P'ships Litig, 7 F. Supp. 2d 256, 276 (S.D.N.Y. 1997). The court's "duty to liberally construe a plaintiff's complaint [is not] the equivalent of a duty to re-write it." Geldzahler v. New York Medical College, 663 F. Supp. 2d 379, 387 (S.D.N.Y. 2009) (internal citations and quotation marks omitted).

DISCUSSION

Since this proposed amended pleading would be Plaintiff's fourth amended complaint, leave of the Court is required. See Fed. R. Civ. P. 15(a)(1) & (2). Defendants argue that leave to amend should not be granted, primarily, because the amendments would be futile—asserting that Plaintiff cannot state a claim for selective enforcement of the live entertainment permit requirement even based on the facts alleged, which either remain insufficient to demonstrate Pla...