McDay et al v. Eckert et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DARLENE McDAY, individually and as
Executrix of the Estate of DANTE TAYLOR,
Plaintiff,
v.
STEWART ECKERT, Superintendent,
Wende Correctional Facility, et al.,
Defendants.
REPORT AND
RECOMMENDATION
20-cv-00233(JLS)(JJM)
The claims in this action arise from the October 7, 2017 suicide of Dante Taylor,
an inmate in the custody of the New York State Department of Correction and Community
Supervision (“DOCCS”) at the Wende Correctional Facility, and an alleged assault by correction
officers that occurred the day before his death. See Amended Complaint [57].1
Before the court is plaintiff Darlene McDay’s motion [281] pursuant to Fed. R.
Civ. P. (“Rule”) 15 and 16 for leave to file a Second Amended Complaint. The motion has been
referred to me by District Judge John L. Sinatra, Jr. for initial consideration [23]. Having
considered the parties’ submissions [281, 288-292, 296], I recommend that the motion be
denied.2
1 	Bracketed references are to CM/ECF docket entries, and page references are to CM/ECF
pagination.
2 	“District courts in this circuit have suggested that a magistrate judge’s denial of a motion to
amend . . . should be treated as dispositive, while a grant of the same motion should be treated as
nondispositive.” Zink v. First Niagara Bank, N.A., 2015 WL 423221, *1 n. 2 (W.D.N.Y. 2015). While
there is contrary authority (see Eastman Chemical Co. v. Nestle Waters Management & Technology,
2014 WL 1316772, *2 (S.D.N.Y. 2014) (advocating a nondispositive standard of review where “denial of
leave to amend was based on procedural issues like failure to comply with a scheduling order”)), I prefer
to err on the side of caution.
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BACKGROUND
The parties’ familiarity with the background of this case is presumed. My Case
Management Order (“CMO”) [120] set a deadline of February 17, 2022 for all motions to join
parties and to amend the pleadings. Id., ¶5. That deadline passed without any party seeking to
amend their pleadings or to extend their deadline for doing so. See Amended CMO [139];
Second Amended CMO [242].
Now, approximately two years after the deadline, McDay moves for leave to file a
Second Amended Complaint. The proposed amendments include:
1. 	Removing defendants Lambert, Freeman, Collett, Greighton, Theal, Baron,
Olivieri, Barall, Konesky, Mancini, and all Doe defendants;
2. 	Conforming the pleading to the September 24, 2021 Decision and Order [101]
which dismisses the loss of intimate association claim, the substantive due
process claim, and plaintiff Temple McDay;
3. 	Clarifying the identities of the individuals named as “Officer Defendants”,
“Medical Defendants”, and “Wende Supervisors”;
4. 	Adding the title “Failure to Intervene” to the heading of the existing cause of
action 	for 	“Excessive 	Force”, 	and 	specifies 	the 	particular 	defendants
responsible for the alleged excessive force and those that allegedly failed to
protect Taylor (see proposed Second Amended Complaint [281-4], Second
Claim for Relief);
5. 	Removing all defendants, except Haque, from the Medical Malpractice Claim
for Relief (see id. at Fourth Claim for Relief); and
6. 	Asserting new claims for negligence and conspiracy (see id. at Third and Fifth
Claims for Relief).
See proposed Second Amended Complaint (redline version) [281-4]; McDay’s Memorandum of
Law [281-1] at 7. There appears to be no opposition to several of these proposed amendments,
including nos. 1-3 (above). See, e.g., McDay’s Memorandum of Law [281-1] at 7-8; State
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defendants’ Memorandum of Law [289] at 2; Maldonado’s Memorandum of Law [290] at 5.
However, the balance of the proposed amendments are opposed for several reasons, including
McDay’s failure to meet the “good cause” standard of Rule 16(b)(4) for the belated motion. See
Lewalski’s Memorandum of Law [292-1] at 3-7; the State defendants’ Memorandum of Law
[289] at 7-8; Maldonado’s Memorandum of Law [290] at 18-19.
DISCUSSION
The deadline for seeking leave to amend is no less rigid than the other deadlines
of the CMO that I am obligated to set. See Rule 16(b)(3)(A). “By limiting the time for
amendments, the rule is designed to offer a measure of certainty in pretrial proceedings, ensuring
that at some point both the parties and the pleadings will be fixed.” Parker v. Columbia Pictures
Industries, 204 F.3d 326, 339-40 (2d Cir. 2000).
“[T]he 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)”, Holmes v. Grubman,
568 F.3d 329, 334 35 (2d Cir. 2009), namely that “[a] schedule may be modified only for good
cause”. Rule 16(b)(4) (emphasis added). Hence, “a party seeking to amend a pleading after the
date specified in a scheduling order must first show ‘good cause’ for the amendment under Rule
16(b); then, if good cause can be shown, the party must demonstrate that the amendment is
proper under Rule 15(a).” Carnrite v. Granada Hospital Group, Inc., 175 F.R.D. 439, 446
(W.D.N.Y. 1997). See also Jones v. City of New York, 2020 WL 582369, *2 (S.D.N.Y. 2020)
(“[w]hether a movant has complied with Rule 16’s good cause requirement is a threshold matter
which may obviate the Rule 15 analysis”); Nairobi Holdings Ltd. v. Brown Brothers Harriman &
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Co., 2006 WL 2242596, *3 (S.D.N.Y. 2006) (“[t]he standards of Rule 16(b) must be met first
and can not be short-circuited by an appeal to those of Rule 15(a)”).
As my CMO emphasized, “a finding of ‘good cause’ depends on the diligence of
the moving party’”. [120] at 3, quoting Parker, 204 F.3d at 340. McDay largely ignores that
standard, and instead argues that:
“[g]ood cause exists here because [the] proposed amendment is modest and
facilitates resolution of this case: it either shrinks the size and scope of this case
by voluntarily dismissing defendants or adds clarity to the legal claims she asserts
based on facts already pleaded. Plaintiff does not plead new facts or new claims
that were not already well pleaded in the operative complaint . . . . Plaintiff’s
proposed amendment serves only to conform the pleading to the evidence already
obtained in discovery.”
McDay’s Memorandum of Law [281-1] at 15. However, “[t]he existence or degree of prejudice
to the party opposing modification . . . is irrelevant to the moving party’s exercise of diligence
and does not show good cause”. Kraft v. Marriott International, 2021 WL 3024164, *3
(W.D.N.Y.), adopted 2021 WL 2587721 (W.D.N.Y. 2021) (Sinatra, J.).
The only explanation of McDay’s diligence is her general contention that she
“moved diligently within the context of the scheduling orders of this case to seek permission to
file a single, comprehensive amended pleading that addresses each outstanding issue necessary
to resolve before summary judgment and trial.” Id. This explanation fails to meet the “good
cause” standard of Rule 16(b)(4).
“[T]o demonstrate ‘good cause’ a party must show that despite their diligence the
time table could not have reasonably been met.” Carnrite, 175 F.R.D. at 446. “[T]he standard is
not met if the pleading is based on information that the party knew, or should have known, in
advance of the deadline sought to be extended.” Essani v. Earley, 2018 WL 3785109, *6
(E.D.N.Y.), adopted, 2018 WL 4100483 (E.D.N.Y. 2018). See also Port Authority Police
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Benevolent Association Inc. v. Port Authority of New York & New Jersey, 2016 WL 6083956,
*5 (S.D.N.Y. 2016) (due diligence exists “if a party learns new facts through discovery that were
unavailable prior to the applicable deadline and moves promptly to name new parties based on
such facts”).
McDay makes no attempt to identify specific information learned after the
February 17, 2022 CMO deadline ([120], ¶5) that prompted the current motion to amend. Nor
does she offer any information suggesting that she acted diligently in discovering that
information or thereafter in bringing this motion. In fact, she argues that the proposed Second
Amended Complaint “does not plead new facts or new claims that were not already well pleaded
in the operative complaint” (McDay’s Memorandum of Law [281-1] at 15), 3 suggesting that the
proposed amendments are based on information that McDay knew of prior to the deadline for
seeking leave to amend and not dependent on information discovered thereafter. See Rogers v.
Hartford Life & Accident Insurance Co., 2012 WL 2395194, *2 (S.D. Ala. 2012) (“[b]y
plaintiff’s own admission, she could have made this proposed amendment . . . at the outset of
these proceedings, inasmuch as the amendment is not dependent on newly acquired information
via the discovery process . . . . [Thus,] it will be inordinately difficult for her to establish that,
despite being diligent, she could not amend her pleading by the . . . scheduling order deadline”).
The cases McDay relies upon for the existence of “good cause” are unpersuasive.
See McDay’s Memorandum of Law [281-1] at 16; Reply Memorandum of Law [296] at 14-15.
For example, she cites to Walker v. Tomey, 2017 WL 5564602, *6 (N.D.N.Y. 2017), which
states that “[i]t is not inappropriate to permit an amendment to pleadings in order ‘to conform the
3 	See also McDay’s Reply Memorandum of Law [296] at 6 (the proposed Second Amended
Complaint merely “streamlines and clarifies the pleading based exclusively on facts already pleaded in
the [Amended Complaint]”).
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pleadings to the evidence unearthed by discovery’”. However, not only does that case ignore the
“good cause” standard of Rule 16(b)(4), it quotes from Securities and Exchange Commission v.
National Student Marketing Corp., 73 F.R.D. 444, 446 (D.D.C. 1977), a case that pre-dates the
1983 amendments to Rule 16(b) that resulted in the “good cause” standard.
McDay’s reliance on Schottenstein v. Lee, 2024 WL 515247 (S.D.N.Y. 2024)
fares no better. There, the plaintiffs argued that they had “good cause” for not seeking leave to
amend for more than a year after the deadline for doing so because “they believed that [the
particular claim they sought to add] . . . did not need to be separately pleaded as a cause of
action.” Id. at *2. Noting that pursuant to Rule 15(b)(2), “[p]arties may amend their pleadings
even after trial to conform to the evidence”, the court granted the motion, explaining that an
amendment “to correct attorney error and conform the pleadings to facts already asserted during
the discovery period” was “sufficient to meet the plaintiffs’ Rule 16 burden”. Id. I respectfully
disagree.
First, Rule 15(b)(2), which is entitled “Amendments During and After Trial . . . .
For Issues Tried by Consent” (emphasis added), has no applicability to contested pre-trial
motions for leave to amend. See Set Capital LLC v. Credit Suisse Group AG, 2024 WL 20887,
*2 (S.D.N.Y. 2024) (“[p]laintiffs offer no cogent argument or caselaw that a rule entitled
‘Amendments During and After Trial,’ that concerns issues ‘tried’ on the parties’ consent, is
actually a catch-all to allow for amendment whenever the evidence suggests”). Moreover,
“authorities are legion for the proposition that attorney inadvertence, carelessness or oversight of
a published deadline is insufficient, as a matter of law, to constitute ‘good cause’ under Rule
16(b)(4).” Rogers, 2012 WL 2395194 at *2. See also Martin v. Buono, 2021 WL 1424711, *3
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(E.D. Pa. 2021) (“[c]arelessness, or attorney error is insufficient to constitute ‘good cause’ under
Rule 16(b)”).
My discretion to grant relief is limited by Rule 16(b)(4)’s requirement that “a
schedule may be modified only for good cause”. “[F]ederal courts have no more discretion to
disregard [a] Rule’s mandate than they do to disregard constitutional or statutory provisions.”
Bank of Nova Scotia v. United States, 487 U.S. 250, 255 (1988).
CONCLUSION
Since McDay has not demonstrated good cause for her belated motion for leave to
file a Second Amended Complaint, I recommend that the motion [275] be denied without
considering the merits of the proposed amendments.4
Unless otherwise ordered by District Judge Sinatra, any objections to this Report
and Recommendation must be filed with the clerk of this court by April 26, 2024. Any requests
for extension of this deadline must be made to Judge Sinatra. A party who “fails to object timely
. . . waives any right to further judicial review of [this] decision”. Wesolek v. Canadair Ltd., 838
F.2d 55, 58 (2d Cir. 1988); Thomas v. Arn, 474 U.S. 140, 155 (1985).
Moreover, the district judge will ordinarily refuse to consider de novo arguments,
case law and/or evidentiary material which could have been, but were not, presented to the
magistrate judge in the first instance. Patterson-Leitch Co. v. Massachusetts Municipal
Wholesale Electric Co., 840 F.2d 985, 990-91 (1st Cir. 1988).
The parties are reminded that, pursuant to Rule 72(b) and (c) of this Court’s Local
Rules of Civil Procedure, written objections shall “specifically identify the portions of the
4 	McDay’s dismissal of particular defendants may be accomplished by a stipulation of dismissal.
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proposed findings and recommendations to which objection is made and the basis for each
objection . . . supported by legal authority”, and must include “a written statement either
certifying that the objections do not raise new legal/factual arguments, or identifying the new
arguments and explaining why they were not raised to the Magistrate Judge”. Failure to comply
with these provisions may result in the district judge’s refusal to consider the objections.
Dated: April 12, 2024
/s/Jeremiah J. McCarthy
JEREMIAH J. MCCARTHY
United States Magistrate Judge
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