Getman v. Vondracek

1
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Derek Getman,
Plaintiff,
v.
J. Vondracek, et al.,
Defendants.
DECISION and ORDER
20-cv-6999-FPG-MJP
APPEARANCES
For Plaintiff: 	Derek Getman, pro se
7300 Route 36
Dansville, NY 14437
For Defendant: 	Michele Romance Crain,
Esq.
Assistant Attorney General
144 Exchange Blvd
Rochester, NY 14614
INTRODUCTION
Pedersen, M.J. Plaintiffs often wish to add claims and facts to
their complaints. Because federal courts take a generous approach to
adding 	claims 	and facts, 	they 	frequently allow plaintiffs 	to make
changes. But courts do not permit amendments that the plaintiff should
have made long ago.
Here, Plaintiff Derek Getman has waited too long. He has waited
too long because the deadline for changes has long passed. And he has
waited too long because he knew—or should have known—the name of
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the party he now seeks to add in November 2022. I thus DENY his mo-
tion to amend on procedural grounds.
BACKGROUND
Getman alleges that Defendants violated his rights when Defend-
ant Vondracek1 used excessive force against him. Getman adds that De-
fendant John Doe failed to intervene to protect him. And he asserts that
Defendant Palmer refused to report the incident when Getman told her
what happened. (See generally, Am. Compl., ECF No. 9, Feb. 24, 2021.)
Getman asserts claims against three defendants, one of whom is
a John Doe.
While Vondracek was escorting Getman back to his cell, he alleg-
edly asked Getman about the crime for which Getman was imprisoned.
(Id. at 5.) Vondracek then allegedly assaulted Getman, giving Getman a
black eye and causing long-term damage to his jaw. (Id.) Defendant John
Doe witnessed the assault yet did nothing. (Id. at 6.) Only when
Vondracek began choking Getman did Defendant John Doe intervene,
ending the assault. (Id.)
The next day, Getman told his therapist what happened. (Id. at
7.2) She allegedly “failed to get” Getman “medical attention” and “failed
to report the incident.” (Id.) Getman asserts that had his therapist
1 Where appropriate, I use “Vondracek” to refer to all defendants.
2 Getman labels this as page “6(A).”
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obtained medical attention for him, he would have endured fewer medi-
cal issues. (Id.)
Vondracek confuses the applicable discovery deadlines.
The most recent scheduling order in this case directed the parties
to complete discovery by December 29, 2023, with dispositive motions
due on January 31, 2024. (Scheduling Order ¶¶ 5 & 6, ECF No. 41, Sept.
11, 2023.) When Vondracek and Getman filed no dispositive motions,
Judge Geraci ordered a status conference to set a trial date. (Text Order,
ECF No. 45, Feb. 13, 2024.) Vondracek promptly wrote me, with Get-
man’s consent, to request an extension of deadlines. (Letter, ECF No.
46, Feb. 13, 2024.)
Vondracek incorrectly stated that the deadline for the close of fact
discovery in this case was February 2, 2024. (Id. at 1.) The letter then
requested an extension of deadlines. It also noted that Getman wanted
to substitute the correct name for Defendant John Doe.
I granted in part and denied in part Vondracek’s belated request.
(Text Order, ECF No. 47, Feb. 14, 2024.) My order recounted a case man-
agement conference during which I was unambiguous that discovery
would close in December 2023, not February 2024. I also noted that the
operative scheduling order set the same deadline, and not a February
2024 deadline for fact discovery. (Scheduling Order ¶ 5, ECF No. 41.)
Despite the parties’ mistake, I found good cause for briefly extending
discovery until March 29, 2024. (Text Order, ECF No. 47.) I additionally
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extended the deadline for dispositive motions to April 30, 2024. (See id.)
I extended that deadline again after Vondracek’s attorney contacted me
about her extremely difficult personal and professional circumstances.
(Text Order, ECF No. 55, Apr. 24, 2024.)
Getman files his late motion to amend.
In the February 14 text order, I also directed Getman to file any
motion to amend to substitute Defendant John Doe’s true name by
March 29, 2024. I was careful to note that the “deadline for adding par-
ties like the ‘John Doe’ here has long passed.” (Id.) I noted that I might
reject Getman’s motion out-of-hand as untimely if he did not file it by
March 29, 2024, the date I had set for any additional discovery. (Id.)
Because Getman filed the motion before March 29, I have analyzed it
under the applicable good cause standard.
Getman filed his motion to amend on March 25, 2024. (ECF No.
52.) Getman states that he “was not aware of this individual’s name un-
til [he] received a letter dated February 13, 2024 from” Vondracek’s
counsel. (Id. at 2.) But Getman notes that he has “been in and out of
jail[,] complicating the discovery process.” (Id. at 3.)
Vondracek opposed in a short declaration. Vondracek indicates
that Getman knew or should have known the “possible name of the John
Doe” from a “letter to him dated November 18, 2022.” (Crain Decl. in
Oppn. ¶ 3, ECF No. 54, Apr. 8, 2024 (“Crain Decl.”).) Vondracek adds
that “[n]othing has prevented” Getman “from amending his” amended
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complaint “in the past 14 months” since learning the John Doe’s iden-
tity. (Id. ¶ 4.) Finally, Vondracek points to prejudice that could arise
from the Court granting Getman’s motion to amend. (Id. ¶ 6.)
Getman failed to reply by the deadline I had set. (Text Order, ECF
No. 53, Mar. 26, 2023.) This decision and order followed.
MAGISTRATE JUDGE JURISDICTION
“As a matter of case management, a district judge may refer non-
dispositive motions, such as a motion to amend the complaint, to a mag-
istrate judge for decision without the parties’ consent.” Fielding v.
Tollaksen, 510 F.3d 175, 178 (2d Cir. 2007) (citing 28 U.S.C. § 636); see
also Nat’l Union Fire Ins. Co. of Pittsburgh, PA v. PVT Ltd., 338 F.R.D.
579, 583 (S.D.N.Y. 2021) (quoting Media Glow Digital, LLC v. Panasonic
Corp. of N. Am., No. 16 CIV 7907 (PGG), 2020 WL 3483632, at *3
(S.D.N.Y. June 26, 2020)) (“A motion to amend is not a dispositive mo-
tion.”).
Judge Geraci referred this case to me “for all pretrial matters ex-
cluding dispositive motions.” (Text Order, ECF No. 18, June 21, 2021.)
Based on the Second Circuit’s statement in Fielding, motions to amend
are part of that referral. This question is more complicated, though.
First, later decisions have pointed to flaws in relying too much on
Fielding’s guidance. See, e.g., Lubavitch of Old Westbury, Inc. v. Inc. Vill.
of 	Old 	Westbury, 	New 	York, 	No. 	208CV5081DRHARL, 	2021 	WL
4472852, at *9 (E.D.N.Y. Sept. 30, 2021) (alteration added) (quoting
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Jean-Laurent v. Wilkerson, 461 F. App’x 18, 25 (2d Cir. 2012)) (“But in
Jean-Laurent, a non-precedential summary decision, the [Second] Cir-
cuit held that denying Plaintiffs ‘leave to plead new claims’ effectively
‘amounts to a ruling on a dispositive matter, something that exceeds a
magistrate judge’s authority under 28 U.S.C. § 636(b)(1)(A).’”). The Sec-
ond Circuit has thus given conflicting signals about this question.
Second, this District seems torn about how magistrate judges
should decide motions to amend. Some judges have distinguished be-
tween denial of a motion to amend on procedural grounds and denial for
futility. See, e.g., Antonacci v. KJT Grp., 11 Inc., No. 21-CV-6578L, 2022
WL 1656787, at *2 (W.D.N.Y. May 25, 2022) (holding that where a mag-
istrate judge finds “that amendment should be denied on the ground of
futility” the decision must be by report and recommendation because
this “amounts to a conclusion that the proposed amendment would not
withstand a motion to dismiss”). Others have noted that “the weight of
authority in this Circuit, as well as the Second Circuit’s guidance in
Fielding,” indicate that motions to amend are non-dispositive. Steuben
Foods, Inc. v. GEA Process Eng’g, Inc., No. 112CV00904EAWJJM, 2016
WL 3876644, at *2 (W.D.N.Y. July 12, 2016); see also Thomas v.
ConAgra Foods, Inc., No. 620CV06239EAWMJP, 2022 WL 3699408, at
*3 (W.D.N.Y. Aug. 26, 2022).
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At most, it seems that motions to amend are dispositive only when
the magistrate judge denies based on futility. But there are strong rea-
sons to think that all motions to amend are non-dispositive.
Other circuits’ decisions provide persuasive reasoning on this
question. The Seventh Circuit has noted that: “The thinking reflected”
in holding that denial of a motion to amend based on futility requires a
report and recommendation “is that by declaring a proposed amendment
futile, the magistrate judge has effectively engaged in the Rule 12(b)(6)[]
analysis and has decided the amendment fails to state a claim, thus
making the decision dispositive.” Hall v. Norfolk S. Ry. Co., 469 F.3d
590, 595 (7th Cir. 2006) (alteration added). True, “[m]otions to dismiss
and for summary judgment are clearly classified as dispositive motions
by” 28 U.S.C. § 636(b)(1)(A). HCC, Inc. v. R H & M Mach. Co., 39 F.
Supp. 2d 317, 322 (S.D.N.Y. 1999). But motions to amend are not. 28
U.S.C. § 636(b)(1)(A).
As these Circuit Courts have held, motions to dismiss and for
summary judgment are qualitatively distinct from motions to amend;
they do “not terminate” the “existing lawsuit” rather, they only prevent
changes to parties or claims. Hall, 469 F.3d at 595; accord Satanic Tem-
ple v. City of Belle Plaine, Minnesota, 80 F.4th 864, 871 (8th Cir. 2023)
(holding that the “Magistrate Judge’s denial of the motion to amend did
not dispose of any claims” and was thus non-dispositive); Kenny v.
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United States, 489 F. App’x 628, 630 (3d Cir. 2012) (noting that “[s]tat-
utory and precedential authority largely rejects” the argument that mo-
tions to amend are dispositive). Finally, nothing prevents a plaintiff
from appealing the issue once the Court enters a final judgment.
Because I decide this motion on Rule 16 grounds, I am issuing a
decision and order. See George v. Prestolite Elec. Inc., No. 12-CV-
01041(A)(M), 2013 WL 12234639, at *3 (W.D.N.Y. July 22, 2013)
(McCarthy, M.J.) (“Since I am deciding this motion based upon Rule 16,
I am issuing a Decision and Order rather than a Report and Recommen-
dation.”). But without uniformity on these questions, magistrate judges
will be forced to continue reading tea leaves in deciding how to handle
motions to amend.
LEGAL STANDARD
Ordinarily, Getman’s motion to amend would be governed by Fed.
R. Civ. P. 15(a)(2), under which permission to amend “should be freely
granted.” Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013).
Under Fed. R. Civ. P. 15(a)(2), the Court retains discretion to deny the
motion “in instances of futility, undue delay, bad faith or dilatory mo-
tive, repeated failure to cure deficiencies by amendments previously al-
lowed, or undue prejudice to the non-moving party.” Burch v. Pioneer
Credit Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008) (citing Foman v.
Davis, 371 U.S. 178, 182 (1962)). This is a “liberal” and “permissive”
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standard.” Loreley Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797
F.3d 160, 190 (2d Cir. 2015).
But this case presents a different situation. The deadline for mo-
tions to amend lapsed long ago. “The period of ‘liberal’ amendment ends
if the district court issues a scheduling order setting a date after which
no amendment will be permitted.” Sacerdote v. New York Univ., 9 F.4th
95, 115 (2d Cir. 2021). “It is still possible for the plaintiff to amend the
complaint after such a deadline, but the plaintiff may do so only upon a
showing of the ‘good cause’ that is required to modify a scheduling order
under Rule 16(b)(4).” Id. (citation omitted); see also Thomas, 2022 WL
3699408, at *3 (W.D.N.Y. Aug. 26, 2022) (collecting cases) (“When con-
sidering an untimely motion for leave to amend, district courts through-
out the Second Circuit have held that, ‘[t]he standards of Rule 16(b)
must be met first and cannot be short-circuited by an appeal to those of
Rule 15(a).’”). This is a higher standard.
The Second Circuit has thus concluded that where a plaintiff
moves to amend after the deadline set by a scheduling order, Fed. R.
Civ. P.’s “lenient standard” must be “balanced against” Fed. R. Civ. P.
16(b)(4)’s requirement 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) (internal quotation omitted). Rule
16(b)’s “‘good cause’ standard, rather than the more liberal standard of
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Rule 15(a) governs a motion to amend filed after the deadline a district
court has set for amending the pleadings.” Parker v. Columbia Pictures
Indus., 204 F.3d 326, 340 (2d Cir. 2000), overruled on other grounds by
Natofsky v. City of New York, 921 F.3d 337 (2d Cir. 2019). Thus, “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 estab-
lish good cause.” Id.
DISCUSSION
While the issues of magistrate judge jurisdiction and the appro-
priate legal standards are thornier, the merits of this case are straight-
forward. Because Getman fails to meet the good cause standard under
Fed. R. Civ. P. 16(b)(4), I deny his motion. That rule provides: “A sched-
ule may be modified only for good cause and with the judge’s consent.”
Fed. R. Civ. P. 16(b)(4).
Getman must show diligence.
In the good cause analysis, “the primary consideration is whether
the moving party can demonstrate diligence[,]” but the Court may also
consider “other relevant factors including ... whether allowing the
amendment of the pleading at this stage of the litigation would prejudice
defendants.” Kassner v. 2nd Ave. Delicatessen, Inc., 496 F.3d 229, 244
(2d Cir. 2007). These other factors do not excuse the moving party from
demonstrating diligence. See Engles v. Jones, 405 F. Supp. 3d 397, 407
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(W.D.N.Y. 2019) (alterations added) (quoting Perfect Pearl Co. v. Majes-
tic Pearl & Stone, Inc., 889 F. Supp. 2d 453, 457 (S.D.N.Y. 2012)) (“[T]o
show good cause, a movant must demonstrate that it has been dili-
gent[.]”). “The burden of showing diligence rests on the moving party.”
Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 304 F.R.D. 170,
175 (S.D.N.Y. 2014) (citing Parker, 204 F.3d at 340).
Getman does not show diligence.
Getman fails to meet his burden of demonstrating diligence. In-
stead, the record here shows that he knew or should have known the
name of Defendant John Doe since November 2022. Yet Getman has
only now moved to amend. This is not enough for good cause. See
Thomas, 2022 WL 3699408, at *5 (cleaned up) (“Defendants bear no bur-
den on this motion—it is plaintiff’s burden to show good cause under
Rule 16(b)(4).”).
Here, the deadline for motions to amend was in May 2022. (Sched-
uling Order ¶ 2, ECF No. 23, Feb. 16, 2022.) Before that deadline,
Vondracek wrote to Getman, stating, “I am unable to ascertain the iden-
tity of [Defendant] John Doe based upon the information contained in
your Amended Complaint. Kindly provide me with additional infor-
mation such as a physical description[.]” (Letter, ECF No. 16, June 16,
2021.) Getman responded in a letter dated August 9, 2021, providing
information about Defendant John Doe. (Letter at 2, ECF No. 21, Aug.
12, 2021.) Vondracek sent a letter with the putative name of Defendant
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John Doe on November 18, 2022. (Crain Decl. ¶ 3 & Ex. A, ECF No. 54,
Apr. 8, 2024.) The name from the November 2022 letter is the same
name that Getman now asks to add to his complaint. (Mot. to Am. at 1,
ECF No. 52.)
That letter went to Getman’s last known address—which is all
that the Federal Rules require. Fed. R. Civ. P. 5(b)(2)(C). Getman wrote
the Court early in this case to provide his address. (Letter, Dec. 20, 2021,
ECF No. 21 (“I would like the current address to be changed to [ ] 7300
Rt 36[,] Dansville NY 14437.”).) That was the last known address
Vondracek used to mail the possible name of Defendant John Doe.
(Crain Decl., Ex. A, ECF No. 54-1.) Getman did not update his address
again until much later. (Not. of Change of Address, ECF No. 33, Mar.
23, 2023.) Because Vondracek used Getman’s last known address based
on Getman’s representation, service of the November 22 letter was “com-
plete upon mailing.” Fed. R. Civ. P. 5(b)(2)(C); see also Sanders v. New
York City Dep’t of Corr., 376 F. App’x 151, 152 (2d Cir. 2010) (quoting
Grievance Comm. v. Polur, 67 F.3d 3, 6 (2d Cir. 1995)) (“This Court has
recognized that, in the context of notice to parties of court actions and
proceedings, “[t]he proper focus of the due process inquiry is not whether
notice ... was actually received but whether the means selected were
‘such as one desirous of actually informing the [litigant] might reasona-
bly adopt to accomplish it.’”). While Rule 5 deals with service and due
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process, 	I 	find 	it 	persuasive 	here 	because 	it 	demonstrates 	that
Vondracek properly informed Getman of Defendant John Doe’s identity
long ago.
Admittedly, Vondracek sent that letter after the applicable dead-
line. No matter. Had Getman “promptly” brought a motion to amend
after he “learn[ed]” Defendant John Doe’s true name, I would likely have
granted Getman’s motion. See Port Auth. Police Benevolent Ass’n, Inc. v.
Port Auth. of New York & New Jersey, No. 15-CV-3526 (AJN), 2016 WL
6083956, at *5 (S.D.N.Y. Oct. 17, 2016) (“Courts have consistently rec-
ognized that if a party learns new facts through discovery that were un-
available prior to the applicable deadline and moves promptly to name
new parties based on such facts, leave to amend is appropriate.”) That
is not what happened here.
It took Getman more than two years to move to substitute John
Doe’s true name. “Orderly disposition of cases requires parties not un-
duly delay in seeking relief.” Document Sec. Sys., Inc. v. Ronaldi, No. 20-
CV-6265-EAW-MJP, 2022 WL 2207185, at *11 (W.D.N.Y. June 21, 2022)
(alteration removed). Vondracek did what was necessary under the Fed-
eral Rules to provide Getman “notice of” Defendant John Doe’s true
name in November 2022. Weisshaus v. Port Auth. of New York & New
Jersey, No. 21-CV-2062-ENV-SJB, 2023 WL 3603414, at *4 (E.D.N.Y.
May 23, 2023). On this record, I find that Getman was not diligent, and
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I thus deny his motion to amend. See Grochowski v. Phoenix Const., 318
F.3d 80, 86 (2d Cir. 2003) (affirming denial of motion to amend where
“plaintiffs delayed more than one year before seeking to amend their
complaint”); see also Gullo v. City of New York, 540 F. App’x 45, 47 (2d
Cir. 2013) (“The district court acted well within its discretion in conclud-
ing that plaintiffs’ three-month failure to move for amendment after
learning the officers’ names failed to demonstrate the diligence neces-
sary to satisfy Rule 16.”).
CONCLUSION
For these reasons, the Court DENIES 	Getman’s motion to
amend on procedural grounds under Fed. R. Civ. P. 16(b)(4). (ECF No.
52.)
IT IS SO ORDERED.
Dated: 	April 25, 2024
Rochester, NY
MARK W. PEDERSEN
United States Magistrate
Judge
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