Mannino v. Port Authority of New York and New Jersey et al

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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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GINA MANNINO,
Plaintiff,
-against-
PORT AUTHORITY OF NEW YORK AND
NEW JERSEY and JOHN OR JANE DOE 1-10,
Defendants.
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ORDER
24 Civ. 7241 (NCM) (VMS)
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Vera M. Scanlon, United States Magistrate Judge:
Plaintiff Gina Mannino (“Plaintiff”) moves for leave to file an amended complaint to add
arresting officer Brandon Busch (“Mr. Busch”) as a defendant. See generally ECF Nos. 17-17-1.
Defendant Port Authority of New York and New Jersey (“Defendant”) opposes the motion. See
generally ECF Nos. 18-19. For the reasons set forth below, the motion is granted.
Plaintiff is to file and serve the amended complaint by February 11, 2026. Counsel are
encouraged to coordinate service. If Defendant’s counsel cannot accept service for Mr. Busch,
Defendant’s counsel must provide to Plaintiff’s counsel Mr. Busch’s address for service by
February 6, 2026. Defendants are to answer or otherwise respond to the amended complaint by
February 25, 2026. If Mr. Busch is not going to be represented by Defendant’s counsel, he may
request more time to retain counsel and to answer or otherwise respond to the amended
complaint. Both Plaintiff’s counsel and Defendant’s counsel must be prepared to provide Mr.
Busch with a complete set of materials produced in discovery once he appears. If Mr. Busch
wishes to obtain any additional discovery, he may do so by April 30, 2026, by which date the
parties must file a joint letter certifying the close of discovery. Plaintiff may not seek any
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additional discovery beyond that already permitted and in process. Any dispositive motion
practice must be commenced by May 29, 2026, in accordance with the Individual Rules of the
District Judge. Such practice must be coordinated with the District Judge, in light of the
previously submitted motion. The parties should not anticipate any extensions other than
additional time for Mr. Busch to retain counsel, unless there are unforeseeable circumstances that
arise.
I. 	DISCUSSION
A party’s right to amend its pleading is governed by Federal Rules of Civil Procedure 15
and 16, “which, when read together, set forth three standards for amending pleadings that depend
on when the amendment is sought.” Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir.
2021).1
The first standard permits a party to amend its pleading “as of right without court
permission.” Id. (citation omitted). This standard applies until expiration of either (1) the time
period set forth in Federal Rule of Civil Procedure 15(a)(1), which permits a party to amend its
pleading “no later than . . . 21 days after serving it” or, “if the pleading is one to which a
responsive pleading is required, 21 days after service of a responsive pleading or 21 days after
service of a motion under Rule 12(b), (e), or (f), whichever is earlier,” or (2) the time period
otherwise prescribed by a scheduling order for amendment of pleadings as a matter of right.
Sacerdote, 9 F.4th at 115.
1 The typical standard on a motion for leave to amend is the appropriate standard to apply when a
plaintiff seeks to amend to add a defendant. See Sacerdote, 9 F.4th at 105, 115 (considering,
inter alia, whether “the district court erred in denying the motion to amend the complaint to add
individual Committee members as defendants” and holding that “[t]he ability of a plaintiff to
amend the complaint is governed by Rules 15 and 16 of the Federal Rules of Civil Procedure
which, when read together, set forth three standards for amending pleadings that depend on when
the amendment is sought”).
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The second standard, set forth in Federal Rule of Procedure 15(a)(2), permits a party to
amend its pleading either (1) on written consent of the opposing party or (2) on motion by the
party seeking leave to do so, which the court should grant “freely . . . when justice so requires,”
and should deny only “upon a showing of undue delay, bad faith, dilatory motive, [or] futility.”
Sacerdote, 9 F.4th at 115 (citation & quotations omitted). This standard applies up to and
including the date set forth in a scheduling order after which no pleading amendments will be
permitted. See id.; see also Fed. R. Civ. P. 16(b)(3)(A) (requiring that a scheduling order “limit
the time to join other parties, amend the pleadings, complete discovery, and file motions”).
The third standard permits a party to amend its pleading “only up[on] a showing of the
good cause that is required to modify a scheduling order under Rule 16(b)(4).” See Sacerdote, 9
F.4th at 115 (citation omitted); see also Fed. R. Civ. P. 16(b)(4) (instructing that “[a] schedule
may be modified only for good cause and with the judge’s consent”). Establishing “good cause
depends on the diligence of the moving party.” Presbyterian Church of Sudan v. Talisman
Energy, Inc., 582 F.3d 244, 267 (2d Cir. 2009) (citation & quotations omitted). This standard
applies upon expiration of the date set forth in a scheduling order after which no pleading
amendments will be permitted. See id. (citation omitted); see also Fed. R. Civ. P. 16(b)(3)(A).
The third standard applies here, given the deadline for joinder or amendment of the pleadings,
see 11/20/2024 Order, and the date of the filing of this motion, see generally ECF Nos. 17-17-1.
Under both the second and third standards, under which leave is required to amend, the
four bases upon which a motion for leave to amend may be denied are futility, bad faith, undue
delay and undue prejudice to the opposing parties. See Cohen v. Am. Airlines, Inc., 13 F.4th
240, 247 (2d Cir. 2021) (applying the second standard, pursuant to Federal Rule of Civil
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Procedure 15(a)(2) (citations omitted)). The Court discusses futility, bad faith, undue delay and
undue prejudice, as well as good cause, each in turn below.
A. 	Futility
For the reasons discussed below, the Court concludes that the proposed amendment is not
futile.
Concluding that proposed amendments are futile requires “a determination, as a matter of
law, that proposed amendments would fail to cure prior deficiencies or to state a claim under
Rule 12(b)(6) of the Federal Rules of Civil Procedure. To determine whether granting leave to
amend would be futile, we consider the proposed amendments and the original complaint.” In re
Trib. Co. Fraudulent Conv. Litig., 10 F.4th 147, 175 (2d Cir. 2021) (citations & quotations
omitted). Courts addressing motions to dismiss pursuant to Federal Rule of Civil Procedure
12(b)(6), for failure to state a claim, must “accept[] all factual allegations in the complaint as true
and draw[] all reasonable inferences in favor of the plaintiff.” Trs. of Upstate N.Y. Eng’rs
Pension Fund v. Ivy Asset Mgmt., 843 F.3d 561, 566-67 (2d Cir. 2016) (citations omitted). A
complaint will survive a motion to dismiss if it “contain[s] sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its face.” Sierra Club v. Con-Strux, LLC, 911
F.3d 85, 88 (2d Cir. 2018) (citation & quotations omitted). With regard to a motion for leave to
amend, the party opposing bears the burden of showing futility. See Perez v. Escobar Constr.,
Inc., 342 F.R.D. 378, 380 (S.D.N.Y. 2022) (citation omitted); Travelex Currency Servs., Inc. v.
Puente Enters., Inc., 449 F. Supp. 3d 385, 395 (S.D.N.Y. 2020) (citation omitted).
Defendant claims that the proposed amendment is futile (1) because “[b]odycam footage
of the incident depict[s] Plaintiff’s demeanor . . . [and] attendant circumstances,” which
“demonstrate there was probable cause for the arrest,” or at least “arguable probable cause” for
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the arrest, “on the basis that Plaintiff was operating a vehicle while intoxicated,” and (2) because
“the bodycam footage clearly shows Plaintiff’s vehicle stopped in a lane of traffic on a highway,
which is a violation of New York’s Vehicle and Traffic Law” and “is an arrestable offense,”
thereby “provid[ing] a separate basis for probable cause.” ECF No. 19 at 5-6. Defendant’s
purported futility arguments are not actually futility arguments, given that they are directed to the
evidentiary record in this action, rather than to Plaintiff’s proposed amended pleading.
Defendant therefore failed to meet its burden of showing that the proposed amendment would be
futile.
B. 	Bad Faith
The party opposing the motion for leave to amend bears the burden of showing bad faith.
See Perez, 342 F.R.D. at 380 (citation omitted); Travelex Currency, 449 F. Supp. 3d at 395
(citation omitted). Defendant does not argue that Plaintiff has proposed the amendment in bad
faith and therefore did not meet its burden. Accordingly, the Court does not find the proposed
amendment to be made in bad faith.
C. 	Undue Delay
Plaintiff has delayed, but not unduly delayed, proposing the amendment here.
The Scheduling Order entered pursuant to Federal Rule of Civil Procedure 16(b) set the
deadline for joinder of parties and amendment of the pleadings as January 3, 2025. See
11/20/2024 Order. The instant motion was filed almost five months after the deadline. See
generally ECF Nos. 17-17-1. Given that Plaintiff’s request for leave to amend was filed beyond
the deadline to do so as of right pursuant to Federal Rule of Civil Procedure 15(a)(1) and after
the Scheduling Order deadline, in accordance with the first standard, and beyond the deadline to
do so with written consent of the opposing parties or with leave of court pursuant to Federal Rule
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of Civil Procedure 15(a)(2) and the Scheduling Order, in accordance with the second standard,
the “good cause” standard applies.
In relation to the timeliness issue, Plaintiff contends that, at the time she filed the action
in state court, which was subsequently removed, see generally ECF No. 1, she “was not in
possession of the Body Worn Camera footage nor information regarding the identity of the
arresting officer, nor information regarding specifics of the underlying arrest[,] which was
yielded through discovery.” ECF No. 17 at 2. Defendant counters that “Plaintiff failed to offer
any indication that she was diligent in amending the complaint,” as “[s]he had the identity of the
arresting officer well before the scheduling order’s deadline for amending the pleadings,” given
that her initial disclosures, which were “served on November 18, 2024, included bodycam
footage of the incident along with the Port Authority Police Department’s arrest file identifying
Officer Busch as the arresting officer,” but she “did not amend the pleadings to add the
individual officer or seek to extend the order’s deadline.” ECF No. 19 at 4.
The Court appreciates Plaintiff’s desire to review the body worn camera footage before
alleging that Mr. Busch did, in fact, violate her rights. It may have been possible, for example,
that the officer who signed the arrest paperwork and the officer who was designated as the
“arresting officer” were not the same person. Plaintiff could have more expeditiously conducted
the review between November 2024 and the filing of the motion. Nonetheless, the delay is not
“undue,” and it would not be a prudent use of the Court’s or the parties’ resources to deny the
motion, given that the incident at issue occurred on October 13, 2023, such that the statute of
limitations on Plaintiff’s claims has yet to expire, and that Plaintiff would be entitled to
commence a separate action against Mr. Busch. See ECF No. 17 at 1-2. Mr. Busch has been
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deposed in this action and is therefore on notice of his potential liability, see id. at 1, so there is
no prejudice to him.
The Court finds that the timeliness concerns do not preclude granting Plaintiff leave to
file the proposed amendment in this action. Judicial economy would be best served if the claims
against Mr. Busch are prosecuted in the same action as the claims against Defendant, rather than
in a separate action. If the parties are not joined, the Court could be faced with having a
duplicate discovery period, a second set of motions, and possibly a second trial, which would
unnecessarily waste judicial and the parties’ resources.
D. 	Undue Prejudice
For the reasons discussed below, Defendant has failed to meet its burden to show undue
prejudice in relation to the proposed amendment.
The party opposing the motion for leave to amend bears the burden of showing prejudice.
See Perez, 342 F.R.D. at 380 (citation omitted); Travelex Currency, 449 F. Supp. 3d at 395
(citation omitted).
Defendant argues that it “already submitted its request for leave to file summary
judgment outlining the proposed bases for the motion” and that “[t]hat motion and potentially a
resolution of this matter would have to be delayed, and discovery possibly reopened, due entirely
to Plaintiff’s lack of diligence in amending the pleadings.” ECF No. 19 at 4. Plaintiff counters
that “there is no prejudice to Defendants if this application is granted,” as “[t]he instant relief is
sought in order to obviate the need for Plaintiff to file a separate action only as against [Mr.]
Busch, and the parties to engage in what would amount to duplicative discovery,” thereby
“sav[ing] time and resources for the Court” and for counsel. ECF No. 17 at 2.
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The Court concurs in Plaintiff’s arguments that allowing the proposed amendment would
not prejudice Defendant and would advance judicial economy, given the unexpired statute of
limitations on Plaintiff’s proposed additional claims. There is unlikely to be any significant
additional discovery, as the basis for liability against Defendant and Mr. Busch is the same, as
are their defenses. To alleviate any concerns as to potential prejudice related to reopening of
discovery, the Court will not permit Plaintiff to seek any additional discovery beyond what has
been allowed and is in process. As to the motion for summary judgment, a modest delay in
expanding that motion as to Mr. Busch, as is likely, does not constitute prejudice.
II. 	CONCLUSION
For the reasons discussed, Plaintiff’s motion is granted. Plaintiff is to file and serve the
amended complaint by February 11, 2026. Counsel are encouraged to coordinate service. If
Defendant’s counsel cannot accept service for Mr. Busch, Defendant’s counsel must provide to
Plaintiff’s counsel Mr. Busch’s address for service by February 6, 2026. Defendants are to
answer or otherwise respond to the amended complaint by February 25, 2026. If Mr. Busch is
not going to be represented by Defendant’s counsel, he may request more time to retain counsel
and to answer or otherwise respond to the amended complaint. Both Plaintiff’s counsel and
Defendant’s counsel must be prepared to provide Mr. Busch with a complete set of materials
produced in discovery once he appears. If Mr. Busch wishes to obtain any additional discovery,
he may do so by April 30, 2026, by which date the parties must file a joint letter certifying the
close of discovery. Plaintiff may not seek any additional discovery beyond that already
permitted and in process. Any dispositive motion practice must be commenced by May 29,
2026, in accordance with the Individual Rules of the District Judge. Such practice must be
coordinated with the District Judge, in light of the previously submitted motion. The parties
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should not anticipate any extensions other than additional time for Mr. Busch to retain counsel,
unless there are unforeseeable circumstances that arise.
Dated: Brooklyn, New York
February 3, 2026
Vera M. Scanlon
VERA M. SCANLON
United States Magistrate Judge
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