Magistrate J udge Cheryl L. Pollak United States District Court for the E.D.N.Y 225 Cadman Plaza East Brooklyn, New York 11201
RE: Iijima v. City of New York, et al. 13-CV-2688 (ARR) (CLP)
Dear J udge Pollak:
We represent plaintiff in the above action. This is to request a pre-motion conference with respect to an anticipated motion to amend the complaint.
Plaintiffs motion will argue for leave to amend the complaint to include additional theories of liability which only became apparent following defendants recent productions of documents. Plaintiff also seeks to add additional parties (all of whom are NYPD personnel), who would bear liability under the additional theories, which are:
Negligent Entrustment and Failure to Train, Supervise and Discipline: Plaintiff would prove, under both state and federal law, that defendant the City of New York (the City) and certain NYPD supervisory personnel behaved in a negligent, reckless and/or deliberately indifferent manner with respect to the entrustment of an NYPD vehicle to Defendant Darren Ilardi (Ilardi), and in failing to train, supervise and discipline him in the operation of NYPD vehicles.
Monell: Plaintiff would prove that the City had a policy, practice and/or custom concerning the training, entrustment, supervision and discipline of Ilardi and other NYPD police officers with respect to operation of motor vehicles, which deprived decedent and plaintiff of constitutionally-protected rights.
Denial of Access to the Courts: Plaintiff would prove that certain NYPD personnel intentionally departed from standard investigative procedures and caused the loss of critical evidence, prejudicing plaintiffs ability to prosecute this wrongful death action. Case 1:13-cv-02688-ARR-CLP Document 31 Filed 06/22/14 Page 1 of 3 PageID #: 81 Hon. Cheryl L. Pollak 2 J une 22, 2014
Because the proposed modifications are warranted, the Court is respectfully requested to grant leave, or set a briefing schedule for plaintiffs motion to amend. 1
Standard for Granting Leave to Amend. Plaintiff meets the standard for granting leave to amend. Rule 15(a) of the Federal Rules of Procedure governs, and states that
a court should freely give leave when justice so requires. Fed. R. Civ. Pro. 15(a)(2). Generally, leave to amend should be granted freely, and amendment is typically permitted. See Foman v. Davis, 371 U.S. 178, 182 (1962). Although the decision to grant or deny a motion to amend rests within the sound discretion of the district court, there must be good reason to deny the motion. See Acito v. IMCERA Group, Inc., 47 F.3d 47, 55 (2d Cir. 1995). In rendering its decision, the court should consider whether (1) the party seeking amendment unduly delayed or acted in bad faith, (2) the amendment would be futile, or (3) the non- moving party would suffer unfair prejudice. Foman, 371 U.S. at 182.
Hall v. N. Bellmore Union Free Sch. Dist., 08-CV-1999 (J S) (ARL), 2010 WL 1049280, at *2 (E.D.N.Y. Mar. 18, 2010). 2
There is No Delay or Bad Faith. The requested amendments would state new claims that become apparent only upon defendants production of documents, which began in April and has continued through May of this year. Defendants provided plaintiff with virtually no discovery prior to April 2014. Thus Plaintiff lacked a solid basis to bring the new claims prior to defendants disclosures of the last two months.
As observed in Hall, courts in appropriate cases have granted leave to amend the complaint years after the filing of the complaint allowing the parties in those cases to amend their pleadings to assert new claims long after they acquired the facts necessary to support those claims. id. at *2. Here, plaintiff has proceeded diligently and in good faith, following retention of new counsel and defendants first document disclosures in April 2014.
The Amendments Would Not Be Futile. Plaintiffs proposed new claims are neither futile nor novel. As the Court itself observed in its recent order, Ilardis prior traffic accidents are potentially relevant and subject to discovery because they could provide evidence of possible supervisory liability or municipal liability under Monell v.
1 Counsel for defendants has refused to consent to the proposed amendment of the complaint. 2 When the plaintiff seeks to amend after a court deadline for doing so has passed, the somewhat higher burden of showing good cause to amend applies. Beckett v. Village of Freeport, No. 11-cv-02163 (E.D.N.Y. Mar. 31, 2014). No such deadline was set in this action, but in any event, for the reasons explained there is good cause to grant leave. Case 1:13-cv-02688-ARR-CLP Document 31 Filed 06/22/14 Page 2 of 3 PageID #: 82 Hon. Cheryl L. Pollak 3 J une 22, 2014
Department of Social Services, 436 U.S. 658 . . . . (Order of April 29, 2014, DE #25). Now that plaintiff has obtained discovery of this evidence ordered disclosed by the Court, she can state a colorable Monell claim, as well as federal and state law claims for lack of training, supervision, and discipline based on the same evidence.
Plaintiff also can state a federal Section 1983 claim for denial of access to the courts, based on evidence that in the investigation of decedents death, NYPD personnel made departures from standard investigative practice that suggest the concealment, destruction, and loss of evidence. Small v. City of New York, 274 F. Supp. 2d 271, 278- 80 (E.D.N.Y 2003), addressed a similar case in which NYPD officers dispersed witnesses, disturbed the crash scene, and took other steps to thwart the ability of a fatal crash victims representative to prosecute a wrongful death claim against any NYPD officer responsible for the crash. As in Small, here there is sufficient evidence of lost and destroyed evidence for plaintiff to state a claim for denial of access to the courts.
The Amendments Would Not Prejudice the Defendants. There is no prejudice to defendants in adding the proposed claims, because discovery is still in the document phase, and no depositions have occurred. While the additional claim will require additional document and other discovery, no unfair prejudice results to defendants.
Similarly, while Plaintiffs seek to name additional defendants, all of them are NYPD personnel who were involved in the NYPD investigation and response to decedents death. These proposed additional plaintiffs were all aware of the facts underlying plaintiffs claims before plaintiff learned of them during the last 90 days. There is no unfair prejudice in joining them as parties defendant because all of the proposed new claims relate back to the death of Ryo Oyamada.
For the above reasons, plaintiff has established that she should be granted leave to amend, or the opportunity to formally brief the issue.
Respectfully,
/s/ Steve Vaccaro
cc: Binyomin Travis, New York City Law Department (by ECF) Case 1:13-cv-02688-ARR-CLP Document 31 Filed 06/22/14 Page 3 of 3 PageID #: 83