Ni v. Tian Yu Inc. et al, No. 1:2011cv06483 - Document 26 (S.D.N.Y. 2012)

Court Description: OPINION AND ORDER: Accordingly, for all the foregoing reasons, plaintiff's motion to amend the complaint is denied. This Order is, of course, without prejudice to the claims asserted in Docket No. 11 Civ. 6483. (Signed by Magistrate Judge Henry B. Pitman on 11/13/2012) Copies Transmitted by Chambers. (tro)

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK -----------------------------------X KONG SHUN NI, 11 Ci v. 6483 (KBF) (HBP) Plaintiff, OPINION AND ORDER -againstTIAN YU INC., doing business as "Aki Sushi" and ZHAO YU CHEN, jointly and severally, Defendants. -----------------------------------x PITMAN, United States Magistrate Judge: I. Introduction By motion dated September 19, 2012, plaintiff moves for an Order pursuant to Rule 15 of the Federal Rules of Civil Procedure granting leave to file an amended complaint (Docket Item 20). II. For the reasons set forth below, the motion is denied. Facts This is an action brought under the Fair Labor Stan dards Act, 29 U.S.C. 201 et §§g., in which plaintiff, a former worker at defendants' restaurant, alleges that he was not paid the minimum wage and did not received "time and a half" for his overtime work. Plaintiff also alleges parallel claims under the New York Labor Law. Discovery is closed and the deadline for the filing or summary judgment motions has also passed (Order of the Honorable Barbara S. Jones, United States District Judge, dated August 6, 2012 (Docket Item 17). It appears that the case is (or should be) ready for trial. Plaintiff's proposed amendment would add three new plaintiffs -- Lai Yoong Low, Bin Xie and Ji Hui Zhang -- who allege to have claims similar to Ni's. The proposed amended complaint would also substitute Qiu Ju Chen ("Qiu") Chen ("Zhao") as a defendant. for Zhao Yu The motion papers do not explain why plaintiff seeks to substitute Qiu Zhao. Plaintiff filed his motion to amend on September 19, 2012. Approximately one week after the present motion was filed and before defendants had responded, plaintiff's attorney filed an FLSA action on behalf of Lai Yoong Low, Bin Xie and Ji Zhang against Tian Yu Inc., doing business as "Aki Sushi Restau rant, Inc.," and Qiu (Docket No. 11 Ci v. 6483) tion"). (the "6483 Ac The 6483 Action contains the same claims plaintiff seeks to add here, and the 6483 Action was accepted by Judge Jones as being related to this action. Both actions have also now been transferred to the Honorable Katherine B. Forrest, United States District Judge, as related cases. 2 III. Analysis Although motions to amend are usually viewed with a great deal of liberality, granting the motion here would serve no id purpose and has the potential for delaying the resolution of the claims of the original parties. The principal argument offered by plaintiff is that an amendment to the complaint would obviate the need for Lowe, Xie and Zhang to file their own action. They have, however, paid the filing fee and commenced their own action. ready Whatever cost saving may have formerly been possible in this regard is no longer possible. There is no reason to believe that it will be cheaper or more efficient for Lowe, Xie and Zhang to pursue their claims as part of this action instead of in a separate action. In addition, permitting the amendment will delay the resolution of Ni's claims. trial. Ni's claims are currently ready for Permitting the amendment will require that the new defendant be served, file an answer or Rule 12 motion and conduct discovery of Ni and the new plaintiffs. Although there is authority that delay alone, in the absence of prejudice, is an insufficient basis on which to deny a motion to amend, Rachman Bag Co. v. Liberty Mut. Ins. Co., 46 F.3d 230, 234-35 (2d Cir. 1995); Middle Atl. Until. Co. v. S.M.W. Dev. Corp., 392 F.2d 380, 3 384 (2d Cir. 1968), nevertheless, when the motion to amend is made at as late a stage as the motion here, some explanation for the delay is necessary. Reisner v. Gen. Motors Corp., 511 F. Supp. 1167, 1172 (S.D.N.Y. 1981) 91 (2d Cir. 1982) (Goettel, D.J.), aff'd, 671 F.2d (delay in seeking to amend pleading requires some explanation); see also Grochowski v. Phoenix Const., 318 F.3d 80, 86 (2d Cir. 2003) (dist ct court did not abuse discre tion in denying leave to amend under Rule 16 when movant had delayed over a year, discovery was complete and a summary judg ment motion was pending); Presbyterian Church of Sudan v. Talis man Energy, Inc., 453 F. Supp. 2d 633, 680 (S.D.N.Y. 2006), aff'd, 582 F.3d 244 (2d r. 2009) (very difficult to show good cause to amend pleading when movant waited until summary judgment stage to request leave to amend). Plaintiff here offers no explanation for his delay in seeking to amend the complaint. Because (1) the proposed new plaintiffs have commenced their own action, ready (2) it does not appear that granting the amendment will promote efficiency, (3) granting the amendment will delay the resolution of Ni's claims and (4) plaintiff's offer no explanation for the delay, the motion is denied. 1 lIf Judge Forrest determines that it will be more efficient to try Ni's claims simultaneously with the claims of Lowe, Xie and Zhang, I note that that goal can still be accomplished (continued ... ) 4 IV. Conclusion Accordingly, for all the foregoing reasons, plaintiff's motion to amend the complaint is denied. This Order is, of course, without prejudice to the claims asserted in Docket No. 11 Civ. 6483. Dated: New York, New York November 13, 2012 SO ORDERED HENRY TMAN United States Magistrate Judge Copies transmitted to: Brandon D. Sherr, Esq. Law Of ce of Justin A. Zeller, P.C. Suite 408 277 Broadway New York, New York 10007 John Troy, Esq, John Troy & Associates Suite 119 41 5 Kissena Boulevard Flushing, New York 11355 Benjamin B. Xue, Esq. Brian J. Shenker, Esq. Xue & Associates, P.C. Suite 1009 401 Broadway New York, New York 10013 1( ¢ ¢ ¢ continued) through an Order of consolidating the two actions pursuant to Fed.R.Civ.P. 42. 5

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