Opinion
04 Cv. 4434 (RCC).
May 26, 2006
MEMORANDUM ORDER
Plaintiff Barbara Finch, Manny Moe's grandmother, moves for an order pursuant to Federal Rule of Civil Procedure 15(a) for leave to serve a First Amended Complaint. For the reasons explained, Plaintiff's motion is granted in part and denied in part.
I. BACKGROUND
On January 14, 2004 Plaintiff initiated a class action challenging the constitutionality of the State Central Maltreatment and Abuse Registry's placement procedures. (See Finch v. New York State Office of Children Family Servs., 04 Civ. 1668 (RCC).) That action also included individual claims arising out of the infant Manny Moe's two-year placement in foster care. This Court directed that Plaintiff's individual claims be separated. Thereafter, on June 14, 2004 Plaintiff brought this action, naming as Defendants the City of New York and the two foster care agencies that had assumed and supervised the care of Manny Moe — the Talbot Perkins Agency ("Perkins") and New Alternatives for Children ("NAC"). Plaintiff now seeks to add six individual defendants who, Plaintiff claims, while acting under color of state law, participated in the decisions to delay Manny's placement, restrict his family visits, and improperly monitor the treatment of his hearing loss.
II. DISCUSSION
The City of New York does not oppose the amended complaint, but preserves all of its defenses to it. Defendant NAC has agreed by stipulation to be vicariously liable for acts or omissions of its employees and Plaintiff has withdrawn the portion of her motion that seeks to add NAC employees. Defendant Perkins opposes the motion to the extent it seeks leave to include two former Perkins employees as individual defendants.
Federal Rule of Civil Procedure 15(a) provides that leave to amend the complaint should "be freely given when justice so requires." In ruling on Plaintiff's motion, the Court bears in mind the Supreme Court's directive that
If the underlying facts or circumstances relied upon by a plaintiff may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits. In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of the amendment, etc., — the leave should, as the rules require, be `freely given.'Foman v. Davis, 371 U.S. 178, 182 (1962).
In opposing the amendment, Perkins advances two arguments. First, it submits that its former employees should not be drawn into litigation "in which the employer would be the responsible party in any event." (Perkins Opp. to Plf.'s Mot. to Amend Compl. at 6.) Yet, during an April 21, 2006 conference, counsel for Perkins informed the Court that it was unwilling to enter into a stipulation agreeing to vicarious liability for its employees. Moreover, defendants alleged to have acted under color of state law may be sued in their individual capacities under 42 U.S.C. § 1983. Brennan v. City of White Plains, 67 F. Supp. 2d 362, 372 n. 2 (S.D.N.Y. 1999)
Second, Perkins argues the amendment should be denied as futile because it is untimely. The statute of limitations for a § 1983 action brought in New York is three years. Winder v. McMahon, 360 F.3d 73, 76 (2d Cir. 2004); Kulpa v. Glass, 903 F. Supp. 321, 322 (N.D.N.Y. 1995); Thomas v. New York City, 814 F. Supp. 1139, 1153 (E.D.N.Y. 1993). The statutory period begins to run when the plaintiff knows or has reason to know of the injury which underlies the action. Thomas, 814 F. Supp. at 1153. Section 1983 also imports any applicable tolling mechanisms from state law. Kulpa, 903 F. Supp. at 323. Thus, to the extent Plaintiff is bringing her claims on behalf of the infant, the statute of limitations is tolled until he is eighteen years old, and the amendment is timely. Id.; Thomas, 814 F. Supp. at 1153; see also N.Y.C.P.L.R. § 208.
With respect to claims Plaintiff brings on her own behalf, the parties seem to agree that the statutory period here commenced on February 20, 2002 when the Talbot Perkins Agency closed or on March 4, 2002 when NAC notified foster parents that it was taking Perkins' place. (See Pl.'s Reply Mem. in Supp. of Mot. to Amend Compl. at 3.) Plaintiff did not seek to amend the complaint until May 2, 2005, at least two months after the limitations period expired. Thus, the only way Plaintiff's claims against the new individual defendants can be timely is if they relate back to the date of the original complaint. Fed.R.Civ.P. 15©. New York's relation back rule requires that
(1) both claims must arise out of the same conduct, transaction or occurrence, (2) the new party must be united in interest with the original party such that, by reason of that relationship, the defendant can be charged with such notice of the institution of the action that it will not be prejudiced in maintaining its defense on the merits, and (3) defendant knew or should have known that, but for a mistake by the plaintiff as to the identity of the proper party, the action would have been properly brought.Dow Corning Corp. v. Chem. Design, 3 F. Supp.2d 361, 364-65 (W.D.N.Y. 1998).
The Court finds the amended complaint is untimely as it relates to Plaintiff's own claims against the former Perkins' employees. Plaintiff cannot demonstrate that the former Perkins employees knew or should have known that they would be drawn into this litigation. "[A]n amended complaint adding individual defendants [does] not relate back where the plaintiff [has] shown neither factual mistake (i.e., that she misapprehended the identities of the individuals she wished to sue), nor legal mistake (i.e., that she misunderstood the legal requirements of her cause of action)." Soto v. Brooklyn Corr. Facility., 80 F.3d 34, 35 (2d Cir. 1996). Plaintiff did not, nor was she required to, name the individual caseworkers involved in the alleged misconduct. Thus, nothing in the original complaint should have raised a suspicion that Plaintiff was mistaken about the identity of Perkins employees and there was no way that the proposed individual defendants should or could have known they should have been included in the original complaint. See Hennelly v. Greenwood Ctr. Sch. Dist., 2004 WL 1570277 (W.D.N.Y. June 29, 2004) (denying motion to amend complaint where proposed individual defendant could not have reasonably known that he would have been named as a defendant).
III. CONCLUSION
For the reasons explained above, the Court denies Plaintiff's motion is denied as futile and time-barred to the extent it seeks relief on behalf of Plaintiff individually from the individual defendants. Because the statutory limitations period is tolled during Manny Moe's infancy, Plaintiff's motion is granted with respect to claims brought on behalf of Manny Moe. The parties are directed to inform the Court as to where they stand in their discovery schedule by June 15, 2006.
So Ordered.