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finding that a complaint that had been filed under a pseudonym without the court's permission one day before the expiration of the statute of limitations, and later amended to include plaintiff's full name, had been timely filed
Summary of this case from A.G. v. American Credit Bureau, Inc.Opinion
02 CIV. 7252(THK)(AKH)
September 25, 2003
MEMORANDUM OPINION AND ORDER
This case arises out of the September 11, 2001 terrorist attacks on the World Trade Center. Plaintiffs seek to recover damages for personal injuries allegedly sustained on that day. Many of the Plaintiffs who brought the Complaint were only identified as Doe Plaintiffs. By Order dated June 25, 2003, the Doe Plaintiffs were required to move to amend the Complaint to reflect their true identities, with the admonition that failure to do so would result in the dismissal of their claims. Eight of the Doe Plaintiffs — numbers 1, 3, 8, 9, 11, 19, 21, and 43 — have moved to amend the Complaint to replace their fictitious names with their real names. Defendant opposes their motion, arguing that the Court lacks jurisdiction over their claims because they failed to file timely Notices of Claims against the Port Authority, or failed to commence a timely action against the Port Authority.
These Plaintiffs are: Mindy Kleinberg, individually and as personal representative of Alan D. Kleinberg; Patricia Murray, individually and as personal representative of John Joseph Murray; Julia Bondarenko, individually and as personal representative of Alan Bonderanko; Wendy E. Cosgrove, individually and as personal representative of Kevin M. Cosgrove; Robert H. Nussberger; Denise M. Scott, individually and as personal representative of Randolph Scott; Peter Gadiel, individually and as personal representative of James Gadiel; and Eugenia S. Singer.
The instant motion was referred to this Court by the Honorable Alvin K. Hellerstein, U.S.D.J., pursuant to 28 U.S.C. § 636(b)(1)(B). For the reasons that follow, the motion is granted.
DISCUSSION
I. Governing Law and Procedures
Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend pleadings "shall be freely given when justice so requires." Leave to amend should be given freely unless there is an "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 allowance of the amendment, [or] futility of the amendment. . . ." Foman v. Davis, 371 U.S. 178, 182, 83 So. Ct. 227, 230 (1962) (discussing Fed.R.Civ.P. 15(a));see also Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000).
Defendant argues, in effect, that the proposed amendment would be futile, because the movants failed to file timely Notices of Claims or failed to commence this action within the applicable one-year limitations period. Section 7107 of the Unconsolidated Laws of New York sets out conditions which must be met prior to suit in order to secure the Port Authority's waiver to immunity from suit. Section 7107 requires that any action against the Port Authority be commenced within one year after the cause of action accrues, and that a Notice of Claim be served upon the Port Authority at least sixty days before any such action is commenced. See N.Y. Unconsol. L. § 7107 (McKinney 2003) ("§ 7107"). "Compliance with the condition precedent in the statute of giving sixty days notice is mandatory and jurisdictional." Lyons v. Port Authority of N.Y. N.J., 228 A.D.2d 250, 251, 643 N.Y.S.2d 571, 571 (1st Dep't 1996); see also Yonkers Contracting Co. v. Port Authority Trans-Hudson Corp., 93 N.Y.2d 375, 379 (1999). "The failure to satisfy this condition will result in withdrawal of defendant's consent to suit and compels the dismissal of the action for lack of subject matter jurisdiction." Lyons, 228 A.D.2d at 251, 643 N.Y.S.2d at 571; see also Recreation World, Inc. v. Port Authority of N.Y. N.J., Nos. 96 Civ. 5549, 97 Civ. 5029 (LAP), 1998 WL 107362, **4-5 (S.D.N.Y. Mar. 9, 1998). "Under New York law, `the fact that the Port Authority may not have been prejudiced by the plaintiff's failure to comply with the statute is immaterial.'" Recreation World, 1998 WL 107362, at *5 (quotingLyons, 228 A.D.2d at 251, 643 N.Y.S.2d at 571).
II. Plaintiffs' Motion
Defendant concedes that Plaintiff Mindy Kleinberg filed her Notice of Claim in compliance with Section 7107 of the New York Unconsolidated Laws. However, Defendant argues that Ms. Kleinberg failed to commence her action against the Port Authority within the requisite one-year limitations period. See Affidavit of Keith E. Harris ("Harris Aff."), attached to Def.'s Mem. in Opp'n to Pls.' Mot. to Amend Compl. ("Def.'s Mem."), ¶ 5. Additionally, Defendant contends that an Order in Mariani v. United Airlines, Inc., No. 01 Civ. 11628 (AKH) (July 24, 2002), requiring pseudonymous plaintiffs to amend their complaints under their own names by August 13, 2002, somehow imposed this obligation on the Plaintiffs in the instant case. See Def.'s Mem. at 7. Defendant's contentions are baseless. Ms. Kleinberg timely commenced this action on September 10, 2002, under the name Doe 1. Because Ms. Kleinberg's action was timely filed, the amendment she seeks would not be futile. Moreover, the Plaintiffs in this action were not subject to the deadline set in theMariani action, which relates to claims against various airlines and airline security companies.
In a related case, the Court (Hellerstein, J.) held that a "summons and complaint filed . . . against the Port Authority . . . for wrongful death, personal injury, or property damage arising out of or in connection with the terrorist-related aircraft crashes of September 11, 2001 shall be deemed timely filed if filed on or before September 10, 2002 . . ." Mulligan v. Port Authority, No. 02 Civ. 6885, Order (Sept. 6, 2002).
As to the remaining seven Plaintiffs, Defendant contends that they have failed to comply with the Notice of Claim requirement imposed by Section 7107 of the New York Unconsolidated Laws. See Def.'s Mem. at 3-6; Harris Aff. ¶¶ 4, 8. However, Defendant's contention as to six of these claimants is unfounded. Documentation submitted with Plaintiffs' Reply Affirmation shows that these Plaintiffs, except for Ms. Eugenia Singer, submitted a Notice of Claim to the Port Authority on July 2, 2002, at least sixty days before commencing this action on September 10, 2002. See Attachment A to Pls.' Reply Affirm, at 2-3, 6-10. Thus, each of the movants, with the exception of Ms. Singer, complied with Section 7107's filing requirements. Accordingly, their proposed amendments would not be futile.
In its June 25, 2003 Order, the Court (Hellerstein, J.) found that "defendants do not appear to have been prejudiced by the failure of the John and Jane Doe plaintiffs to identify themselves." Defendants have not argued otherwise. Accordingly, in line with the liberal standard for granting leave to amend pleadings under Federal Rule of Civil Procedure 15(a), Plaintiff Kleinberg's, Murray's, Bondarenko's, Cosgrove's, Nussberger's, Scott's, and Gadiel's motion for leave to amend the Complaint, to replace the fictitious names with their real names, is granted.
* * * *
Ms. Singer's motion to amend the Complaint and application to file a late Notice of Claim are addressed in a separate Order.
All other Doe Plaintiffs have consented to the dismissal of their claims, see Pls.' Mem. in Support of Mot. to Amend Compl. at 1, and that dismissal is so ordered.
Plaintiffs shall file an Amended Complaint by October 9, 2003, to reflect their true identities.
SO ORDERED.