Opinion
05 Civ. 2897 (RWS).
October 16, 2006
MEMORANDUM OPINION
Defendant Adirondack Audiology Associates ("Adirondack") has moved pursuant to Rules 6(b) (2) and 12(c), Fed.R.Civ.P., for an enlargement of time to answer the complaint, and for judgment on the pleadings. Pro se plaintiff Kenneth Smith ("Smith") has moved pursuant to Rule 12(f), Fed.R.Civ.P., to strike Adirondack's affirmative defenses. For the reasons set forth below, Adirondack's motions are granted, Smith's motion is moot, and all claims against Adirondack are dismissed.
The Parties
At all times relevant to his complaint (the "Complaint"), Smith was an inmate in the custody of the New York State Department of Correctional Services ("DOCS"). (See Compl. ¶ II.) According to the Complaint, Smith has been diagnosed as deaf. (Compl. ¶ IV.1.)
Adirondack is an audiology practice that maintains an office at SUNY Potsdam, 222 Flagg Hall, 44 Pierrepont Avenue, Potsdam, New York.
Prior Proceedings
This action was commenced on March 16, 2005, by the filing of the Complaint against named and unnamed employees of DOCS, as well as several medical providers, including Adirondack. The Complaint alleges violations of Smith's rights under the Americans with Disabilities Act, 42 U.S.C. § 12312 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. § 794 et seq. The Complaint further alleges various constitutional violations, as well as state-law claims of assault and medical malpractice.
Adirondack was served with a copy of the Complaint on or about September 21, 2005. Adirondack's answer, which asserted six affirmative defenses, was served on Smith on April 18, 2006 and filed on April 27, 2006.
By letter dated April 20, 2006, Smith moved to strike Adirondack's affirmative defenses pursuant to Rule 12(f).
On May 19, 2006, Adirondack moved pursuant to Rules 6(b) (2) and 12(c) for an enlargement of time, nunc pro tunc, to answer the Complaint, for judgment on the pleadings, and also opposed Smith's motion to strike. This motion was promptly served on Smith, but was not properly filed until August 2, 2006.
Smith opposed Adirondack's motion by letter dated June 15, 2006.
Adirondack replied in support of its motion on June 30, 2006, although the memorandum of law was not properly filed until August 3, 2006, when both motions were marked fully submitted.
Smith responded to Adirondack's reply by letter dated July 12, 2006, and submitted additional documents (which were voluminous, and in many cases, duplicative) in support of his Complaint by letters dated August 5 and August 28, 2006.
The Motion For Enlargement Of Time Is Granted
Rule 6 provides that the Court may extend the time to answer a complaint "upon motion made after the expiration of the specified period . . . where the failure to [answer] was the result of excusable neglect. . . ." Fed.R.Civ.P. 6(b)(2). As the Second Circuit has noted, the question whether "failure to abide by a specified time constraint constitutes 'excusable neglect' is 'at bottom an equitable one, taking account of all relevant circumstances surrounding the party's omission,' including prejudice to the other party, the reason for the delay, its duration, and whether the movant acted in good faith." Raymond v. Int'l Bus. Mach. Corp., 148 F.3d 63, 67 (2d Cir. 1998) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).
In the instant case, a pre-answer motion to dismiss was timely filed on July 18, 2005 on behalf of Adirondack's codefendants Donna Masterson, Glenn Goord, William Phillips, John Serhan, Byron Rodas (collectively, the "DOCS Defendants"), and Keith Walsh ("Walsh"). However, the docket report inaccurately states that the motion was filed on behalf of all the defendants, including Adirondack. Adirondack claims that it relied on the docket report in error, and did not learn that the motion to dismiss had not been filed on its behalf until April 2006, whereupon it promptly filed its answer. There is no indication that Adirondack's six-month delay in filing an answer was due to bad faith. Nor is there any showing of prejudice to Smith, as the case is still in its initial stages. At the time Adirondack filed its answer, decision was still pending on the motion to dismiss filed by Adirondack's codefendants, and discovery had not yet officially commenced. Smith's claim that he provided "voluntary" discovery to one of Adirondack's codefendants does not establish that he was in any way prejudiced by Adirondack's delay in answering the Complaint. Accordingly, Adirondack's time to answer the Complaint is hereby extended, nunc pro tunc, to April 27, 2006.
The motion to dismiss was granted in part and denied in part by opinion dated September 29, 2006, Smith v. Masterson, No. 05 Civ. 2897 (RWS), familiarity with which is assumed.
The Motion For Judgment On The Pleadings Is Granted
"The standard for granting a Rule 12(c) motion for judgment on the pleadings is identical to that of a Rule 12(b) (6) motion for failure to state a claim." Patel v. Contemporary Classics of Beverly Hills, 259 F.3d 123, 126 (2d Cir. 2001). See Irish Lesbian Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir. 1998); Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994);Ad-Hoc Comm. of Baruch Black Hispanic Alumni Ass'n v. Bernard M. Baruch Coll., 835 F.2d 980, 982 (2d Cir. 1987). In both postures, the district court must accept all allegations in the complaint as true and draw all inferences in the non-moving party's favor. See Irish Lesbian Gay Org., 143 F.3d at 644. The court will not dismiss the case unless it is satisfied that the complaint cannot state any set of facts that would entitle plaintiff to relief. See Sheppard, 18 F.3d at 150. All allegations in the complaint are accepted as true, and all reasonable inferences are drawn in favor of the non-moving party.D'Alessio v. New York Stock Exchange, Inc., 258 F.3d 93, 99 (2d Cir. 2001). In deciding the motion, the court can consider documents referenced in the complaint and documents that are in the plaintiff's possession or that the plaintiff knew of or relied on in bringing the suit. Hughes v. Lillian Goldman Family, L.L.C., 153 F. Supp. 2d 435, 439 (S.D.N.Y. 2001).
This Court recently granted codefendant Walsh's motion to dismiss all claims against him for failure to state a claim, and the same result is compelled here. Although Adirondack is named as a defendant in this action, it otherwise is not mentioned by name in the Complaint. The only oblique reference to Adirondack within the text of the Complaint itself is Smith's statement that "two (bilateral) hearing aids were prescribed . . . on December 3, 1997. . . ." (Compl. ¶ IV.1.) In a grievance filed at Sing Sing Correctional Facility at March 31, 2003, Smith noted that the hearing aids "had been issued to me on 12/3/97 by Audiologist Keith P. Walsh (of Adirondack Audiology Associates of N.Y. Vt.)." (Grievance No. 37218, Compl. Ex. F.) In the Complaint, Smith acknowledges that the prescription of hearing aids on December 3, 1997 marked a break in the "continuous discriminatory treatment of plaintiff via failing to afford him the requested reasonable accommodations of hearing aids (from March 28, 1995 thru [sic] December 2, 1997 and from March 19, 2003 to date. . . ." (Compl. ¶ IV.3.) Because these sparse allegations are insufficient to state any claim whatsoever against Adirondack, all claims against Adirondack must be dismissed. See Dove v. Fordham Univ., 56 F. Supp. 2d 330, 335 (S.D.N.Y. 1999) ("It is well-settled that 'where the complaint names a defendant in the caption but contains no allegations indicating how the defendant violated the law or injured the plaintiff, a motion to dismiss the complaint in regard to that defendant should be granted.'" (quoting Morabito v. Blum, 528 F. Supp. 252, 262 (S.D.N.Y. 1981))).
When an amended complaint would be futile, a court need not grant leave to replead. See Van Buskirk v. The New York Times Co., 325 F.3d 87, 92 (2d Cir. 2003). Because even a liberal reading of the Complaint suggests that no valid claim could be stated against Adirondack, Smith's claims against Adirondack should be dismissed with prejudice. See Branum v. Clark, 927 F.2d 698, 705 (2d Cir. 1991).
Because the Court has found that Adirondack has presented a meritorious defense of failure to state a claim, Smith's motion to strike Adirondack's affirmative defenses is denied.
Conclusion
For the reasons set forth above, Adirondack's motions are granted, Smith's motion is denied, and all claims against Adirondack are dismissed with prejudice.
It is so ordered.