The opinion of the court was delivered by: Esther Salas United States Magistrate Judge
Pending before this Court is a Motion by Plaintiffs Simon Taylor and Earl Rowen*fn1 ("Plaintiffs") to amend their Complaint to add a new defendant and a new Title VII claim. (Docket Entry No. 15). Having considered the parties' submissions, the Court GRANTS in part and DENIES in part this motion.
Plaintiffs instituted this lawsuit against the City of Bayonne and William O'Brien, Plaintiffs' former supervisor, (collectively "Defendants"), by way of Complaint dated September 5, 2007. Plaintiffs allege that Defendant City of Bayonne, through its agent Defendant O'Brien, violated the New Jersey Law Against Discrimination ("LAD"). In addition, Plaintiffs assert First Amendment claims based on alleged retaliatory actions taken against them by Defendants in response to complaints about allegedly harassing conduct by Defendant O'Brien. Plaintiffs further alleged claims of intentional infliction of emotional distress, negligent retention of an employee, and breach of contract.
On February 11, 2008, the parties appeared before the Undersigned for a scheduling conference, after which a Pretrial Scheduling Order was issued, setting a May 30, 2008 deadline for the parties to move to amend the pleadings or add additional parties. (Docket Entry No. 10). Pursuant to the February 13, 2008 Pretrial Scheduling Order, fact discovery was initially set to close on July 11, 2008. (Id.). On July 9, 2008, the February 13, 2008 Scheduling Order was amended to extend fact discovery through September 30, 2008, with all discovery to be completed by December 31, 2008. (Docket Entry No. 12). The Scheduling Order was again amended on September 25, 2008, to extend fact discovery through October 31, 2008, with all discovery to be completed by January 16, 2009. (Docket Entry No. 13).*fn2 Neither of the amended scheduling orders amended the date by which the parties were to move to amend the pleadings or add new parties.
Plaintiffs filed the instant motion on October 27, 2008, seeking to add both an additional claim and an additional defendant. Specifically, Plaintiffs seek leave to amend the Complaint to add a Title VII claim against the existing Defendants and to add Joanne Corbett as an individual defendant. According to the proposed Amended Complaint, Joanne Corbett was "employed by Defendant, City of Bayonne, as a Supervisor in the Bayonne Library during all relevant times herein." (Proposed Amended Compl. ¶ 10.)
Defendant City of Bayonne does not oppose the Motion with respect to the addition of the Title VII claim, and thus the Court grants this portion of Plaintiffs' Motion. (Defs.' Letter Br. in Opp. to Pls.' Mot. for Leave to File an Amended Complaint 4.) Defendant does, however, oppose Plaintiffs' request to add Joanne Corbett as an individual defendant.*fn3 The Court evaluates the instant Motion to Amend against the equitable and legal considerations underpinning Fed. R. Civ. P. 15(a).
Fed. R. Civ. P. 15(a) allows a party to amend its pleading by leave of court when justice so requires. Leave to amend pleadings is to be freely given. Fed. R. Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The decision to grant leave to amend rests within the discretion of the court. Foman, 371 U.S. at 182. Pursuant to Foman, leave to amend may be denied on the basis of: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to the opposing party; and (4) futility of amendment. Id. "Only when these factors suggest that amendment would be 'unjust' should the court deny leave." Arthur v. Maersk, Inc., 434 F.3d 196, 203 (3d Cir. 2006) (internal citations omitted).
Here, Defendant City of Bayonne is opposing Plaintiffs' Motion on the basis of undue delay and futility of the proposed amendment. These arguments will be addressed in turn.
With respect to undue delay, the City of Bayonne argues that, because the Motion was filed after the May 30, 2008 deadline established in the initial Pretrial Scheduling Order, and because Plaintiffs waited over a year after filing the original Complaint to move to amend, the Motion should be denied. (Def.'s Letter Br. in Opp. 3.)
As a preliminary matter, the Court notes that there is no presumptive period in which a motion for leave to amend is deemed "timely" or in which delay becomes "undue." In Arthur v. Maersk, the Third Circuit found that a period of eleven months from commencement of an action to the filing of a motion to amend was not, on its face, so excessive as to be presumptively unreasonable. 434 F.3d at 205. Likewise, Plaintiffs' act of waiting thirteen months from the filing of the original Complaint to seek leave to amend will not be deemed presumptively unreasonable.
In determining whether the Motion was the result of undue delay, this Court must examine Plaintiffs' reasons for not moving to amend sooner. AstraZeneca AB v. Ranbaxy Pharms., Inc., No. 05-5553, 2008 U.S. Dist. LEXIS 102097, at *21 (D.N.J. Dec. 15, 2008). Plaintiffs attribute the instant delay to their previous ignorance of Joanne Corbett's role in this case. (Pls.' Letter Br. in Reply to Defs.' Letter Br. in Opp. 3.) They argue that Corbett's precise role in this case was only confirmed when Richard Vandenburg, a City employee, submitted an affidavit on June 16, 2008, articulating that Corbett "participated in retaliatory, discriminatory, and derogatory actions against plaintiff Earl Rowen." (Pls.' Letter Br. in Reply 5.) Plaintiffs filed the instant Motion approximately four months after receiving this information.
Delay alone does not justify denying a motion to amend. Cureton v. Nat'l Collegiate Athletic Ass'n, 252 F.3d 267, 273 (3d Cir. 2001). Rather, only when the delay places an unwarranted burden on the court or on the opposing party is a denial on the basis of delay appropriate. Adams v. Gould, Inc., 739 F.2d 858, 868 (3d Cir. 1984). Moreover, unless the delay at issue will prejudice the non-moving party, a movant does not need to establish a compelling reasons for its delay. Heyl & Patterson Int'l, Inc. v. F. D. Rich Housing of Virgin Islands, Inc., 663 F.2d 419, 426 (3d Cir. 1981).
Here, although the Plaintiffs likely could have included Corbett in their initial Complaint, their failure to do so does not prejudice the non-moving party, and they have nonetheless proffered a reasonable explanation for the delay. Moreover, Plaintiffs are not guilty of repeated failure to cure deficiencies by previous amendments since this is Plaintiffs' first attempt to amend their Complaint. Sullivan v. W.N.Y. Residential, Inc., No. 01-7847, 2003 U.S. Dist. LEXIS 6498, at *4 (E.D.N.Y. Mar. 4, 2003). Therefore, the Motion to Amend will not be denied on the basis of undue delay.
The Court next considers Defendant's futility argument. An amendment is considered futile if it advances a claim or defense that is legally insufficient on its face. Courts may properly deny a motion to amend when the amendment would not withstand a motion to dismiss. Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). Under Fed. R. Civ. P. 12(b)(6), dismissal should not be ordered "unless it appears beyond doubt that the [party asserting the claim] can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
Here, Defendant City of Bayonee makes two arguments grounded in futility. First, Defendants argue that the statue of limitations for the claims against Corbett has lapsed because the claims do not relate back to the date of the original filing of the Complaint. Next, Defendant argues that, even assuming the claims against Corbett do relate back to the ...