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Petaway v. Osden

United States District Court, D. Connecticut

March 5, 2018

WILLIAM PETAWAY, Plaintiff,
v.
COUNSELOR SUPERVISOR OSDEN, ET AL, Defendants.

          RULING ON PENDING MOTIONS

          VICTOR A. BOLDEN, UNITED STATES DISTRICT JUDGE.

         William Petaway (“Plaintiff”) filed this Complaint pro se on January 3, 2017, alleging that defendants violated his rights by failing to provide him with written notice of disciplinary action, failing to provide reasons or a written statement of evidence for those actions, and ultimately taking away good time credit as a result. Compl., ECF No. 1.

         Currently before the Court are six motions. Mr. Petaway has moved for two orders: an “order, for ‘telephone deposition, '” ECF No. 64, and an order for Defendants to provide copies of hearing tapes, ECF No. 65. He has also moved for the Court to take judicial notice, ECF No. 71, and for “Memorandum ‘Review' By Judge, ” ECF No. 75. Defendants have moved to amend their answer and affirmative defenses, ECF No. 68, and Mr. Petaway moved for the Court to deny Defendants' motion, ECF No. 69.

         For the reasons stated below, the Court will GRANT Defendants' motion to amend and DENY as moot Mr. Petaway's motion in response. The Court will DENY the motion for a telephonic deposition. The motions for judicial notice, copies and memorandum review are DENIED.

         I. DEFENDANTS' MOTION TO AMEND AND PLAINTIFF'S OBJECTION

         Defendants move to amend their answers and affirmative defenses for the second time. See Defs. Mot. to Amend, ECF No. 68. They argue that “the defendants conducted further discussion and investigations” into the allegations raised by Mr. Petaway and seek to update their responses in accordance with that investigation. Id. at 2. Specifically, they seek to amend their answers to the allegations in two paragraphs of the Complaint, and to remove several affirmative defenses “in response to plaintiff's motion for sanctions.” Id. at 3.[1] Finally, they seek to add several affirmative defenses: a mootness argument, a contributory negligence defense, a statute of limitations defense, and a harmless error defense. Id. at 3-4.

         Mr. Petaway filed two documents in response: an objection, ECF No. 70, and what he styled as “Plaintiff's Request to Court to Deny the Defendants ‘Motion to Correct-Amend, Dated 10/17/17” (“Pl. Opp. Mot.”), ECF No. 69. Mr. Petaway argues that the motion to amend should be denied under Federal Rule of Civil Procedure 12(g)(2) because “the Defendants has failed to ‘cure defects' in answer to complaint” and in “other motions filed, not raised” those defenses. Pl. Opp. Mot. at 2. Additionally, he notes that Defendants “then (withdrew) all the affirmative defenses in ‘Answer'” and that it is “unfair to this Court to repeatedly allow the Defendant” to ‘amend the answer' to the Complaint.” Id.

         The Court previously granted Defendants' first motion to correct their answers and affirmative defenses. See October Ruling at 4-6. Defendants then filed a second motion the same day as the Court issued its ruling.

         As the Court previously noted in this case, Federal Rule of Civil Procedure 15 allows a party to amend “only with the opposing party's written consent or the court's leave.” Rule 15 requires, however, the “the court should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave to amend may be denied if the Court finds “undue delay, bad faith or dilatory motive . . ., repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371 U.S. 178, 182 (1962). “Mere delay, however, absent a showing of bad faith or undue prejudice, does not provide a basis for a district court to deny the right to amend.” State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981).

         In considering prejudice, the Second Circuit requires that district courts consider several factors in deciding whether assertion of a new claim would prejudice an opposing party. Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993) (“We consider whether the assertion of the new claim would: (i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute; or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction.”); see also Odyssey Reinsurance Company v. Cal-Regent Insurance Services Corporation, 123 F.Supp.3d 343 (D. Conn. 2015) (applying Block test and allowing defendant to amend answer)

         Like the previous motion to amend, the new defenses are either primarily legal in nature or would be based on similar factual grounds as previous defenses. As a result, none of the claims appear to require significant additional resources. Additionally, discovery is still ongoing and any delay in the resolution of this matter would be minimal. And, as addressed below, should the parties need additional time to complete discovery they might move for an extension of time. In short, Mr. Petaway will not be prejudiced by amendment.

         The question of whether the motion should be denied for “repeated failure to cure deficiencies” is a closer one. Certainly, Defendants seem to have taking something of a moving-target approach to the litigation, adding and subtracting affirmative defenses. Defendants justify this approach by noting that “[s]ince filing their answer in July, the defendants conducted further discussions and investigation into the allegations and now seek to amend their answer and affirmative defenses.” Defendants, however, moved to amend their answers in September, and the Court subsequently granted that request. The latest motion does not address why the defenses asserted here were not raised in the September motion.

         There is no evidence, however, that bad faith motivated Defendants' failure to raise these affirmative defenses earlier, and Rule 15 requires that this Court “should freely give leave when justice so requires.” Fed.R.Civ.P. 15(a)(2). Defendants' conduct does not appear to rise to the level that the Court would decline to ...


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