Opinion
1:19-cv-11097 (GBD) (SDA)
07-18-2022
David Eric Miller, as Administrator of the Estate of David Humphreys Miller and as Distributee of the Estate of David Humphreys Miller, Plaintiff, v. Brad Hamlett et al., Defendants.
HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION
STEWART D. AARON UNITED STATES MAGISTRATE JUDGE
BACKGROUND
Pending before the Court is a motion by Plaintiff David Eric Miller (“Plaintiff” or “Miller”) for leave to amend his Complaint. (Pl.'s 6/24/22 Ltr. Mot., ECF No. 66.) For the reasons set forth below, I respectfully recommend that Plaintiff's motion be DENIED and that this action be dismissed.
On December 4, 2019, Plaintiff filed his Complaint in this action against Defendants Brad Hamlett, The Wrangler Gallery, Jane Ruyan Miller Trust, The Solomon Family Trust and The Estate Of Sandra L. Solomon (collectively, the “Defendants”). (See Compl., ECF No. 1.) The Complaint alleged that, on March 18, 2019, Plaintiff was appointed in California as the Administrator of the Estate of Decedent David Humphreys Miller, who died in 1992. (See id. at 4.) The Complaint further alleged that Defendants (located in Montana and California) had been selling “some of [Decedent's] artwork collection . . . to different people all across the United States.” (See id. at 2-4.) The “RELIEF” paragraph sets forth Plaintiff's “position,” as follows: “It is the position of the Plaintiff that the artwork, book royalties and tangible belongings of Decedent belong[] to the Estate of David Humphreys Miller unless chain of title can be adequately explained.” (See Compl. at 5.) The Complaint did not purport to state any legal claims or causes of action. (See generally Compl.) On December 10, 2020, Defendants filed their Answer in which they asserted, among other things, that the Complaint failed to state a claim and was time-barred. (See Answer, ECF No. 35, at 3.)
On January 26, 2021, a Scheduling Order was entered based on the parties' proposed case management plans. (See Scheduling Order, ECF No. 43.) The Scheduling Order stated that “[a]ny amended pleading shall be filed by May 14, 2021.” (See id. ¶ 2.) It also set the deadline for fact discovery as June 30, 2021 and the deadline for expert discovery as July 30, 2021. (See id. ¶¶ 34.) No extension of any of these deadlines was sought, no amendment to the Complaint was made and discovery closed.
Prior to the initial pretrial conference, on January 25, 2021, Plaintiff submitted his form of case management plan and Defendants filed their form of case management plan. (See Pl.'s 1/25/21 Plan, ECF No. 41; Defs.' 1/25/21 Plan, ECF No. 42.) Notably, in Plaintiff's Plan, he stated that he did not anticipate amending his pleading. (See Pl.'s 1/25/21 Plan at 3.)
On September 20, 2021, Defendants filed a motion for judgment on the pleadings. (See Defs.' 9/20/21 Mot., ECF No. 50.) On December 2, 2021, Judge Daniels referred Defendants' motion to me for a report and recommendation. (See Am. Order of Ref., ECF No. 55.) On December 6, 2021, I recommended that Defendants' motion to dismiss be granted, but that Plaintiff “be granted leave to file a formal motion to amend setting forth good cause to make his amendment at this late stage of the proceedings-i.e., where discovery is closed and the case is trial ready.” See Miller v. Hamlett, 19-CV-11097 (GBD) (SDA), 2021 U.S. Dist. LEXIS 233427 (S.D.N.Y. Dec. 6, 2021).
On December 7, 2021, before Judge Daniels adopted my foregoing recommendations, Plaintiff filed a motion for leave to amend his Complaint. (See Pl.'s 12/7/21 Mot., ECF No. 57.) On May 23, 2022, I denied Plaintiff's motion without prejudice as premature, stating: “If District Judge Daniels adopts my recommendation to dismiss the original Complaint and also adopts my recommendation that Plaintiff be granted leave to file a motion to amend pursuant to Rule 16(b), Plaintiff may renew his motion to amend at that time.” (See 5/23/22 Order, ECF No. 64.)
On May 26, 2022, Judge Daniels entered a Memorandum Decision and Order adopting my recommendations in full. (See 5/26/22 Mem. Dec. & Order, ECF No. 65.) In his May 26 Order, Judge Daniels stated that Plaintiff could seek leave to replead by letter application on or before June 24, 2022. (See id. at 5 n.3.) Judge Daniels stated that “[t]he letter application should set forth good cause to amend at this late stage of the proceedings and show why the amendment would not be futile.” (See id.)
On June 24, 2022, Plaintiff filed the Letter Motion now before the Court for leave to amend his Complaint. (See Pl.'s 6/24/22 Ltr. Mot.) On July 8, 2022, Defendants filed their response. (See Defs.' 7/8/22 Resp., ECF No. 68.) On July 15, 2022, Plaintiff filed his reply. (See Pl.'s 7/15/22 Reply, ECF No. 69.)
LEGAL STANDARDS
This Court previously has set forth the standards for seeking to amend where, as here, the deadline in the scheduling order for amending pleadings has passed:
District courts have broad discretion in determining whether to grant leave to amend. Leave to amend should be freely granted when justice so
requires. Where a scheduling order has been entered, the lenient standard under Rule 15(a) must be balanced against the requirement under Rule 16(b) that the Court's scheduling order shall not be modified except upon a showing of good cause. A district court does not abuse its discretion in denying leave to amend the pleadings after the deadline set in the scheduling order where the moving party has failed to establish good cause.Rouviere v. DePuy Orthopaedics, Inc., No. 18-CV-04814 (LJL) (SDA), 2020 WL 3865614, at *2 (S.D.N.Y. July 7, 2020) (citations omitted) (cleaned up). In deciding whether or not to permit amendment, “the primary consideration is whether the moving party can demonstrate diligence.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007.)
DISCUSSION
In the Letter Motion now before the Court, Plaintiff argues that he has good cause to amend his Complaint after the date set forth in the Court's scheduling order (i.e., May 14, 2021) and after the close of discovery (i.e., July 30, 2021) purportedly because he did not know whether or not a Last Will and Testament existed for David Humphreys Miller. (See Pl.'s 6/24/22 Ltr. Mot. at 2 (“The necessity to know whether Defendants possessed David Humphreys Miller's Last Will and Testament was fundamental and vital to Plaintiff's decision and ability to proceed in this matter.”).) Plaintiff alleges that Defendants' counsel made “multiple misrepresentations” that one of his clients possessed the Will and that such misrepresentation “were at the heart of the reason for the late filing of the amended complaint.” (See id. at 2.)
Defendants' counsel denied making misrepresentations regarding the subject Will. (See Defs.' 7/8/22 Resp. at 3 n.2.) Regardless, Plaintiff admits that Defendant's counsel “in the spring of 2021” acknowledged that the Defendants were not in possession of the Will. (See Pl.'s 6/24/22 Mem., ECF No. 66, at PDF p. 26.) Thus, even assuming that Plaintiff was waiting to amend his Complaint until he knew whether or not a Will existed, he could have, and should have, amended his Complaint “in the spring of 2021,” when he obtained confirmation that no Will existed.
The Court is dubious that Plaintiff in fact was waiting for information regarding the existence of the Will before he amended his Complaint. Plaintiff attaches to his motion papers a December 15, 2020 fax purportedly sent to Judge Daniels (but never filed to the ECF docket) requesting that the Defendants “produce any purported Will immediately.” (See Pl.'s 12/15/20 fax, ECF No. 66, at PDF pp. 5-7 (emphasis omitted).) However, the issue of the Will never was raised before me during the general pretrial phase of the case. Significantly, on January 25, 2021, more than a month after Plaintiff's counsel sent the fax above, he stated in his proposed case management plan that he did not anticipate amending his pleading. (See Pl.'s 1/25/21 Plan at 3.) Moreover, a joint status letter filed with the Court by Plaintiff's counsel on April 5, 2021 stated that “[t]he parties have no discovery issues to bring to the Court's attention at this time” and that the parties would “advise the Court if the parties encounter[ed] any issues that cannot be resolved through the meet and confer process.” (Pl.'s 4/25/21 Ltr., ECF No. 46.) No issues ever were raised before me.
Plaintiff's vague reference to the “spring of 2021” (which runs from March 1 to May 31, 2021) may be intentional since the scheduling order set the deadline to amend as May 14, 2021. (See Scheduling Order ¶ 2.) If Plaintiff amended on or prior to May 14, 2021, he could have done so as of right. If he sought to amend within the 2+ weeks thereafter, but still in the “spring of 2021,” the Court surely would have granted him leave to do so.
In his motion, Plaintiff incorporates by reference his prior motion to amend which the Court denied without prejudice. In that motion, Plaintiff states that he “did not amend his complaint because the parties were having meaningful settlement negotiations.” (See Pl.'s 12/7/21 Mot. at 7.) However, “it is settled that ongoing settlement negotiations do not obviate the need to follow the scheduling order.” Catania v. United States, No. 14-CV-00553 (RJA) (LGF), 2017 WL 6317158, at *11 (W.D.N.Y. Dec. 11, 2017) (citation omitted), report and recommendation adopted, 2018 WL 1471400 (W.D.N.Y. Mar. 26, 2018).
In the circumstances presented, the Court finds that Plaintiff has failed to establish good cause for his delay in seeking to amend his Complaint and that he has failed to demonstrate diligence. Thus, the Court recommends that leave to amend be denied.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for leave to amend be DENIED, and that this case be dismissed.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
THE FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).