Opinion
Civil Action 21 Civ. 8477 (JHR) (SLC)
02-27-2023
ARNOLD H. THOMAS, Plaintiff, v. JPMORGAN CHASE BANK N.A., Defendant.
TO THE HONORABLE JENNIFER H. REARDEN, UNITED STATES DISTRICT JUDGE:
REPORT & RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Pro se Plaintiff Arnold H. Thomas (“Mr. Thomas”) filed this action asserting that Defendant JPMorgan Chase Bank, N.A. (“Chase”) violated the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq., the Fair Credit Reporting Act (“FCRA”), 15 U.S.C. § 1681 et seq., and the Credit Card Accountability Responsibility and Disclosure Act (“CARD Act”), Pub.L. No. 111-24, 123 Stat. 1734 (2009). (ECF No. 2 at 3 (the “Complaint”)). After the Court deemed fact discovery closed and entered a briefing schedule for the parties' anticipated motions for summary judgment, (see ECF Nos. 47; 55), Mr. Thomas filed a motion for leave to amend the Complaint seeking to, inter alia, assert two additional claims against Chase. (ECF Nos. 59 (the “Motion”); 62 (the “PAC”)). Chase opposed the Motion. (ECF No. 65 (the “Opposition”)).
For the reasons set forth below, I respectfully recommend that the Motion be DENIED.
II. BACKGROUND
A. Factual Background
The Court summarizes the factual allegations in the PAC, which the Court accepts as true for purposes of the Motion. See N.J. Carpenters Health Fund v. Royal Bank of Scot. Grp., PLC, 709 F.3d 109, 119-20 (2d Cir. 2013); see also Corbett v. City of N.Y., No. 15 Civ. 09214 (GHW), 2016 WL 7429447, at *2-3 (S.D.N.Y. Dec. 22, 2016). In addition, because Mr. Thomas is pro se, the Court may consider and include in this summary “factual allegations contained in [his] opposition papers and other court filings.” Rodriguez v. Rodriguez, No. 10 Civ. 891 (LGS), 2013 WL 4779639, at *1 (S.D.N.Y. July 8, 2013); see Davila v. Lang, 343 F.Supp.3d 254, 267 (S.D.N.Y. 2018) (“Because [Plaintiff] is proceeding pro se, the Court may consider new facts raised in opposition papers to the extent that they are consistent with the complaint, treating the new factual allegations as amending the original complaint.”); Sommersett v. City of New York, No. 09 Civ. 5916 (LTS) (KNF), 2011 WL 2565301, at *3 (S.D.N.Y. June 28, 2011) (explaining that, in deciding motion to dismiss pro se complaint, court may consider statements in legal memoranda or other “‘papers to supplement or clarify the plaintiff's pleaded allegations'”) (quoting Milano v. Astrue, No. 05 Civ. 6527 (KMW) (DF), 2007 WL 2668511, at *2 (S.D.N.Y. Sept. 7, 2007)).
Unless otherwise noted, all internal citations and quotation marks are omitted from citations in this Report and Recommendation.
In December 2019, Mr. Thomas applied for and obtained a Chase credit card (the “Credit Card”). (ECF No. 62 at 2). Mr. Thomas asserts that he was “the creditor and source of funding for the [C]redit [C]ard . . . in the amount of $[]5,000.00 dollars[,]” a fact that he claims Chase should have disclosed, but did not. (Id. at 2, 4). Chase did not issue Mr. Thomas any credit with respect to the Credit Card, and reported the “false debt” to the consumer credit bureaus. (Id. at 5-6).
B. Procedural History
On October 14, 2021, Mr. Thomas filed the Complaint. (ECF No. 2). On November 23, 2021, the Honorable Alison J. Nathan referred this action to the undersigned for general pretrial supervision. (ECF No. 8). On December 21, 2021, Chase filed its answer to the Complaint. (ECF No. 12). On April 10, 2022, the action was reassigned to the Honorable Paul A. Engelmayer. (ECF min. entry Apr. 10, 2022). After entering a case management plan, which set April 1, 2022 as the deadline to amending pleadings, (see ECF No. 28 at 5 (the “CMP”)), and supervising several discovery conferences in which Mr. Thomas participated, the Court deemed discovery closed as of November 4, 2022. (See ECF No. 47; see also ECF Nos. 31; 33; 37; 40; 42; 44; 45; ECF min. entries Apr. 7, 2022; June 8, 2022; Sept. 13, 2022; Nov. 4, 2022). On November 21, 2022, Judge Engelmayer referred the parties' anticipated motions for summary judgment to the undersigned for a Report and Recommendation. (ECF No. 51). On November 30, 2022, the Court endorsed the parties' briefing schedule for their anticipated motions for summary judgment. (ECF Nos. 5455 (the “Briefing Schedule”)). According to the Briefing Schedule, motions for summary judgment were to be filed by January 17, 2023, with oppositions to be filed by February 7, 2023, and replies by February 28, 2023. (ECF No. 55 at 1).
On December 28, 2022, after the Briefing Schedule was entered but before any summary judgment motion was filed, Mr. Thomas filed the Motion, and on January 17, 2023, filed the PAC. (ECF Nos. 59; 62). In the PAC, Mr. Thomas introduced two new claims against Chase, namely: (i) failure to provide adequate assurance of performance pursuant to New York Uniform Commercial Code § 2-609 (the “NY UCC Claim”); and (ii) fraud in the factum (the “Fraud Claim”). (ECF No. 62). Attached to the PAC is a January 29, 2010 affidavit from Walker F. Todd (the “Todd Affidavit”), which is missing a signature page but appears to have been filed on August 11, 2010 in a 2003 lawsuit in the Circuit Court for the County of Oakland, Michigan. (ECF No. 62 at 11-23). “The Todd Affidavit manifests itself throughout internet web sites offering advice about problematic or unpaid loans.” See Virginia Cmty. Bank v. Fisher, No. 09 Civ. 354, 2009 WL 4430282, at *3 n.9 (E.D. Va. Dec. 1, 2009). The Todd Affidavit advances a theory, like the one Mr. Thomas advances here, that the credit financial institutions extend is the equivalent of money. (Compare ECF No. 62 at 4-6 with Id. at 18).
On January 30, 2023, Chase filed the Opposition. (ECF No. 65). On February 7, 2023, Mr. Thomas filed his reply. (ECF No. 67). On February 8, 2023, this action was reassigned to the Honorable Jennifer H. Rearden. (ECF min. entry Feb. 8, 2023).
III. LEGAL STANDARD
A. Leave to Amend
Determining whether a motion to amend is governed by Rule 15 or Rule 16 turns on whether “the motion is timely filed under [the] scheduling order in place in th[e] action. If it is timely filed, only Rule 15's liberal standard governs; if it is not, [the moving party] must also show good cause for the amendment under Rule 16.” Soroof Trading Dev. Co. v. GE Microgen, Inc., 283 F.R.D. 142, 147 (S.D.N.Y. 2012) (requiring motion to amend filed after court-ordered deadline to meet requirements of both Rule 15(a)(2) and Rule 16(b)(4)); see Cherotti v. Exphand, Inc., No. 20 Civ. 11102 (SLC), 2022 WL 2108604, at *5 (S.D.N.Y. June 10, 2022).
Federal Rule of Civil Procedure 15 provides that a court “should freely give leave” to amend a pleading “when justice so requires.” Fed.R.Civ.P. 15(a)(2). Rule 15 encourages courts to determine claims “on the merits” rather than disposing of claims or defenses based on “mere technicalities.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d 275, 283 (2d Cir. 2000). The Second Circuit has explained that “district courts should not deny leave [to amend] unless there is a substantial reason to do so, such as excessive delay, prejudice to the opposing party, or futility.” Friedl v. City of New York, 210 F.3d 79, 87 (2d Cir. 2000); see also McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007) (“A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.”). “Consistent with the liberal principles underlying Rule 15(a)(2), the party opposing the amendment has the burden of establishing that leave to amend would be unduly prejudicial or futile.” Pilkington N. Am., Inc v. Mitsui Sumitomo Ins. Co. of Am., No. 18 Civ. 8152 (JFK), 2021 WL 4991422, at *5 (S.D.N.Y. Oct. 27, 2021) (citing Ho Myung Moolsan Co. v. Manitou Min. Water, Inc., 665 F.Supp.2d 239, 250 (S.D.N.Y. 2009)).
Federal Rule of Civil Procedure 16(b)(4) states that a court-ordered schedule “may be modified only for good cause and with the judge's consent.” Fed.R.Civ.P. 16(b)(4). “[W]hen a scheduling order has been entered which has restricted a party's ability to file an amended complaint, Rule 15's liberal standard must be balanced against the more stringent standard of Rule 16, under which such an order ‘may be modified only for good cause.'” Perfect Pearl Co. v. Majestic Pearl & Stone, Inc., 889 F.Supp.2d 453, 457 (S.D.N.Y. 2012) (quoting Fed.R.Civ.P. 16(b)(4)). Courts in this District have held that a party cannot establish good cause where “the proposed amendment rests on information that the party knew, or should have known” before the deadline to amend. Id. In general, “[b]ecause compliance with Rule 16 is a threshold matter which may obviate the Rule 15 analysis,” the Court should address it first. Id.; see Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (“[T]he 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.”).
IV. DISCUSSION
Mr. Thomas argues that he should be permitted to amend his Complaint, pursuant to Rule 15, and that permitting such amendment would “not unduly prejudice [Chase].” (ECF Nos. 59; 67). Chase argues that because “the Motion was filed after April 1, 2022, the Court-ordered deadline by which requests for amendments were required to be filed under the [CMP], the more stringent legal standard set forth in Rule 16(b)(4) - not Rule 15(a) - must be applied by the Court in determining this Motion.” (ECF No. 65 at 8). The Court first evaluates whether Rule 15 or Rule 16 governs the PAC, before turning to whether Mr. Thomas has shown “good cause” under Rule 16(b).
A. Applicable Legal Standard
Here, there can be no doubt that Mr. Thomas filed the Motion long after April 1, 2022, the final deadline to amend as set forth in the CMP, (see ECF No. 28 at 5), i.e., the “date after which all amendments were prohibited, which would have triggered the stricter Rule 16(b)(4) ‘good cause' standard thereafter.” Sacerdote v. New York Univ., 9 F.4th 95, 115 (2d Cir. 2021), cert. denied, 142 S.Ct. 1112 (2022). Accordingly, the Court concludes that the standard in Rule 16(b)(4) applies to the analysis of the PAC. See Sokol Holdings, Inc. v. BMB Munai, Inc., No. 05 Civ. 3749 (KMW) (DCF), 2009 WL 3467756, at *2 (S.D.N.Y. Oct. 28, 2009) (“Sokol II”) (“Where a scheduling order fixes a deadline for asserting additional claims, a party seeking leave to amend its pleadings after the deadline must show ‘good cause' for modification of the scheduling order.”); Int'l Media Films, Inc. v. Lucas Ent., Inc., No. 07 Civ. 1178 (JGK) (FM), 2008 WL 781823, at *2 (S.D.N.Y. Mar. 20, 2008) (“Because a pretrial scheduling order has been entered, [plaintiff's] right to amend its complaint is [] subject to Rule 16 of the Federal Rules of Civil Procedure.”); see also Williams v. Town of Hempstead, No. 16 Civ. 1992 (ADS) (AYS), 2017 WL 4712219, at *2 (E.D.N.Y. Oct. 18, 2017) (“[A] plaintiff is required to demonstrate good cause under Rule 16(b) to modify a scheduling order[.]”).
B. Good Cause
In the Opposition, Chase argues the Motion should be denied because Mr. Thomas has failed to establish “good cause” exists under Rule 16(b)(4). (ECF No. 65 at 9-11). Mr. Thomas argues that he has satisfied the “good cause” standard by alleging in the PAC “new and relevant information not known to [him] or in [his] possession until December [] 2022,” i.e., the Todd Affidavit. (ECF No. 67 at 1). The Court considers the parties' arguments below.
1. Legal Standard
“Good cause requires a showing that the delay ‘stemmed from any mistake, excusable neglect, or any other factor which might understandably account for failure of counsel to undertake to comply with the Scheduling Order.'” Eberle v. Town of Southampton, 985 F.Supp.2d 344, 347 (E.D.N.Y. 2013) (quoting Fermin v. Toyota Material Handling, U.S.A., Inc., No. 10 Civ. 3755 (JLL), 2012 WL 1393074, at *3 (D.N.J. Apr. 23, 2012)); see Kreisler v. P.T.Z. Realty, L.L.C., 318 F.R.D. 704, 706 (S.D.N.Y. 2016) (“The court may deny leave to amend for ‘good reason,' which normally involves an analysis of the factors articulated in Foman v. Davis, 371 U.S. 178, 182 [] (1962): undue delay, bad faith, futility of amendment, or undue prejudice to the opposing party.”). “The ‘good cause' inquiry turns on the diligence of the party seeking to modify the scheduling order.” Fresh Del Monte Produce, Inc. v. Del Monte Foods, Inc., 304 F.R.D. 170, 174 (S.D.N.Y. 2014). To satisfy the “good cause” standard, a movant must demonstrate “that, despite having exercised diligence, the applicable deadline could not reasonably have been met.” Huber v. Nat'l R.R. Passenger Corp., No. 10 Civ. 09348 (ALC) (DF), 2012 WL 6082385, at *3 (S.D.N.Y. Dec. 4, 2012). “A party is not considered to have acted diligently where the proposed amendment is based on information that the party knew, or should have known, in advance of the motion deadline.” Christians of California, Inc. v. Clive Christian New York, LLP, No. 13 Civ. 0275 (KBF) (JCF), 2014 WL 3605526, at *4 (S.D.N.Y. July 18, 2014).
Courts may also consider “whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants.” Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007). Absence of prejudice to the non-movant alone, however, is not sufficient to satisfy the “good cause” requirement of Rule 16. Woodworth v. Erie Ins. Co., No. 05 Civ. 6344 (CJS), 2009 WL 3671930, at *3 (W.D.N.Y. Oct. 29, 2009) ("[T]he absence of prejudice to a nonmoving party does not alone fulfill the good cause requirement of Rule 16(b) .”); Est. of Ratcliffe v. Pradera Realty Co., No. 05 Civ. 10272 (JFK), 2007 WL 3084977, at *1 (S.D.N.Y. Oct. 19, 2007); Huber, 2012 WL 6082385, at *3. “A district court has discretion to deny leave for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” McCarthy, 482 F.3d at 200; see Olaf Soot Design, LLC v. Daktronics, Inc., 299 F.Supp.3d 395, 397 (S.D.N.Y. 2017) (“‘[A] district court has discretion to grant a motion to amend even where the moving party has not shown diligence in complying with a deadline for amendments in a Rule 16 scheduling order.'”) (quoting Fresh Del Monte Produce, 304 F.R.D. at 176); Castro v. City of New York, No. 06 Civ. 2253 (RER), 2010 WL 889865, at *1 (E.D.N.Y. Mar. 6, 2010) (“[T]he district court must exercise its discretion under Rule 16(b) to determine whether the scheduling order should be modified so as to allow an amended complaint.”); see also Shemendera v. First Niagara Bank N.A., 288 F.R.D. 251, 253 (W.D.N.Y. 2012) (“My discretion to grant that relief is limited by Rule 16(b)(4), which requires ‘good cause' for an extension of a scheduling order deadline.”).
2. Application
Chase argues that Mr. Thomas has failed to demonstrate “good cause” because (i) the Motion does not articulate any reason why Mr. Thomas could not have sought to amend the deadline ahead of the April 1, 2022 deadline, and (ii) all proposed amendments to the Complaint are based on factual and legal allegations that “were in [Mr. Thomas'] possession prior to the filing of” this action. (ECF No. 65 at 9-10). Mr. Thomas “objects” to these arguments and maintains that the Fraud and NY UCC Claims could not have been alleged until he was in possession of the Todd Affidavit. (ECF No. 67 at 2-3).
The Court finds that Mr. Thomas has failed to demonstrate good cause to amend. The only reason that Mr. Thomas provides for filing the Motion past the April 1, 2022 deadline is that the Todd Affidavit came into his possession in December 2022. (ECF No. 67 at 2-3). Whenever Mr. Thomas may have found the Todd Affidavit, the document is dated January 29, 2010, approximately ten years before the Complaint was filed in this action. (Compare ECF No. 62 at 11 with ECF No. 2). Further, other plaintiffs' reliance on the Todd Affidavit in actions similar to this one demonstrates that it was readily accessible to Mr. Thomas with minimal effort. See Harmon v. U.S. Bank N.A., No. 21 Civ. 00096 (AGF), 2021 WL 3145795, at *2 (E.D. Mo. July 26, 2021); McGregor v. Wells Fargo Bank, No. 10 Civ. 0136 (RWS) (SSC), 2011 WL 679435, at *3 (N.D.Ga. Jan. 26, 2011), adopted by, 2011 WL 679443 (N.D.Ga. Feb. 16, 2011); Virginia Cmty. Bank, 2009 WL 4430282, at *3 n.9. Because “a finding of ‘good cause' depends on the diligence of the moving party[,]” Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000), and Mr. Thomas “knew, or should have known” of the Todd Affidavit “in advance of the deadline[,]” Sokol Holdings, Inc. v. BMD Munai, Inc., No. 05 Civ. 3749 (KMW) (DF), 2009 WL 2524611, at *8 (S.D.N.Y. Aug. 14, 2009) (collecting cases), aff'd, Sokol II, 2009 WL 3467756, he “has not proven that []he acted diligently in seeking to amend[.]” Guity v. Uniondale Union Free Sch. Dist., No. 12 Civ. 1482 (SJF) (AKT), 2014 WL 795576, at *7 (E.D.N.Y. Feb. 27, 2014). Further, Mr. Thomas “do[es] not establish how or why []he was unaware of the basis for [his] proposed amendments or why []he could not have sought the proposed amendments at any time prior to the Court-ordered deadline[,]” and, therefore, “has not provided sufficient justification for [his] failure to move to amend before the” April 1, 2022 deadline. Id.
C. Delay and Prejudice
Despite Mr. Thomas' failure to demonstrate good cause, the Court “may consider other relevant factors including . . . whether allowing the amendment of the pleading at this stage of the litigation will prejudice defendants.” Kassner, 496 F.3d at 244. Chase argues that allowing Mr. Thomas to file the PAC “would be substantially prejudice[ial]” because Chase (i) would “hav[e] to file responsive pleadings” to the PAC, and (ii) additional discovery will be required. (ECF No. 65 at 5, 10-11). Mr. Thomas argues Chase “cannot show undue prejudiced” (ECF No. 59 at 2-3). The Court considers the parties' arguments below.
1. Legal Standard
The prejudice inquiry turns on whether the proposed amendment 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.'” Soroof, 283 F.R.D. at 152 (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). “Whether a party had prior notice of a claim and whether the new claim arises from the same transaction as the claims in the original pleading are central to this determination.” Blagman v. Apple, Inc., No. 12 Civ. 5453 (ALC) (JCF), 2014 WL 2106489, at *3 (S.D.N.Y. May 19, 2014) (citing Monahan, 214 F.3d at 284). Standing alone, “[a]llegations that an amendment will require the expenditure of additional time, effort, or money do not constitute ‘undue prejudice.'” A.V. by Versace, Inc. v. Gianni Versace S.p.A., 87 F.Supp.2d 281, 299 (S.D.N.Y. 2000). “When a motion ‘is made after an inordinate delay,'” however, “‘no satisfactory explanation is offered for the delay, and the amendment would prejudice' the non-movant, such ‘undue delay' should weigh against granting leave to amend.” United States ex rel. Raffington v. Bon Secours Health Sys., Inc., 285 F.Supp.3d 759, 766 (S.D.N.Y. 2018) (quoting Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990)). “[T]he longer the period of an unexplained delay, the less will be required of the nonmoving party in terms of a showing of prejudice.” Evans v. Syracuse City Sch. Dist., 704 F.2d 44, 47 (2d Cir. 1983); BNP Paribas Mortg. Corp. v. Bank of Am., N.A., 866 F.Supp.2d 257, 263 (S.D.N.Y. 2012) (“Indeed, leave to amend should ‘only [be] given when factors such as undue delay or undue prejudice to the opposing party are absent.'”) (quoting SCS Commc'ns, Inc. v. Herrick Co., 360 F.3d 329, 342 (2d Cir. 2004)). “Courts also consider the particular procedural posture of the case.” Agerbrink v. Model Serv. LLC, 155 F.Supp.3d 448, 454 (S.D.N.Y. 2016) (collecting cases).
“Although ‘prejudice to the opposing party is an important consideration, only undue prejudice justifies denial of leave to amend.'” Securitas Elec. Sec., Inc. v. DeBon, No. 20 Civ. 5323 (CM), 2022 WL 484943, at *2 (S.D.N.Y. Feb. 17, 2022) (quoting Christians of California, 2014 WL 3605526, at *5); see A.V. by Versace, 87 F.Supp.2d at 299 (“[P]rejudice alone is insufficient to justify a denial of leave to amend; rather, the necessary showing is ‘undue prejudice to the opposing party.'”) (quoting Foman, 371 U.S. at 182). “The defendants bear the burden of establishing prejudice.” Soroof, 283 F.R.D. at 152; see Oneida Indian Nation of New York State v. Cnty. of Oneida, N.Y., 199 F.R.D. 61, 77 (N.D.N.Y. 2000) (holding that defendants “carry the burden . . . ‘of demonstrating that substantial prejudice would result were the proposed amendment to be granted'”).
2. Application
Applying the three factors above, the Court finds that permitting Mr. Thomas leave to amend at this point in the litigation would be unduly prejudicial to Chase.
The first factor weighs in Chase's favor. Here, Chase argues it “would certainly need to conduct additional discovery with regard to the” PAC. (ECF No. 65 at 11). Although any “prejudice that would flow from any additional required discovery can generally be mitigated by adjustments to the discovery schedule[,]” Margel v. E.G.L. Gem Lab Ltd., No. 04 Civ. 1514 (PAC) (HBP), 2010 WL 445192, at *12 (S.D.N.Y. Feb. 8, 2010), it remains true that “[p]rejudice may be found . . . when the amendment is sought after discovery has been closed[.]” Lyondell-Citgo Ref., LP v. Petroleos De Venezuela S.A., No. 02 Civ. 0795 (CBM) (AJP), 2004 WL 2650884, at *1 (S.D.N.Y. Nov. 22, 2004), adopted by, 2005 WL 883485 (S.D.N.Y. Apr. 14, 2005). Here, Mr. Thomas filed the Motion on December 28, 2022, almost two months after the Court deemed discovery closed on November 4, 2022, several months after the Court supervised two status conferences where the Court discussed what discovery remained to be completed, the Briefing Schedule was adopted, and just days before summary judgment motions were due. (See ECF No. 47; ECF min. entries June 8, 2022; Sept. 13, 2022; Nov. 4, 2022). At no time before he filed the Motion did Mr. Thomas suggest he was entertaining an amendment, and, in fact, asserted that he wanted to proceed to summary judgment. (See ECF Nos. 42 at 18-19; 48 at 12-14). In addition, the introduction of the Fraud and NY UCC Claims “would require additional discovery and might well entail a different defense strategy[,]” Berman v. Parco, 986 F.Supp. 195, 218 (S.D.N.Y. 1997), adding to the Court's finding that the first factor weighs in favor of Chase.
The second factor also weighs in Chase's favor. As evidenced by the Court's summary of the procedural history above, (see § II.B, supra), this litigation has been protracted and has already consumed considerable resources of the parties. At the time Mr. Thomas filed the Motion, discovery had closed and the parties were poised to proceed to dispositive motions. (See ECF Nos. 47; 54-55). Because Mr. Thomas “offer[s] no adequate justification for waiting two months after the close of discovery to seek leave to amend[,]” Juncewicz v. Patton, No. 01 Civ. 0519 (JTE), 2002 WL 31654957, at *6 (W.D.N.Y. Oct. 8, 2002), the proposed amendments would “require[] substantial additional discovery after the parties had just completed the discovery process[,]” Werking v. Andrews, 526 Fed.Appx. 94, 96 (2d Cir. 2013), and “the impact of the proposed new claim[s] on the existing proceedings would [be] substantial[,]” AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 727 (2d Cir. 2010), the second factor weighs against allowing amendment at this time. See Weaver v. Warrington, No. 14 Civ. 7097 (ENV) (ST), 2018 WL 5253110, at *1 (E.D.N.Y. Oct. 22, 2018) (“[C]ourts in this circuit routinely hold that motions to amend are untimely when filed after the close of discovery.”) (collecting cases); Guity, 2014 WL 795576, at *8 (“Where a motion for summary judgment is pending and/or discovery has closed, Courts regularly find prejudice to the nonmovant and deny leave to amend.”); Wilcox v. Cornell Univ., 868 F.Supp.2d 186, 187 (S.D.N.Y. 2012) (denying plaintiff's motion to amend “because it would require the reopening of discovery after defendants have spent time and resources conducting discovery and preparing to file their summary judgment motion”), aff'd, No. 11 Civ. 8606 (BSJ) (AJP), 2012 WL 4903181 (S.D.N.Y. Oct. 10, 2012); see also Kiarie v. Dumbstruck, Inc., 473 F.Supp.3d 350, 360 (S.D.N.Y. 2020); Shi Ming Chen v. Hunan Manor Enter., Inc., 437 F.Supp.3d 361, 366 (S.D.N.Y. 2020).
Finally, the third factor is inapplicable. Neither Mr. Thomas nor Chase argue that denial of the Motion would prevent Mr. Thomas “from bringing a timely action in another jurisdiction.” Moralez v. Frayne, No. 16 Civ. 00526 (JCH), 2017 WL 5571309, at *2 (D. Conn. Nov. 20, 2017); see Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1157 (2d Cir. 1968).
On balance, the Block factors weigh against the Motion.
* * *
Because Mr. Thomas has failed to demonstrate good cause under Rule 16 for subverting the April 1, 2022 deadline for amended pleadings in the CMP, and Defendants have shown that Mr. Thomas' amendments in the PAC would cause them undue prejudice, I respectfully recommend that the Motion be DENIED.
V. CONCLUSION
For the reasons set forth above, the Court respectfully recommends that:
(1) the Motion be DENIED; and
(2) a briefing schedule for motions for summary judgment as to Mr. Thomas' TILA, FCRA, and CARD Act claims in the Complaint be reinstated.
* * *
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 (14) 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), (d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Rearden.
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), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985). If Mr. Thomas does not have access to cases cited in this Report and Recommendation that are reported on Westlaw, he may request copies from Chase's counsel. See Local Civ. R. 7.2.