Summary
granting defendant's motion to amend its answer to assert an affirmative statute of limitations defense
Summary of this case from Affiliated FM Ins. Co. v. Liberty Mech. Contractors, Inc.Opinion
01 Civ. 1339 (CSH)
March 28, 2002
MEMORANDUM OPINION AND ORDER
In this diversity action, plaintiff has asserted claims against the defendant for violation of her statutory right to privacy under New York Civil Rights Law Sections 50 and 51, as well as common law claims of unjust enrichment, trespass and conversion. Her claims arise from the defendant's re-broadcast in 2000 without plaintiffs permission of a 1978 jeans commercial featuring plaintiff After the close of discovery, and following Magistrate Judge Francis' denial of plaintiffs motion to file a second amended complaint, defendant moved for summary judgment. That motion is presently sub judice.
One of the bases on which defendant seeks summary judgment is that plaintiffs invasion of privacy claim is barred by the applicable one-year statute of limitations. In letters to the Court following the filing of the motion, plaintiff strenuously objected to the assertion of this argument because defendant had failed to plead the statute of limitations as an affirmative defense. In response, defendant filed a motion for permission to amend its answer in order to add that defense. Briefing of the summary judgment motion has been held in abeyance pending resolution of the present motion to amend. This Opinion resolves that motion.
DISCUSSION
Under the liberal pleading standards of the Federal Rules of Civil Procedure, leave to amend pleadings "shall be freely given when justice so requires." Fed.R.Civ.P. 15(a). Courts in this circuit have long interpreted this exhortation to mean that amendments, unless futile as a matter of law, should be authorized "in the absence of a showing by the nonmovant of prejudice or bad faith." Block v. First Blood Associates, 988 F.2d 344, 350 (2d Cir. 1993). In deciding whether prejudice exists, the Court should consider whether 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." Id. In the case at hand, Zoll argues that permission to amend should be denied because of Jordache's undue delay in moving to amend and because of the futility of the amendment. These arguments are unconvincing.
I. Delay
Defendant explains that it did not become aware of the existence of a factual basis for a statute of limitations defense until it learned of certain undisclosed facts in September while conducting discovery. Defendant did not seek leave to amend its answer to add the defense at that time because plaintiff had already filed a motion for leave to file a second amended complaint which was pending before Magistrate Judge Francis. According to defendant, it would have been premature to seek permission to file an amended answer while plaintiffs motion was pending, because if plaintiff were given leave to file a second amended complaint defendant would have been automatically entitled to file an amended answer. Magistrate Judge Francis denied plaintiffs motion on December 5, 2001 and defendant filed the summary judgment motion on January 18, 2002. As noted, that motion contained a statute of limitations defense. Defendant's motion to amend was filed on January 30, 2002.
The time between September, when defendant maintains that it discerned the basis for the defense, and the end of January, when it filed the motion to amend, constitutes a delay of not quite five months. This delay is hardly egregious, especially considering that plaintiffs motion to amend the complaint, which might have rendered defendant's request to amend unnecessary, was pending for 272 of those months. Even if defendant did improperly delay by failing to move to amend as soon as it learned of the basis for the defense in September, the delay in and of itself does not defeat the motion. "[D]elay, standing alone, is an insufficient basis to deny leave to amend." United States v. Continental Illinois Nat. Bank and Trust Co. of Chicago, 889 F.2d 1248, 1253 (2d Cir. 1989). In order to preclude amendment, the delay must be accompanied by bad faith or undue prejudice. See State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1986) ("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.").
Zoll has failed to show that she would be prejudiced in any significant way if I were to allow the amendment. Although she cryptically argues that "with discovery closed, there will be prejudice to plaintiff," Plaintiffs Memorandum at 3, she does not explain even in general terms what sort of discovery would be necessary in order for her to address the statute of limitations defense. She also makes a puzzling contention that the additional defense would disrupt her "trial preparation." Id. At this stage, no trial date has been set. Indeed, defendant has filed a motion for summary judgment. It is difficult to understand the need for trial preparation while there is a motion for summary judgment pending that, if granted, would dismiss the complaint in its entirety. Given the procedural posture of the case, the interposition of a statute of limitations defense that does not appear to be fact-intensive would not significantly set back plaintiffs trial preparation efforts or delay the resolution of this case. To the contrary, if it is successful, it will expedite the resolution of the claim.
There is no indication of bad faith on the part of defendant. Defendant contends that it did not learn of the factual basis for the defense until it had engaged in discovery. That is a perfectly permissible reason for failing to assert the defense in its initial answer. See Dollard v. Perry's Ice Cream Company, Inc., No. 99-Cv-0594E(F), 2001 WL 1117137, *4 (W.D.N.Y. Sept. 10, 2001) (finding no bad faith in defendants' delay in raising statute of limitations defense because defendants did not learn of facts forming the basis of such a defense until the plaintiffs deposition). There is no reason on this record to doubt defendant's contention. Moreover, the plaintiff cannot, and does not, purport to be unfairly surprised by the defense. Defendant has already pleaded the affirmative defense of laches, which placed the timeliness of her claim at issue before discovery was completed. Cf. Xpressions Footwear Corp. v. Peters, No. 95 Civ. 8243, 1995 WL 758761, *2 (S.D.N.Y. Dec. 22, 1995) ("The federal courts consistently grant motions to amend where it appears that new facts and allegations were developed during discovery, are closely related to the original claim, and are foreshadowed in earlier pleadings.").
Finally, plaintiff does not argue that if there had been no delay she could have filed her claim in another jurisdiction with a shorter statute of limitations. This is not a case where the plaintiff is alleged to have filed her claim just a short time after the one-year limitations period. Instead, Jordache's argument is that plaintiffs claim should have been filed more than twenty years before she filed this action. It is impossible to believe that, assuming defendant's argument is correct, plaintiffs claim would be timely in any other forum. Under the circumstances, plaintiff has failed to demonstrate that the delay was the product of bad faith or that she will suffer undue prejudice if defendant is allowed to add a statute of limitations defense.
2. Futility
New York applies the "single publication rule" to statutory invasion of privacy claims. Under that rule, distribution of a publication gives rise to only one cause of action even if that publication was distributed multiple times over a long period. See Gregoire v. G.P. Putnam's Sons, 298 N.Y. 119, 81 N.E.D2d 45 (1948). Such claims are subject to the one-year statute of limitations imposed by New York Civil Practice Law and Rules § 215.
Plaintiff argues that the interposition of a statute of limitations defense would be futile because defendant aired the television commercial as late as August of 2000, less than a year before this action was filed in February of 2001. According to the plaintiff, so long as the privacy claim was filed within a year of the last use of the offending publication, as the Jordache commercial was, the claim is timely. In support of this proposition plaintiff cites a single case, Russo v. Huntington Town House, Inc., 584 N.Y.S.2d 883 (App.Div. 2d Dep't 1992). In Russo, the Second Department did hold that dismissal of the plaintiffs privacy claim on statute of limitations grounds was unwarranted because "the plaintiff commenced her action within one year of the defendant's most recent alleged violations of the Civil Rights Law". However, Russo, a two paragraph opinion with no citation to authority, analysis or reasoning, stands as the sole promoter of that view against the overwhelming weight of authority that holds to the contrary.
Nearly all of the cases of which this Court is aware that have addressed the issue hold that application of the single publication rule means that the statute of limitations begins to run on the first day the offending publication appears; not with each subsequent publication. See, e.g., Costanza v. Seinfeld, 719 N.Y.S.2d 29, 31 (App.Div. 1st Dep't 2001) (holding plaintiffs claim time-barred because one-year statute of limitations ran from first airing of program; rejecting plaintiffs argument that limitations period commenced with the airing of each episode); Castel v. Jean Norihiko Sherlock Corp., 552 N.Y.S.2d 212, 213 (App.Div. 1st Dep't 1990) (the statute of limitations on privacy claims "begins to run at the time the offending matter is first placed on sale to the public"); Rostropovich v. Koch Int'l Corp., No. 94 Civ. 2674, 1995 WL 104123, *7 (S.D.N.Y. March 7, 1995) (invasion of privacy claim accrued "'at the time the allegedly offending publication was placed on sale to the public, and no later'"; under single publication rule "the limitations period runs from the first distribution of the offending item.") (quoting Pascuzzi v. Montcalm Publishing Corp., 410 N.Y.S.2d 325 (App.Div. 2d Dep't 1978)); Pelton v. Rexall Sundown, Inc., No. 99 Civ. 4342 (JSM), 2001 WL 327164, *4 (S.D.N.Y. April 4, 2001) (dismissing plaintiffs privacy claim because plaintiffs likeness was used on products which were distributed to public for several years prior to the commencement of the action); Nelson v. Working Class, Inc., No. 99 Civ. 8854 (HB), 2000 WL 420554, *3 (S.D.N.Y. April 18, 2000) ("Claims alleging violation of the New York's [sic] right of privacy law must be brought within one year of the initial publication.").
"The one exception apart from Russo is Leary v. Punzi, 687 N.Y.S.2d 551, 552-53 (Sup.Ct. Suffolk Co. 1999), which relies exclusively on Russo and also contains no reasoning justifying its application of the statute of limitations.
In a recent case addressing the timeliness of a privacy claim, Judge Kaplan summed up the New York rule and its underpinnings as follows:
[T]he New York Court of Appeals, in adopting the single publication rule, long ago rejected the proposition advanced by plaintiff, viz, that each subsequent publication or distribution of challenged material sets the statute running anew. Indeed, any other view could produce a vast multiplicity of suits which could arise from mass publications and the attendant problem of endless tolling of the statutes of limitations.Cucciolo v. Jeckyll Hyde Neue Metropol Bremen Theater Prod. GMBH Co., 150 F. Supp.2d 566, 572 (S.D.N.Y. 2001) (footnotes, internal quotations and alterations omitted). The holding in Russo runs contrary to the purpose of the single publication rule. As the New York Court of Appeals established in Gregoire, 298 N.Y. at 122, that rule prevents the plaintiff from making an end-run around the statute of limitations by filing a new cause of action with each new issuance of the same publication. The near-unanimity in support of this view among the authorities, which Russo does not address, convincingly suggests thatRusso does not accurately characterize the controlling law on the application of the statute of limitations to New York privacy law claims.
I conclude that the statute of limitations defense is available to the defendant as a matter of law because the one-year statute of limitations governing privacy claims begins to run when the offending commercial first aired, and defendant avers that its first allegedly improper broadcast occurred more than twenty years before plaintiff brought this claim. An amendment is not futile if the claim it seeks to assert is "colorable and not frivolous." See, e.g., Sumitomo Electric Research Triangle, Inc. v. Coming Glass Works, 109 F.R.D. 627, 628 (S.D.N.Y. 1986). Whether or not the defendant can prevail on the facts is a matter on which I do not intimate a present opinion. But since the defense is at least colorable, I reject plaintiffs contention that leave to amend the answer to assert it would be futile.
CONCLUSION
Defendant's motion to amend its answer to assert an affirmative statute of limitations defense is granted. Accordingly, defendant's argument for summary judgment on that basis may stand. Plaintiff is directed to file and serve papers in opposition to that motion on or before April 30, 2002. If so advised, defendant may file and serve reply papers on or before May 15, 2002.
It is SO ORDERED.