Conti v. Doe

UNITED STATES DISTRICT COURT USDC SDNY SOUTHERN DISTRICT OF NEW YORK DOCUMENT -------------------------------------------------------------- X EL ECTRONICALLY FILED PAUL M. CONTI, : D OC #: : D ATE FILED: 8/20/20 19 Plaintiff, : : 17-CV-9268 (VEC) -against- : : MEMORANDUM JOHN DOE, : OPINION AND ORDER : Defendant. : -------------------------------------------------------------- X VALERIE CAPRONI, United States District Judge: Plaintiff Paul Conti, a psychiatrist, has sued Defendant John Doe, Plaintiff’s former patient, for defamation under New York law. See First Amended Complaint (“FAC”), Dkt. 31.

Plaintiff moves for leave to amend his pleading, to add a claim for stalking under Oregon law.

See Notice of Mot., Dkt. 90. For the following reasons, Plaintiff’s motion is DENIED.

BACKGROUND The Court will assume familiarity with the facts of this case, which have been set forth in a prior opinion (the “MTD Opinion”). See MTD Opinion (Feb. 27, 2019), Dkt. 57, available at 2019 WL 952281.

Plaintiff filed this case on November 27, 2017, bringing claims for harassment and intentional infliction of emotional distress (“IIED”) under New York law. See Compl., Dkt. 13, ¶¶ 54–61. On December 27, 2017, the Court entered a case management plan and allowed the parties to begin fact discovery. See Dkt. 10. On February 7, 2018, Plaintiff filed the FAC. The FAC asserted claims for defamation and IIED under New York law and for telecommunications harassment, menacing, aggravated menacing, and menacing-by-stalking under Ohio law.

See FAC ¶¶ 54–79; MTD Opinion, 2019 WL 952281, at *2, *9 n.17 (slip op. at 4, 19 n.17).

In March and April 2018, Defendant moved to dismiss the FAC and to stay depositions of fact witnesses pending resolution of the motion to dismiss. See Dkts. 41, 50. In May 2018, while the motion to dismiss was still pending, the Court granted the motion to stay depositions of fact witnesses but ordered that all other fact discovery be completed by May 31, 2018 (other than third-party document discovery, which the Court ordered be completed by June 29, 2018).

See Dkts. 53, 56.

On February 27, 2019, the Court granted in part and denied in part Defendant’s motion to dismiss the FAC. See MTD Opinion; see also Order (Feb. 27, 2019), Dkt. 58. As relevant here, the Court dismissed Plaintiff’s Ohio-law claims, finding, after a choice-of-law analysis, that Oregon law applied to that part of Plaintiff’s case. See MTD Opinion, 2019 WL 952281, at *12 (slip op. at 26). Almost a month later, on March 22, 2019, the Court held a conference with the parties, lifted the stay on depositions of fact witnesses, and ordered that all such depositions be completed by July 31, 2019. See Dkt. 61.

Throughout the following two months, the parties deposed most of their fact witnesses.

Plaintiff deposed Defendant, and Defendant deposed at least seven non-party witnesses located in Oregon, including members of Plaintiff’s psychiatric practice, Plaintiff’s own treating physician, and Plaintiff’s wife. See Pl.’s Mem. of Law, Dkt. 92, at 5; Schalk Decl., Dkt. 91, ¶ 12; Celli Decl., Dkt. 107, ¶ 4; Schalk Reply Decl., Dkt. 127, ¶¶ 5, 8–9; Def.’s Ltr. (June 10, 2019), Dkt. 74, at 1.

On June 11, 2019, Plaintiff, for the first time, notified the Court that he intended to move for leave to file a Second Amended Complaint (“SAC”), in order to add a claim for stalking under Oregon law.1 See Ltr. (June 11, 2019), Dkt. 75; Pl.’s Mem. of Law at 6; Proposed SAC,

Schalk Decl. Ex. E. Defendant deposed Plaintiff one day later, on June 12, 2019. See Pl.’s Mem. of Law at 6.

DISCUSSION I. Standard of Review Pursuant to Federal Rule of Civil Procedure 15, “[t]he court should freely give leave” to a party to amend its pleading “when justice so requires.” Fed. R. Civ. P. 15(a)(2). “[I]t is within the sound discretion of the district court to grant or deny leave to amend.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007). A district court may deny leave to amend “for good reason, including futility, bad faith, undue delay, or undue prejudice to the opposing party.” Id. (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).2 II. Plaintiff Unduly Delayed Moving for Leave to Amend A. The Applicable Law When a party “had an opportunity to assert [an] amendment earlier” in a case but failed to do so, “a court may exercise its discretion more exactingly” in deciding whether to grant leave to amend. Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008). A district court “plainly has discretion . . . to deny leave to amend where the motion is made after an inordinate delay, no satisfactory explanation is offered for the delay, and the amendment would prejudice the defendant.” Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990); see also, e.g., McCarthy, 482 F.3d at 201; Parker v. Columbia Pictures Indus., 204 F.3d 326, 340 (2d Cir. 2000) (affirming denial of leave to amend because “[w]hen he commenced this action . . . [the plaintiff] had all the information necessary to support a breach of contract claim, and nothing he

B. Plaintiff Delayed Amending His Pleading for At Least Three Months Longer Than Necessary Plaintiff argues that until the Court ruled in the MTD Opinion that Oregon law applied to this case, he could not fairly have known of the need to amend his pleading to add a claim under Oregon law. See Pl.’s Mem. of Law at 5; Pl.’s Reply Mem. of Law, Dkt. 126, at 7–9. The Court will assume for purposes of this motion that Plaintiff could not have been expected to propose his amendment until the Court entered the MTD Opinion, on February 27, 2019.3 But Plaintiff waited until June 11, 2019, or more than three months after the Court entered that Opinion, to give notice of his proposed amendment. Those three months were critical to this case, as that is the time that Defendant conducted most of his depositions. Plaintiff offers no plausible explanation for this delay.

Plaintiff asserts that he needed these three months “to analyze the law, incorporate relevant facts, and draft the SAC.” Pl.’s Reply Mem. of Law at 9; see also Pl.’s Mem. of Law at n.2. This argument is unpersuasive. It could not reasonably have taken Plaintiff three months to research Oregon law and draft an amended pleading. The amendment does not raise any complex legal issues, see Pl.’s Mem. of Law at 8–9, and the statute underlying the proposed claim is easy to find, as it has been the subject of several recent opinions. See, e.g., M.K.F. v.

Miramontes, 352 Or. 401, 403 (2012) (en banc); Delgado v. Souders, 334 Or. 122, 141 (2002); Elkins v. City of Portland, No. 08-CV-799, 2009 WL 928686, at *5 (D. Or. Apr. 2, 2009).4 Nor could it reasonably have taken Plaintiff three months to “incorporate relevant facts” into his amended pleading. Pl.’s Reply Mem. of Law at 9. The claim proposed in the SAC, stalking, is nearly identical to claims that were alleged in the Complaint and the FAC, harassment and menacing-by-stalking (respectively). These three claims share many of the same elements, and all rely on the same general legal theory: an allegation that Defendant engaged in a course of conduct that put Plaintiff in fear for his safety. See SAC ¶¶ 62, 65; FAC ¶ 73; Compl. ¶¶ 55–56. Further, all three claims rely on the same set of operative facts: a series of emails and text messages that Defendant sent to Plaintiff between April and November 2017.

These communications were discussed extensively in Plaintiff’s first two pleadings.

See FAC ¶¶ 5–6, 35–51; Compl. ¶¶ 5–6, 35–51. In short, the facts underlying the SAC are essentially the same as those underlying the Complaint and the FAC; the SAC simply re-alleges (under a different state’s law) a claim that the Court dismissed in the MTD Opinion. It remains a mystery, then, why Plaintiff needed three months to make this change.

C. The Facts Adduced in Discovery Do Not Excuse Plaintiff’s Delay Plaintiff argues that he was unable to propose his amendment until he learned certain facts in discovery in May and June 2019, specifically, facts adduced during Defendant’s deposition, in a declaration opposing a motion for an independent medical examination (“IME”), and in certain medical records produced by one of Defendant’s treatment providers. See Pl.’s Mem. of Law at 1, 5–7; Pl.’s Reply Mem. of Law at 7–9 & n.10; Tr. of June 27, 2019 Conf., Dkt. 104, at 44–45. This argument is unpersuasive.

1. Defendant’s Deposition Testimony Plaintiff points to a number of facts that he supposedly “learned” during Defendant’s deposition, see Pl.’s Mem. of Law at 5–7, 11–12; Pl.’s Reply Mem. of Law at 9 n.10, but all were adduced or alleged in this case well before Plaintiff sought leave to file the SAC. As shown in the chart below, the facts alleged in the SAC that are drawn from Defendant’s deposition testimony were either already asserted in the FAC or produced in earlier discovery: Similar Allegation in the FAC or in Allegation in the SAC Prior Discovery Defendant “enlisted” an unnamed The same rabbi “secretly delivered . . . rabbi to “procure” Xanax for him in unprescribed, illicit Xanax” to Israel. (SAC ¶ 27(a)). Defendant in the United States. (FAC ¶ 27(a)).

Defendant “struck” one of his Defendant “punch[ed] an employee in employees after the employee’s dog the face after the employee’s dog “interacted” with Defendant’s dog. showed dominant behavior over (SAC ¶ 27(d); see also id. ¶ 53(a)). [Defendant’s] dog.” (FAC ¶ 27(d)).

Defendant intended his 2017 emails In an April 2017 email, Plaintiff told and text messages to “alarm and Defendant’s parents that Defendant “is coerce” Plaintiff. (SAC ¶ 53). willing to lie, to threaten, and to be as Defendant sent the emails and text hurtful as possible.” (Schalk Decl. Ex C messages because he wanted to at PC000269). Defendant’s mother “hurt” Plaintiff and to make Plaintiff responded that Defendant has made a feel “shame.” (Id. ¶ 53(a)). “calculated attack” on Plaintiff in order to make Plaintiff feel “vulnerable and exposed.” (Id. at PC000267).5 Defendant “has poor impulse control Defendant “verbally and profanely and lashes out at others who he feels insult[s] and threaten[s] his parents and have shamed him,” including others around him.” (FAC ¶ 16(a)).

Plaintiff and Defendant’s parents. (SAC ¶ 53(a)).

Defendant told his mother that she Defendant subjected his mother to a was “sick” and made other “constant barrage of profane insults” disparaging remarks to her. (FAC ¶ 22). (SAC ¶ 53(a)).

Defendant “has engaged in illegal Defendant obtained “unprescribed, illicit conduct,” including purchasing Xanax” on at least one occasion.

Xanax without a prescription and (FAC ¶ 27(a)). Defendant “stole in borrowing more than $1 million excess of $1 million from his parents” from a “loan shark” in order to feed and told a therapist that he obtained his gambling addiction. funds for gambling from “individuals to (SAC ¶ 53(b)). whom he alluded as being members of organized crime.” (Id. ¶ 27(b)).

Defendant “comes from a world of Defendant “was born into a life of unimaginable wealth and has vast incredible luxury. He is a son of one of financial resources at his the wealthiest families” in the area in disposal . . . .” (SAC ¶ 53(c)).6 which he lives. (FAC ¶ 3). He has “gambl[ed] away millions of dollars.” (Id. ¶ 20). He lives an “extravagant lifestyle,” which includes “a private jet and unlimited cash.” (Id. ¶ 27(c)).

As set forth above, none of the facts adduced during Defendant’s deposition that are alleged in the SAC was unknown to Plaintiff earlier in this case; the deposition, therefore, does not excuse Plaintiff’s three-month delay.

2. Declaration Opposing Defendant’s Motion for an IME On May 29, 2019, Plaintiff submitted to the Court a declaration in opposition to Defendant’s motion to conduct an IME. See Schalk Decl. Ex. A; Pl.’s Decl., Dkt. 99. The declaration asserted that Defendant’s 2017 emails and text messages caused Plaintiff ongoing anxiety, even though they were sent two years prior, because patients with personality disorders often present an “escalating threat” over time. Pl.’s Reply Mem. of Law at 5–6 (quoting Schalk The SAC includes other allegations that detail the ways in which Defendant “has vast financial resources at his disposal.” SAC ¶ 53(c). Although many of these details were not alleged in the Complaint or the FAC, they are entirely cumulative. The overarching point that Defendant is extremely wealthy was indisputably known to Plaintiff at the outset of this litigation.

Decl. Ex. A ¶ 8). According to the declaration, patients “are often reined in by their family members” early in the treatment process, but family members’ “vigilance” gradually decreases, making the patient more dangerous over time. Id. Plaintiff asserts that the concept of an “escalating threat” is critical to his proposed stalking claim, inasmuch as the claim requires him to prove that his fear of Defendant is objectively reasonable. See Pl.’s Mem. of Law at 2–3, 12–14; Pl.’s Reply Mem. of Law at 5–6.

According to Plaintiff, the escalating-threat concept was not “raised” in this case until he submitted his May 29, 2019 declaration opposing the motion for an IME. Pl.’s Reply Mem. of Law at 5–6; see also See Pl.’s Mem. of Law at 2–3, 12–14. Plaintiff, therefore, argues that he could not have amended his pleading earlier than May 29, 2019, the date that this issue was first “raised.” Pl.’s Reply Mem. of Law at 6; see also Pl.’s Mem. of Law at 2–3, 12–14.

This argument is absolute nonsense. The assertions in Plaintiff’s declaration about an “escalating threat” arise out of his expertise as a psychiatrist; there is no reason, therefore, that the assertions could not have been added to his pleading earlier in this case. Essentially, Plaintiff argues that he was unable to rely on his own expertise and personal knowledge to amend his pleading until he shared that knowledge with the Court and Defendant in a formal declaration.

That argument defies logic. Furthermore, taking the FAC’s allegations as true, it is clear that Defendant’s family never “reined” him in, as the FAC is replete with allegations that the family “enable[d] him” and “took no action” to make him “feel the consequences of his . . . misconduct.” FAC ¶¶ 27, 27(a); see also id. ¶¶ 9, 29. This argument, in short, is frivolous.7

3. Medical Records On June 21, 2019, medical records were produced to Plaintiff from one of Defendant’s treatment providers. See Pl.’s Mem. of Law at 6; Schalk Decl. ¶ 5; id. Ex. B. The records show that, in late 2018, Defendant reported to his doctors that he had engaged in “homicidal ideation” about Plaintiff. Schalk Decl. Ex. B at DEF000934. Plaintiff argues that he could not have amended his pleading before he received these documents because they, like Plaintiff’s declaration opposing the IME, show that Plaintiff’s fear of Defendant was objectively reasonable. See Pl.’s Mem. of Law at 1, 6; Tr. of June 27, 2019 Conf. at 44–45.

This argument is not persuasive. Plaintiff’s stalking claim arises out of emails and text messages that Defendant sent in mid-2017. To state the claim, Plaintiff would need to allege, among other things, that these communications caused him alarm and that this alarm was objectively reasonable. See Pl.’s Mem. of Law at 8. But whether Defendant harbored homicidal ideations in 2018 says nothing about whether Plaintiff’s fear in 2017—more than a year earlier— was objectively reasonable. To be sure, the ideations could be probative of the reasonableness of Plaintiff’s ongoing fear from Defendant’s 2017 communications, if there were evidence that Plaintiff experienced fear as late as 2018 and 2019, but that evidence was not necessary to state the stalking claim in the first instance. It is, therefore, is not a valid excuse for Plaintiff’s three- month delay.

Moreover, prior to the time that these records were produced, Plaintiff already had ample evidence of the objective reasonableness of his alleged fear. In opposing Defendant’s motion to dismiss the FAC, for example, Plaintiff argued that he “had good reason to be fearful of Defendant’s violent tendencies” because of Defendant’s alleged history of violence, drug abuse, lack of “impulse control,” and “ties to organized crime.” Pl.’s Mem. of Law in Opp. to Def.’s Mot. to Dismiss (Apr. 13, 2018), Dkt. 47, at 1; see also id. at 24 (“[Defendant’s] access to unlimited funds and his ties to organized crime provided [Plaintiff] with an eminently reasonable basis to fear that [Defendant] would follow through on his threats.”). At best, the medical records bolstered—marginally—what was already a plausible inference; they in no way excuse Plaintiff’s three-month delay.8 For all these reasons, none of Plaintiff’s excuses for waiting more than three months after entry of the MTD Opinion to move for leave to amend is persuasive. That weighs heavily against granting leave to amend.

III. Defendant Would Be Prejudiced by Plaintiff’s Amendment A. The Applicable Law A court may deny leave to amend if the amendment would cause undue prejudice to the non-moving party. McCarthy, 482 F.3d at 200 (citing Forman, 371 U.S. at 182). “In gauging prejudice,” a court may consider “whether an amendment would require the opponent to expend significant additional resources to conduct discovery and prepare for trial or significantly delay the resolution of the dispute.” Ruotolo, 514 F.3d at 192 (internal quotation marks omitted); see also, e.g., Werking v. Andrews, 526 F. App’x 94, 96–97 (2d Cir. 2013). A court may also consider whether “the amendment substantially changes the theory on which the case has been proceeding,” 6 Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Fed. Prac. & Proc.

Civ. § 1487 (3d ed.), or, alternatively, whether “the new claims are related to the existing ones,” United States ex rel. Raffington v. Bon Secours Health Sys., Inc., 285 F. Supp. 3d 759, 766

B. Plaintiff’s Amendment Would Require a Do-Over of Fact Depositions In the MTD Opinion, the Court dismissed all claims in the FAC except for common-law libel. See MTD Opinion, 2019 WL 952281, at *13 (slip op. at 28–29); FAC ¶¶ 54–58.

Defendant, therefore, deposed his fact witnesses on the assumption that he was defending against “a libel case—and a libel case only.” Def.’s Mem. of Law, Dkt. 106, at 2; see also Tr. of June 27, 2019 Conf. at 41–43. That assumption was understandable: the live claims in a pleading provide a defendant with notice of the grounds upon which the plaintiff’s case rests; “[h]aving received such notice, a defendant may conduct his trial preparation accordingly and is not required . . . to anticipate future claims that a plaintiff might intend to pursue.” McCarthy, 482 F.3d at 201–02 (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512–14 (2002)).

Defending against a stalking claim is entirely different than defending against a libel claim. Although both claims seek damages for Plaintiff’s alleged emotional distress, they allege emotional distress resulting from different causes (for libel, defamatory statements; for stalking, unwanted contacts). Further, unlike the libel claim, the stalking claim requires that any emotional distress that Plaintiff experienced be objectively reasonable. And Plaintiff’s alleged fear is an element of liability for stalking, whereas it is only a form of damages for libel; the issue, therefore, merits greater attention when raised in the context of stalking.9 Permitting Plaintiff to amend would, therefore, require significant additional discovery.

Defendant represents that, had the stalking claim been timely pleaded, he would have asked members of Plaintiff’s psychiatric practice in-depth questions designed to explore the

IV. Plaintiff’s Conduct Evinces a Dilatory Motive Leave to amend may be denied if the movant’s delay in seeking the amendment was the result of a “dilatory motive.” Ruotolo, 514 F.3d at 191 (quoting Foman, 371 U.S. at 182).

A movant, for example, who “delay[s] seeking [an] amendment to secure some kind of tactical advantage” may properly be denied leave to amend. Zeller v. PDC Corp., No. 13-CV-5035, 2015 WL 1223719, at *2 (E.D.N.Y. Mar. 17, 2015); see also State Trading Corp. of India, Ltd. v. Assuranceforeningen Skuld, 921 F.2d 409, 418 (2d Cir. 1990); Millgard Corp. v. E.E.

Cruz/Nab/Frontier-Kemper, E.E. Curz & Co., No. 99-CV-2952, 2002 WL 31812710, at *5 (S.D.N.Y. Dec. 12, 2002) (collecting cases).

Plaintiff’s conduct smacks of game-playing. During the time that Defendant’s motion to dismiss was under the Court’s consideration, depositions of fact witnesses were stayed.

See Dkt. 53. Those depositions remained stayed until March 22, 2019, or nearly a month after the Court ruled on Defendant’s motion. See Dkt. 61. If Plaintiff was truly conducting research these facts been squarely at issue in a stalking claim, it is fair to assume that Defendant would have explored them in much greater depth.

Plaintiff also argues that Defendant should have been on notice to depose all witnesses that Plaintiff identified, in early 2018, as having relevant testimony about his fear and alarm. See Pl.’s Reply Mem. of Law at 3– 4. The Court disagrees. After Plaintiff’s Ohio-law claims for menacing and menacing-by-stalking were dismissed, Defendant was entitled to assume that these witnesses were no longer relevant to the case. See McCarthy, 482 F.3d at 201–02.

Finally, Plaintiff argues that Defendant should have been on notice to conduct discovery into the elements of stalking because the FAC seeks punitive damages as part of Plaintiff’s libel claim. See Pl.’s Reply Mem. of Law at 2. This argument fails. Punitive damages for libel requires a showing of “common-law malice.” Prozeralik v. Capital Cities Commc’ns, Inc., 82 N.Y.2d 466, 479–80 (1993). That inquiry “focuses on the defendant’s mental state” in making the allegedly defamatory statements, id. (emphasis added), specifically, whether the defendant made the statements out of “hatred, ill will [or] spite,” Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 184 (2d Cir. 2000). Discovery relating to the stalking claim, on the other hand, would focus on Plaintiff’s mental state, specifically, whether Defendant’s communications caused Plaintiff to be alarmed for his safety and whether that alarm was objectively reasonable. into Oregon law and contemplating a possible amendment during this time, he could easily have notified the Court and his adversary of that possibility, in order to allow the Court to consider extending the stay of depositions until the motion for leave to amend could be decided. That would have avoided prejudicing Defendant and, therefore, made it more likely that a motion for leave to amend would have been granted. Yet while the parties attended numerous depositions, Plaintiff dropped not a hint to this Court that he might amend his pleading and fundamentally rework his theory of the case. See, e.g., Ltr. (Mar. 14, 2019), Dkt. 60, at 1 (parties’ joint status letter stating that “[nJo . . . motions are anticipated at this time” other than a motion for an IME, a motion to dismiss Defendant’s counterclaim, motions for summary judgment, and motions relating to expert discovery). And to date, Plaintiff has provided no plausible explanation for his three-month delay.

This conduct raises an inference that Plaintiff delayed proposing his amendment in order to gain a tactical advantage in this litigation. That sort of dilatory motive cuts against granting leave to amend.

CONCLUSION For all the foregoing reasons, Plaintiff's motion for leave to amend is DENIED. The Clerk of Court is respectfully directed to terminate the open motions at Dkts. 90, 93, 108.

SO ORDERED. . (6 Date: August 20, 2019 VALERIECAPRONI |” New York, New York United States District Judge