12-3277-cv
Werking v. Andrews

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING
A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
3rd day of May, two thousand thirteen.

Present:
         AMALYA L. KEARSE,
         ROBERT A. KATZMANN,
         CHRISTOPHER F. DRONEY,
                       Circuit Judges.
________________________________________________

MICHAEL A. WERKING,

           Plaintiff-Appellant,

                  v.                                            No. 12-3277-cv

MICHAEL ANDREWS, COUNTY OF ULSTER,
NEW YORK, the ULSTER COUNTY SHERIFF’S
DEPARTMENT, and WILLIAM WEISHAUPT,

           Defendants-Appellees.

________________________________________________

For Plaintiff-Appellant:          ROBERT N. ISSEKS, Middletown, NY (Kevin D. Bloom, Bloom
                                  & Bloom, P.C., New Windsor, NY, on the brief).

For Defendants-Appellees:         ERIC M. KURTZ, Cook, Netter, Cloonan, Kurtz, & Murphy
                                  P.C., Kingston, NY.
      Appeal from the United States District Court for the District of Northern District of New
York (McAvoy, J.)

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Michael Werking appeals from a judgment of the United States

District Court for the Northern District of New York (McAvoy, J.), which granted summary

judgment to the Defendants-Appellees on Werking’s claims for false arrest and malicious

prosecution and denied Werking’s motion to amend his complaint. On appeal, Werking

challenges only the district court’s denial of his motion to amend. In that motion, which was

filed after the parties completed discovery and the defendants had filed for summary judgment,

Werking sought to assert a new claim under 42 U.S.C. § 1983 against the County of Ulster for

abuse of process as well as to add a new plaintiff and a new defendant to the action. Werking

also sought to assert a class action on behalf of all similarly situated plaintiffs. The gravamen of

his new claim is that the County systematically abuses criminal process by (1) threatening

individuals suspected of unlawfully retaining property with arrest if they refuse to relinquish the

property and (2) arresting those individuals if they refuse to comply with the ultimatum.

       “A decision to grant or deny a motion to amend is within the sound discretion of the trial

court” and “will not be overturned on appeal absent an abuse of discretion.” Krumme v.

WestPoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998) (internal citation omitted). “An abuse of

discretion may consist of an erroneous view of the law, a clearly erroneous assessment of the

facts, or a decision that cannot be located within the range of permissible decisions.” Anderson

News, L.L.C. v. American Media, Inc., 680 F.3d 162, 185 (2d Cir. 2012); see also AEP Energy

Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d 699, 725-27 (2d Cir. 2010) (“AEP


                                                 2
Energy”). We conclude that the district court did not abuse its discretion because Werking did

not demonstrate good cause for his untimely motion to amend.

       Although leave to amend a complaint generally “should be freely given in the absence of

any undue delay or prejudice,” Clay v. Martin, 509 F.2d 109, 113 (2d Cir. 1975), a party must

show “good cause” to amend his or her complaint if the motion is filed after the deadline

imposed by the district court in its scheduling order, Parker v. Columbia Pictures Indus., 204

F.3d 326, 339 (2d Cir. 2000). See also Fed. R. Civ. P. 16(b)(4). There is no dispute that

Werking’s motion to amend was untimely. He filed it approximately eight months after the

deadline set by the district court (and over a year after he filed his original complaint).

Therefore, he is required to show good cause for his failure to propose the amendment earlier in

the proceedings.

       We will find “good cause” where the moving party has demonstrated “diligence,”

Parker, 204 F.3d at 340, and the amendment would not significantly prejudice the nonmoving

party, see Kassner v. 2nd Ave. Deli. Inc., 496 F.3d 229, 244 (2d Cir. 2007). We are particularly

likely to find prejudice where the parties have already completed discovery and the defendant

has moved for summary judgment. See, e.g., AEP Energy, 626 F.3d at 726-27; Krumme, 143

F.3d at 88; Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985).

       In this case, Werking has failed to show diligence, and his proposed amendment would

substantially prejudice the defendants. Werking contends that we should excuse his late motion

because he did not learn about the County’s alleged policy of what Werking characterizes as

abusing criminal process until he deposed some of the defendants in April of 2012. However,

despite having sufficient notice of the relevant facts by April, Werking inexplicably failed to file



                                                  3
his motion to amend for another two months. In the meantime, the parties completed discovery

and the defendants moved for summary judgment. The case was quickly nearing the date set for

a potential trial. Thus, Werking’s actions hardly evince diligence.1

       Moreover, even if there were “good reason[s]” for Werking’s failure to act more quickly,

that would not be “alone sufficient to discount the significant prejudice resulting from permitting

[him] to file [his] amended complaint in light of the circumstances presented . . . and the late

stage of the litigation.” AEP Energy, 626 F.3d at 727. Werking’s proposed amendment would

not only have altered his legal theory, it would have changed the entire nature of the case by

turning it into a class action and by asserting a claim that the County had an unconstitutional

policy or custom under Monell v. Department of Social Services, 436 U.S. 658 (1978).

Moreover, he sought to add a new defendant (the County’s District Attorney) and a new plaintiff

whose claim was based on an entirely different set of operative facts.

       Even one of these changes, let alone all of them in conjunction, would have required

substantial additional discovery after the parties had just completed the discovery process. “In

other words, the impact of the proposed new claim on the existing proceedings would have been

substantial. Its assertion would undoubtedly have required the defendants to expend significant

additional resources . . . and would have significantly delayed the resolution of the dispute.”

AEP Energy, 626 F.3d at 727 (internal quotation marks and alterations omitted). The delay was

“especially prejudicial given the fact the discovery had been completed and [the defendants] had

already filed a motion for summary judgment.” Ansam Assocs., 760 F.2d at 446. For these



       1
          Additionally, while Werking may not have known about County policies until April of
2012, he certainly knew that those defendants had threatened him with arrest if he did not
relinquish a trailer to its alleged owner.

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reasons, Werking did not have “good cause” for his untimely motion to amend, and the district

court did not abuse its discretion in denying the motion.

       Although the district court did not deny Werking’s motion on this particular ground, we

have previously held that it would be “futile to remand to the district court for it to make a

discretionary ruling” on whether a proposed amendment would be prejudicial when the

“disposition is so clearly sound” and the district court had already rejected the amendment on

other grounds. AEP Energy, 626 F.3d at 726. We think that remand would be similarly futile

here because there is no question that Werking lacked “good cause” for his proposed

amendment.2

       We have considered all of Werking’s arguments on this issue and find them to be without

merit. Accordingly, the judgment of the district court is AFFIRMED.


                                                  FOR THE COURT:
                                                  CATHERINE O’HAGAN WOLFE, CLERK




       2
         Therefore, we need not consider whether the district court was correct that Werking’s
proposed new claim lacked merit.

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