17-2653-cv
Morency v. NYU Hospitals Center


                       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
ASUMMARY ORDER@). A PARTY CITING TO 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
27th day of June, two thousand eighteen.

PRESENT:
            PIERRE N. LEVAL,
            GUIDO CALABRESI,
            DEBRA ANN LIVINGSTON,
                   Circuit Judges.
_____________________________________

MARGARET MORENCY,

                           Plaintiff-Appellant,

                  v.                                                       17-2653-cv

NYU HOSPITALS CENTER,

                           Defendant-Appellee,

1199 SEIU UNITED HEALTHCARE WORKERS EAST,

                  Defendant.
_____________________________________

For Plaintiff-Appellant:                            Peter A. Hurwitz, Law Office of Peter A.
                                                    Hurwitz, PLLC, New City, New York.

For Defendant-Appellee:                             Christie Del Rey-Cone, Cerasia & Del Rey-
                                                    Cone LLP, New York, New York.
        Appeal from a judgment of the United States District Court for the Southern District of

New York (Buchwald, J.) entered August 7, 2017.

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Plaintiff-Appellant Margaret Morency appeals from an August 7, 2017 judgment of the

United States District Court for the Southern District of New York granting Defendants’ motions

for summary judgment. From 1989 until her March 2015 termination, Morency worked as an

instrument technician at Defendant-Appellee NYU Hospitals Center (“NYUHC”). On appeal,

Morency challenges only the district court’s denial of Morency’s motion, pursuant to Federal Rule

of Civil Procedure 15(a), to amend her complaint to add a whistleblower claim against NYUHC

under New York Labor Law § 740. We assume the parties’ familiarity with the underlying facts,

the procedural history of the case, and the issues on appeal.

        “The denial of leave to amend a pleading should not be overturned absent an abuse of

discretion on the part of the district court.” Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d

442, 446 (2d Cir. 1985). A district court abuses its discretion when it “base[s] its ruling on an

erroneous view of the law or on a clearly erroneous assessment of the evidence, or render[s] a

decision that cannot be located within the range of permissible decisions.” United States v. Bove,

888 F.3d 606, 607 n.1 (2d Cir. 2018) (alterations in original) (citation and internal quotation marks

omitted).

        “Although Rule 15(a) of the Federal Rules of Civil Procedure provides that leave to amend

‘shall be freely given when justice so requires,’ it 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

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Cir. 2007). Permissible reasons to deny leave to amend include “undue delay, bad faith, futility

of the amendment, and perhaps most important, the resulting prejudice to the opposing party.”

State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir. 1981). As one example, a

district court has discretion to deny leave to amend “where the belated motion would unduly delay

the course of proceedings by . . . introducing new issues for discovery.” Grace v. Rosenstock,

228 F.3d 40, 54 (2d Cir. 2000) (citing Ansam Assocs., Inc., 760 F.2d at 446). Where a party seeks

leave to amend after a period of delay, “[t]he burden is on the party who wishes to amend to

provide a satisfactory explanation for the delay, . . . and the court is free to conclude that ignorance

of the law is an unsatisfactory excuse . . . .” Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72

(2d Cir. 1990) (internal citations omitted). “[T]he liberality with which a court grants leave to

amend does not impart to litigants the privilege of re-shaping their legal theories

endlessly . . . .” Sanders v. Thrall Car Mfg. Co., 582 F. Supp. 945, 953 (S.D.N.Y. 1983), aff’d,

730 F.2d 910 (2d Cir. 1984) (per curiam).

       Upon review, we discern no abuse of discretion in the district court’s denial of leave to

amend. Specifically, nothing in the district court’s discussion of undue delay and prejudice

amounts to an abuse of discretion.1 Under the circumstances, where nearly all of the relevant

facts giving rise to Morency’s potential whistleblower claim were or should have been peculiarly

within Morency’s possession, Morency failed to “provide a satisfactory explanation” for her nearly

13-month delay in seeking amendment. Cresswell, 922 F.2d at 72. Indeed, as the district court



1
  Because the district court’s undue delay and prejudice determinations suffice to resolve
Morency’s appeal, we need not address and thus express no view on the district court’s futility
analysis.

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observed, “[t]here is no justification for [Morency’s] counsel waiting over a year to ask [Morency]

why she believed she was terminated.”        J.A. 161.    Nor does the district court’s prejudice

determination constitute an abuse of discretion, as Morency’s whistleblower claim – first raised

the day depositions were completed at the tail end of discovery – would “introduc[e] new issues

for discovery,” Grace, 228 F.3d at 54, and force NYUHC to expend significant additional

resources, including further depositions (of Morency, her supervisors, and potentially others) and

discovery requests. In sum, in denying leave to amend, the district court did not “base[] its ruling

on an erroneous view of the law or on a clearly erroneous assessment of the evidence,” nor did it

“render[] a decision that cannot be located within the range of permissible decisions.” Bove, 888

F.3d at 607 n.1 (citation and internal quotation marks omitted).

       Accordingly, we AFFIRM the judgment of the district court.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk of Court




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