CC.1 Memorandum In Support of Intervention and Amendment of Complaint UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK [plaintiff][PLAINTIFF 1], individually and on behalf of all others similarly situated, [plaintiff]Plaintiffs, -against- [defendant]RITE AID OF NEW YORK, INC., doing business as RITE AID, RITE AID CORPORATION, [defendant]Defendants. [action]No. 08-cv-11364 (JPO)(HBP) ________________________________________ [plaintiff][PLAINTIFF 2], individually and on behalf of all others similarly situated, [plaintiff]Plaintiffs, -against- [defendant]RITE AID CORPORATION and ECKERD CORPORATION d/b/a RITE AID, [defendant]Defendants. [action]No. 11-cv-0012 (JPO)(HBP) MEMORANDUM IN SUPPORT OF PLAINTIFF [PLAINTIFF 2] AND PROPOSED INTERVENOR [PROPOSED INTERVENOR]’S MOTION FOR LEAVE TO AMEND THE COMPLAINT AND TO INTERVENE A SUBSTITUTE CLASS REPRESENTATIVE Plaintiff [plaintiff 2] (“Plaintiff” or “[plaintiff 2]”) and Proposed Intervenor [proposed intervenor] (“Proposed Intervenor” or “[proposed intervenor]”), respectfully submit this memorandum of law in support of their motion for leave to amend the Complaint pursuant to Fed. R. Civ. P. 15(a)(2) in order to intervene [proposed intervenor] under Fed. R. Civ. P. 24(b) as a substitute class representative in lieu of [plaintiff 2]. I. INTRODUCTION Plaintiff respectfully moves this Court for an Order permitting Plaintiff to file the Amended Complaint (Exhibit A to the Notice of Motion), pursuant to Fed. R. Civ. P. 15(a). Plaintiff and Proposed Intervenor also request leave to amend the pleading in order to intervene [proposed intervenor] as a substitute class representative under Fed. R. Civ. P. 24(b). This relief should be granted because leave to amend should be freely given; because there is no undue delay, bad faith or dilatory motive on the part of Plaintiff or Proposed Intervenor in seeking this relief; and because Defendants will not be unduly prejudiced by the amendment or intervention. II. BRIEF PROCEDURAL HISTORY AND FACTS Plaintiff filed his Complaint on September 1, 2010 seeking relief from Rite Aid Corporation’s (“Rite Aid” or “Defendants”) practice of failing to pay overtime wages in violation of New York Labor Law pursuant to a company policy aimed at avoiding paying overtime compensation. (Dkt. No. 1). Defendants filed a motion to dismiss on November 3, 2010, asserting that the claims in this case were already pending in this Court in Indergit. (Dkt. No. 8). On December 3, 2010, at Plaintiff’s suggestion, Judge Irizarry entered an order transferring this action to the Southern District of New York to join the Indergit and other actions. Defendants subsequently re-filed a motion to dismiss on January 18, 2011. (Dkt. No. 18). On June 23, 2011, Defendants’ motion to dismiss was referred to Magistrate Judge Pitman for a Report and Recommendation (Dkt. No. 32), which motion was rendered moot by subsequent proceedings before Judge Pitman that clarified and consolidated the status of the several parallel actions then before the Court. (Dkt. No. 34). In the summer of 2011, discovery began in this case, and among other discovery, depositions of several members of the putative class have taken place, including, as here relevant, the Proposed Intervenor’s deposition. In October 2011, Plaintiff [plaintiff 2] returned to his home country, Haiti, for an indefinite period of time because he could not find work in the United States, and in order to be with his extended family. See Declaration of Nicholas A. Migliaccio in Support of Plaintiff [plaintiff 2] and Proposed Intervenor [proposed intervenor]’s Motion for Leave to Amend the Complaint and to Intervene a Substitute Class Representative, at ¶ 2 (“Migliaccio Decl.”). Since that time, Plaintiffs’ counsel has had considerable difficulty reaching [plaintiff 2] because he does not have e-mail access, a permanent mailing address, or a permanent telephone number. Id. at ¶ 3. Indeed, most recently, [plaintiff 2] was difficult to reach when Plaintiffs’ counsel sought to schedule his deposition, which was noticed for December 8, 2011. Id. at ¶ 4. Ultimately, after discussing the matter with [plaintiff 2] and the difficulties imposed by his communication status vis-à-vis his being a class representative, [plaintiff 2] agreed to withdraw as a putative class representative pending substitution of another class representative. Id. at ¶ 5. On or about November 23, 2011, Plaintiffs’ counsel proposed substituting another class representative for [plaintiff 2] and sought Defendants’ consent to the intervention. Id. at ¶ 6. On or about November 30, 2011, Defendants declined to give their consent. Id. at ¶ 7. Proposed Intervenor [proposed intervenor] is a member of the proposed class and has already been deposed. Id. at ¶ 8. She worked as an assistant store manager for Rite Aid during the relevant class period at its store located in Lackawanna, New York, and she is willing to be substituted into this case as a party plaintiff and serve as a class representative on behalf of the class. Id. at ¶ 9. III. ARGUMENT A. LEAVE TO AMEND SHOULD BE GRANTED Federal Rule of Civil Procedure 15 governs the amendment of pleadings and provides, in relevant part, that “a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). The Supreme Court has instructed courts to “heed” this mandate, holding that amendments should be freely allowed in the absence of considerations such as undue delay, bad faith, repeated failure to cure deficiencies, undue prejudice to the opposing party, or futility of the amendment. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir. 1990) (“leave to amend shall be freely given when justice so requires”) (citing Fed. R. Civ. P. 15); Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999) (“Although the decision to grant leave to amend is within the discretion of the court, refusal to grant leave must be based on a valid ground.”). In the absence of prejudice, leave to amend is normally warranted. Clay v. Martin, 509 F.2d 109, 113 (2d Cir. 1975). Leave to amend is warranted where, as here, justice requires the amendment, and the amendment does not prejudice Defendants. First, justice, in the form of the fair ability of the putative class to have an adequate class representative present, supports the leave to amend. There is no question in this Circuit that ensuring an adequate class representative prior to a motion for class certification is a desired goal. See infra, citations at pages 6–7. And the alternative of not permitting an amendment, but, instead, requiring adjudication of [plaintiff 2]’s adequacy, would only create pure delay because, assuming all the other prerequisites for Rule 23 certification are met, it is well recognized that an otherwise adequate class should be permitted to find an adequate representative. See, e.g., In re Nat’l Australia Bank Sec. Litig., 2006 U.S. Dist. LEXIS 94163, at *11–14 (S.D.N.Y. Nov. 8, 2006) (the weight of authority holds that when a proposed class representative is found inadequate, a reasonable period of time should be afforded for a substitute to be found). Accordingly, as was held in In re Initial Pub. Offering Sec. Litig., 2008 U.S. Dist. LEXIS 38768, at *9–10 (S.D.N.Y. May 13, 2008) (internal citations omitted), as to Rule 15 motions relative to substitute class representatives: Courts have generally permitted the addition or substitution of class representatives when there is no showing of prejudice to defendants and such addition or substitution would advance the purposes served by class certification. “[T]he procedure favored by the Second Circuit” requires that “where the named plaintiff is no longer an adequate representative of the class . rather than decertifying the instant class on the ground that the named plaintiffs are no longer adequate representatives of the class, [the court should] afford[] plaintiffs’ counsel a reasonable period of time for the substitution or intervention of a new class representative.” Second, the amendment and resulting intervention will not unduly delay the proceedings because [proposed intervenor] is available as a substitution for Plaintiff, and she, in fact, has already been deposed in this case. Moreover, to the extent that Defendants desire to re-depose [proposed intervenor] on issues relating to her adequacy as a class representative that were not addressed at her prior deposition, Plaintiffs’ counsel will agree to make her available again at Defendants’ earliest convenience. Thus, there will be no delay whatsoever in the proceedings, much less undue delay. Third, Plaintiff has not acted in bad faith in seeking this amendment. As detailed above, Plaintiffs’ counsel promptly contacted Defendants to advise them that [plaintiff 2] could not continue to serve as an adequate class representative and that Plaintiff intended to seek to substitute another class representative, and sought Defendants’ consent to the intervention. Finally, Defendants will not be prejudiced by the amendment. As detailed above, [proposed intervenor] is a member of the putative class, discovery has not yet been completed, and her further deposition can easily be taken prior to the time Plaintiffs move for class certification. Further, an opposing party who has had notice of the general nature of the claim or matters asserted in the supplemental pleading from the beginning of the action will not be prejudiced by the granting of leave to file the supplemental pleading. See Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995) (“leave to file a supplemental pleading should be freely permitted when the supplemental facts connect it to the original pleading”). [Proposed intervenor] makes the same claims as [plaintiff 2]: namely that she, and the putative class, was denied overtime wages pursuant to a company policy aimed at avoiding paying overtime compensation.