Thomas v. ConAgra Foods, Inc.

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NEW YORK

CAROL THOMAS,

DECISION AND ORDER

Plaintiff,

v. 6:20-CV-06239-EAW-MJP

CONAGRA FOODS, INC., CONAGRA BRANDS,

INC., DS CONTAINERS, INC., and FULL-FILL

INDUSTRIES, LLC,

Defendants

INTRODUCTION

Plaintiff Carol Thomas (“Plaintiff”) commenced the instant action on or about April

14, 2020, asserting products liability claims for design defect, manufacturing defect, failure

to warn, non-specific defect,1 and negligence against ConAgra Foods, Inc., ConAgra

Brands, Inc., DS Containers, Inc., and Full-Fill Industries, LLC (collectively

“Defendants”), arising out of the combustion of a cooking spray can and resulting injuries

to Plaintiff. (Dkt. 1). Presently before the Court is the Report and Recommendation (the

“R&R”) issued by United States Magistrate Judge Mark W. Pedersen on April 21, 2022

(Dkt. 59), recommending that the Court deny Plaintiff’s motion to amend the complaint

1 By Decision and Order dated March 29, 2021, this Court dismissed Plaintiff’s non-

specific defect claims as to ConAgra Foods, Inc., ConAgra Brands, Inc., and Full-Fill

Industries, LLC, on the ground that they were duplicative of Plaintiff’s design defect and

manufacturing defect claims. (Dkt. 31 at 10-12). The non-specific defect claim remains

pending against DS Containers, Inc., as that defendant never properly moved to dismiss.

(See Dkt. 27).

(Dkt. 48). For the reasons set forth below, the Court adopts the R&R to the extent that it

denies Plaintiff’s motion to amend.

BACKGROUND

The Court assumes familiarity with the factual and procedural background of this

case. The Court will provide a summary of certain background information particularly

relevant to its evaluation of Plaintiff’s motion to amend and the R&R.

In the complaint, Plaintiff alleges that DS Containers, Inc., manufactured vented

DOT-2Q cooking spray cans; that Full-Fill Industries, LLC, filled, assembled, and

packaged vented DOT-2Q cooking spray cans; and that ConAgra Foods, Inc. and Conagra

Brands, Inc. sold and distributed various branded and private label cooking sprays to

retailers throughout the United States and knew that DOT-2Q vented cooking spray

containers released their contents at lower temperatures than is allowed by manufacturing

specifications and tolerances. (Dkt. 1 at ¶¶ 14, 15, 18 & 31). Plaintiff alleges that she was

burned and severely injured “by a can of Member’s Mark Cooking Spray” that Defendants

had designed, developed, manufactured, tested, assembled, labeled, filled, packaged,

marketed, sold, and distributed. (Id. at ¶ 1).

On April 22, 2021, Plaintiff’s counsel informed defense counsel by email that the

can “was not preserved, and that the product may have been labeled ‘Daily Chef’ rather

than ‘Members [sic] Mark.’” (Dkt. 54 at 3; see Dkt. 51-1 at ¶¶ 6-7). Plaintiff’s counsel

again referred to this uncertainty in an email dated May 4, 2021, which stated, “In the event

this is Daily Chef vs. Members [sic] Mark, we will seek leave to amend the complaint. I

will hold off on that until Defendants have had an opportunity to investigate further, but I

presume there would be no objection to amending the complaint.” (Dkt. 51-5 at 2).

Thereafter, the parties submitted a joint discovery plan. (Dkt. 40). Without objection from

either party, the Court adopted the parties’ proposed plan, which stipulated that motions to

amend the pleadings be filed on or before June 11, 2021. (Dkt. 41 at 2).

Defendants deposed Plaintiff on November 10, 2021, during which Plaintiff

testified that she recalled that the cooking spray can’s label read “Daily Chef” and that she

had not told anyone that the cooking spray at issue was Member’s Mark brand. (Dkt. 51-

4 at 6, 7-8; see Dkt. 59 at 2-3). On December 17, 2021, Plaintiff moved for leave to amend

the complaint. (Dkt. 48). Defendants submitted an opposition to Plaintiff’s motion on

January 14, 2022. (Dkt. 51). Plaintiff filed a reply on February 10, 2022. (Dkt. 54). On

April 21, 2022, Magistrate Judge Pedersen issued the R&R recommending that the Court

deny Plaintiff’s motion to amend the complaint. (Dkt. 59).2 On May 5, 2022, Plaintiff

timely filed objections to the R&R. (Dkt. 60). On May 19, 2022, Defendants responded

to Plaintiff’s objections. (Dkt. 61).

2 In the objections and response, the parties dispute whether Magistrate Judge

Pedersen also recommended dismissal of the complaint. (Dkt. 60 at 7-8 (Plaintiff arguing

that the recommendation to deny leave to amend was not functionally dispositive of the

merits of the entire case); Dkt. 61 at 5-7 (Defendants arguing that Plaintiff cannot prove

the allegations of her complaint and cannot continue to pursue her claims)). Although the

R&R discusses that denial of Plaintiff’s motion to amend is “functionally dispositive,”

(Dkt. 59 at 10-11), there is no recommendation that the complaint be dismissed and any

such result could only be reached after further briefing on the issue. Accordingly, the

undersigned does not view the R&R as containing any recommendation other than one to

deny Plaintiff’s request for leave to amend. In the event any request for dismissal is

pursued by Defendants, it must be done through a properly filed motion returnable before

the undersigned.

DISCUSSION

I. Objections to the Report and Recommendation

A. Legal Standard

Where a party makes specific objections to a magistrate judge’s report and

recommendation as to a dispositive issue, the district judge must “make a de novo

determination of those portions of the report or specified proposed findings or

recommendations to which objection is made.” 28 U.S.C. § 636(b)(1)(C). “The Court

reviews unobjected-to findings for clear error.” Am. Ins. Co. v. City of Jamestown, 914 F.

Supp. 2d 377, 384 (W.D.N.Y. 2012). After conducting its review, the Court may “accept,

reject, or modify, in whole or in part, the findings or recommendations made by the

magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

However, as this Court has previously recognized, authority in this Circuit supports

a conclusion that review of a motion to amend—even the denial of such a motion—is

nondispositive in nature, and thus a magistrate judge’s decision is reviewed under a clearly

erroneous or contrary to law standard, particularly where (as here) the denial is based on

procedural considerations as opposed to a futility analysis. See generally Steuben Foods,

Inc. v. GEA Process Eng’g, Inc., No. 1:12-CV-00904 EAW JJM, 2016 WL 3876644, at *1

(W.D.N.Y. July 12, 2016). Admittedly, the caselaw on the issue is not crystal clear. See

generally Lubavitch of Old Westbury, Inc. v. Inc. Vill. of Old Westbury, New York, No.

2:08-CV-5081 (DRH)(ARL), 2021 WL 4472852, at *8 (E.D.N.Y. Sept. 30, 2021); see also

Antonacci v. KJT Grp., Inc., No. 21-CV-6578L, 2022 WL 1656787, at *1 (W.D.N.Y. May

25, 2022).

Neither party has briefed the proper standard of review, and thus their filings are not

helpful to the Court’s resolution of this issue. Because the standard of review employed

does not alter the Court’s conclusion, and without resolving the issue, the Court will

undertake a de novo review.

B. The Magistrate Judge Did Not Err in His Rule 16 Analysis Where

the Motion to Amend Did Not Comply with the Scheduling Order.

Plaintiff first objects that Magistrate Judge Pedersen improperly analyzed Plaintiff’s

motion for leave to amend the complaint pursuant to Federal Rule of Civil Procedure

16(b)(4) rather than the “lenient standard” of Federal Rule of Civil Procedure 15(a)(2).

(Dkt. 60 at 2-5). Primarily, Plaintiff argues that Magistrate Judge Pedersen incorrectly

ruled that Plaintiff must show diligence in order to establish good cause without regard for

the Court’s discretion to consider other factors. (Id.). However, Magistrate Judge Pedersen

properly applied the standards of Rule 16(b)(4) and Rule 15(a)(2) in light of Plaintiff’s

noncompliance with the Court’s Scheduling Order. Furthermore, Magistrate Judge

Pedersen properly considered other relevant factors, including whether permitting

amendment would prejudice Defendants, in concluding that Plaintiff’s motion should be

denied. (See Dkt. 59 at 6-11).

Two provisions of the Federal Rules of Civil Procedure guide a court’s analysis of

a motion for leave to amend where the deadline for such motions, as set forth in a

scheduling order, has passed.3 The first is Rule 15(a)(2), which provides that once the time

3 As set forth above, the deadline in this case to file motions for leave to amend the

pleadings was June 11, 2021. (Dkt. 41 at 2). Plaintiff did not file her motion for leave to

amend until December 17, 2021, more than six months after that deadline expired.

for leave to amend as of right has expired, “a party may amend its pleading only with the

opposing party’s written consent or the court’s leave. The court should freely give leave

when justice so requires.” Fed. R. Civ. P. 15(a)(2). The second is Rule 16(b)(4), which

provides that a “schedule may be modified only for good cause and with the judge’s

consent.” Fed. R. Civ. P. 16(b)(4). “Where, as here, a scheduling order governs

amendments to the complaint, . . . the lenient standard under Rule 15(a), which provides

leave to amend shall be freely given, must be balanced against the requirement under Rule

16(b) that the Court’s scheduling order shall not be modified except upon a showing of

good cause.” Holmes v. Grubman, 568 F.3d 329, 334-35 (2d Cir. 2009) (quotations and

citations omitted). In Kassner v. 2nd Avenue Delicatessen Inc., the United States Court of

Appeals for the Second Circuit issued guidance as to the balance of Rule 15(a)(2) and Rule

16(b)(4):

The primary consideration is whether the moving party can demonstrate

diligence. It is not, however, the only consideration. The district court, in

the exercise of its discretion under Rule 16(b), also may consider other

relevant factors including, in particular, whether allowing the amendment of

the pleading at this stage of the litigation will prejudice defendants.

496 F.3d 229, 243 (2d Cir. 2007).

Courts in this District “have concluded that Kassner does not excuse the moving

party from having to demonstrate diligence in order to show ‘good cause.’” Shemendra v.

First Niagara Bank N.A., 288 F.R.D. 251, 252 (W.D.N.Y. 2012) (citing Woodworth v. Erie

Ins. Co., No. 05-CV-6344 CJS, 2009 WL 3671930, at *3 (W.D.N.Y. Oct. 29, 2009)).

When considering an untimely motion for leave to amend, district courts throughout the

Second Circuit have held that, “[t]he standards of Rule 16(b) must be met first and cannot

be short-circuited by an appeal to those of Rule 15(a).” Nairobi Holdings Ltd. v. Brown

Bros. Harriman & Co., No. 02 CIV. 1230 (LMM), 2006 WL 2242596, at *3 (S.D.N.Y.

Aug. 3, 2006) (quotation omitted); see also Engles v. Jones, 405 F. Supp. 3d 397, 407

(W.D.N.Y. 2019); Shemendra, 288 F.R.D. at 252-53 (collecting cases). This Court has

adopted this approach in cases where a party has sought leave to amend a complaint after

the deadline set by a Rule 16 scheduling order. See, e.g., Pike Co., Inc. v. Universal

Concrete Prod., Inc., No. 6:17-CV-06365 EAW, 2022 WL 2919309, at *4-6 (W.D.N.Y.

July 22, 2022); Nanjing CIC Int’l Co., Ltd. v. Schwartz, 6:20-CV-07031 EAW, 2022 WL

170606, at *8-9 (W.D.N.Y. Jan. 19, 2022). Fundamentally, it is within the Court’s

discretion to adopt such an approach. See Kassner, 496 F.3d at 243.

Plaintiff premises her objection on the theory that Magistrate Judge Pedersen found

that “this Court has no discretion to grant Plaintiff’s motion unless good cause is shown[.]”

(Dkt. 60 at 3 (citing Dkt. 59 at 10)). However, the R&R applies the appropriate legal

standard, set forth above, that is applied in this District in cases where a party seeks to

amend a pleading after the deadline. Indeed, the R&R discusses in detail Rule 15’s lenient

standard, which must be “balanced against” Rule 16(b)(4)’s “requirement that ‘a

scheduling order shall not be modified except upon a showing of good cause.’” (Dkt. 59

at 5 (citing Holmes, 568 F.3d at 334-35)). Further, the R&R noted that the Court is

permitted to “consider other relevant factors” in addition to diligence when ruling on a

motion to amend submitted outside of a scheduling order’s prescribed deadline (id. (citing

Kassner, 496 F.3d at 244)), but that “[t]hese other factors do not excuse the moving party

from demonstrating diligence” (id. (citing Engles, 405 F. Supp. 3d at 407)). A district court

has “broad discretion in determining whether to grant leave to amend.” Charter Comms.,

Inc. v. Loc. Union No. 3 Int’l Bhd. Of Elec. Workers, 338 F. Supp. 3d 242, 254 (S.D.N.Y.

2018) (quotation marks and citation omitted).

“Rule 16 requires the Court to issue a scheduling order that ‘must limit the time to

join other parties, amend the pleadings, complete discovery, and file motions.’” Titus-

Phillips v. Brit. Airways PLC, No. 20-CV-5100-EK-SJB, 2022 WL 1177306, at *2

(E.D.N.Y. Apr. 20, 2022) (quoting Fed. R. Civ. P. 16(b)(3)(A)). “By limiting the time for

amendments, the rule is designed to offer a measure of certainty in pretrial proceedings,

ensuring that ‘at some point both the parties and the pleadings will be fixed.’” Parker v.

Columbia Pictures Indus., 204 F.3d 326, 339-40 (2d Cir. 2000) (quoting Fed. R. Civ. P. 16

advisory committee’s note to 1983 amendment). “Disregarding the instructions of a

scheduling order ‘would undermine the court’s ability to control its docket, disrupt the

agreed-upon course of the litigation, and reward the indolent and the cavalier. Rule 16 was

drafted to prevent this situation.’” In re Perrigo Co. PLC Sec. Litig., No. 19CV70 (DLC),

2021 WL 517441, at *2 (S.D.N.Y. Feb. 10, 2021) (quoting Parker, 204 F.3d at 340).

Accordingly, district courts throughout this Circuit enforce adherence to scheduling orders

through application of Rule 16’s good cause standard where a party seeks to amend a

complaint after the deadline set by a scheduling order.

Although Plaintiff cites two cases from other districts in which courts have

permitted parties to amend pleadings despite their lack of diligence and their motions’

untimeliness, such a determination is at the Court’s discretion, and no facts presented

compel such a result in this case. (See Dkt. 60 at 4 (citing Charter Comms., 338 F. Supp.

3d at 257 and Coale v. Metro-North R.R. Co., No. 3:08-cv-01307 (CSH), 2009 WL

4881077, at *3 (D. Conn. Dec. 11, 2009))). As discussed in greater detail below, Plaintiff

filed her motion for leave to amend more than six months after the deadline to do so had

passed, and she did so based on knowledge that she possessed prior to the expiration of the

deadline. Thus, the analysis applied in the R&R is consistent with this Court’s application

of Rule 16(b)(4) and Rule 15(a)(2) where a party has filed a motion for leave to amend that

does not comply with a scheduling order, and the magistrate judge did not err. See, e.g.,

Nanjing, 2022 WL 170606, at *8-9.

C. The Magistrate Judge Properly Considered Prejudice to

Defendants.

Plaintiff next objects that Magistrate Judge Pedersen did not consider the lack of

prejudice to Defendants in concluding that Plaintiff had not shown good cause. (Dkt. 60

at 2). However, under the circumstances present here, it is within the Court’s discretion

whether to consider lack of prejudice to defendants. Kassner, 496 F.3d at 243 (“The

district court, in the exercise of its discretion under Rule 16(b), also may consider other

relevant factors including . . . whether allowing the amendment of the pleading at this stage

of the litigation will prejudice defendants.”). Furthermore, although the Court has no

obligation to consider lack of prejudice to defendants, Magistrate Judge Pedersen did so,

and this objection is without merit.

As discussed above, the R&R properly applied Rule 16(b)(4) analysis, determining

that Plaintiff had failed to set forth “good cause” sufficient to merit modifying the Court’s

Scheduling Order. In so doing, Magistrate Judge Pedersen assumed that even if Plaintiff

had shown that Defendants would incur no prejudice as a result of granting leave to amend

the complaint, the lack of prejudice would not outweigh Plaintiff’s failure to show that she

had exercised diligence. (Dkt. 59 at 10 (“‘[E]ven accepting’ the lack of prejudice to

Defendant, if Plaintiff cannot demonstrate diligence, she cannot satisfy ‘Rule 16’s good

cause requirement.’”) (citing Engles, 405 F. Supp 3d. at 408)). Thus, the R&R considered

lack of prejudice to Defendants in determining that Plaintiff had not set forth “good cause”

to modify the Scheduling Order, and Plaintiff’s objection is without merit. Fed. R. Civ. P.

16(b)(4).

Even assuming the lack of prejudice, as was done in the R&R, “the absence of

prejudice alone does not constitute good cause under Rule 16.” Gullo v. City of N.Y., 540

F. App’x 45, 47 (2d Cir. 2013) (summary order) (affirming denial of motion for leave to

amend where the plaintiff’s delayed three months in seeking leave to amend after learning

facts supporting new cause of action); see also Point 4 Data Corp. v. Tri-State Surgical

Supply & Equip., Ltd., No. 11 CV 726 (CBA)(RLM), 2012 WL 3306612, at *4 (E.D.N.Y.

Aug. 13, 2012) (“Although the plaintiffs continue to insist that the filing of an amended

complaint would not prejudice the defendants, lack of prejudice alone is typically

insufficient to demonstrate ‘good cause’ under Rule 16[.]”). Further, Defendants “bear[]

no burden on this motion—it is plaintiff’s burden to show good cause under Rule

16(b)(4)[.]” Villa v. Sw. Credit Sys., L.P., No. 19-CV-01701 JLS JJM, 2020 WL 3808911,

at *3 (W.D.N.Y. June 10, 2020) (quotation omitted), adopted, 2020 WL 3802936

(W.D.N.Y. July 7, 2020). The fact that Defendants did not identify any particular prejudice

in their response to Plaintiff’s motion is not dispositive—it was Plaintiff’s burden in the

first instance to demonstrate good cause. To the extent that Plaintiff directed any argument

toward showing that good cause exists, she only presented evidence that Plaintiff’s counsel

had indicated to defense counsel uncertainty as to the brand of cooking spray at issue. Such

evidence does not outweigh Plaintiff’s counsel’s lack of investigation into their client’s

personal knowledge of the facts underlying this case—facts which defense counsel

ultimately elicited through deposition testimony.

D. Plaintiff Did Not Argue Diligence Before the Magistrate

Judge and Did Not Act With Diligence in Seeking Leave to

Amend.

Plaintiff objects to Magistrate Judge Pedersen’s finding that Plaintiff did not

exercise diligence. (Dkt. 60 at 2, 5-7). However, Plaintiff did not argue that she had been

diligent in seeking to amend the complaint until her objections to the R&R. (Dkt. 60 at 2-

4; see Dkt. 48; Dkt. 54; see also Dkt. 61 at 34).4 Because she had not asserted this argument

before the magistrate judge, this Court need not consider it. See Hubbard v. Kelley, 752 F.

Supp. 2d 311, 312-313 (W.D.N.Y. 2009). However, even if she had previously argued that

she had been diligent, the facts presented to the magistrate judge do not support a finding

of diligence.

4 Plaintiff, in conclusory fashion, stated in her reply papers filed before the magistrate

judge that “even if the Court fails to find good cause, which Plaintiff contends exists, this

Court may grant leave to amend after the deadline set in a scheduling order even though

there is no showing of diligence or good cause.” (Dkt. 54 at 2-3). Aside from this passing

reference to the existence of good cause, Plaintiff did not assert explicitly or implicitly or

present evidence supporting a finding that she had been diligent. Indeed, Plaintiff appears

to concede that she was not diligent. (See id. at 3 (“Defendants tellingly do not argue that

they are prejudiced in any way by any lack of diligence in amending the complaint.”)).

“In this . . . circuit, it is established law that a district judge will not consider new

arguments raised in objections to a magistrate judge’s report and recommendation that

could have been raised before the magistrate but were not.” Hubbard, 752 F. Supp. 2d at

312-13 (W.D.N.Y. 2009) (citing Illis v. Artus, No. 06-CV-3077, 2009 WL 2730870, at *1

(E.D.N.Y. June 22, 2009)); see also Pierce v. Mance, No. 08 Civ. 4736, 2009 WL 1754904,

at *1 (S.D.N.Y June 22, 2009) (“Rule 72(b) does not provide that new claims may be raised

in objections to a report and recommendation. Moreover, since new claims may not be

raised properly at this late juncture, the petitioner’s new claims, presented in the form of,

or along with, ‘objections,’ should be dismissed.”); cf. Wesley v. Alexander, No. 99 Civ.

2168(LAK), 2005 WL 1352593, at *6 (S.D.N.Y June 8, 2005) (“[A]lthough 28 U.S.C.

§636(b)(1) authorizes a district court to receive additional evidence on appeal from a

magistrate judge’s decision, such a step is disfavored absent ‘a most compelling reason’ to

do so.” (quoting Housing Works, Inc. v. Turner, 362 F. Supp. 2d 434, 438 (S.D.N.Y.

2005))).

In addition, Local Rule of Civil Procedure 72(c) mandates that “[a]ny party filing

objections to a Magistrate Judge’s order or recommended disposition must include . . . a

written statement either certifying that the objections do not raise new legal/factual

arguments, or identifying the new arguments and explaining why they were not raised to

the Magistrate Judge.” L. R. Civ. P. 72(c). At a minimum, Local Rule 72(c) required

Plaintiff to identify any new arguments and explain why the argument was not raised to

the magistrate judge. Plaintiff certified that no new legal or factual arguments were raised

in her objections. (Dkt. 60-1 at ¶ 4). Therefore, the Court need not consider the argument

that she had been diligent.

Even if the Court were to consider Plaintiff’s argument that she had been diligent in

seeking to amend the complaint, the facts presented do not support such a finding.

Although Plaintiff had not previously argued that she was diligent, she relies on facts that

were presented to the magistrate judge in support of her argument that Defendants would

incur no prejudice as a result of amending the complaint. (Compare Dkt. 54 at 3-5 with

Dkt. 60 at 5-7). Plaintiff’s objection rests on the theories that she was diligent because her

counsel had conveyed to Defendants that the cooking spray at issue may have been Daily

Chef brand and that her counsel attempted to learn conclusively from Defendants that the

can was Daily Chef brand in order to amend the complaint. (Dkt. 60 at 5-7).

Neither of these theories demonstrates that Plaintiff was diligent in seeking to

amend the complaint. Although Plaintiff expected that defense counsel would investigate

and determine which brand of cooking spray was at issue (id. at 5-6), defense counsel had

no obligation to assist counsel in obtaining this information in order to amend the

complaint. Even assuming Defendants learned in the course of discovery that the cooking

spray at issue was Daily Chef rather than Member’s Mark, this does not address Plaintiff’s

failure to timely amend the complaint. Accepting, for the sake of argument, that there was

“uncertainty” as to the correct brand of the cooking spray at issue (Dkt. 60 at 2), Plaintiff

need not have conclusively determined that the brand of cooking spray at issue was indeed

Daily Chef in order to amend the complaint. Plaintiff could have simply pleaded that

Member’s Mark or that, in the alternative, Daily Chef was the brand at issue. Similarly,

instead Plaintiff could have sought an extension of time for filing motions to amend to

account for the perceived need to further investigate the issue. Plaintiff took neither course

of action—instead, simply waiting until well after expiration of the deadline for seeking to

amend the complaint to pursue such relief.

The record presented to the magistrate judge indicates that Plaintiff knew that Daily

Chef cooking spray was the brand at issue well in advance of the deadline to file an

amended complaint. Although Plaintiff notes that her answer to an interrogatory indicated

some lack of clarity (id. at 6; Dkt. 51-2 at 3), her deposition testimony was unambiguous

(Dkt. 51-4 at 6-8). Plaintiff testified at her deposition that she always knew that the cooking

spray was Daily Chef and that she had never heard of Member’s Mark. (Id.; see also Dkt.

59 at 3; Dkt. 61 at 4). Plaintiff’s counsel appears not to have elicited this information from

Plaintiff prior to defense counsel having done so at Plaintiff’s deposition. “A party is not

considered to have acted diligently where the proposed amendment is based on information

that the party knew, or should have known, in advance of the motion deadline.” Wade v.

Kay Jewelers, Inc., No. 3:17-CV-990 (MPS), 2018 WL 3553340, at *1 (D. Conn. July 24,

2018). Accordingly, Plaintiff’s citation to Enzymotec Ltd. v. NBTY, Inc. is misplaced. See

754 F. Supp. 2d 527, 537 (E.D.N.Y. 2010) (finding diligence and permitting amendment

of complaint where new information was discovered). It is clear from Plaintiff’s deposition

testimony, that Plaintiff knew the brand of the cooking spray involved in her alleged injury

even before the filing of the complaint. (See Dkt. 51-4 at 6-8). Thus there was no new

information discovered that had not previously been available to Plaintiff that would

warrant leave to amend. At the very least, Plaintiff had ample opportunity either to

investigate and determine the cooking spray brand at issue, to note the ambiguity in an

amended complaint, or to seek an extension of the deadline to amend.

Plaintiff has not set forth any argument that would support a finding of diligence in

seeking to ascertain the correct brand name or to amend the complaint. Accordingly,

Magistrate Judge Pedersen appropriately concluded that Plaintiff did not exercise

diligence. Plaintiff filed her motion for leave to amend more than six months after the

deadline for such motions had passed. (See Dkt. 41 at 2). Plaintiff cannot simply ignore

the deadlines set forth in the court’s Scheduling Order, and Plaintiff's untimely motion for

leave to amend the complaint is denied.°

CONCLUSION

For the foregoing reasons, the Court adopts the R&R (Dkt. 59) to the extent it denies

Plaintiff's motion to amend the complaint (Dkt. 48).

SO ORDERED.

LIZABETH A/WOKEORD/

ief_ Lrdge

United States District Court

Dated: August 26, 2022

Rochester, New York

5 Because the Court denies Plaintiff leave to amend the complaint, the Court declines

to rule on Defendants’ alternative argument that Plaintiff's proposed amendments do not

relate back for statute of limitations purposes. (See Dkt. 51 at 5-6, 13-17; Dkt. 61 at 7).

-15-