GABRIEL W. GORENSTEIN, United States Magistrate Judge.
Background The pro se plaintiff in this action has moved to file an amended complaint. The original complaint in this action was filed on April 19, 2001. Following proceedings on the plaintiff's request for injunctive relief, but before any defendant answered, the plaintiff on April 30, 2001, filed an amended complaint. On May 1, 2001, an Order of Reference issued referring the case to the undersigned for general pretrial purposes but not for the purpose of any dispositive motions.
On May 29, 2001, certain defendants (hereinafter, the "Citibank defendants") filed a motion to dismiss the complaint under Fed.R.Civ.P. 12(b)(6) in lieu of an answer. Following briefing, the plaintiff on July 2, 2001, moved to file an amended complaint. The amended complaint seeks to add additional defendants and makes numerous additional allegations. The Citibank defendants have opposed the motion to amend on the ground that amending the complaint would be futile because it could not survive a motion to dismiss.
Discussion Fed.R.Civ.P. 15(a) provides that "[a] party may amend the party's pleading . . . by leave of court . . . and leave shall be freely given when justice so requires." While there has not yet been a ruling on the Citibank defendants' motion to dismiss, the Second Circuit has stated that:
[a]s a matter of procedure, when a complaint is dismissed pursuant to Rule 12(b)(6) and the plaintiff requests permission to file an amended complaint, that request should ordinarily be granted. See, e.g., Branum v. Clark,
927 F.2d 698, 705 (2d Cir. 1991); Salahuddin v. Cuomo,
861 F.2d 40, 42 (2d Cir. 1988). Rule 15(a) provides that leave to amend "shall be freely given when justice so requires," Fed.R.Civ.P. 15(a); see 3 Moore's Federal Practice ¶ 15.08[4], at 15-65 (2d ed. 1991), and it is rare that such leave should be denied, see Foman v. Davis,
371 U.S. 178, 182,
83 S.Ct. 227, 230,
9 L.Ed.2d 222 (1962), especially when there has been no prior amendment.
Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).
This is not one of the "rare" cases where leave to amend should be denied. Indeed, the case for permitting amendment of the complaint is even stronger than existed in Ricciuti inasmuch as the Court has not yet ruled on the motion to dismiss. Moreover, the first complaint was filed just three months ago and the first amendment of the complaint occurred before any defendant answered. Thus, the defendants have been put to the burden of responding to only one prior complaint. If, as the defendants assert in their opposition to the present motion, the proposed amended complaint suffers from the same defects as the prior complaint, there will be very little burden on them to simply resubmit their motion to dismiss.
The defendants stress that amending the complaint is "futile," Foman v. Davis, 371 U.S. 178, 182 (1962), because the proposed amended complaint still does not state a claim for relief and thus the plaintiff's motion should be denied for this reason alone. While Ricciuti does support the proposition that leave to amend may be denied if the complaint could not withstand a motion to dismiss, id. at 123, this Court believes the better course in this case is to allow the plaintiff to file his amended complaint and let the Citibank defendants once again make their motion to dismiss. There will be no prejudice to the defendants in doing so and this procedure will more clearly put the plaintiff on notice to explain why his proposed amended complaint states a claim for relief.
Moreover, the proposed amended complaint seeks to add new defendants. While it is unclear from the proposed amended complaint whether these new defendants are ultimately the subject of a claim for relief on the merits, this Court is mindful of the Second Circuit's admonition that pro se pleadings must be liberally construed. See, e.g., Lerman v. Board of Elections, 232 F.3d 135, 140 (2d Cir. 2000). The proposed defendants will be in the best position to articulate any defenses they have to the complaint.
In sum, without opining on the merits of any of the plaintiff's claims, the Court will accept the second amended complaint for filing.
Motion for Court to Request Appointment of Counsel On April 27, 2001, the plaintiff made an application for the Court to request that counsel be appointed for him. Applying the factors set forth in Cooper v. A. Sargenti Co., 877 F.2d 170 (2d Cir. 1989), the Court denies the request on the ground there is no basis at this time to find that plaintiff's suit is of sufficient substance. This ruling is made without prejudice to a renewed motion by the plaintiff at a future date in the event that the applicability of the Cooper factors can be demonstrated.
Conclusion The second amended complaint, as annexed to the plaintiff's motion filed July 2, 2001, is ordered docketed. The Citibank defendants shall file an answer or other responsive pleading to this second amended complaint within 30 days of the date of this order. The motion to request counsel is denied.
SO ORDERED.