The opinion of the court was delivered by: John M. Facciola United States Magistrate Judge
Currently pending and ready for resolution is Plaintiffs' Motion for Leave to Amend Complaint [#24]. For the reasons stated herein, plaintiffs' motion will be denied.
Plaintiffs are M. Gregg Bloche, M.D. and Jonathan H. Marks, experts on bioethics. Complaint for Declaratory and Injunctive Relief ("Compl.") ¶ 3. This case arises from a series of Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 et seq.,*fn1 requests made by plaintiffs to various federal agencies. Compl. ¶ 4. In these requests, plaintiffs seek "to compel the defendants to release records relating to the participation of doctors and other healthcare professionals in the interrogation of military prisoners and individuals detained by the United States government on the basis of alleged terrorist activities." Compl. ¶ 1.
In the motion currently before the Court, plaintiffs seek to amend their complaint to add facts not known to them at the time of the filing of their initial complaint, pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure. Plaintiffs' Memorandum of Points and Authorities in Support of Motion to Amend Complaint ("Plains. Mem.") at 1. Specifically, plaintiffs seek to add to their original complaint the fact that although they resubmitted their FOIA requests to the Central Intelligence Agency ("CIA") in December of 2008, to date they have not received any documents or a response to their request. Id.
I. The Parties' Arguments
Defendants oppose plaintiffs' motion on several grounds. First, defendants argue that plaintiffs have mischaracterized their motion in that it is not a motion to amend but rather one to supplement their complaint pursuant to Rule 15(d) of the Federal Rules of Civil Procedure since it seeks to "set out events that occurred after the original complaint was filed." Defendants' Opposition to Plaintiffs' Motion to Amend the Complaint ("Defs. Opp.") at 3. As such, defendants argue that the Court should deny the motion because plaintiffs could pursue their December 2008 claims against the CIA in a separate FOIA action. Id. Next, defendants argue that they would be prejudiced if the Court were to allow plaintiffs to supplement their complaint because the claims currently before the Court, which are close to final resolution, would be delayed while the CIA processes plaintiffs' new requests. Id. at 4. Finally, defendants contend that if the Court were to allow plaintiffs to supplement their complaint, it would be akin to permitting plaintiffs to nullify the Court's November 20, 2008 Memorandum Opinion wherein the Court concluded that plaintiffs had failed to comply with FOIA regulations because the CIA never received two of plaintiffs' four requests. Id. at 5-7.
II. The Nature of Plaintiffs' Motion
Plaintiffs seek to amend their complaint pursuant to Rule 15(a)(2) of the Federal Rules of Civil Procedure, which simply states that "a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). Rule 15(d), on the other hand, as defendants argue, more aptly describes plaintiffs' objectives, namely to supplement their original complaint by "setting out any transaction, occurrence, or event that happened after the date of the pleading to be supplemented." Fed. R. Civ. P. 15(d). In their own words, plaintiffs' stated desire in seeking to "amend" the original complaint is "to reflect the resubmission [of plaintiffs' 2006 FOIA requests] and the CIA's continued failure to issue any determination or release any documents in response to these requests." Plains. Mem. at 1. Plaintiffs' motion is clearly, therefore, one that seeks supplementation rather than amendment. See Hall v. CIA, 437 F.3d 94, 100 (D.C. Cir. 2006) ("The addition of a new FOIA request is plainly a supplemental pleading as defined by Federal Rule of Civil Procedure 15(d)."). The next question is whether there is any significance to this distinction.
III. Supplementation Would Cause Undue Delay
In Aftergood v. CIA, 225 F. Supp. 2d 27 (D.D.C. 2002), the Court described the various factors to be considered when assessing a party's motion to supplement its complaint:
A party may file supplemental pleadings "setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Fed. R. Civ. P. 15(d). Supplemental pleadings may introduce new causes of action not alleged in the original complaint so long as their introduction does not create surprise or prejudice the rights of the adverse party. Montgomery Envtl. Coalition v. Fri, 366 F. Supp. 261, 265-66 (D.D.C. 1973). Moreover, "leave to file a supplemental pleading should be freely permitted when the supplemental facts connect it to the original pleading." Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). Finally, the purpose of pleading "is to facilitate a proper decision on the merits" and avoid the dismissal of potentially meritorious claims due to procedural missteps. Conley v. Gibson, 355 U.S. 41, 48, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). Id. at 30.
In Aftergood, the Court allowed the complaint to be supplemented inter alia because discovery had not yet begun. Id. at 31. A similar decision was rendered by the Court in Judicial Watch, Inc. v. U.S. Dep't of Energy, 191 F. Supp. 2d 138 (D.D.C. 2002). In that case, the Court permitted the plaintiff to supplement its complaint because at the time plaintiff sought leave to supplement, plaintiff still had not received responses to its FOIA requests from three of the nine targeted agencies. Id. at 140. In the case at bar, however, although supplementation of the complaint would not create any undue surprise for defendants and although the supplemental facts are clearly connected to the original pleading, the parties are close to final resolution of the case, less than one month shy of the filing of dispositive motions. The only remaining production in this case is the submission of the CIA's Vaughn*fn2 Index, which is due by May 15, 2009. See Memorandum ...