Page 76 - RICHERT VS. SORKIN THEFT OF THE AMERICAN PRESIDENT AND THE WEST WING

that plaintiffs' claims shoul<l be recharacterized as a DFR action and dismissed as untimely 2 Having already had one opportunity to plead a DFR claim in the face ofpreemption arguments,
plajntilfs are not entitled to another.
More impo art, leave to add a DFR claim should be denied because the amendment
would be futile. In determining whether leave to amend should be granted under Federal Rule of Civil Procedure 15(a), the Coufi must consider the iutility of the proposed amendment.
Milanese v. Rust-Oleum Corp.,244 F.3d 104, 110 (2d Cir. 2001). "An amendment willbe futile if the proposed claim could tot withsland a motion to dismiss pursuant to Rule 120)(6) " Doughetty v. Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83,88 (2d Cir. 2002) Futility will bc fouDd ifthe statute oflimifations has run on the proposed new claim. -Fr1C v. connor, 2oF.3d 1376, 1385 (5'n Cir. 199a).
In our opening papers, we argued that plaintiffs' claims, reoharacterizcd as a DFR actiol, are untimely under fhe applicable six-month statute of limitations IWGA Mot atl1-13]. Citing "judicial efficiency," plaintilfs have responded to the timeliness argument in their Opposition [see Opp. at 16-21]. Thc timeliness issue has thus been fully addressed and is ripe lor decision. As wo show bclow, plaintiffs' DFR claim accrued, and the six-month statute oflimitations began to run, no later than November 1995.
B. Plaintiffs' DFR Claim Accrued. at the Latest. in November 1995.
Plaintiffs' response to the timeliness argument is a muddle. At several points in the Opposilion they advert to the doctrine of "tolling" and suggest, without citing legal authority, that the limitations pe od should be tolled "where as hcre the tortfeasor hides his conduct" [Opp. at 22l see also Opp. at 181. Elsewhere, they seem to rely on a delayed discovery theory. ln the
? l he WGA defendants' letter is aftached as Appendix A to the memorandum filed in supporl of this motioll.
4