Gross v. Governor, State of CT et al
ORDER denying 161 Defendant Kathleen Donovan's Motion to Strike. See attached memorandum of decision. Signed by Judge Vanessa L. Bryant on 03/24/14. (Rock, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
DANIEL GROSS, Plaintiff,
CAROLYN DEE KING IN HER CAPACITY
AS ADMINISTRATRIX OF THE ESTATE
OF DANIEL GROSS, Plaintiff
KATHLEEN DONOVAN, JONATHAN
NEWMAN, GROVE MANOR NURSING
CIVIL ACTION NO.
March 24, 2014
MEMORANDUM OF DECISION DENYING DEFENDANT DONOVAN’S MOTION TO
STRIKE [DKT. 161]
Before the court is the Motion to Strike filed by the Defendant Kathleen
Donovan (herein the “Defendant”) seeking an order striking Plaintiff’s Amended
Complaint filed on April 19, 2013 [Dkt. No. 153]. By order dated October 22, 2012,
this Court gave Plaintiff, Carolyn Dee King (“Plaintiff”), as administratrix of the
estate of Daniel Gross (“Gross”), leave to amend her complaint by November 12,
2012 [Dkt. No. 136]. By motion dated November 12, 2012 the Plaintiff sought leave
to amend her complaint and attached as an exhibit thereto the proposed
complaint. [Dkt. No. 139]. The proposed Second Amended Complaint included
statutory claims that the court had dismissed with prejudice. Id. The defendant
Grove Manor Nursing Home, Inc. filed a timely objection to the proposed Second
Amended Complaint. After considering all objections, this Court granted Plaintiff
leave to file a proposed complaint, provided that it did not include the statutory
claims that were previously dismissed with prejudice. [Dkt. 150 at 2]. Thereafter
the Plaintiff filed a Second Amended Complaint omitting the statutory claims that
were previously dismissed with prejudice, but adding three paragraphs, 146, 147,
and 148 to her claim for breach of fiduciary duty by the [Dkt. 153].
Defendant asserts that these paragraphs should be stricken for two
reasons. First Defendant argues that the second Amended Complaint was
procedurally improper and in violation of Rule 15 of the Federal Rules of Civil
Procedure because it included allegations not in the proposed complaint, which
deprived Defendant of her opportunity to object. [Dkt. 161, at 7-8]. Second, the
Defendant argues that paragraphs 146, 147, and 148 assert an additional theory of
liability under breach of fiduciary duty not in the proposed complaint. Id. at 5-6.
Both arguments are unavailing because paragraphs 146, 147, and 148 make
factual allegations that are substantively the same as those in the proposed
complaint, thus there is no material difference between the proposed complaint
and the Second Amended Complaint.
A trial court is entrusted with significant discretion to grant or deny a
motion to strike. Hollander v. Amer. Cyanamid Co., 172 F.3d 192, 198 (2d Cir.
1999), abrogated on other grounds, Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133 (2000). Such motions are generally disfavored. See Tucker v. Am.
Int’l Grp., Inc., 936 F. Supp. 2d 1, 15 (D. Conn. 2013).
It is within each trial court’s discretion to grant a party leave to amend, and
the court “should freely give leave when justice so requires.” See Fed. R. Civ. P.
15(a)(2). Reasons to deny such leave to amend include “undue delay, bad faith or
dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue
of allowance of the amendment, [and] futility of amendment.” Foman v. Davis, 371
U.S. 178, 182 (1962). “Mere delay, however, absent a showing of bad faith or
undue prejudice, does not provide a basis for a district court to deny the right to
amend.” State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d 843, 856 (2d Cir.1981)
(citations omitted). “The objective served by freely allowing amendments is to
enable a party ‘to assert matters that were overlooked or were unknown . . . at the
time . . . [of the] original complaint or answer.’" Roller Bearing Co. of Am., Inc. v.
Am. Software, Inc., 570 F. Supp. 2d 376, 383 (D. Conn. 2008) (quoting Smiga v.
Dean Witter Reynolds, Inc., 766 F.2d 698, 703 (2d Cir.1985)). “One of the most
important considerations in determining whether amendment would be
prejudicial is the degree to which it would delay the final disposition of the
action.” H.L. Hayden Co. v. Siemens Medical Systems, Inc., 112 F.R.D. 417, 419
(S.D.N.Y. 1986) (citations omitted). A proposed amendment is especially
prejudicial when discovery has already been completed and the non-movant has
already filed a motion for summary judgment. See Ansam Assoc., Inc. v. Cola
Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985). A complaint may even be
amended after the close of evidence to conform to the facts adduced at trial when
doing so will aid in presenting the merits and would not prejudice the defendant’s
action or defense on the merits as oppose to the procedure. Fed. R. Civ. P. 15(b).
Paragraph 146 states “Donovan received compensation for performing the
role of conservator,” and paragraph 147 states “Donovan’s compensation was
paid out of assets belonging to Mr. Gross.” [Dkt. 153]. The allegations in these
two paragraphs are well established in the proposed complaint, which states
“Defendant Donovan completed a ‘request for funds’ seeking to draw $35,295.83
from Gross’s reverse annuity account,” and that $27,728.25 of it was to be used
to pay Defendant’s fiduciary fees. [Dkt. 139-1, ¶¶ 103–06].
Paragraph 148 of the Second Amended Complaint states that Defendant’s
actions as fiduciary were “taken to advance her own financial interests to the
detriment of Mr. Gross.” [Dkt. 153]. This allegation is substantively the same as
allegations in the proposed complaint. For example, the proposed complaint
alleges that Defendant placed Gross in a locked ward of a nursing home, and
deprived him of his opportunity to request a hearing on his placement in the
locked ward. [Dkt. 139-1, ¶¶ 54, 57]. The proposed complaint also alleges that
Defendant conspired and colluded to prevent Gross from interacting with
attorneys other than the one appointed to him, id. ¶¶ 58, 71, 111; prevented
attorneys from Connecticut Legal Rights Project from meeting with Gross, id. ¶¶
99, 100; prohibited Gross’s interactions with his family outside the nursing home,
screened his mail, and monitored his calls and visits in the nursing home. Id. ¶¶
58, 112, 147; and that Defendant drew money from Gross’s reverse mortgage to,
in part, pay for her fiduciary fees, id. ¶ 105. The proposed complaint sufficiently
alleged that as Gross’s appointed conservator, Defendant was a fiduciary who
had a self-interest in preventing Gross’s communications with other attorneys
and his family. The Court finds that the Second Amended Complaint does not
contain any new theories of liability that were not implicitly in the proposed
complaint. In addition, as the pleadings have not been closed, discovery has not
been completed and trial is not imminent, the valid procedural objection raised by
the Defendants does not trump the policy of freely allowing amendment to
facilitate a full and final disposition of the issues arising out of the subject of the
For the foregoing reasons Defendant’s Motion to Strike is DENIED.
IT IS SO ORDERED this 24th day of March 2014.
Vanessa L. Bryant
United States District Judge
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