Ariztegui v. Sikorsky Aircraft Corp et al

Filing 87

ORDER: Plaintiff's Motion to File a Fourth Amended Complaint [Doc. # 76] is DENIED. Signed by Judge Janet Bond Arterton on 11/17/2011. (Flagg, K.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
Juan Diego Ariztegui,
Plaintiff,

Civil No. 3:10cv672 (JBA)

v.
United Technologies International Operations, Inc.,
Defendant.

November 17, 2011

RULING ON PLAINTIFF’S MOTION TO FILE A FOURTH AMENDED COMPLAINT
Plaintiff Juan Diego Ariztegui moves [Doc. # 76] for leave to file a fourth amended
complaint against Defendants United Technologies International Operations, Inc. (“UTIO”)
and Helicopter Support, Inc. (“HSI”). Plaintiff’s claims against HSI and his CUTPA claims
were dismissed in March 2011 [Doc. # 62]. Defendants oppose and argue that Plaintiff has
failed to establish the requisite good cause for a fourth amendment of the complaint.
I.

Factual Background
On April 30, 2010 Plaintiff filed the Original Complaint [Doc. # 1] against six

defendants: UTIO, HSI, Sikorsky Aircraft Corporation (“Sikorsky”), Associated Aircraft
Group (“AAG”), Schweizer Aircraft Corporation (“Schweizer”), and Samir Mehta, asserting
claims of breach of contract, breach of the implied covenant of good faith and fair dealing,
quantum meruit, defamation, and a violation of CUTPA. On June 8, 2010, Defendants filed
a motion [Doc. # 23] for a pre–filing conference, outlining their intended motion to dismiss
the complaint. On June 28, 2010, Plaintiff filed an Amended Complaint [Doc. # 28] to
address some of the deficiencies identified in Defendants’ motion for a pre–filing
conference: Plaintiff removed AAG as a defendant and removed breach of contract and
implied covenant claims against certain Defendants.

On July 12, 2010, the Court held a telephonic pre–filing conference, during which
the Court advised Plaintiff that any further amendments to the complaint were required to
be made before Defendants filed their motion to dismiss:
The purpose of my prefiling conference is to give you that understanding of
what they intend to move on and then give you an opportunity to amend
your complaint, if you choose to, to address any of the deficiencies . . . [a]nd
the reason that I do this is so that the defendant can focus the challenges on
a finalized complaint and we can deal with the legal issues on a finalized
complaint because you will have already had the opportunity to amend
around them, if they can be amended around, and so you wouldn’t be given
a chance if the motion were granted to amend further having already had
that opportunity.
(Pre–Filing Conference Tr., Ex. A to Def.’s Opp’n [Doc. # 80] at 3:9–23.) Plaintiff’s counsel,
Mr. Headley, acknowledged that he understood the purpose of the pre–filing conference
stating: “And so if we understand . . . if we could improve the lack of clarity today in this
conference, we would be given one more opportunity to amend.” (Id. at 4:9, 4:11–13.)
On July 9, 2010 Plaintiff filed a Second Amended Complaint that added certain
factual allegations to the defamation count [Doc. # 28], and Defendants filed their
anticipated motion to dismiss on August 9, 2010. On November 2, 2010, Plaintiff sought to
amend his complaint a third time [Doc. # 45], which was granted over the Defendants’
objection [Doc. # 58]. On March 28, 2011, the Court ruled on [Doc. # 62] Defendants’
motion to dismiss, using the allegations of the Third Amended Complaint, and dismissed
all claims against Sikorsky, HSI, Schweizer, and Samir Mehta, the quantum meruit,
defamation, and CUTPA claims against UTIO, and some of the breach of contract and
implied covenant claims against UTIO:
Defendants’ Motion to Dismiss is DENIED as to Plaintiff’s breach of contract
and breach of the implied covenant claims against UTIO based on Plaintiff’s
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allegations that UTIO invoiced the [Argentine government] directly to avoid
paying Plaintiff commissions owed, and Defendants’ motion is GRANTED
as to all other claims and all other Defendants.
(Ruling on Motion to Dismiss at 23.)
Plaintiff moved for reconsideration [Doc. # 64] on the ground that the Court
overlooked allegations in the Third Amended Complaint that HSI failed to pay Plaintiff
rebates under the Independent Supplier Agreement but thereafter withdrew [Doc. # 69] his
motion for reconsideration.
On April 22, 2011, during the course of discovery, defense counsel for UTIO
acknowledged the existence of additional rebates of $20,564.96 owed to Plaintiff. (See Email
from Steven Greenspan to Tim Headley, Ex. H to Pl.’s Mot. to Amend (“Lastly, as we
discussed, unpaid HSI rebates of $20,564.96 will be sent to the same bank account we used
last time on Tuesday. . . . these are unpaid HIS [sic] rebates for products purchases by Diego.
. . [t]he spreadsheet indicates that they are ‘commissions,’ but they are in fact rebates.”))
UTIO paid Plaintiff $20,564.96 on April 26, 2011. A few months later, Defendant’s counsel
agreed that “an additional $7,073.88 plus interest is owed to Plaintiff for unpaid HSI
rebates”(see Ex. J [Doc. # 76–13] to Pl.’s Mot. to Amend), but did not pay this acknowledged
debt until two days after Plaintiff moved for leave to file a Fourth Amended Complaint to
reassert breach of contract and breach of implied covenant claims against HSI for
non–payment of rebates under the Independent Supplier Agreement [Doc. # 76–3] and a
CUTPA claim against both UTIO and HSI for misrepresentations regarding unpaid debts
identified as: (1) rebate of $7,073.88 plus interest, (2) rebate of $266.18 plus interest for
invoices associated with an order placed before the rebate agreement became effective, but
invoiced (and paid) after the agreement became effective, (3) full–time FSR commissions of
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$8,437.08, plus interest, related to field service representatives which Defendants disagree
was owed. (See Def.’s Mem. Opp’n [Doc. # 80] at 15.)
II.

Discussion
A.

Legal Standard

Leave to amend should be denied only when “there is evidence of undue delay, bad
faith, undue prejudice to the non–movant, or futility.” Milanese v. Rust-Oleum Corp., 244
F.3d 104, 110 (2d Cir. 2001) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). However,
Federal Rule of Civil Procedure 16(b) governs motions to amend the complaint when the
deadline for amendments set forth in the scheduling order has passed.1 See Lowry v. Eastman
Kodak Co., 14 Fed. Appx. 27, 30 (2d Cir. 2001). “Once the deadline for amendment in a
scheduling order has passed, leave to amend may be denied where the moving party has
failed to establish good cause.” Presbyterian Church of Sudan v. Talisman Energy, Inc., 582
F.3d 244, 267 (2d Cir. 2009). The movant bears the burden of establishing satisfactory
reasons warranting leave to amend. Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d
Cir. 2009).

1

Despite the liberal standard for amendment of a complaint under Rule
15(a),Plaintiff’s motion for leave to amend the complaint was filed after the July 19, 2010
deadline for filing amended pleadings as established by the Court’s scheduling order, and
a showing a good cause is required. See Parker v. Columbia Pictures Indus., 204 F.3d 326,
340–41 (2d Cir. 2000) (“Several circuits have ruled that the Rule 16(b) “good cause”
standard, rather than the more liberal standard of Rule 15(a), governs a motion to amend
filed after the deadline a district court has set for amending the pleadings. . . .We now join
these courts in holding that despite the lenient standard of Rule 15(a), a district court does
not abuse its discretion in denying leave to amend the pleadings after the deadline set in the
scheduling order where the moving party has failed to establish good cause. Moreover, we
agree with these courts that a finding of “good cause” depends on the diligence of the
moving party.”).
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B.

Whether Plaintiff Can Establish Good Cause to Amend his Complaint

Defendant argues that Plaintiff cannot establish good cause for amending the
complaint a fourth time because he has “had numerous opportunities to correct the
deficiencies identified with respect to HSI and the CUTPA claim but instead maintained that
the claims were adequately plead.” (Def.’s Mem. Opp’n at 9.)
In Rosner v. Star Gas Partners, L.P., the Second Circuit upheld this Court’s denial of
a motion for leave to amend a complaint after granting a motion to dismiss following a
similar pre–filing conference:
The district court gave plaintiffs–appellants the opportunity to amend the
Complaint after a pre–motion telephone conference where the defendants
described their arguments in favor of dismissal. Plaintiffs–appellants declined
to do so. Thereafter, plaintiffs–appellants did not move to amend the
Complaint after the defendants filed their briefs in support of dismissal.
Although plaintiffs–appellants informally requested leave to amend in their
motion papers, they did not submit proposed amendments or otherwise
indicate how they would correct any deficiencies in the Complaint. Under
these circumstances, it was within the district court's discretion to dismiss the
Complaint with prejudice.
344 F. App’x 642, 645 (2d Cir. 2009). Other recent Second Circuit decisions have similarly
affirmed orders from other district courts denying leave to amend where the plaintiff has
failed to correct deficiencies in earlier pleadings. See, e.g., Smugglers Notch Homeowners’
Ass’n v. Smugglers Mgmt. Co., 414 F. App’x 372, 377–28 (2d Cir. 2011) (“Moreover, as the
district court rightly noted, Homeowners received an opportunity to amend their complaint
after Smugglers' Notch filed its memorandum of law delineating inadequacies in
Homeowners' original complaint, yet still failed to state a claim. Under such circumstances,
we decline to find that the district court abused its discretion in denying Homeowners leave
to replead.”); Endovasc Ltd. v. J.P. Turner & Co., 169 F. App’x 655, 657–58 (2d Cir. 2006)
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(“Moreover, Endovasc knew that the Second Amended Complaint would serve as its “final
amended complaint” and never objected to the district court's repeated orders that
additional amendments would not be permitted. In these circumstances, the district court
did not abuse its discretion in denying leave to amend.”); see also 6 Charles Alan Wright &
Arthur R. Miller, Federal Practice & Procedure § 1487, at 643–45 (3rd ed. 2004) (“[I]f the
court determines that plaintiff has had sufficient opportunity to state a claim but has failed
to do so, leave to amend may be denied.”).
Plaintiff now attempts to amend the complaint more than six months after the
Court’s ruling on the motion to dismiss. His delay in seeking leave to amend is not explained
by newly–discovered, previously unavailable evidence (discovery cut–off has been extended
to December 1, 2011), since he became aware of the additional unpaid rebates in April 2011
and waited over five months before seeking an amendment. See Lowry v. Eastman Kodak
Co., 14 F. App’x 27, 30 (“Even assuming, as [Plaintiff] claims, he did not discover evidence
to support his new theory until February 2000, he did not seek to amend his complaint until
five months after the new evidence surfaced. Discovery had closed, and a motion for
summary judgment was pending. Given these circumstances, we find the district court did
not abuse its discretion in denying plaintiff permission to amend.”).
1.

Breach of Contract Claims Against HSI

Plaintiff seeks to reassert his breach of contract claim against HSI based on its failure
to pay rebates to Plaintiff, the same allegations contained in the Third Amended Complaint.
(See Third Am. Compl. [Doc. # 59] ¶¶ 102–104, 111–112, 114.) Plaintiff alleges that “both
UTIO and HSI failed to pay Mr. Ariztegui commissions and rebates pursuant to their
agreements,” and “by failing to pay the contractually required commissions and rebates,
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UTIO and HSI breached their contracts with Mr. Ariztegui, who is entitled to full payment
from them.” (Fourth Am. Compl. [Doc. # 76–3] ¶¶ 39–40.) Defendants argue that Plaintiff
has abandoned this claim, because he never responded to Defendants’ argument that the
claim against HSI should be dismissed, either in his opposition to the motion to dismiss, or
his surreply briefs, or at oral argument, and Plaintiff withdrew his request for
reconsideration of the Court’s dismissal of the claim from the case.
Federal courts “have the discretion to deem a claim abandoned when a defendant
moves to dismiss that claim and the plaintiff fails to address in their opposition papers
defendants’ arguments for dismissing such a claim.” Robinson v. Fischer, No. 09 Civ. 882,
2010 U.S. Dist. LEXIS 137660, *32 (S.D.N.Y. Dec. 29, 2010); see also Hanig v. Yorktown Cent.
Sch. Dist., 384 F. Supp. 2d 710, 723 (S.D.N.Y. 2005) (“Consequently, because plaintiff did not
address defendant's motion to dismiss with regard to this claim, it is deemed abandoned and
is hereby dismissed.”). Thus Mr. Ariztegui’s claims of breach of contract and breach of the
implied covenant against HSI is deemed abandoned.
Defendants also argue that Plaintiff’s proposed amendment is futile because the
damages he claims from breach of contract have been paid. Plaintiff’s only allegation of
damages against HSI in his proposed Fourth Amended Complaint is:
In that same letter of August 2, 2011, UTIO admitted, in Mr. Mueller’s letter,
that “an additional $7,073.88 plus interest is owed to Plaintiff for unpaid HSI
rebates”. As of the date of the motion to file this fourth amended complaint,
neither UTIO nor HSI has paid a penny of that amount.
(Fourth Am. Compl. ¶ 31.) Two days after Plaintiff’s motion to amend, HSI wired payment
in the amount of $9,560.75 to Plaintiff’s counsel, representing “the $7073.89 in unpaid
rebates, interest on those rebates at the rate of 3.25%, and interest on the rebates paid on

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April 26, 2011 at the rate of 3.25%.” (See October 10, 2011 Email from Jeffrey Mueller to Tim
Headley, Ex. E to Def.’s Opp’n.) Plaintiff makes no claim of additional amounts owed and
this amendment is denied on grounds of futility because the debt has been recovered against
HSI.2
As to Plaintiff’s remaining claim for damages against HSI, Defendants argue that
Plaintiff is not entitled to a rebate of $268.18 plus interest for purchase orders before the
effective date of the Independent Supplier Agreement, as the agreement became “effective
as of February 1, 2006,” and this rebate was associated with orders placed before the
agreement became effective. (See Pl.’s Mot. To Amend at 7.) Plaintiff acknowledges that the
Independent Supplier Agreement is silent on the issue of whether a rebate is owed for orders
placed before its effective date but paid after that date, but argues that any ambiguity should
be decided in favor of Mr. Ariztegui because HSI drafted the agreement. (See id. at 7–8.)
From this timing dispute, it is obvious that this particular claim could have been brought at
the outset of the case, as Plaintiff is not relying upon new information or evidence to support
this claim. Accordingly, Plaintiff’s motion to amend the complaint to belatedly add a claim
against HSI for $268.18 plus interest is denied.

2

Defendant UTIO represents that in the course of discovery, “HSI discovered that
it owed additional amounts for unpaid rebates under the Independent Supplier Agreement”
and that “[d]espite the fact that HSI had been dismissed from the case, HSI was committed
to ensuring that it make all payments owed under the Independent Supplier Agreement.”
(Def.’s Mem. Opp’n at 4–5.) On April 26, 2011 HSI wired payment for $20,564.96 in unpaid
rebates to Plaintiff’s counsel (see Ex. D to Def.’s Mem. Opp’n), and on October 7, 2011,
wired a final payment of $9560.75 (see Ex. E).
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2.

Additional Breach of Contract Claim against UTIO

Plaintiff also seeks to amend his complaint to add a claim that he is entitled to
“Full–time FSR commissions of $8,437.08, plus interest, related to recorded FSR visits to
Argentina.” (Pl.’s Mot. to Amend at 7.) This claim does not pertain to HSI, and has been the
subject of the parties’ damages discovery. The dispute over UTIO’s liability for this item of
damages will be addressed at trial. It is unnecessary to amend the complaint to particularize
it.
3.

Plaintiff’s CUTPA Claim

Finally, Plaintiff seeks to amend his complaint to again assert CUTPA claims against
defendants UTIO and HSI. Plaintiff argues that there is clear evidence that Defendants
repeatedly breached their contracts with Plaintiff, and that they “repeatedly misrepresented
whether they owed him money.”3 Previously, the Court found that Plaintiff had failed to
alleged sufficient facts to establish conduct that “falls within the penumbra of CUTPA
violations.” (Ruling at 21.) In his proposed Fourth Amended Complaint, the only new facts
alleged are, in essence, that Defendants persistently and unreasonably denied that they owed
him any more money, when in fact they did owe money, as they now concede.
47. The breaches of contract in this case involved numerous instances of
intentional misrepresentation.

3

The case cited by Plaintiff to support his claim in Plaintiff’s Memorandum in
Support of his Motion to File a Fourth Amended Complaint, IndyMac Bank, F.S.B. v. Reyad,
seems distinguishable in that there, the court held that CUTPA was violated “[b]ecause
the breaches of contract in this case involved numerous instances of intentional
misrepresentation,” including “altering, forging, and misrepresenting information on
mortgage applications and related documents.” 2006 U.S. Dist. LEXIS 55272, *16–17 (D.
Conn. July 26, 2006).
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48. The conduct of UTIO and HSI was clearly unfair in the context of
existing contract law, and was not according to "general sensibilities",
because they vehemently accused the plaintiff of bad faith, and of pursuing
meritless claims, when the defendants’ own internal records clearly showed
the opposite of their false and malicious allegations.
(Pl.’s Fourth Am. Compl. ¶¶ 47–48.)
This conduct is insufficient to state a claim under CUTPA, although it may fall
within Plaintiff’s breach of contract and breach of duty of good faith and fair dealing claims
against UTIO, and the amendment sought is therefore futile. See Phillips Indus. Serv. Corp.
v. Conn. Light & Power Co., No. 409665, 1999 Conn. Super. LEXIS 779, *7–8 (Super. Ct. Mar.
22, 1999) (“Although the plaintiff employs the word ‘misrepresentation’ in count three, the
CUTPA count, the plaintiff has failed to allege facts that indicate any substantial aggravating
circumstance.” ).4

4

Even if the facts alleged by Plaintiff were construed to claim a CUTPA violation
based on negligent misrepresentation, negligent misrepresentations alone are insufficient
under CUTPA. See Thames River Recycling v. Gallo, 50 Conn. App. 767, 786 (Conn. App.
1998); Kawanobe v. Smith, No. CV085004343S, 2009 Conn. Super. LEXIS 1709, at *9–11
(Super. Ct. June 23, 2009) (Allegations of failure to exercise diligence in presenting accurate
information, innocent misrepresentation of a material fact and negligent misrepresentation
of a material fact do not rise to the level of immoral and unscrupulous behavior that CUTPA
was enacted to combat.”)
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III.

Conclusion
Based on the foregoing, Plaintiff’s motion to file a proposed fourth amended

complaint [Doc. # 76] is DENIED.

IT IS SO ORDERED.
/s/
Janet Bond Arterton, U.S.D.J.
Dated at New Haven, Connecticut this 17th day of November, 2011.

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