Jean-Charles v. Perlitz et al

Filing 303

ORDER denying 266 Motion to Amend/Correct; denying as moot 274 Motion for Extension of Time; granting 283 Motion to Strike; denying 296 Motion for Conference. Signed by Judge Robert N. Chatigny on 2/4/2013. (Gillenwater, J)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JOSEPH JEAN-CHARLES,

:

Plaintiff,

:

V.

:

DOUGLAS PERLITZ, et al.,

:

Defendants.

Case No. 3:11-CV-614 (RNC)

:
RULING AND ORDER

Pending are plaintiff Jesula's motion for leave to
amend his complaint pursuant to Rule 15(a)(2) (ECF No. 266),
a motion to strike the amended complaint filed by plaintiff
Michel (ECF No. 283), and a motion to compel participation
in a Rule 26(f) conference filed by these same plaintiffs
(ECF No. 296).

These motions arise in an unusual and

somewhat complicated procedural context, familiarity with
which is assumed, involving twenty-two related cases that
have been consolidated for pretrial purposes.

Defendants

contend that an agreement of counsel adopted by the Court
precludes the plaintiffs from amending their complaints and
that the plaintiffs' cases are governed by the existing Rule
26(f) scheduling order.

Plaintiffs contend that they should

be permitted to amend their complaints and put together a
new scheduling order to govern their cases.
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After careful

consideration, I agree with the defendants' position for
substantially the reasons stated in their supporting
memoranda.
Defendants argue persuasively that permitting the
amended complaints would violate the letter and spirit of
the agreement of counsel adopted by Judge Hall during the
status conference on January 9, 2012, and embodied in the
tailored scheduling order entered on April 11, 2012.

At the

status conference, it was agreed that the plaintiffs, who
already had revised their allegations several times, would
be bound by a final set of common allegations representing
their "best shot" and that the legal sufficiency of those
allegations would be tested through omnibus motions to
dismiss.

See Tr. (ECF No. 137) at 29-30.1

Pursuant to that

agreement, defendants filed omnibus motions to dismiss,
which have been argued and are ripe for decision.
Plaintiffs' counsel now seek to avoid the agreement they
entered into before Judge Hall by amending the complaints in
the Jesula and Michel cases to add new allegations common to

1

The agreement and tailored scheduling order
anticipated that the plaintiffs would have a limited
opportunity to join additional parties as substitutes for
John Does but amendments to the complaint would not be
permitted.
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all the plaintiffs concerning the liability of the
defendants.

In short, they seek to improve upon what was

supposed to be their final "best shot" after specifically
agreeing that they would not be allowed to do so.
Plaintiffs' counsel argue that Jesula and Michel cannot
be bound by an agreement made before their cases were even
filed.

However, the applicability of the agreement to the

complaints filed by plaintiffs' counsel on behalf of Jesula
and Michel is demonstrated by the joint status report filed
on July 18, 2012.

The report states:

- "The Court's initial Scheduling Order [of April
11] is in effect." ECF No. 232 at 6.
- "The parties agree that Jesula and Michel should
be consolidated before this Court for pre-trial
purposes, once returns of service have been
filed." Id. at 8.
- "The parties agree that the pending omnibus
motions to dismiss . . . should apply to Jesula
and Michel as if they had been consolidated at the
time the motions were briefed." Id.
On the basis of these representations, the Jesula and Michel
actions were consolidated with the rest of the related cases
on October 31, 2012.2
2

After the July 18 joint status report was filed,
plaintiffs filed a motion to recuse and opposed
consolidation, but only until such time as the motion to
recuse was decided. See ECF No. 251 at 2-3 ("After the
recusal issue is resolved Plaintiffs agree that it would
then be appropriate to consider consolidating this matter
with the other twenty-one civil actions stating similar
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Plaintiffs' counsel argue that Jesula and Michel are
not estopped from changing the position stated in the July
18 status report because the Court did not act on their
prior position.

But the Court did rely on the statements in

the status report in ordering that these cases be
consolidated for pretrial purposes with the rest of the
cases.

If the Jesula and Michel cases are not subject to

the omnibus motions to dismiss, nor governed by the existing
scheduling order, what was the point of the consolidation?
Plaintiffs' counsel state that there is good cause for
permitting the amendments but they have not shown that the
new allegations are necessary to correct deficiencies in the
Third Amended Complaint.

Had they shown that the new

allegations are necessary to enable the plaintiffs to state
a claim on which relief may be granted, permitting the
amendments could potentially be justified in the interests
of justice.

In the absence of such a showing, the interests

of justice are best served by enforcing the parties'
agreement.
Requiring plaintiffs' counsel to abide by their
agreement is necessary to avoid unfair prejudice to the
claims against the same Defendants."). The motion to recuse
was denied on October 24, 2012 (ECF No. 259).
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defendants.

The proposed amended complaints are not limited

to specific allegations concerning Jesula and Michel; they
add allegations applicable to the claims of all the
plaintiffs.

Defendants have already filed three motions to

dismiss and the most recent motions have been pending nearly
a year. Defendants are entitled to a ruling on the pending
motions in accordance with the agreement that was made by
counsel and approved by the Court.
Accordingly, Jesula's motion for leave to amend (ECF
No. 266) is denied, defendants' motion to strike Michel's
amended complaint (ECF No. 283) is granted, defendants'
motion for an extension of time to respond to the amended
complaints (ECF No. 274) is denied as moot, and plaintiffs'
joint motion to compel defendants' participation in a Rule
26(f) conference (ECF No. 296) is denied.
So ordered this 4th day of February 2013.

/s/RNC
Robert N. Chatigny
United Stated District Judge

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