Rose v. Waterbury et al
ORDER granting 35 Motion to Strike the Second Amended Complaint, or in the Alternative, to Dismiss. See attached Order dismissing Plaintiff's Second Amended Complaint. Signed by Judge Vanessa L. Bryant on 07/31/13. (Rock, K.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
SHANEKA R. ROSE, as ADMINISTRATRIX
OF THE ESTATE OF MARCUS GREGORY
CITY OF WATERBURY ET AL.,
: CIVIL ACTION NO. 3:12cv291(VLB)
: JULY 31, 2013
ORDER GRANTING DEFENDANT SAINT MARY’S HOSPITAL’S MOTION TO
STRIKE THE SECOND AMENDED COMPLAINT, OR IN THE ALTERNATIVE, TO
DISMISS [DKT. 35]
Before the Court is the Defendant Saint Mary’s Hospital’s Motion to Strike
Plaintiff’s Second Amended Complaint, or in the Alternative, to Dismiss [Dkt. 35].
The Defendant seeks an order striking or dismissing Plaintiff’s Second Amended
Complaint [Dkt. 34]. As explained in more detain below, the Court dismisses
Plaintiffs’ Second Amended Complaint as it is in contravention of the Court’s
express orders, untimely, and insufficiently plead.
The Court first sets forth the history of this case as it informs the Court’s
decision here. The Plaintiff commenced this action 17 months ago, on February
29, 2012. [Dkt. 1.] Plaintiff then filed an amended complaint on March 14, 2012
before any defendant filed a responsive pleading.
[Dkt. 6.] Defendant Saint
Mary’s Hospital filed a motion to dismiss all claims plead against Saint Mary’s
Hospital on May 4, 2012. [Dkt. 14.] Defendants City of Waterbury and Adrian
Sanchez filed a partial motion to dismiss on May 14, 2012.1 Plaintiff filed a motion
to amend its complaint on March 1, 2013, while the motions to dismiss were still
pending.2 [Dkt. 28.] On March 21, 2013, the Court entered the Order granting in
part and denying in part the Defendants’ motions to dismiss. [Dkt. 30.] In the
March 21, 2013 Order, this Court ruled that Plaintiff’s false arrest, false
imprisonment, assault, battery, Section 1983, negligence, and wrongful death
claims directed at Saint Mary’s Hospital were dismissed, stating the reasons for
the ruling. [Dkt. 30.] The wrongful death and Section 1983 claims against Saint
Mary’s Hospital were dismissed without leave to replead as to do so would have
been futile. [Dkt. 30 at 13-14, 19, 21.] The Court granted Plaintiff leave to replead
the false arrest, false imprisonment, assault, battery, and negligence claims
against Saint Mary’s Hospital, consistent with the ruling, and gave the Plaintiff 21
days to file the amended complaint containing the replead claims. [Dkt. 30 at 15,
18, 21]. Plaintiff did not file the Second Amended Complaint by the deadline set
by the Court, did not file a motion for extension of time and did not seek leave of
the Court to file a second amended complaint after the deadline set by the court.
Plaintiff has not shown good cause for the failure to comply with the Court’s
Defendant Waterbury Police Department was included in the briefing on this
motion to dismiss, and was dismissed from the action as a result of this motion.
The Waterbury Police Department is no longer a party to this action. [Dkt. 30,
Mem. Of Decision Granting in Part and Denying in Part Defendants’ Motions to
Dismiss, at 20.]
Plaintiff’s March 1, 2013 Motion to Amend/Correct the Complaint was granted on
April 1, 2013. [Dkt. 33.] However, the Order granting Plaintiff’s March 1, 2013
Motion to Amend/Correct did not extend Plaintiff’s time in which to replead in
compliance with the Court’s March 21, 2013 Order on the Defendants’ motions to
dismiss, as Plaintiff was given leave to amend their complaint “in line with [the
March 21, 2013 Order].” [Dkt. 33.]
deadline. Twenty-six days after the expiration of the deadline and without leave to
do so, the Plaintiffs filed an amended complaint. [Dkt. 34.]
discussed during the July 25, 2013 status conference, the Second Amended
Complaint contains claims dismissed by the Court’s March 21, 2013 Order, in
substantially the same form in direct contravention of the Court’s dismissal
order. For example, the Second Amended Complaint repleads a wrongful death
claim against Saint Mary’s Hospital, [Dkt. 34 at 27-28], despite the fact that this
Court explicitly dismissed that claim against Saint Mary’s Hospital without leave
to replead in the Court’s March 21, 2013 Order, [Dkt. 30 at 19]. The Second
Amended Complaint also contains undifferentiated claims against parties whose
liability is predicated on different legal theories and whose duties derive from
different legal principles, resulting in a lack of clarity and particularity. Finally,
the claims are plead in hyperbolic generalities devoid of the factual content
necessary to make them plausible.
Turning to the applicable legal principles, first, a plaintiff may not amend its
complaint at will. Notably, the first federal rule of civil procedure states “[t]hese
rules govern the procedure in all civil actions and proceedings in the United
States district courts, except as stated in Rule 81 [governing special types of
proceedings not germane here]. They should be construed and administered to
secure the just, speedy, and inexpensive determination of every action and
proceeding.” Fed. R. Civ. P. 1. Under Federal Rule of Civil Procedure 15, “a party
may amend its pleading only with the opposing party’s written consent or the
court’s leave. The court should freely give leave when justice so requires.” Fed.
R. Civ. P. 15(a)(2). Thus, where a party files an amended complaint where leave or
consent is required and no leave or consent has been given, the complaint has
no legal force or effect.
It is axiomatic that the Court has the authority to manage its docket by,
among other things, setting and enforcing deadlines. Cf. Werking v. Andrews,
No. 12-3277-cv, 2013 U.S. App. LEXIS 9039, at *3 (2d Cir. May 3, 2013) (“a party
must show ‘good cause’ to amend his or her complaint if the motion is filed after
the deadline imposed by the district court in its scheduling order”) (citing Parker
v. Columbia Pictures Indus., 204 F.3d 326, 339-41 (2d Cir. 2000) (abrogated in part
on other grounds as noted in Saviano v. Town of Westport, No. 3:04-cv-522, 2011
U.S. Dist. LEXIS 112722, at *19 n.13 (D. Conn. Sept. 30, 2011))); Hunt v. CNH Am.
LLC, No. 12-1301-cv, 2013 U.S. App. LEXIS 2533, at *5-6 (2d Cir. Feb. 6, 2013).
Thus, where a party files an amended complaint where leave is required and no
leave has been given to file the complaint on the date the complaint is filed, the
untimely complaint has no legal force or effect.
To the extent such complaint has legal force and effect, “[I]t is within the
sound discretion of the district court to grant or deny leave to amend,” stripping
it of such usurped force and effect, whether because it is not authorized, untimely
or legally insufficient. McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200
(2006) (citation omitted). The Supreme Court has held that leave to amend should
be freely granted “[i]n the absence of any apparent or declared reason – such as
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, futility of the
amendment, etc.” Foman v. Davis, 371 U.S. 178, 182 (1962). These considerations
are consistent with the first and all-encompassing rule that the court secure the
just, speedy, and inexpensive determination of every action and proceeding.
Denial of leave to amend further is firmly grounded in the jurisprudence of
this circuit. See Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990)
(affirming the district court’s decision to deny plaintiff leave to amend the
complaint where plaintiff sought to amend complaint to add a new claim that
plaintiff could have alleged in the original complaint, and plaintiff had already
twice amended their complaint, and the motion to amend was made “more than
17 months after bringing suit, more than six months after filing their second
amended complaint, . . .”).
More to the point, the facts of this case support dismissal of the Plaintiff’s
Second Amended Complaint, to the extent such complaint, filed without leave of
the Court, has any legal effect. The Second Circuit's decision affirming the district
court’s decision to deny leave to amend in Gorham-DiMaggio v. Countrywide
Home Loans, Inc. 421 Fed. Appx. 97 (2d Cir. 2011), is instructive. Noting that
leave to amend should be “freely given when justice so requires,” the court
stated that it has long made clear that a district court properly denies such a
motion where it finds that the plaintiff has repeatedly failed to cure deficiencies
by amendments previously allowed, 421 Fed. Appx. At 101, citing Dougherty v.
Town of N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 87 (2d Cir. 2002). The
court upheld the denial of leave to amend where the magistrate judge determined
that the proposed amendments consisted of
word-for-word reiterations of
pleadings already dismissed by the district court, and several new causes of
action each of which failed to state a claim as a matter of law. Id. Those facts are
on all four squares with the present case. This Court dismissed claims asserted
in the first amended complaint and the Plaintiff replead the same claims in its
Second Amended Complaint in direct contravention of the Court's order granting
leave to amend. Applying the law to facts similar to those presented here, the
magistrate judge in Gorham-DiMaggio concluded that the amendment would be
“futile.” 421 Fed. Appx. at 101.
On appeal, the plaintiff in Gorham-DiMaggio did not dispute the magistrate
judge's findings, but instead, contended that the magistrate judge, rather than
denying leave to amend on these grounds, should instead have provided counsel
with instructions on how to replead properly, without identifying any authority for
the proposition that a court has no obligation to provide instructions to a
counseled litigant on how to properly plead a cause of action. Id. The appellate
court upheld the denial of leave to amend. Here, the Court provided Plaintiff with
instructions, and Plaintiff ignored the instructions. In this ruling the Court once
again provides guidance.
Additionally, Plaintiff’s Second Amended Complaint was filed 26 days after
the deadline set by the Court in its ruling on the Defendants’ motions to dismiss.
Plaintiff did not ask the Court for leave to file the amended complaint nearly one
month after the deadline set by the Court, nor did Plaintiff provide good cause for
the failure to file on time.3
For all of the above reasons, the Court grants
Defendant Saint Mary’s Hospital’s motion to dismiss Plaintiff’s untimely and
impermissible Second Amended Complaint.
The Court would be remiss if it did not note that the Second Amended
Complaint is subject to dismissal on the basis asserted by Saint Mary’s Hospital
that the claims are insufficiently plead. It is well established that a plaintiff must
plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “Threadbare recitals of the elements
of a cause of action, supported by mere conclusory statements, do not suffice.”
Id. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555). A claim will have
“facial plausibility when the plaintiff pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556); see also, AEP
Energy Services Gas Holding Co. v. Bank of America, N.A., 626 F.3d 699, 726-27
(2d Cir. 2010) (holding that leave to amend may be denied on grounds of futility if
the proposed amendment fails to state a legally cognizable claim or fails to raise
triable issues of fact) (citation omitted); Prasad v. City of New York, 370 Fed.
Appx. 163, 165 (2d Cir. 2010) (holding that it was within discretion of district court
to deny nightclub and owner further leave to amend complaint alleging violation
of First, Fourth and Fourteenth Amendments, § 1981, § 1983 and § 1985, where
Plaintiff filed a memorandum in opposition to Defendant Saint Mary’s Hospital’s
motion to strike, but did not respond to Defendant’s timeliness argument. [Dkt.
plaintiffs had already amended complaint once and failed to show that
amendment would cure defects in pleading). Under that standard, Plaintiffs must
plead claims against each defendant, or at least each category of defendants,
individually or separately with particularized facts plausibly establishing the
asserted cause of action. Any claim asserted under the Emergency Medical
Treatment and Labor Act (“EMTALA”), 42 U.S.C. 1395dd (2013), must state with
particularity the facts constituting the asserted cause of action, including the
conditions which triggered liability under the Act. Thus for example, it is
insufficient for Plaintiff to plead only that its decedent went to and was turned
away by St. Mary’s Hospital.
Instead, to make out a claim under EMTALA,
Plaintiffs must plead facts plausibly establishing that their decedent presented at
the hospital under conditions triggering a duty under that Act which was not
In recognition of the seriousness of the claims, this order of dismissal is
without prejudice to Plaintiff filing a motion for leave to amend the complaint,
provided that should Plaintiff seek to amend the complaint, it must accompany its
motion for leave to amend with the proposed third amended complaint and such
third amended complaint must comply with the Court’s prior orders and with the
applicable pleading standards, including those set forth herein. In addition, any
motion seeking leave to amend, together with the proposed third amended
complaint, must be filed with this Court not later than fourteen (14) days of the
date of this order. Thus the Court will not entertain and will summarily deny any
motion for leave to amend which is either not accompanied by a proposed third
amended complaint or which is not filed on or before August 14, 2013.
In the event that Plaintiff fails to file a motion for leave to amend the
complaint, or if a motion for leave to amend the complaint is denied, the
dismissal of the claims dismissed in the Court’s Order on the Defendants’
motions to dismiss [Dkt. 30] will stand, and the case will proceed with the
remaining parties and the claims that survived the Defendants’ motions to
If Plaintiff fails on what would be their fourth attempt to draft and seek
leave to file a complaint which conforms to the law timely, further leave to amend
would likely be deemed futile.
In addition, given the age of the case, the
nebulousness of the pleading to date, the multiplicity of complaints, the Plaintiffs’
disregard of prior Court orders, the Plaintiffs’ failure to meet the Court’s filing
deadline, the multiplicity of motions to dismiss necessitated by the foregoing
and the fact that the Defendants have been forced to litigate the case without
knowing the Plaintiff's claims for more than a year and one half, a failure to file a
legally sufficient third amended complaint timely may result in a finding of undue
prejudice to the Defendants. The Court urges the Plaintiffs to take care should
they seek to file a motion for leave to file a third amended complaint, ON OR
BEFORE AUGUST 14, 2013, and to conduct the requisite factual and legal
research prior to filing such a motion and proposed third amended complaint as
the failure to do so will likely warrant a denial of any future request for leave to do
IT IS SO ORDERED.
Hon. Vanessa L. Bryant
United States District Judge
Dated at Hartford, Connecticut: JULY 31, 2013
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