Echevarria v. Utitec Inc.

Filing 71

ORDER granting 27 Motion to Amend/Correct. See attached for memorandum of decision. Signed by Judge Vanessa L. Bryant on 3/17/2017. (Hoffman, S)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF CONNECTICUT
HAYDEE ECHEVARRIA,
Plaintiff,
v.
UTITEC, INC.,
Defendant.

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CIVIL ACTION NO.
3:15-cv-1840 (VLB)
March 17, 2017

MEMORANDUM OF DECISION
GRANTING PLAINTIFF’S MOTION FOR LEAVE TO AMEND [DKT. NO. 27]
I.

Introduction
Plaintiff Haydee Echevarria filed a five count complaint alleging common

law negligent supervision, as well as sexual harassment and retaliation under
Title VII and the Connecticut Fair Employment Practices Act (“CFEPA”). She
seeks leave pursuant to Fed. R. Civ. P. 15 to amend her Complaint to clarify
several factual allegations and assert a claim of reckless supervision against the
Defendant as a result of facts learned through discovery. Defendant opposes this
motion on the grounds that Plaintiff has failed to demonstrate good cause for
seeking to amend after the scheduling order deadline, that amendment would be
futile because reckless supervision is not a recognized cause of action in
Connecticut, and that an amendment would cause Defendant prejudice. For the
reasons that follow, Plaintiff’s Motion for Leave to Amend [Dkt. No. 27] is
GRANTED.
II.

Legal Standard
If a scheduling order sets a deadline for amendment, the appropriate

standard for evaluating a motion for amend is set forth in Federal Rule of Civil
Procedure 16(b)(4), which provides that a “schedule may be modified only for
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good cause and with the judge’s consent.” See Kassner v. 2nd Avenue
Delicatessen Inc., 496 F.3d 229, 243-44 (2d Cir. 2007); Parker v. Columbia Pictures
Industries, 204 F.3d 326, 339-40 (2000). Defendant argues that because the
Court’s December 18, 2015 Order on Pretrial Deadlines set a deadline for filing
amended pleadings of February 16, 2016, and Plaintiff did not seek leave to
amend until June 15, 2016, the Court should apply the Rule 16 “good cause”
standard. [Dkt. No. 28 at 1].
The Order on Pretrial Deadlines instructs the parties to adhere to the
deadlines it sets forth “[u]nless otherwise ordered by the Judge to whom this . . .
case is assigned.” [Dkt. No. 3]. Although the Court’s March 3, 2016 Scheduling
Order, [Dkt. No. 14], does not list a specific deadline for amendment of the
pleadings, the Court adopted the parties’ Rule 26(f) report in that Order. In the
Rule 26(f) report, the parties both indicated that they had no plans to amend but
reserved their rights to do so “as facts developed during discovery warrant.”
[Dkt. No 13 at 4]. The parties’ Rule 26(f) report was filed only eight days before
the original amendment deadline, which would not leave the parties with time to
develop many facts “during discovery.” Moreover, the Rule 26(f) report specifies
that the Defendant’s Answer would not be due until February 19, 2016—three
days after the original deadline for amending the pleadings. The Court’s adoption
of the Rule 26(f) report—by which it allowed the Defendant the right to amend its
answer, and allowed the parties the right to amend after the development of facts
during discovery—is therefore incompatible with, and supersedes, the deadline
for amendment set forth in the Order on Pretrial Deadlines. Because Plaintiff filed

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its motion for leave to amend during discovery, as contemplated by the Rule 26(f)
report, the Court must evaluate Plaintiff’s motion for leave to amend using the
standard set forth in Federal Rule of Civil Procedure 15.
Pursuant to Rule 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.” Amendment is inappropriate when there is
evidence of “undue delay, bad faith or dilatory motive . . . , repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment, futility of amendment,
etc.” Forman v. Davis, 371 U.S. 178, 182 (1962). “[T]he district court has
discretion to deny leave to amend where the motion is made after an inordinate
delay, and the introduction of new claims and/or new parties would delay a
scheduled trial.” Johnson v. N.Y., 100 F.3d 941, 941 (2d Cir. 1996) (finding it
within Court’s discretion to deny motion to amend Complaint where Complaint
was filed in 1990, motion to amend was filed July 1993, and trial was scheduled
for 1994).
Within the Second Circuit, if an amendment is not futile, leave will be given
unless the non-movant establishes prejudice or bad faith. Gas Holding Co. v.
Bank of Am., N.A., 626 F.3d 699, 725-26 (2d Cir. 2010) (citing Block v. First Blood
Assocs., 988 F.2d 344, 350 (2d Cir. 1993)). Of these, prejudice to the non-movant
is the more important factor. Id. “Amendment may be prejudicial when, among
other things, it would ‘require the opponent to expend significant additional
resources to conduct discovery and prepare for trial’ or ‘significantly delay the

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resolution of the dispute.’” Id. (quoting State Teachers Ret. Bd. v. Fluor Corp.,
654 F.2d 843, 856 (2d Cir. 1981)).
III.

Discussion
Defendant argues that the Court should not grant Plaintiff leave to amend

based on futility and prejudice. In particular, Defendant argues that (1) no cause
of action for “reckless supervision” exists in Connecticut, and (2) it has “lost the
opportunity to prepare the defense witnesses on this new cause of action and to
question the plaintiff on it.” [Dkt. No. 28 at 6-9, 10-11]. The Court will address
each of these arguments in turn.
A. Undue Delay
Defendant alleges that Plaintiff's ignorance of the cause of action until
recently is not a proper reason for delay, citing Second Circuit authority
instructing that “the burden is on the party who wishes to amend to provide a
satisfactory explanation for the delay, and the court is free to conclude that
ignorance of the law is an unsatisfactory excuse.” Cresswell v. Sullivan &
Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). The Plaintiff has met her burden by
disclosing that she learned during discovery facts which she had not known
previously which support an extension of her negligence to claim a recklessness
claim. This is the very purpose of discovery—to learn facts relevant to one's
claims and defenses. Discovery of such facts is a proper basis to move to amend
a complaint be it through discovery or at trial. Stillman v. InService Am., Inc., 455
F. App’x 48, 51 (2d Cir. 2012). This is especially true where the new information

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learned through discovery is of the same general nature as the claim originally
asserted.
B. Futility
“An amendment to a pleading will be futile if a proposed claim could not
withstand a motion to dismiss pursuant to Rule 12(b)(6).” Dougherty v. Town of
N. Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). In
considering a motion to dismiss for failure to state a claim, the Court should
follow a “two-pronged approach” to evaluate the sufficiency of the complaint.
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). “A court ‘can choose to
begin by identifying pleadings that, because they are no more than conclusions,
are not entitled to the assumption of truth.’” Id. (quoting Iqbal, 556 U.S. at 679).
“At the second step, a court should determine whether the ‘well-pleaded factual
allegations,’ assumed to be true, ‘plausibly give rise to an entitlement to relief.’”
Id. (quoting Iqbal, 556 U.S. at 679). “The plausibility standard is not akin to a
probability requirement, but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quotations omitted).
Defendant does not argue that the Plaintiff’s allegations are conclusory or
incomplete. Rather, it argues that “reckless supervision” is not a viable cause of
action in Connecticut. Plaintiff concedes that reckless supervision is “a rarely
pled tort,” but identifies one Connecticut Superior Court case that specifically
examined “whether there is a common law cause of action for reckless
supervision of an employee,” and held that there was. Dewey v. Gosselin, No. CV
970571659S, 1997 WL 584710, at *2 (Conn. Super. Ct. Sept. 10, 1997) (holding that

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“there is a common law action for supervision of an employee with reckless
indifference or disregard of the rights of others, also known as reckless
supervision of an employee”). A second Connecticut case relied upon this
holding to determine that a claim for reckless supervision could also lie in a nonemployment context. See Doe v. Favreau, No. CV02393019S, 2003 WL 1477585, at
*1 (Conn. Super. Ct. Mar. 7, 2003) (citing Dewey for the proposition that “a claim
for reckless supervision of an employee was a natural extension of a claim for
negligent supervision of an employee”).
While Defendant criticizes these cases as non-binding on this Court, it has
not identified any contrary precedent—binding or otherwise—on which it argues
this Court should rely. The Defendant similarly articulates no compelling reason
why this Court should not be persuaded by Dewey, stating only that it provides
the parties and the Court insufficient guidance regarding the claim’s “proper
elements, defenses, and jury charge.” However, because the claim arises from
negligent supervision, and there are numerous other common law causes of
action that define recklessness under Connecticut law, the parties and the Court
will hardly begin from a blank slate. Plaintiff’s proposed amendment therefore is
not futile.
C. Prejudice
The Court next examines whether amendment will cause the Defendant
prejudice. It is well within the Court’s broad discretion conferred by Federal Rule
of Civil Procedure 15(b)(1) to permit amendment of a complaint, even after trial, to
conform to evidence adduced at trial so long as the defendant has ample notice

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of the claim and had within its custody and control all documents and witnesses
relevant to rebutting the claim. Stillman, 455 F. App’x at *51 (citing Cruz v. Coach
Stores, Inc., 202 F.3d 560, 569 (2d Cir. 2000)). The Defendant correctly asserts
that “the longer the period of an unexplained delay, the less will be required of
the nonmoving party in terms of a showing of prejudice.” Evans v. Syracuse City
School Dist., 704 F.2d 44, 46-47 (2d Cir. 1983) (quoting Advocat v. Nexus
Industries, Inc., 497 F. Supp. 328, 331 (D. Del. 1980)). Here Defendant has not
shown that the delay was undue; and even if it was, that principle does not
absolve the Defendant of making any showing of prejudice.
Defendant argues that it is prejudiced by Plaintiff’s request to amend her
complaint to allege that Defendant’s management was made aware of the alleged
harassment by third parties but failed to intervene and curtail the behavior.
However, Plaintiff asserts that these alleged facts emerged through the discovery
process and thus Defendant is aware of these alleged facts. Because they tend
to corroborate the claims asserted in the extant complaint, the Defendant has had
an opportunity to conduct discovery and prepare witnesses to defend against
these facts, irrespective of the legal claim they are asserted to establish.
Nonetheless Defendant argues that it has “lost the opportunity to prepare
defense witnesses on this new cause of action and to question the plaintiff on it,”
without explaining how.
The record does not identify any additional discovery or preparation the
Defendant would need to conduct. Defendant alleges only the number of
depositions the Plaintiff has taken, but does not address why those depositions,

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during which the additional information on which the Plaintiff appears to rely, was
learned were insufficient to enable it to prepare a defense. The difference
between negligence and recklessness is one of degree. The facts relevant to
both claims are categorically the same. Based on the record before the Court it
appears that Defendant has had ample notice of the facts forming the basis of the
new claim Plaintiff seeks to assert and has within its custody and control all
documents and witnesses relevant to rebutting the claim. The Court is not
persuaded that Defendant would be prejudiced by permitting the Plaintiff to file
her proposed amended complaint simply to assert claims based on facts the
existence of which emerged through the discovery process.
Second, the parties’ Joint Trial Memorandum is not due until August 1,
2017 and trial is scheduled for September 9, 2017. Should the Defendant seek to
reopen discovery promptly and persuade the Court that more discovery is
needed, the Court will promptly address the motion and should the motion be
granted there remains ample time for the parties to conduct the limited additional
discovery on the discrete facts which the Plaintiff contends extend her
negligence claim into a recklessness claim.
IV.

Conclusion
For the foregoing reasons, Plaintiff’s Motion for Leave to Amend [Dkt. No.

27] is GRANTED. Plaintiff is directed to file its Amended Complaint within 14
days.

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IT IS SO ORDERED.

_____/s/___________________
Hon. Vanessa L. Bryant
United States District Judge

Dated at Hartford, Connecticut: March 17, 2017

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