PERRY et al v. ALEXANDER et al

Filing 155

DECISION AND ORDER denying 128 Motion to Amend. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ALAN J. PERRY, NINA PERRY,
LAURA PERRY,

)
)
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Plaintiffs
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v.
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JULIET ALEXANDER AND
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PETER TINKHAM,
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Defendants
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PETER TINKHAM AND JULIET
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ALEXANDER,
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Plaintiffs and
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Counterclaim Defendants )
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v.
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LAURA PERRY,
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Defendant and
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Counterclaim Plaintiff
)

2:15-cv-00310-JCN

DECISION AND ORDER ON DEFENDANTS’
MOTION TO AMEND ANSWER TO ASSERT COUNTERCLAIMS
This consolidated matter is before the Court on Defendant Juliet Alexander and
Peter Tinkham’s motion to amend their answers to assert counterclaims. (Motion, ECF
No. 128.) Through the motion, Defendants seek to assert an eight-count counterclaim.1
Plaintiffs oppose Defendants’ request citing in part the timing of Defendants’ motion.

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Defendants filed two separate proposed amended answers. (ECF Nos. 128-1, 128-2.)

Following a review of the parties’ submissions and after consideration of the parties’
arguments, the Court denies the motion.
Procedural History
This matter was removed to this Court on August 5, 2015.2 Following the resolution
of Plaintiffs’ motion to remand, which resolution included proceedings before the First
Circuit, the Court issued a scheduling order that established August 11, 2016, as the
deadline for amendments to the pleadings and designated October 27, 2016, as the
discovery deadline. (Order, ECF No. 32.) After the close of discovery and following the
First Circuit’s dismissal of Defendants’ interlocutory appeals (Judgment, ECF No. 84), the
Court scheduled the matter for a final pretrial conference. At the conference, held on April
7, 2017, the Court scheduled the matter for trial in June 2017. (Order, ECF No. 99.) On
May 18, 2017, Defendants moved to amend the scheduling order to re-open discovery,
which motion the Court denied. (Motion, ECF No. 104; Order, ECF No. 130.) The matter
is now set for jury selection on July 10, 2017, with trial to commence on July 31.
Discussion
Rule 15(a)(1) of the Federal Rules of Civil Procedure permits a litigant to amend a
pleading “once as a matter of course,” subject to certain time constraints. In the case of an
answer, freedom to amend without leave of court is permitted within 21 days of the date
on which the answer was filed. Fed. R. Civ. P. 15(a)(1)(A). Thereafter, leave of court is
required, though leave should be granted “freely . . . when justice so requires.” Fed. R.

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On August 30, 2016, the Court consolidated case no. 2:15-cv-310-GZS with case no. 1:12-cv-229-GZS.
(Order, ECF No. 46.) Case no. 1:12-cv-229-GZS was filed on May 18, 2012.
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Civ. P. 15(a)(2); see also Foman v. Davis, 371 U.S. 178, 182 (1962). The standard is
elevated, however, when the motion seeking leave to amend is filed after the deadline for
amendment of the pleadings found in the Court’s scheduling order. A motion to amend
that is filed beyond the scheduling order deadline requires an amendment of the scheduling
order. To obtain an amendment of the scheduling order, a party must demonstrate “good
cause.” Johnson v. Spencer Press of Maine, Inc., 211 F.R.D. 27, 30 (D. Me. 2002); El–
Hajj v. Fortis Benefits Ins. Co., 156 F. Supp. 2d 27, 34 (D. Me. 2001); Fed. R. Civ. P.
16(b)(4). A court’s decision on good cause “focuses on the diligence (or lack thereof) of
the moving party more than it does on any prejudice to the party-opponent.” Steir v. Girl
Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). “Particularly disfavored are motions to
amend whose timing prejudices the opposing party by ‘requiring a re-opening of discovery
with additional costs, a significant postponement of the trial, and a likely major alteration
in trial tactics and strategy.’” Id. (quoting Acosta–Mestre v. Hilton Int'l of P.R., Inc., 156
F.3d 49, 52 (1st Cir. 1998)). It falls to the court’s discretion whether to grant a late motion
to amend, and that discretion should be exercised on the basis of the particular facts and
circumstances of the case. Id.
The principal issue generated by Defendants’ motion is the potential impact on the
scheduled trial of claims that have been the subject of protracted litigation. Plaintiffs argue
the proposed amendments introduce new claims, which would require discovery and thus
result in a significant delay in the trial. Defendants maintain that little, if any, discovery
would be necessary because the proposed counterclaims are based on events and conduct

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that are the subject of the claims that have been litigated throughout this case. Defendants’
arguments are unpersuasive.
The proposed amendments add several new claims to Defendant Peter Tinkham’s
counterclaim,3 and add a new counterclaim plaintiff (Defendant Juliet Alexander). The
proposed amendments thus include additional substantive claims, another claimant, and
claims for additional damages. The amendments would undoubtedly result in further
discovery and a notable delay in the trial. In addition, most, if not all, of the facts upon
which Defendants rely to support their counterclaims were known to Defendants for many
months and years prior to the filing of the motion to amend. Defendants have not offered
a compelling reason for the timing of their request to assert the counterclaims. Under the
circumstances, Defendants have not demonstrated good cause to amend their answers to
assert additional counterclaims at this late stage of the proceedings.
Conclusion
Based on the foregoing analysis, the Court denies Defendants’ motion to amend
their answers to assert additional counterclaims.

/s/ John C. Nivison
U. S. Magistrate Judge
Dated this 28th day of June, 2017.

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Plaintiffs argue that Defendant Tinkham does not have any pending counterclaims because Defendant
Tinkham did not include a counterclaim in his most recent responsive pleading. (Response at 4, ECF No.
141.) Defendant Tinkham contends his counterclaims were not superseded by his subsequent filing. (Reply
at n. 2, ECF No. 145.) Because the question of whether Defendant Tinkham has a pending counterclaim is
not the subject of this motion, the Court does not address Plaintiffs’ argument in this Order.
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