C&M PROPERTY MANAGEMENT LLC et al v. MOARK LLC
MEMORANDUM DECISION AND ORDER ON MOTION TO AMEND denying 28 Motion for Leave to File Second Amended Complaint By MAGISTRATE JUDGE JOHN H. RICH III. (lrc)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
C&M PROPERTY MANAGEMENT LLC, )
MOARK LLC, d/b/a MOARK MAINE,
MEMORANDUM DECISION AND ORDER ON MOTION TO AMEND
The plaintiff in this action arising out of the death of an employee of the defendant as a
result of the actions of an employee of the plaintiff on the defendant’s premises in Turner, Maine,
seeks leave to amend its previously amended complaint to add a claim for breach of an implied
duty of good faith and fair dealing under Connecticut law with respect to the contract between the
parties. Motion for Leave to File Second Amended Complaint (“Motion”) (ECF No. 28). Because
the plaintiff has failed to demonstrate the requisite good cause, I deny the motion.
Applicable Legal Standards
Pursuant to Federal Rule of Civil Procedure 15(a)(2), “[t]he court should freely give leave
[to amend a pleading] when justice so requires.” Fed. R. Civ. P. 15(a)(2). Leave to amend should
be granted in the absence of reasons “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 amendment,
etc. . . . .” Foman v. Davis, 371 U.S. 178, 182 (1962).
The First Circuit has explained:
A motion to amend a complaint will be treated differently depending on its timing
and the context in which it is filed. . . . As a case progresses, and the issues are
joined, the burden on a plaintiff seeking to amend a complaint becomes more
exacting. Scheduling orders, for example, typically establish a cut-off date for
amendments (as was apparently the case here). Once a scheduling order is in place,
the liberal default rule is replaced by the more demanding “good cause” standard
of Fed. R. Civ. P. 16(b). This standard focuses on the diligence (or lack thereof) of
the moving party more than it does on any prejudice to the party-opponent. Where
the motion to amend is filed after the opposing party has timely moved for summary
judgment, a plaintiff is required to show “substantial and convincing evidence” to
justify a belated attempt to amend a complaint.
Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12 (1st Cir. 2004) (citations, internal quotation
marks, and footnotes omitted).
The plaintiffs filed the motion on October 12, 2016, after the parties’ June 27, 2016,
deadline to amend pleadings and join parties, see Scheduling Order (ECF No. 17) at 2. Therefore,
the “good cause” rule applies.
The defendant opposes the motion, contending that the plaintiff cannot meet the “good
cause” standard and that the proposed amendment would be futile. Defendant’s Memorandum of
Law in Opposition to Plaintiff’s Motion to Amend (“Opposition”) (ECF No. 31) at 4-10. An
amendment is futile when “the complaint, as amended, would fail to state a claim upon which
relief could be granted.” Glassman v. Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996).
“In assessing futility, the district court must apply the standard which applies to motions to dismiss
under [Federal Rule of Civil Procedure] 12(b)(6).” Adorno v. Crowley Towing & Trans. Co., 443
F.3d 122, 126 (1st Cir. 2006).
The Supreme Court has stated:
While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need
detailed factual allegations, a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do. Factual allegations must
be enough to raise a right to relief above the speculative level.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal punctuation
omitted). This standard requires the pleading of “only enough facts to state a claim to relief that
is plausible on its face.” Id. at 570. “A claim has 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.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
In ruling on a motion to dismiss under Rule 12(b)(6), a court assumes the truth of all of the
well-pleaded facts in the complaint and draws all reasonable inferences in favor of the plaintiff.
Román-Oliveras v. Puerto Rico Elec. Power Auth., 655 F.3d 43, 45 (1st Cir. 2011).
II. Factual Background
The existing complaint alleges, in relevant part, that the defendant in 2011 assumed a
contract between the plaintiff and the defendant’s predecessor under which the plaintiff provided
rodent and pest control services at three facilities in Connecticut. First Amended Complaint (ECF
No. 10) ¶¶ 11-12. Later, the plaintiff undertook the same responsibility for the defendant’s facility
in Turner, Maine. Id. ¶ 13. The plaintiff routinely used firearms to clear unwanted animals from
the defendant’s buildings. Id. ¶ 14. On August 19, 2013, an employee of the defendant was shot
and killed at the defendant’s facility in Turner, Maine, while an employee of the plaintiff was
engaged in pest control services there. Id. ¶ 17.
The complaint alleges breach of contract, defamation and negligence, all arising out of this
event. Id. ¶¶ 19-37. The plaintiff now seeks to add a count alleging breach of the implied covenant
of good faith and fair dealing. Motion at 3.
The plaintiff contends that it only became aware that it had such a claim through the
deposition of Blair Hagy, the individual in charge of the defendant’s Turner, Maine, facility at the
relevant time. Id. at 2. The deposition was held on October 4, 2016, and the motion for leave to
amend the complaint was filed on October 12, 2016. In the motion, the plaintiff asserts that the
deposition testimony “confirms” that the defendant was aware that the plaintiff was using a firearm
for pest control, that the defendant paid for the ammunition for that firearm, that the defendant
failed to take action to protect its employees, and that the defendant terminated its contract with
the plaintiff after its employee was shot “as part of its effort to . . . escape criminal and civil liability
for” the employee’s death. Id. at 2-3.
The plaintiff does not explain why it needed to “confirm” these facts before seeking to add
another claim to its complaint. In addition, before the Hagy deposition, the existing First Amended
Complaint already alleged that the defendant knew that the plaintiff was using firearms in the
course of its duties at the defendant’s facility, First Amended Complaint ¶ 15; that the defendant
paid for the ammunition used in the firearms, id. ¶ 16; and that the defendant allegedly failed to
ensure the safety of its employees during pest control operations, id. ¶ 18. The First Amended
Complaint alleges that the defendant has not “formally terminate[d] the Contract in writing[,]” and
that it has “improperly terminated the Contract[.]” Id. ¶¶ 23-24.
This first comparison of the motion and the currently operative complaint fails to
demonstrate “good cause” for the plaintiff’s failure to include its claim for breach of the implied
covenant of good faith and fair dealing in the original or the first amended complaint. “A plaintiff
seeking to belatedly amend his complaint must support his motion with substantial and convincing
evidence.” Gardner v. Thomas, No. 1:13-cv-331-GZS, 2014 WL 916397 at *1 (D. Me. Mar. 10,
2014) (citation and internal quotation marks omitted). The plaintiff provided no such evidence
with its motion, and the evidence provided with its reply memorandum, Reply Memorandum in
Support of Motion for Leave to File Second Amended Complaint (“Reply”) (ECF No. 38), cannot
reasonably be read to undermine the conclusion that the information supporting a claim for breach
of the implied covenant of good faith and fair dealing was known to the plaintiff when it filed its
First Amended Complaint, if not before, and that the deposition testimony revealed nothing new
that was relevant to the plaintiff’s ability to bring the claim in a timely fashion. See id. The
plaintiff cites no authority for its unstated but necessarily foundational argument: that the plaintiff
was required to wait until it had “confirming” evidence to support the claim before adding it to its
The “good cause” standard “focuses on the diligence (or lack thereof) of the moving party
more than it does on any prejudice to the party-opponent.” Steir, 383 F.3d at 12. Factual
allegations that were within the plaintiff’s knowledge at the time the action was initiated cannot
serve to meet the “good cause” standard. Gardner, 2014 WL 916397 at *1.
The case law cited by the plaintiff in its reply memorandum is distinguishable. In Aventis
Pharma S.A. v. Hospira, Inc., 675 F.3d 1324, 1333 (Fed. Cir. 2012), the court assumed without
discussion that essential new evidence was discovered in the deposition at issue. In Ground Zero
Museum Workshop v. Wilson, 813 F.Supp.2d 678, 706-07 (D. Md. 2011), the court expressly found
that new evidence was included in discovery produced shortly before the motion for leave to
amend was filed, and noted that additional discovery on the new claims was available. In Ciena
Corp v. Nortel Networks Inc., 233 F.R.D. 493, 496 (E.D. Tex. 2006), the court specifically noted
that it was “not allowing Nortel to amend based on [information that Nortel had prior to the
deadline to amend] but rather on additional information Nortel acquired after the June 14
deadline.” Finally, in Wheatley v. Factory Card & Party Outlet, 826 F.3d 412, 416-17 (7th Cir.
2016), the court rejected the plaintiff’s argument that a second motion for summary judgment,
filed by the defendant after the plaintiff notified the court that she would not be calling a particular
expert witness to testify at trial, was untimely because the first motion for summary judgment was
filed nearly a year after the scheduling order deadline for doing so. The court called the argument
“too attenuated” and found that the basis for allowing the second motion -- the plaintiff’s
withdrawal of her expert witness -- was “entirely independent of the argument for the initial
summary judgment filing.”
Here, the plaintiff’s attempt to convince this court that “confirming” evidence is the same
as “newly discovered evidence,” at least when it is “discovered” after the deadline for amending
its complaint, fails in the face of the factual allegations in its own initial and amended complaints.
See generally Crowell v. Kirkpatrick, 262 F.R.D. 401, 402-03 (D. Vt. 2009). See also United
States v. Kimball, No. 2:14-cv-00521-DBH, 2016 WL 5416462, at *4 (D. Me. Sept. 28, 2016)
(failure to discover information available to plaintiff before deadline for amending pleadings does
not constitute good cause).
The plaintiff’s failure to demonstrate good cause for its tardy motion for leave to amend its
complaint makes it unnecessary to consider the defendant’s alternate argument, Opposition at 910, that the proposed amendment would be futile.
For the foregoing reasons, the motion is DENIED.
In accordance with Federal Rule of Civil Procedure 72(a), a party may serve and file
an objection to this order within fourteen (14) days after being served with a copy thereof.
Failure to file a timely objection shall constitute a waiver of the right to review by the
district court and to any further appeal of this order.
Dated this 29th day of December, 2016.
/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge
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