O'Leary et al v New Hampshire Boring, Inc., et al

Filing 83

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR LEAVE TO FILE AMENDED COMPLAINT (Dkt. No. 50) granting in part and denying in part 50 Motion to Amend. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

JASON P. O’LEARY, and RICHARD
P. LEONARD, individually and on
behalf of others similarly
situated,

No. 15-CV-12335-DLC

Plaintiffs,
v.
NEW HAMPSHIRE BORING, INC.,
THOMAS A. GARSIDE, and JAYNE F.
BURNE,
Defendants.

MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION FOR LEAVE TO FILE
AMENDED COMPLAINT (Dkt. No. 50)

CABELL, U.S.M.J.
The plaintiffs have moved for leave to amend their complaint
to add four new defendants, the Massachusetts Bay Transportation
Authority (MBTA), Nobis Engineering, Inc. (Nobis), AECOM Technical
Services, Inc. (AECOM), HNTB Corporation (HNTB), and several new
common law claims.

All of the proposed defendants received notice

and all have opposed the motion except for the MBTA, which has not
responded.

(Dkt. Nos. 53, 54).

As explained below, the motion

will be allowed in part and denied in part; the complaint may be
amended to assert a violation of M.G.L c. 149, § 27 against NHB
and all of the proposed defendants, but will otherwise be denied.

I.

RELEVANT PROCEDURAL BACKGROUND
On

August

5,

2015,

the

defendants

moved

original complaint for failure to state a claim.

to

dismiss

the

(Dkt. 13).

On

January 8, 2016, and while the motion to dismiss was pending, the
plaintiffs moved jointly to extend the deadline to file motions
seeking joinder of additional parties, third party complaints,
amendment of pleadings, and/or class certification, to 30 days
after the decision on the motion to dismiss.
granted the motion.

(Dkt. 33).

(Dkt. 32).

The court

The court ruled on the motion to

dismiss on March 31, 2016, creating a new filing deadline of May
2, 2016.

Neither party filed a motion to add new parties or claims

by that date.
On October 31, 2016, about five months later, the parties
jointly moved to extend the discovery deadline by 60 days.

The

parties also indicated that the plaintiffs intended to seek leave
to amend the complaint to add the four proposed defendants.

NHB

indicated it was likely to assent to an amendment adding the MBTA,
but expected that the plaintiff would not seek “in any way to
revive the now-expired deadline for class certification motions.”
(Dkt. No. 54).

The parties further explained that, because the

pertinent local rules required the plaintiff to first serve a
motion to amend on each of the new parties 14 days prior to filing
the motion to amend with the court, the plaintiffs would not file
the motion to amend “until mid-November, after the discovery
2

deadline.” (Dkt. 48).
joint motion.

On November 3, 2016, the court granted the

(Dkt. 49).

On November 28, 2016, and as presaged by the parties’ joint
motion, the plaintiffs moved for leave to amend the complaint.
(Dkt. 50).
remain

Counts One and Two of the proposed amended complaint

unchanged

from

the

original

complaint.

Count

Three

continues to assert a violation of the prevailing wage statute,
M.G.L. c. 149, § 27, but proposes to assert it against all of the
proposed defendants as well. Count Four asserts a claim of quantum
meruit against NHB and the four proposed defendants.

Count Five

asserts a claim of negligence against NHB and the four proposed
defendants.

Count

Six

asserts

a

claim

of

negligent

misrepresentation against the four proposed defendants.

Count

Seven asserts a claim of negligent interference with advantageous
relations against the four proposed defendants.

Finally, Count

Eight alleges a claim of civil conspiracy against NHB, Nobis, AECOM
and HNTB.
II.

LEGAL STANDARD

A party seeking to amend a complaint more than 21 days after
“service of a responsive pleading or . . . motion under Rule 12(b),
(e), or (f)” must seek leave of court to do so.
15(a).

Fed. R. Civ. P.

When deciding a motion to amend, the Court’s task is to

determine whether “justice … requires” that leave to amend be
granted, a determination that requires the Court to “examine the
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totality

of

the

circumstances

and

to

exercise

its

informed

discretion in construing a balance of pertinent considerations.”
Id; Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006).
“Reasons for denying leave [to amend] include undue delay in filing
the motion, bad faith or dilatory motive, repeated failure to cure
deficiencies, undue prejudice to the opposing party, and futility
of amendment.”

U.S. ex rel. Gange v. City of Worcester, 565 F.3d

40, 48 (1st Cir. 2009) (citing Foman v. Davis, 371 U.S. 178, 182
(1962)).
However, where a scheduling order setting out a deadline for
amendment exists, “the liberal default rule is replaced by the
more demanding ‘good cause’ standard of Fed. R. Civ. P. 16(b).”
Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004).
“This standard focuses on the diligence (or lack thereof) of the
moving party more than it does on any prejudice to the partyopponent.”

Id.

“Nonetheless, prejudice to opposing parties and

the burden on the court remain factors that the court should take
into account.”

Murphy v. Harmatz, Civil Case No. 13-CV-12839-MAP,

2016 WL 7468801, at *2 (D. Mass. Dec. 28, 2016).

To show good

cause, a party must demonstrate that despite their diligence the
deadline in the scheduling order could not be reasonably met.
House of Clean, Inc. v. St. Paul Fire and Marine Ins. Co., Inc.,
775 F. Supp. 2d 296, 298 (D. Mass. 2011).
cause

standard

is.

.

.meant

to
4

preserve

“The heightened good
the

integrity

and

effectiveness of Rule 16(b) scheduling orders.”

Kane v. Town of

Sandwich, 123 F. Supp. 3d 147, 158 (D. Mass. 2015) (internal
quotation and alteration marks omitted).
III. ANALYSIS
A. The Plaintiffs Have Been Diligent
NHB argues that the plaintiffs have not been diligent in
seeking to amend because they knew as early as April/June of 2016
of the facts underlying the proposed new claims.

NHB argues that

a diligent party would have at least sought to amend the scheduling
order when it became aware of the factual predicate for the new
claims. See Boston Scientific Corp. v. Radius Intern., L.P., Civil
Action No. 06-10184-RGS, 2008 WL 1930423, at *2 (D. Mass. May 2,
2008).

But, even assuming arguendo that the plaintiffs did not

move to amend as soon as they became aware of a basis to do so,
the court cannot say that they were not diligent.
First, it would have been impractical if not impossible to
hold the plaintiffs to the May 2, 2016 deadline.

Among other

things, the court effectively stayed discovery until after its
resolution of the motion to dismiss, which in turn delayed the
exchange of discovery potentially informing on the appropriateness
or not of seeking leave to amend the complaint.

For example, NHB

provided discovery on April 29, 2016, only three days before the
amendment deadline, indicating that certain third parties might
also

bear

potential

liability.
5

The

plaintiffs

could

not

realistically investigate that allegation over the next three days
and still comply with the amendment deadline.
In that regard, it does appear that the plaintiffs did over
the next few months investigate whether entities other than NHB
might

be

liable.

According

to

a

timeline

provided

by

the

plaintiffs, to which no party has seriously objected, the parties
sent a subpoena to the MBTA on March 21, 2016.

The MBTA produced

documents at various times but produced the bulk of them in August
2016.

On September 22, 2016, the parties deposed the MBTA’s Rule

30(b)(6) designee.

Additionally, the plaintiff sent subpoenas to

AECOM, HNTB, and Nobis on July 25, 2016.

Nobis produced documents

on September 1, 2016, and AECOM and HNTB produced documents on
October 24, 2016.

Against this backdrop, the plaintiffs acted

reasonably quickly in notifying the prospective defendants of
their intentions in mid-November, and in moving to amend two weeks
later on November 28, 2016.

The court finds no basis on these

facts to fault the plaintiffs for a lack of diligence.
To be sure, Nobis argues that the plaintiffs could have
learned of the involvement of third parties as early as March 2015,
when they initiated an investigation with the Attorney General,
and at the very least should have become aware of a basis to amend
in September of 2015, when the plaintiffs received information
setting out the relationships between NHB, Nobis, AECOM/HNTB, and
the MBTA.

Accepting that the plaintiffs in hindsight might have
6

taken a different, shorter route in their investigation of the
case, it does not necessarily mean that the path they chose evinces
a lack of diligence.

Moreover, Nobis has not shown how the delay

alone prejudices them (aside from being named as a party, of
course), and the facts taken as a whole do not indicate undue delay
or dilatory motive on the part of the plaintiffs.
Consequently,

I

find

that

the

plaintiffs

have

exercised

diligence in investigating the basis for an amendment and have
satisfied the good cause standard.
B. Count Three States a Valid Claim for Violation of M.G.L.
c. 149, § 27 but the Common Law Claims underlying Counts
Four Through Eight are Barred and Therefore Would be
Futile
As noted above, leave to amend may still be denied when the
request is characterized by futility.

In this context, futility

means that 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).

Thus, when “reviewing

for ‘futility,’ the district court applies the same standard of
legal sufficiency as applies to a Rule 12(b)(6) motion.” Glassman,
90 F.3d at 623 (citation omitted). “[I]f the proposed amendment
would be futile because, as thus amended, the complaint still fails
to state a claim, the district court acts within its discretion in
denying the motion to amend.”

Abraham v. Woods Hole Ocean. Inst.,

553 F.3d 114, 117 (1st Cir. 2009).

7

Under Rule 12(b)(6) a court “may dismiss a complaint only if
it is clear that no relief could be granted under any set of facts
that could be proved consistent with the allegations.”

Educadores

Puertorriquenos en Accion v. Hernandez, 367 F.3d at 61, 66 (1st
Cir. 2004) (citing Hishon v. King & Spalding, 467 U.S. 69, 73
(1984)).

Applying this standard here, I find that Count Three

states a valid claim for a violation of the prevailing wage
statute, but that the remaining common law claims in Counts Four
through Eight fail to state a valid claim for relief and amending
the complaint to include them would thus be futile.
i. The Statutory Claim – Count Three
As noted above, Counts One and Two of the proposed amended
complaint remain unchanged and are not at issue here, but Count
Three alleges a violation of M.G.L. c. 149, § 27 against the
original and prospective defendants.

The proposed defendants

argue that Count Three is futile because the work the plaintiffs
performed was not “incidental to site clearance and right of way
clearance,” and was therefore not covered by the Prevailing Wage
Act.

See M.G.L. c. 149, § 27D (“Construction or constructed shall

include additions to and alterations of public work. . .soil
explorations, test borings and demolition of structures incidental
to site clearance and right of way clearance”).

However, where

the record in this case is not completely developed, the court
cannot consider the merits of this contention without consulting
8

evidence presently outside the record.

Assuming arguendo that the

defendants are correct, the better course still would be to wait
to consider this claim at summary judgment.

See e.g., Alternative

Energy, Inc. v. St. Paul Fire and Marine Ins. Co., 267 F.3d 30, 33
(1st Cir. 2001) (“a court may not consider any documents that are
outside of the complaint, or not expressly incorporated therein,
unless the motion is converted into one for summary judgment.”)
Count three therefore cannot be deemed to be futile at this
juncture.
ii. The Common Law Claims – Counts Four Through Eight
However, I find that M.G.L. c. 149, § 27 is meant to be the
exclusive vehicle for obtaining relief from an employer’s failure
to pay the prevailing wage and, for that reason, the common law
claims in Counts Four through Eight fail to state a claim and
therefore may not go forward.
Where a statute is “seemingly intended to cover the whole
subject to which it relates, including a remedy for its infraction,
other provisions of the common law, including such as are remedial
in nature, are thereby superseded.”

Sch. Comm. Of Bos. v. Reilly,

362 Mass. 334, 338 (1972) (quoting School Comm. of Lowell v. Mayor
of Lowell, 265 Mass. 353, 356 (1928)); see also Dobin v. CIOview
Corp., No. 2001–00108, 2003 WL 22454602, at *9 (Mass.Super.Ct.
Oct. 29, 2003) (Gants, J.) (noting that “when the Legislature has
provided a statutory cause of action ... there is no need to add
9

a common law remedy”).

The SJC has interpreted this language to

encompass scenarios where the legislature creates a new right or
duty that “is wholly the creature of statute [and] does not exist
at common law.”

Id.

That is the case here.

In enacting M.G.L. c. 149, § 27, the

legislature created a new right that did not exist at common law.
See Mansfield v. Pitney Bowes, Civ. Action No. 12-10131-DJC, 2013
WL 947191, at *6 (D. Mass. March 12, 2013) (“Cases involving…the
Prevailing Wage statute are situations where an employee would
have

no

recognized

cause

of

action

but

for

imposition of obligations on employers”);
Mass. 240, 255 n. 11 (2013) (same).

the

statut[e’s]

Lipsitt v. Plaud, 466

In that regard, it is clear

that each of the proposed common law claims here alleges at core
that the plaintiffs were deprived of their right to be paid the
prevailing wage, and would require proof of a violation of the
prevailing wage statute in order to succeed. In particular: Count
Four

(quantum

meruit)

seeks

relief

on

the

ground

that

the

defendants failed to pay the plaintiffs the prevailing wage; Count
Five (negligence) alleges that the defendants breached a legal
duty to ensure that the plaintiffs were paid the prevailing wage;
Count

Six

(negligent

misrepresentation)

alleges

that

the

defendants made false representations which prevented them from
being

paid

the

prevailing

wage;

Count

Seven

(negligent

interference) alleges that the defendants negligently interfered
10

with the plaintiffs’ relationship with NHB by encouraging NHB to
pay the plaintiffs less than the prevailing wage; and Count Eight
(civil conspiracy) alleges that the defendants conspired to have
the plaintiffs paid less than the prevailing wage in order to
increase their profits.
Moreover, in seeking “actual and statutory damages,” “treble
damages as required by law,” and “attorneys’ fees and costs,” the
plaintiffs ask for the very same damages allowed for upon proof of
a violation of the prevailing wage statute.

See M.G.L. c. 149, §

27 (providing that “[a]n employee so aggrieved who prevails in
such an action shall be awarded treble damages, as liquidated
damages, for any lost wages and other benefits and shall also be
awarded the costs of the litigation and reasonable attorneys'
fees.”).
In

context,

then,

Counts

Four

through

Eight

are

wholly

duplicative of Count Three and do not assert any claims that would
exist in the absence of M.G.L. c. 149, § 27.

Accordingly, Counts

Four through Eight are barred and may not go forward. George v.
National Water Main Cleaning Co., 286 F.R.D. 168, 188 (D. Mass.
2012) (granting judgment on the pleadings where common law claims
were merely duplicative of the remedies available under M.G.L. c.
149, § 27). 1

1

Independently, Count Five (negligence) would also fail because the economic
loss doctrine “bars recovery for ordinary negligence claims in the absence of
personal injury or property damage.”
See Dill v. American Home Mortg.

11

C. The Parties Will Not Be Prejudiced
Finally, the court does not find that any party would be
prejudiced by allowing the complaint to be amended to assert a
prevailing wage claim against all defendants.

Nobis argues that

the plaintiffs treated Nobis as a third party when it earlier
sought discovery from it, which in turn reasonably led Nobis to
conclude it would not ever be an actual named party in this action.
Accepting that such an inference was not unreasonable, and that
the plaintiffs might have in hindsight made that possibility
clearer, it is not enough in this context to show prejudice.
Pendley v. Komori Printing Machinery Co., C.A. No. 89-0420P, 1990
U.S. Dist. LEXIS 1800, at *7-8 (D.R.I. Feb. 8, 1990) (defining
prejudice as either a grave injustice to the defendants or an undue
difficulty in prosecuting the lawsuit as a result of the change in
tactics

or

theories).

In

that

vein,

none

of

the

proposed

defendants indicated that they would have conducted the third party
discovery differently had they been aware they might eventually
become parties. It is true that the proposed defendants, if added,
will now have to actively litigate the case, but that is not
prejudice.

Id. at *8 (prejudice must be “‘substantial’ so as to

create a ‘grave injustice’ to defendants”).

Servicing, Inc., 935 F. Supp. 2d 299, 303 (D. Mass. 2013); FMR Corp. v. Boston
Edison Co., 415 Mass. 393 (1993).

12

But, the court does find that NHB would be prejudiced to the
extent the plaintiffs may seek to resuscitate and effectively
extend the May 2016 deadline for seeking class certification.

See

Mogel v. UNUM Life Ins. Co. of America, 677 F. Supp. 2d 362, 366
(D. Mass. 2009) (renewed motion for class certification, filed in
connection

with

motion

to

amend,

denied

where

“court-imposed

deadlines have passed. . .[and] the plaintiffs have had ample
opportunity to move for class certification. . .previously.”).
Notably, the original parties agreed at a prior hearing that the
plaintiffs had not raised the issue of class certification when
the parties discussed the possibility that the plaintiffs might
seek leave to amend the complaint.

NHB almost certainly relied on

its awareness that the deadline for seeking class certification
had passed in determining how to, and then proceeding to defend
against the complaint.

The plaintiffs have offered no reason for

failing to seek certification prior to the deadline even though
they had the opportunity to do so.

Consequently, insofar as the

motion for leave to amend is meant to resuscitate the issue of
class certification, the motion is denied.

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IV.

CONCLUSION

For the foregoing reasons, the motion for leave to amend is
ALLOWED to assert a violation of M.G.L. c. 149, § 27 against all
of the named defendants.

The motion in all other respects is

DENIED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

January 5, 2018

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