Moore v. Nstar Electric & Gas Co.
Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: "For all the reasons stated, Defendant, Nstar Electric & Gas Company's, Motion To Strike Plaintiff's Amended Complaint (#34) is ALLOWED."(Moore, Kellyann)
UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 15-13967-MPK
NSTAR ELECTRIC & GAS CO.,
MEMORANDUM AND ORDER ON
DEFENDANT, NSTAR ELECTRIC & GAS COMPANY’S, MOTION TO STRIKE
PLAINTIFF’S AMENDED COMPLAINT (#34).
On June 7, 2017, plaintiff Jason Moore filed an amended complaint. (#33.) Defendant Nstar
Electric & Gas filed a motion to strike in response. (#34.) Determining that the amended complaint
was improper as filed, the court construed it to be a motion to file an amended complaint and
defendant’s motion to strike to be an opposition. (#38.) Plaintiff was granted leave to file a
memorandum of law addressing Nstar’s opposition. Id. With plaintiff’s memorandum having been
filed (#40), the motion stands ready for decision.
In his original complaint, 1 Moore alleged that he was wrongfully terminated from his
employment by Nstar due to a disability. (#1 at 1.) As is required by both Title VII, 42 U.S.C. §
2000e-5(f), and Massachusetts General Laws chapter 151B, §§ 5-9, prior to instituting this lawsuit,
The original complaint was filed pro se by Moore. Counsel entered his appearance on behalf of plaintiff
on September 27, 2016. (#26.)
plaintiff filed an administrative charge alleging that he “was discriminated against by NSTAR, on
the basis of Disability.” (#35-1.) In the amended complaint, in addition to claims relating to
discrimination based on disability, Moore included a claim for racial discrimination in violation of
Title VII. (#33, Count Two.)
Moore argues that he is entitled to amend his complaint once as a matter of right pursuant
to Rule 15, Fed. R. Civ. P. (#40 at 1.) Plaintiff is incorrect in his reading of the rule. Rule 15(a)(1),
Fed. R. Civ. P., states that
[a] party may amend its pleading once as a matter of course within:
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of a motion under Rule
12(b), (e), or (f), whichever is earlier.
In this case, plaintiff’s original complaint was served on or before April 19, 2016, the date Nstar
filed its answer. 2 An amended complaint filed on June 7, 2017, more than a year after service of
the original complaint and the filing of a responsive pleading, i.e., the answer, plainly falls outside
the 21-day time parameter set out in the rule.
When Rule 15(a)(1) is inapplicable, a plaintiff may make amendments “only with the
opposing party’s written consent or the court’s leave.” 3 Fed. R. Civ. P. 15(a)(2). The rule further
provides that “[t]he court should freely give leave [to amend] when justice so requires.” Id. That
said, “amendments may be denied for several reasons, including undue delay, bad faith, dilatory
motive of the requesting party, repeated failure to cure deficiencies, and futility of amendment.”
Hagerty ex rel. United States v. Cyberonics, Inc., 844 F.3d 26, 34 (1st Cir. 2016) (internal citations
There is no return of service on the docket, but, a fortiori, service must have been made prior to the
defendant filing its answer.
Moore sought neither consent of the defendant nor leave of court prior to filing his amended complaint.
and quotation marks omitted). As explained by the First Circuit, the court’s leave to amend analysis
is context specific. See Nikitine v. Wilmington Trust Co., 715 F.3d 388, 390 (1st Cir. 2013)
(addressing a district court’s decision to deny a motion for leave to amend, the court noted that
“[e]verything depends on context.”).
Nstar argues several reasons why the proposed amendment should be denied, the first of
which is futility. See Adorno v. Crowley Towing And Transp. Co., 443 F.3d 122, 126 (1st Cir.
2006) (“Consent to file amended pleadings shall be freely given when justice so requires unless
the amendment would be futile or reward undue delay.”) (internal citations and quotation marks
omitted); Hatch v. Dep’t for Children, Youth & Their Families, 274 F.3d 12, 19 (1st Cir. 2001)
(“futility is fully sufficient to justify the denial of a motion to amend”). In the proposed amended
complaint, Moore alleges that he was unlawfully terminated on December 14, 2010. (#33 ¶ 10.)
As noted, the filing of an administrative charge is a prerequisite to bringing a claim under Title
VII. Plaintiff has never filed an administrative claim with respect to racial discrimination, and the
time within which to do so has long since passed. 4 Nat'l R.R. Passenger Corp. v. Morgan, 536
Title VII provides that:
A charge under this section shall be filed within one hundred and eighty days after
the alleged unlawful employment practice occurred and notice of the charge
(including the date, place and circumstances of the alleged unlawful employment
practice) shall be served upon the person against whom such charge is made within
ten days thereafter, except that in a case of an unlawful employment practice with
respect to which the person aggrieved has initially instituted proceedings with a
State or local agency with authority to grant or seek relief from such practice or to
institute criminal proceedings with respect thereto upon receiving notice thereof,
such charge shall be filed by or on behalf of the person aggrieved within three
hundred days after the alleged unlawful employment practice occurred, or within
thirty days after receiving notice that the State or local agency has terminated the
proceedings under the State or local law, whichever is earlier, and a copy of such
charge shall be filed by the Commission with the State or local agency.
42 U.S.C. § 2000e-5(e)(1).
U.S. 101, 104–05 (2002) (“Section 2000e–5(e)(1) requires that a Title VII plaintiff file a charge
with the Equal Employment Opportunity Commission (EEOC) either 180 or 300 days ‘after the
alleged unlawful employment practice occurred.’”). The First Circuit has reiterated that:
Before an employee may sue in federal court on a Title VII claim, he must
first exhaust administrative remedies. The Title VII administrative process begins
with the filing of an administrative charge before the EEOC. The employee may
sue in federal court only if the EEOC dismisses the administrative charge, or if it
does not bring civil suit or enter into a conciliation agreement within 180 days of
the filing of the administrative charge. In either case, the EEOC must send the
employee notice, in the form of what is known as a right-to-sue letter. Upon
receiving such notice, the employee has ninety days to sue in federal court. With
limited exceptions [. . .] the failure to exhaust this administrative process bars the
Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 85 (1st Cir. 2008) (internal citations and
quotation marks omitted). Plaintiff’s failure to exhaust his administrative remedies with respect to
his racial discrimination claim is sufficient reason to deny a request to amend his complaint to
bring such a claim.
In the interest of completeness, Nstar’s other arguments shall be addressed briefly.
Defendant contends that there has been undue delay in seeking to file the amended complaint.
According to the First Circuit, “when considerable time has elapsed between the filing of the
complaint and the motion to amend, the movant has [at the very least] the burden of showing some
valid reason for his neglect and delay.” Invest Almaz v. Temple-Inland Forest Prod. Corp., 243
F.3d 57, 71 (1st Cir. 2001) (internal citation and quotation marks omitted). “[P]eriods of fourteen
months, fifteen months, and seventeen months” have been deemed to constitute “considerable
time.” In re Lombardo, 755 F.3d 1, 3 (1st Cir. 2014) (internal citations and quotation marks
omitted). Here, more than eighteen months elapsed between the filing of the original complaint
and the proposed amended complaint. Moore has proffered no explanation as to why the proposed
amended complaint could not have been filed earlier. While plaintiff contends that a report he filed
with Nstar concerning an incident with a fellow worker evidences racial discrimination, the
incident occurred on September 3, 2010 and the report was authored on September 7, 2010. (#40
at 4; #40-1.) Clearly, the facts were known to Moore for more than five years before he filed his
original complaint. In these circumstances there is simply no justification for the lengthy delay
before attempting to amend.
Lastly, Nstar claims that it would be unduly prejudiced if the amendment were to be
allowed. Defendant’s point is well taken. Discovery closed in May 2017. To allow a completely
new claim into the case at this juncture would mean not only reopening discovery, but also likely
redoing at least some of what has already been done. In all of the circumstances, such action would
be unjustifiably detrimental to defendant.
For all the reasons stated, Defendant, Nstar Electric & Gas Company’s, Motion To Strike
Plaintiff’s Amended Complaint (#34) is ALLOWED.
/s / M. Page Kelley
M. Page Kelley
United States Magistrate Judge
August 30, 2017
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