Maroney et al v. Fiorentini et al

Filing 126

Magistrate Judge Donald L. Cabell: ORDER entered. MEMORANDUM AND ORDER denying 85 Motion for Leave to Amend. (Russo, Noreen)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

MICHAEL J. MARONEY, as
TRUSTEE OF PREMIERE REALTY
TRUST and MARONEY
CONSTRUCTION COMPANY, INC.,
Plaintiffs,
v.

No. 16-CV-11575-DLC

JAMES J. FIORENTINI,
INDIVIDUALLY and in his
capacity as MAYOR of the
CITY OF HAVERHILL, ROBERT
E. WARD, INDIVIDUALLY and
in his capacity as DEPUTY
DIRECTOR OF PUBLIC WORKS
of the CITY OF HAVERHILL,
WATER/WASTEWATER DIVISION,
and THE CITY OF HAVERHILL,
Defendants.

MEMORANDUM AND ORDER ON PLAINTIFFS’ MOTION
FOR LEAVE TO AMEND

CABELL, U.S.M.J.
Familiarity with the record is presumed in light of the
recitation of this case in a decision on a summary judgment motion
(D. 85) issued this same day.

As noted therein, this case arises

from efforts by Michael J. Maroney to develop a subdivision of
homes in the City of Haverhill (“the City”).

Having been denied

certain permits, he filed suit through his business entities
against

the

City

of

Haverhill

and

two

of

its

officials

for

violations of 42 U.S.C. § 1983 (“section 1983”) and Massachusetts
state law.1
On January 3, 2020, the plaintiff filed a motion seeking leave
to amend the operative amended complaint (“operative complaint”)
(D. 51) to add a single factual allegation and a section 1983 claim
that the defendants Robert E. Ward, deputy director of the City’s
Department of Public Works, (“Ward”) and James E. Fiorentini, the
City’s

mayor,

(“the

Mayor”)

(collectively

“the

defendants”)

retaliated against him for exercising his First Amendment right to
seek redress of grievances by filing a state court lawsuit.2
85).

(D.

The defendants oppose the motion based on futility and the

plaintiff’s delay.

(D. 88).

The plaintiff submits he did not

delay because the motion “follows closely the Court’s recent
decision on [a] motion for judgment on the pleadings.”
2).

(D. 86, p.

Further, various stays of the case and discovery coupled with

the lack of prejudice warrant allowing the amendment, according to
the plaintiff.

(D. 86).

For the following reasons, the motion

Maroney filed suit as Trustee of Premiere Realty Trust, and in the name of
his company, Maroney Construction Company, Inc.
For ease of reference, the
court uses “Maroney” or “the plaintiff” in the singular form to refer to these
entities.

2 The plaintiff does not seek to add a First Amendment retaliation claim under
the Massachusetts Civil Rights Act, M.G.L. c. 12, § 11I. (D. 85). Rather, he
seeks “to add a claim for relief under 42 U.S.C. § 1983,” and the proposed
second amended claim sets out the section 1983 claim in the newly-added Count
V. (D. 85, p. 1) (D. 85-1, ¶¶ 85-89).
1

2 

for leave to amend is denied, in light of the lack of an adequate
explanation for the extended delay.3
I.

BACKGROUND
Maroney filed this action on August 1, 2016.

(D. 1).

An

initial scheduling order set August 1, 2017 as the deadline to
amend the pleadings and September 1, 2017 as the deadline for fact
discovery.

(D. 23).

Shortly thereafter, the defendants and the

City moved for judgment on the pleadings.

(D. 24).

In December

2016, Maroney filed a timely motion for leave to amend, which the
court allowed on September 29, 2017.

(D. 27, 47).

In the interim,

the court stayed the case from February 3 to April 12, 2017 during
the pendency of alternate dispute resolution proceedings.
On August 30, 2017, the parties filed a joint motion to stay
discovery pending a decision on the motion for judgment on the
pleadings. (D. 45). The court allowed the joint motion and stayed
discovery the same day.
after

issuing

an

(D. 47).

opinion

on

the

On December 11, 2017, shortly
motion

for

judgment

on

the

pleadings (D. 52), the court lifted the stay and set a fact
discovery deadline of December 11, 2017.

(D. 53).

In so doing,

the court adopted the deadlines which the parties requested (D.
45) for fact discovery, experts, and summary judgment motions.

3

Accordingly, the court does not reach the futility argument.

3 

(D. 54).

The parties did not request a new deadline for filing

motions to amend.

(D. 45).

On March 2, 2018, the court entered a second stay of discovery
pending

the

outcome

of

a

second

motion

for

judgment

on

the

pleadings.

(D. 61).

This stay remained in place until October

16, 2019.4

(D. 83).

At the request of the court (D. 78), the

parties filed a joint status report setting out proposed deadlines
for fact discovery and summary judgment motions (D. 82).

In

lifting the stay, the court adopted the parties’ deadlines, which
again did not include a new deadline for filing motions to amend.
(D. 83).
As noted, Maroney filed the motion for leave to amend the
operative complaint on January 3, 2020.

(D. 85).

As of that date,

fact discovery was set to close on April 14, 2020, and a July 21,
2020 deadline was in place for summary judgment motions.5

(D. 83).

As of January 2020, the parties agree that discovery was only
recently initiated.

(D. 86, pp. 2, 6) (D. 88, p. 5).

Previously,

the parties engaged in substantial discovery in the state court
lawsuit which, like this case, did not include a First Amendment
retaliation claim.

(D. 104-1, 104-6, 104-7, 104-8, 104-9).

The court decided the second motion for judgment on the pleadings in midSeptember 2019. (D. 77).

4

Subsequent extensions resulted in a close of fact discovery on September 24,
2020, and a December 30, 2020 deadline for summary judgment motions. (D. 90,
92, 94).

5

4 

The proposed second amended complaint (D 85-1) sets out all
the same facts and the same claims in the operative complaint
except that it adds the following:

(1) a paragraph alleging that

“[i]n the fall of 2016, Ward opposed” Maroney’s request to the
“Planning Board to extend the bond securing construction of the
water booster station,” which resulted in the Planning Board for
the City of Haverhill (“the Planning Board”) denying the extension,
“the bond being called,” and Maroney’s “subsequent loss of the
Subdivision” (D. 85-1, ¶ 48);6 and (2) Count V.

As noted, Count V

alleges that the Mayor and Ward retaliated against Maroney for
exercising his First Amendment right to seek redress of grievances.
(D. 85-1, ¶ 86). Like the operative complaint, the proposed second
amended complaint recites the substance of the Mayor’s August and
September 2015 statements for Maroney to drop the state court
lawsuit to obtain the permits.
41).

(D. 51, ¶¶ 37-41) (D. 85-1, ¶¶ 37-

Maroney refused, and Ward, acting at the Mayor’s direction,

purportedly engaged in conduct to pressure Maroney to dismiss the
lawsuit.

(D. 51, ¶¶ 33-36, 43, 89) (D. 85-1, ¶¶ 33-36, 43, 89).

Maroney attended the September and October 2016 Planning Board meetings (D.
97-2, pp. 143-144) during which Ward opposed the extension (D. 104-24, 104-25).
Maroney also attended the November 2016 meeting, although it is unclear if Ward
also attended.
(D. 97-2, pp. 143-144). Because Maroney attended all three
fall 2016 meetings, he knew all of the facts no later than November 2016, i.e.,
prior to the August 1, 2017 deadline to file motions to amend.

6

5 

II.

THE PARTIES’ ARGUMENTS
The defendants argue that Maroney knew the facts regarding

Ward’s opposition in the fall of 2016. They point out that Maroney
did not seek to include the “new” factual allegation (D. 85-1, ¶
48) and the First Amendment retaliation claim (D. 85-1, ¶¶ 85-89)
in the first motion for leave to amend filed in December 2016.
(D. 27).

They also assert that the delay will prejudice them

because of “the time and cost of defending against” the “new
claim[] arising from the same set of circumstances” that existed
“over three years ago.”

(D. 88, pp. 5-6).

The defendants additionally argue that the First Amendment
retaliation claim is futile because it rests on the premise that
the plaintiffs “should have been given more time to build the
booster station.”

(D. 88, pp. 4-5).

The defendants submit this

premise runs contrary to the already-determined fact in the court’s
September 2019 opinion “that Plaintiffs were required to build the
water booster station after completing Phase I, which was earlier
than November 2016.”

(D. 88, pp. 4-5) (D. 77, p. 12).

Maroney focuses on the absence of prejudice to the defendants.
(D. 86).

Relatedly, he maintains the proposed second amended

complaint is based on the same conduct as the operative complaint
and only adds one additional claim and one additional paragraph.
He identifies the stays as a basis for the delay in moving to amend
the operative complaint on January 3, 2020.
6 

He further points out

that he filed the motion to amend “shortly after” the court’s
September 13, 2019 decision on the second motion for judgment on
the pleadings.

(D. 86).

Lastly, Maroney reasons that because the

deadline in the initial scheduling order for motions to amend
(August 1, 2017) was one month before the fact discovery deadline
(September

1,

2017),

a

March

14,

2020

deadline

to

amend

is

consistent with the fact discovery deadline at the time (April 14,
2020).
III.

(D. 86, pp. 4-5).

DISCUSSION
The more exacting good cause standard in Federal Rule of Civil

Procedure

16(b)(4)

(“Rule

16(b)”)

applies

where,

as

here,

scheduling order includes a deadline to amend the pleadings.

a

See

U.S. ex rel. D'Agostino v. EV3, Inc., 802 F.3d 188, 194 (1st Cir.
2015).

It is also well settled that 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.’”
Somascan, Inc. v. Philips Medical Systems Nederland, B.V., 714
F.3d 62, 64 (1st Cir. 2013) (citation omitted); see O’Connell v.
Hyatt Hotels of P.R., 357 F.3d 152, 155 (1st Cir. 2004) (stating
“‘[i]ndifference’ by” movant “‘seal[s] off this avenue of relief’
irrespective of prejudice because such conduct is incompatible
with the showing of diligence necessary to establish good cause”)
(citation omitted).

Whereas “[p]rejudice to the opposing party

remains relevant,” it “is not the dominant criterion.”
7 

O’Connell,

357 F.3d at 155.

“Regardless of the context, the longer a

plaintiff delays, the more likely the motion to amend will be
denied, as protracted delay, with its attendant burdens on the
opponent and the court, is itself a sufficient reason for the court
to withhold permission to amend.”

Steir v. Girl Scouts of the

USA, 383 F.3d 7, 12 (1st Cir. 2004).

Furthermore, even if the

proposed First Amendment retaliation claim in Count V has merit,
a denial of the motion to amend based on delay remains appropriate.
See Kader v. Sarepta Therapeutics, Inc., 887 F.3d 48, 60 (1st Cir.
2018)

(“assum[ing]

complaint]

was

(without

not

futile,

deciding)
but

that

nonetheless

[proposed

amended

affirm[ing]

the

district court’s denial of leave to amend on undue delay grounds”)
(emphasis added).
Here, Maroney could have included the new factual allegation
and the First Amendment section 1983 claim in a motion for leave
to amend filed prior to the August 1, 2017 deadline or, as the
defendants posit, in the earlier motion for leave to amend that
Maroney filed in December 2016.7
all of the relevant facts.

At that juncture, Maroney knew

See Miceli v. JetBlue Airways Corp.,

914 F.3d 73, 86 (1st Cir. 2019) (noting court not “expected to
look kindly upon a plaintiff who seeks belatedly to amend [his]
complaint based on ‘information that [he] had or should have had

7

See supra note 6.

8 

from the outset of the case.’”).

Indeed, the operative complaint

recounts the Mayor’s purportedly retaliatory statements as well as
Ward’s actions carrying out the retaliation.

(D. 51).

As a justification for waiting two-and-a-half years after the
August 1, 2017 deadline to seek the amendment, Maroney points to
the stay of the case (February 3 to April 12, 2017) and the
lengthier stays of discovery (August 30 to December 11, 2017, and
March 2, 2018 to October 16, 2019).
case

prevented

Maroney

from

To be sure, the stay of the

moving

to

amend

complaint, but that stay lasted only nine weeks.

the

operative

Moreover, the

stays of discovery did not prevent Maroney from filing a motion to
amend.

There was also nothing to prevent Maroney from asking to

extend the August 1, 2017 amendment deadline when the parties
requested the court to adopt revised deadlines for fact discovery,
experts, and summary judgment motions on August 30, 2017.

See

Shea v. Millett, Civil Action No. 17-cv-12233-ADB, 2020 WL 6586368,
at *12 (D. Mass. Oct. 26, 2020) (denying “eleventh-hour request to
file a second amended complaint” and noting plaintiff “could have
requested”

extension

to

scheduling

order’s

deadline

for

amendments, which he failed to do, and “good cause” focuses on
moving party’s diligence).

Likewise, nothing prevented Maroney

from proposing a new deadline for motions to amend in the October
2019 joint statement.

(D. 82).

9 

In short, without a justifiable excuse for the substantial
delay in excess of two years after the scheduling deadline,
Maroney’s lack of diligence and extended delay in seeking to amend
the operative complaint is self-evident.

See Brown v. Bank of

Am., Civil Action No. 13-13256-PBS, 2015 WL 13685108, at *3 (D.
Mass. July 14, 2015) (finding no good cause because plaintiff
“failed to explain why he was unable to comply with the [amendment]
deadline” or “show what evidence, if any, remained unavailable”);
see, e.g., Miceli, 914 F.3d at 86-87 (affirming denial of Rule
16(b) motion given “substantial delay” of filing motion one year
after lawsuit commenced and five months after scheduling deadline
without new evidence to justify delay); O’Connell, 357 F.3d at 155
(affirming district court’s Rule 16(b) denial because waiting
“over

a

year

scheduling
unexplained
conclusion

after

order

transfer

deadline

delay,”
that

the

which

plaintiffs

to

and

act”

was

“vindicate[d]
were

not

five

months

“[s]uch
the

a

after

the

long

and

district

diligently

court’s

pursuing

this

litigation”); see also Pérez v. Hospital Damas, Inc., 769 F.3d
800, 802 (1st Cir. 2014) (stating “‘undue delay in moving to amend,
even standing alone, may be an adequate reason’ to deny” motion to
amend under Fed. R. Civ. P. 15(a)(2) and finding plaintiff failed
to explain 16-month delay after bankruptcy disclosed ties to
proposed new defendant).

10 

Further, even assuming that prejudice to the defendants is
absent, prejudice is not the dominant criterion.

Thus, having

considered and balanced the absence of prejudice, the plaintiff’s
undue delay and lack of diligence without a justifiable excuse
overrides the absence of prejudice.
Next, Maroney’s contention that a March 2020 deadline one
month prior to the April 2020 close of fact discovery is consistent
with the original schedule is not convincing.

The plain language

of the scheduling order set August 1, 2017 as the deadline for
amendments, and the subsequent extensions of fact discovery and
dispositive motions made no mention of amendments to the pleadings.
See Teva Pharm. Int’l GmbH v. Eli Lilly and Co., Civil Action No.
18-cv-12029-ADB, 2022 WL 104911, at *7 (D. Mass. Jan. 11, 2022)
(Scheduling order set March 22, 2021 deadline for amendments, and,
because
deadlines

“amended
made

no

scheduling
reference

orders
to

a

extending
new

the

deadline

discovery

for

amended

pleadings, all amendments to pleadings should have been filed by
March 22, 2021.”).
In sum, the court finds the plaintiff has not made a showing
of good cause to amend the operative complaint.

11 

IV.

CONCLUSION
In accordance with the foregoing discussion, the motion for

leave to amend (D. 85) is DENIED.
/s/ Donald L. Cabell
DONALD L. CABELL, U.S.M.J.
DATED:

May 18, 2023

12