Murphy et al v. Massachusetts Department of Developmental Services et al

Filing 183

Magistrate Judge Katherine A. Robertson: ORDER entered. MEMORANDUM AND ORDER with Regard to Plaintiffs' Motion for Leave to File Second Amended Complaint. For the reasons stated, Plaintiffs' Motion for Leave to File Second Amended Complaint (Dkt. No. 174 ) is DENIED. See attached Memo & Order for complete details. (Attachments: Exhibit 1) (Calderon, Melissa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PATRICIA A. MURPHY, V.M.D. and
KEVIN F. MURPHY, as they are
Guardians of Kathleen M. Murphy
Plaintiffs

Civil Case No. 13-CV-12839-MAP

ROBIN HARMATZ and

SERVICENET, INC.
Defendants.

MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFFS' MOTION
FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

(Dkt. No. 174)

Plaintiffs Patricia A. Murphy and Kevin F. Murphy, as they are guardians of Kathleen M.

Murphy ("Plaintiffs"), have moved for leave to file a second amended complaint ("Proposed

Complaint") pursuant to Federal Rule ofCivil Procedure 16(b)(3)(A) (Dkt. No. 174), proposing
to add four new individual defendants (one of whom was previously dismissed as a defendant)

and counts against each of these individuals, as well as two new counts against defendant
ServiceNet, Inc. ("ServiceNet"). The defendants oppose the motion (Dkt. Nos. 177, 178). For

the following reasons. Plaintiffs' motion for leave to file a second amended complaint will be
DENIED.'
1.

Relevant background

Plaintiffs are the guardians of their sister, Kathleen M. Murphy ("Ms. Murphy"), an

intellectually disabled adult who qualifies by reason ofher disabilities for residential,
educational, and day services from the Massachusetts Department ofDevelopment Services

' Amagistrate judge "ha[s] the authority to decide [a] motion to amend [a complaint] outright."
Maurice v. State Farm Mut. Auto Ins. Co.,235 F.3d 7, 9 n.2 (1st Cir. 2000) (citing 28 U.S.C. §
636(b)(1)(A)).
1

("DDS"). OnNovember 8, 2013, Plaintiffs filed their initial complaint naming as defendants
DDS, ServiceNet, four DOS employees, and seven officers of ServiceNet. The overarching

allegation in Plaintiffs' complaint was that DDS operated a two-tier system of residential care for
the intellectually disabled: homes operated directly by DDS, such as the home where Ms.

Murphy presently resides, which provided high quality care, and homes operated by private

corporations such as ServiceNet, in which substandard care was provided. Plaintiffs alleged that
Ms. Murphy had received substandard care in group homes operated under contract with DDS,
including a group home or homes operated by ServiceNet (Dkt. No. 73 at 3-4,11). On
November 21, 2013, the presiding District Judge held a hearing on, and denied without

prejudice. Plaintiffs' motion for a preliminary injunction, finding that Plaintiffs had not

adequately shown irreparable harm ora likelihood ofsuccess on the merits oftheir claims {id. at
11).

Thereafter, on December 20, 2013, while the defendants' motions to dismiss were

pending. Plaintiffs filed an amended complaint as a matter ofcourse {id.). See Fed. R. Civ. P.
15(a)(1)(A) and (B) (a party may amend its pleading once as a matter ofcourse within 21 days
after service or, ifthe pleading is one to which a responsive pleading is required, within 21 days
after service of a responsive pleading or a motion under Rule 12(b), (e), or (f), whichever comes
earlier).

On April 8, 2015, the presiding District Judge adopted in substantial part Magistrate

Judge David H. Hennessy's Report and Recommendation on Defendants' Motions to Dismiss
the Amended Verified Complaint, dismissing a majority of the claims and a majority of the
defendants named in the amended complaint (Dkt. Nos. 73, 86). Thecourt held that"[njothing

approaching a sufficiency may be located within the [amended] complaint supporting an across-

the-board allegation of any discriminatory 'two-tier' system [ofcare for the developmentally

disabled operated by DDS]" (Dkt. No. 86 at 3). The court's ruling on defendants' motions to
dismiss substantially limited the scope of this suit: there remained only one count asserted

against ServiceNet for negligent infliction ofemotional distress and three counts against Robin
Harmatz individually, in hercapacity as a former DDS employee, those being under 42 U.S.C. §
1983, the Massachusetts Civil Rights Act, and for intentional infliction of emotional distress
(Dkt. No. 86 at 4-6).

Following the court's ruling on the defendants' motions to dismiss, the parties appeared
before the court on May 21, 2015 for an initial scheduling conference (Dkt. No. 90). The

resulting scheduling order set discovery deadlines, and, ofnote for purposes ofthis motion, set a

July 29, 2015 deadline for the parties to file motions for leave to amend their pleadings (Dkt. No.

90). No party moved for an extension ofthis deadline. Notwithstanding that the issues in the
case had been substantially narrowed, discovery was contentious and time-consuming.

Following several extensions prompted by the parties' motions, non-expert discovery closed on

September 30, 2016 (Dkt. No. 144). On November 14, 2016, Plaintiffs filed the motion
presently before the court (Dkt. No. 174).
II.

Discussion

The default rule mandates that leave to amend a complaint is to be '"freely given when

justice so requires.'" Steir v. Girl Scouts ofthe USA, 383 F.3d 7, 12 (1st Cir. 2004) (quoting Fed.
R. Civ. P. 15(a)). "As the case progresses, and the issues are joined, the burden on a plaintiff

seeking to amend a complaint becomes more exacting." Id. "Once [as in this case] ascheduling
order isin place, the liberal default rule is replaced by the more demanding 'good cause'
standard of Fed. R. Civ P. 16(b)." Id. (citing O'Co««e// v. Hyatt Hotels ofP.R., 357 F.3d 152,

154-55 (1st Cir. 2004)). "Rule 16's 'goodcause' standard 'focuses on the diligence (orlack
thereof) of the moving party more than it does on any prejudice to the party-opponent.'"
Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir. 2013) (quoting
Steir, 383 F.3d at 12). Nonetheless, prejudice to opposing parties and the burden on thecourt
remain factors that the court should take into account. "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 andthe court, is itselfa sufficient reason for the court to

withhold permission to amend." Steir, 383 F.3d at 12 (citing Acosta-Mestre v. Hilton Int'lof
P.R., Inc., 156 F.3d 49, 52-53 (1st Cir. 1998)). "Particularly disfavored are motions to amend

whose timing prejudices the opposing party by 'requiring a re-opening ofdiscovery with
additional costs, a significant postponement ofthe trial, and a likely major alteration in trial
tactics and strategy ...'" Id. ((\ViOt\ng Acosta-Mestre, 156 F.3d at 52).
"A 'considerable' amount of time certainly has passed here." United States exrel.

Hagerty v. Cyberonics, Inc., 146 F. Supp. 3d 337, 343 (D. Mass. 2015). Plaintiffs filed their
initial complaint more than three years ago, in November 2013. After the presiding District

Judge denied their motion for preliminary injunctive relief, they filed their amended complaint
on December 20, 2013. This motion was filed on October 14,2016, close to three years after the

initial complaint was filed, more than fourteen months after the July 2015 deadline in the

scheduling order for filing motions for leave to amend apleading, and two weeks after the close
ofnon-expert discovery, which had been extended for limited purposes only. At this late stage

ofthe proceedings, after the close ofnon-expert discovery. Plaintiffs propose to name four new
individual defendants, add counts against each ofthese individuals, add additional allegations of

misconduct by Ms. Harmatz, and assert new theories ofliability against Ms. Harmatz and

ServiceNet (Dkt. 174-1). Following dismissal of the claims Plaintiffs advanced based on their

allegations of a two-tiered system of care, whatremained of the initial complaint was focused
largelyon allegations of misconduct by Ms. Harmatz. The court credits ServiceNet's

representation that it would be required to make major alterations in its defense strategy and trial
tactics if Plaintiffs are permitted to amend their complaint again at this late date (Dkt. No. 178 at
6-7).

Plaintiffs' solejustification for this tardy motion is their generalized assertion that they

have been "placed at an unfair disadvantage concerning discovery" (Dkt. No. 174 at 2). This
assertion is unpersuasive. As Ms. Murphy's guardians, Plaintiffs have had continuous access to

knowledge about her care while she resided in homes operated by ServiceNet. As early as late
2008, through the attorneys who continue to represent them. Plaintiffs were negotiating with
DDS for a change ofresidence for Ms. Murphy based on their dissatisfaction with the care she

was receiving in ServiceNet facilities (Dkt. No. 174-1 at 24-25). The claims directed atnurse
Janet Cremins inthe Proposed Complaint are based on Ms. Cremins' alleged failure to monitor

and treat Ms. Murphy's high blood pressure (Dkt. No, 174-1 at 19-23). Plaintiffs' initial

complaint included allegations about Ms. Murphy's blood pressure levels gleaned from review
ofshift notes, weekly data sheets, medication reports, and other records related to Ms. Murphy's
treatment and care (Dkt. No. 1at29), and it is apparent to the court, based on discovery disputes,
that Plaintiffs have been aware of Ms. Cremins' role for sometime (e.g., Dkt. Nos. 116-21).
Plaintiffs named Abbas Hamdan as a defendant in their initial complaint, and were aware

of his role at ServiceNet (Dkt. No. 1). They alleged intheir amended complaint, as they do in

the Proposed Complaint, that Mr. Hamdan was at all relevant times aware ofthe severe harm
being inflicted on Ms. Murphy while she was cared for in a ServiceNet facility (Dkt. No. 42 at

62). Plaintiffs deposed Mr. Hamdan in January 2016, some nine months before the instant
motion was filed. The first day of deposition for Claire Kuhn, Ph.D., was on July 25,2016 (Dkt.

No. 177 at 3). To the extent the claims in the Proposed Complaint are based on affidavits

attested to by Ms. Cremins and Ms. Harmatz and filed in opposition to Plaintiffs' motion for a

preliminary injunction (Dkt. No. 174-1 at 19-23; 27-29), Plaintiffs have known about the
contents of those affidavits since November 21, 2013 (Dkt. No. 175, filed under seal on

November 21, 2013). Plaintiffs have failed to offer anyexplanation as to why they would have

been unaware prior to October 2016 of alleged actions directed at Ms. Murphy by Beverly
Darby, ServiceNet's Program Director.

Of note, on July 29, 2016, Plaintiffs filed a complaint in the Superior Court Department
of the Massachusetts Trial Court naming as defendants Ms. Cremins and Dr. Kuhn, raising

allegations about their alleged mistreatment ofMs. Murphy. Plaintiffs did not serve the state

court complaint until October 31, 2016, after the close ofnon-expert discovery inthis case. The

allegations in the state court complaint concerning Ms. Cremins and Ms. Kuhn generally mirror

the allegations in the Proposed Complaint, and there is an overlap of state law claims.^ If
Plaintiffs could file the state court complaint attached hereto as Exhibit 1 in July2016, they

could have filed the motion presently before the court inthe same timeframe, before the close of
non-expert discovery.^ They chose not to do so.

^Copies ofthe state court complaint and the docket for the state court action are attached hereto
as Exhibit 1.

^ It is difficult to avoid the conclusion that Plaintiffs have engaged in gamesmanship in filing

their motion for leave to amend. The delay in service of the state court complaint until after the

close ofdiscovery inthe instant case istroubling. Equally troubling is Plaintiffs' cavalier
attitude towards their obligation to confer ingood faith with opposing counsel (Dkt. No. 174-3).
Generally speaking, an attorney cannot meaningfully confer about the issues raised by a

proposed amended complaint without seeing that complaint, much less assent to its filing.

Plaintiffs' counsel should have provided a copy ofthe Proposed Complaint to opposing counsel

Furthermore, the court "rejects [Plaintiffs'] assurance that the additional claims will not

require further discovery, engendering delay and prejudicing the [d]efendants." Eastern
Fisheries, Inc. v. Airgas USA, LLC, 166 P. Supp. 3d 124,127 (D. Mass. 2016) (denying

plaintiffs motion for leave to file an amended complaint); see also Cyberonics. Inc., 146 F.

Supp. 3d at 343 (collecting cases). At the very least, any newly named defendant would be
entitled to conduct discovery, if not to move for dismissal of some or all of the claims asserted in

the Proposed Complaint, further postponing resolution ofa case that has already been pending
for more than three years. The court denies Plaintiffs' Motion for leave to amend for failure to
demonstrate good cause. See id.
III.

Conclusion

Forthe reasons stated above. Plaintiffs' Motion for Leave to File Second Amended

Complaint (Dkt. No. 174) is DENIED. It is so ordered.
Dated: December 28,2016

/s/ Katherine A. Robertson
KATHERINE A. ROBERTSON

United States Magistrate Judge

as a basis for a good faith conference in an attempt to resolve or narrow the issues before filing
their motion. See Local Rule 7.1. Because the court has denied the motion for leave to amend

on substantive grounds, itdoes not rely on the failure to comply with Local Rule 7.1 as abasis
for denial of the motion to file the Proposed Complaint.