Porter et al v. Dartmouth College et al

Filing 116

ORDER granting 95 Motion for Leave to File Amended/Supplemental Complaint Pursuant to Court Order. Plaintiff's motion for leave to amend and supplement their complaint is GRANTED, without prejudice to excluding any infor mation in the complaint that may be subject to exclusion under the pending motions in limine. Within 48 hours counsel shall electronically refile the pleading attached to the Motion for Leave to File using the appropriate event in CMECF. So Ordered by Judge Joseph N. Laplante. (jb)

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE Christina M. Porter, et al. v. Dartmouth College SUMMARY ORDER The plaintiffs in this wrongful death case have moved for leave to amend and supplement their complaint before trial, which is set for next month. Although the deadline for such amendments Civil No. 07-cv-28-JL

has expired under the applicable scheduling order,1 there is good cause to extend the deadline under Fed. R. Civ. P. 16(b)(4). proposed amendment incorporates a small number of additional factual allegations that the plaintiffs learned through discovery and that arguably fall within the scope of their negligence claim as originally pled. Both parties have known about those factual The

allegations for quite some time, and they have been the subject of extensive discovery and debate. To put it simply, the Dartmouth has

plaintiffs' "new" allegations are not really new.

had ample opportunity to prepare a defense against them and, notwithstanding the proximity to trial, will suffer no prejudice from the amendment.

1

Document no. 17 (establishing a deadline of May 1, 2008). 1

The Federal Rules provide that, when the plaintiffs move to amend their complaint before trial, "[t]he court should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2);

see also ACA Fin. Guar. Corp. v. Advest, Inc., 512 F.3d 46, 55 (1st Cir. 2008) (stating that Rule 15 reflects a "liberal amendment policy"). For the reasons discussed above, justice This court disagrees with While it

requires an amendment in this case.

Dartmouth that the proposed amendment would be futile.

is possible that the plaintiffs may be limited in how they can present some of their additional factual allegations at trial (depending on the outcome of the various motions in limine currently pending), all of the allegations bear at least some relationship to their claim for negligent instruction and thus cannot be deemed futile. The plaintiffs' motion for leave to amend and supplement their complaint2 is therefore GRANTED, without prejudice to excluding any information in the complaint that may be subject to exclusion under the pending motions in limine. SO ORDERED.

______________________________ Joseph N. Laplante United States District Judge Dated: January 15, 2010

2

Document no. 95. 2

cc:

Charles J. Raubicheck, Esq. Julie Kurzrok, Esq. K. William Clauson, Esq. Kevin Murphy, Esq. Bradford T. Atwood, Esq. Matthew R. Johnson, Esq. Thomas B.S. Quarles, Jr., Esq.

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