Johnson v. The Capital Offset Company, Inc. et al

Filing 77

ORDER denying without prejudice 72 Motion to Amend counterclaim; denying without prejudice 73 Motion to Revive Claim against Acme Bookbinding Company, Inc. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Alford Johnson
v.
The Capital Offset
Company, Inc. et al.
and

Civil No. 11-cv-459-JD

The Capital Offset
Company, Inc.
v.
Susan Cox
O R D E R
Alford Johnson, as the trustee of the Martha Wood Trust,
brought suit against The Capital Offset Company, Inc.; its
president, Jay Stewart; a consultant who later worked for Capital
Offset, Stephen Stinehour; and Acme Bookbinding Company, alleging
claims arising from the publication of a photography book,
Spiritual Passports.

Capital Offset brought a third-party action

against Susan Cox, who was a graphic designer for the
publication.

Johnson’s negligence claims against Acme and

Capital Offset and Johnson’s claims for enhanced compensatory
damages against Stewart and Capital Offset were previously
dismissed.

Capital Offset now moves for leave to amend its counterclaim
to add a defamation claim against Johnson.

Johnson does not

object to allowing the amendment as long as Capital Offset does
not object to his motion to amend and he is permitted additional
discovery on the new counterclaim.

Johnson moves for leave to

file an amended complaint “to revive” the negligence claim that
was previously dismissed against Acme and to add a new claim
against Acme alleging third-party beneficiary breach of contract.
Both Acme and Capital Offset object to Johnson’s motion.

Standard of Review
Leave to amend should be freely given unless the proposed
amendment would be futile or is the result of undue delay or bad
faith.

Calderon-serra v. Wilmington Tr. Co., --- F.3d ---, 2013

WL 1715518, *4 (1st Cir. Apr. 22, 2013).

When a party seeks

leave to amend pleadings after the scheduling order deadline, the
moving party also must show good cause to modify the scheduling
order.

Fed. R. Civ. P. 16(b)(4); Somascan, Inc. v. Phillips Med.

Sys. Nederland, B.V., --- F.3d ---, 2013 WL 1715568, *1 (1st Cir.
Apr. 22, 2013).

Good cause, for purposes of amending a

scheduling order, “focuses on the diligence (or lack thereof) of
the moving party more than it does on any prejudice to the partyopponent.”

Id. (internal quotation marks omitted).
2

Discussion
The scheduling order in this case set April 15, 2012, as the
deadline for amending pleadings.

Both Capital Offset and Johnson

moved to amend their pleadings after the deadline.

Neither

addressed the applicable standard under Rule 16(b)(4).1
Therefore, neither Capital Offset nor Johnson has shown good
cause to amend the scheduling order to allow the late amendments
they propose.

Conclusion
For the foregoing reasons, the defendant’s motion to amend
its counterclaim (document no. 72) and the plaintiff’s motion to
amend the complaint (document no. 73) are denied without
prejudice to filing properly supported motions.
SO ORDERED.
____________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 9, 2013
cc:

Jennifer Turco Beaudet, Esquire
Lawrence F. Boyle, Esquire
Elsabeth D. Foster, Esquire
Thomas J. Pappas, Esquire
Arnold Rosenblatt, Esquire
Mark W. Shaughnessy, Esquire
William N. Smart, Esquire

1

While Capital Offset acknowledges that its motion is
untimely, it mistakenly assumes that the amendment should be
allowed as long as the new claim would not be futile.
3