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

Filing 91

ORDER denying 80 Motion to Amend. So Ordered by Judge Joseph A. DiClerico, Jr.(lt)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Alford Johnson, as Trustee
of the Martha Wood Trust
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.

Capital Offset moves for leave to file a second

amended answer, after the deadline for amending pleadings, to
include a counterclaim of defamation against Johnson.
objects.

Johnson

Standard of Review
When, as here, a party seeks leave to amend pleadings after
the deadline, the moving party must show good cause to modify the
scheduling order.

Fed. R. Civ. P. 16(b)(4); Flores-Silva v.

McClintock-Hernandez, 710 F.3d 1, 3 (1st Cir. 2013).

Good cause,

for purposes of modifying a scheduling order, “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.

Phillips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir.
2013) (internal quotation marks omitted).

Although diligence is

the primary focus, prejudice to the opposing party caused by the
delay is also relevant.

O’Connell v. Hyatt Hotels of P.R., 357

F.3d 152, 155 (1st Cir. 2004).

Discussion
The parties’ discovery plan set April 15, 2012, as the
deadline for amending pleadings.

The plan was filed on December

29, 2011, and approved on December 30, 2011.

On August 8, 2012,

Capital Offset moved for leave to file an amended answer to
reflect its merger with another company.

The motion was granted,

and Capital Offset filed its amended answer on August 15, 2012.
The deadline for dispositive motions was June 21, 2013, and trial

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is scheduled for the two-week period beginning on December 10,
2013.
The defamation counterclaim that Capital Offset seeks to add
is based on an email sent by Johnson in December of 2010 to
“Dearest Family and Friends,” in which Johnson explained that he
was going to take legal action against the printer and binder of
Spiritual Passports.

Johnson stated, among other things, that

“[t]he printer and binder have committed grievous and wanton acts
by knowingly shipping defective books to the team and the
distributor (University of Texas Press), which has led to
defective books being sent to critics, reviewers, bookstores and
others.”

Doc. 80, Ex. B.

He asked the recipients of the email

to check their copies of the books for certain defects.
Capital Offset decided during the fall of 2012 that
Johnson’s email might be grounds for a defamation claim and
pursued the issue in discovery.

In a letter dated December 31,

2012, counsel for Capital Offset informed counsel for Johnson and
Susan Cox that “we will be proceeding with a motion to amend the
counterclaim as to the estate and a motion to amend our third
party claim as to Susan Cox based upon the defamatory statements
contained in documents produced by Susan Cox.”

Doc. 80, Ex. C.

Counsel stated that the motion would be filed “within the coming
weeks.”

On January 18, 2013, Capital Offset filed an assented-to
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motion to continue the trial and to change other deadlines but
did not seek an extension of the deadline for amending pleadings.
Capital Offset moved to amend its answer on April 12, 2013,
almost a year after the deadline for amending pleadings.1

In

support, Capital Offset contends that good cause exists for the
delay because it did not receive a copy of Johnson’s email in
discovery until August 2, 2012, and could not add the defamation
counterclaim until Johnson and Susan Cox had disclosed their
experts.2

When Cox’s expert disclosure deadline passed in March

of 2013 without an expert to address the statements in Johnson’s
email, Capital Offset decided to seek leave to add the defamation
counterclaim.
Delay may be justified when it was caused by the opposing
party’s production of critical information through discovery
after the scheduling deadline.

See StockFood Am., Inc. v.

Pearson Educ., Inc., 2012 WL 5986791, at *9 (D. Me. Nov. 29,
2012); Keele v. Colonial Imports Corp., 2012 WL 2192449, at *1
1

That motion was denied without prejudice because Capital
Offset failed to address the applicable standard under Rule
16(a)(2). Capital Offset then filed a new motion on May 21,
2013, which is considered here.
2

Although Capital Offset represents that it did not receive
the discovery until August 10, the exhibit appended to Capital
Offset’s motion is stamped showing that it was received on August
2. Johnson also notes that Capital Offset received the discovery
on August 2.
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(D.N.H. June 14, 2012).

A delay in seeking leave to add the

defamation counterclaim until the email was disclosed in August
of 2012 is understandable.

Capital Offset, however, waited

another eight months to seek leave to amend its answer.
To explain the additional delay, Capital Offset states that
it had to wait to see if either Johnson or Cox named an expert
“that would support plaintiff’s claims in the correspondence.”
Capital Offset’s reasoning with respect to experts is not clear.
In the absence of a defamation claim in the case, it is not
apparent why either Johnson or Cox would name an expert to
address the allegedly defamatory email.

Further, Johnson’s

deadline for expert disclosure was October 15, 2012, six months
before Capital Offset moved to amend.
Capital Offset contends that it had to wait until Cox’s
expert disclosure deadline passed on March 15, 2012, before it
could move to amend.

Despite its reference to Cox’s expert

disclosure deadline, Capital Offset does not seek leave to amend
the deadline to add a defamation claim against Cox.3
3

In these

In its reply, Capital Offset asserts that it could not have
had a good faith basis to bring the defamation counterclaim
against Johnson until it was certain that Cox would not have an
opinion from “industry expert” Wally McCormack to support
Johnson’s statements in his email. Although Capital Offset
states that it was not unreasonable to believe that Cox, rather
than Johnson, would rely on McCormack to support Johnson’s
statements, that theory is neither clear nor persuasive.
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circumstances, Capital Offset has not shown good cause for the
eight month delay in seeking leave to amend the deadline.
In addition, Johnson contends that the addition of the
defamation claim now would be prejudicial.

The expert disclosure

deadlines have passed, and Capital Offset appears to acknowledge
that Johnson likely would want to have an expert to address the
defamation claim.

The deadline for dispositive motions has also

passed, and the trial is scheduled for December.

Under these

circumstances, Capital Offset has waited too long to seek to
amend the deadline and for leave to add a counterclaim for
defamation against Johnson.

Conclusion
For the foregoing reasons, the defendant’s motion for leave
to amend (document no. 80) is denied.

SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
July 17, 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
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