Wolfeboro, Town of v. Wright-Pierce, Inc.

Filing 26

ORDER denying without prejudice 23 Motion for Leave to File amended complaint. So Ordered by Judge Joseph A. DiClerico, Jr.(dae)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE

Town of Wolfeboro
v.

Civil No. 12-cv-130-JD

Wright-Pierce
O R D E R
After problems developed with its new wastewater disposal
system, the Town of Wolfeboro brought suit against Wright-Pierce,
the engineer for the project.

Wolfeboro now moves for leave to

amend its complaint to add claims of violation of the New
Hampshire Consumer Protection Act, fraud, fraudulent
misrepresentation, and gross negligence.

Wright-Pierce objects

to the motion for leave to amend.

Discussion
Wolfeboro moves to amend its complaint under the liberal
standard provided by Federal Rule of Civil Procedure 15(a)(2).
The deadline for amending the pleadings, in the scheduling order,
was November 30, 2012.

Wright-Pierce contends that Wolfeboro

cannot show good cause, under Federal Rule of Civil Procedure
16(b)(4), to modify the scheduling order.
In general, 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, as

here, the plaintiff seeks leave to amend the complaint after the
scheduling order deadline, the plaintiff 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 party-opponent.”

Id. (internal quotation

marks omitted).
Because Wolfeboro moves for leave to amend the complaint
after the scheduling order deadline has passed, the good cause
standard under Rule 16(b)(4) applies.
that standard in its motion.

Wolfeboro did not address

Therefore, Wolfeboro has not shown

good cause to modify the scheduling order to consider the
proposed amendment.

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Conclusion
For the foregoing reasons, the plaintiff’s motion for leave
to amend (document no. 23) is denied without prejudice to file a
properly supported motion.
SO ORDERED.

____________________________
Joseph A. DiClerico, Jr.
United States District Judge
May 9, 2013
cc:

David H. Corkum, Esquire
Rhian M.J. Cull, Esquire
John W. Dennehy, Esquire
Patricia B. Gary, Esquire
Matthew F. Lenzi, Esquire
Kelly Martin Malone, Esquire
Seth Michael Pasakarnis, Esquire

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