HCC Specialty Underwriters, Inc. v. Woodbury et al
ORDER granting 46 Motion to Amend 1 Complaint. Within 48 hours counsel shall electronically refile the pleading attached to the Motion to Amend using the appropriate event in CMECF. So Ordered by Judge Landya B. McCafferty. Amended Pleadings due by 12/6/2017.(gla)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
HCC Specialty Underwriters, Inc.
Civil No. 16-cv-501-LM
Opinion No. 2017 DNH 245
John Woodbury, et al.
O R D E R
Before the court is a motion to amend the complaint filed
by plaintiff HCC Specialty Underwriters, Inc. (“HCC”).
In the original complaint, HCC alleges that defendant
John Woodbury, a former employee of HCC, violated his 1996 noncompete agreement and misused confidential information while
working for defendant Buttine Underwriters Agency, LLC d/b/a
Prize and Promotion Insurance Services (“Buttine”), a competitor
Based upon information it claims to have learned during
discovery, HCC seeks to amend the complaint to allege that
Woodbury also violated a 2001 release and misappropriated trade
Defendants object and argue that HCC’s motion is
For the following reasons, HCC’s motion is granted.
STANDARD OF REVIEW
Because HCC moves to amend the complaint after the deadline
set out in the scheduling order, “the court evaluates [HCC’s]
request . . . under the Rule 16 ‘good cause’ standard.”
v. Spaulding Youth Ctr., No. 16-cv-37-JL, 2016 WL 5477574, at *5
(D.N.H. Sept. 29, 2016) (emphasis omitted); see also Fed. R.
Civ. P. 16(b)(4) (“A schedule may be modified only for good
cause and with the judge's consent.”).
The purpose of this
standard is to “preserve the integrity and effectiveness of
Rule 16(b) scheduling orders.”
O’Connell v. Hyatt Hotels of
P.R., 357 F.3d 152, 155 (1st Cir. 2004); see also Cruz v.
Bristol-Myers Squibb Co., PR, Inc., 699 F.3d 563, 570 (1st Cir.
2012) (“A scheduling order is not a frivolous piece of paper,
idly entered, which can be cavalierly disregarded by counsel
without peril.” (quotation omitted)).
“Rule 16(b)'s ‘good cause’ standard emphasizes the
diligence of the party seeking the amendment.”
F.3d at 155.
The question is whether the deadline could not
have been reasonably met “despite the diligence of the party
seeking the extension.”
Id. at 154 (quotation omitted).
“Prejudice to the opposing party remains relevant but is not the
Id. at 155.
As the party seeking leave to
amend, HCC bears the burden of establishing good cause.
Forrester Envtl. Servs., Inc. v. Wheelabrator Techs., Inc., No.
10-cv-154-JL, 2012 WL 928080, at *2 (D.N.H. Mar. 19, 2012).
The following facts are taken from the original complaint,
unless otherwise noted.
HCC is a provider of specialized
insurance products, including insurance related to “event
cancellation, weather, travel, event liability, prize indemnity,
contractual bonus and over-redemption insurance.”
Doc. no. 1 at
Prior to his resignation in 2016, Woodbury was employed
for more than two decades by HCC, or one of its predecessors.
Woodbury’s work appears to have involved developing and managing
The present litigation arises from an employment agreement
between Woodbury and a predecessor of HCC, American Specialty
The agreement was executed in 1996 and is
titled “Employment, Incentive Compensation, Confidentiality and
Non-Competition Agreement” (hereinafter the “1996 Agreement”).
Woodbury agreed that, during his employment and for a period of
two years following his termination, he would not divert
business from his employer, would not “interfere in any material
respect with any business relationship between [the employer]
and any other person,” and would not render services to another
whose activities would violate the agreement if performed by
Id. at ¶ 16.
Woodbury also agreed that he would not
use confidential company information on behalf of any future
Woodbury resigned from HCC in June 2016.
thereafter, he began working for Buttine, which soon launched a
new set of insurance products.
HCC alleges that these insurance
products are “direct competitive offerings to that of HCC,” and
that Woodbury was hired to develop this area of Buttine’s
Id. at ¶ 25.
HCC asserts that, since Woodbury’s
resignation, defendants have met with reinsurers and clients
that have business relationships with HCC.
HCC thus alleges
that Woodbury is violating the 1996 Agreement by helping Buttine
compete against HCC in this niche insurance market.
HCC further alleges that defendants have used or will use
HCC’s confidential information to compete against HCC.
bases this allegation on the fact that Woodbury engaged in
unusual activity on his work computer shortly before, and
directly after, he tendered his resignation.
Woodbury accessed information that he had no need to access,
including contracts for prior clients, HCC’s budget information,
and a spreadsheet containing HCC’s rates for a certain insurance
Although HCC did not allege a claim for misappropri-
ation of trade secrets in the original complaint, it did allege
that some of the information Woodbury accessed would constitute
trade secrets under state law.
Based on defendants’ alleged conduct, HCC brought the
In the original complaint, HCC raises claims
for specific performance of the 1996 Agreement (Count I); breach
of the 1996 Agreement by Woodbury (Count II); tortious
interference with the 1996 Agreement by Buttine (Count III); a
declaratory judgment that the 1996 Agreement is valid and
enforceable (Count IV); and a claim against both defendants
under the New Hampshire Consumer Protection Act (Count V).
HCC moves to amend its complaint to add two new claims, as
well as additional factual allegations relevant to those claims.
HCC asserts that it only recently discovered the information
supporting these claims.
The first new claim is for breach of contract.
that Woodbury breached a release executed by Woodbury and ASU
International, Inc.—another of HCC’s predecessors—in 2001
(hereinafter “the 2001 Release”).
The 2001 Release was executed
as part of a security purchase agreement between ASU
International and HCC’s parent company, under which HCC’s parent
company would acquire ASU International’s stock.
that the 2001 Release reaffirms Woodbury’s obligations under the
1996 Agreement not to compete or to use HCC’s confidential
information, and that Woodbury violated those obligations.1
The second new claim is for misappropriation of trade
secrets under RSA 350-B, the New Hampshire Uniform Trade Secrets
HCC alleges that, after his resignation, Woodbury
retained confidential company information on his personal
computer, his wife’s computer, his personal email, and his
personal cell phone.
As HCC details in its motion, this
information includes, among other things, a list of HCC client
HCC contends that its confidential information
constitutes trade secrets and that defendants have
misappropriated HCC’s trade secrets in order to identify
potential customers and develop competing insurance products.
Although the deadline for amendments to pleadings was July
31, 2017, HCC did not file its motion until September 26.
Rule 16(b)’s “good cause” standard applies.
See Ashley, 2016 WL
5477574, at *5.
HCC argues that, under these circumstances, there is good
cause justifying the late amendments.
The court considers HCC’s
two proposed claims below.
To account for the alleged breach of the 2001 Release, HCC
also moves to expand the facts underlying its original claims
for specific performance, declaratory judgment, tortious
interference with contract, and violation of the Consumer
Breach of 2001 Release
HCC asserts that it discovered the 2001 Release after
defendants served their first request for production on July 18.
In compiling documents responsive to defendants’ request, HCC
collected files related to the 2001 security purchase agreement
HCC discovered the 2001 Release attached to that
agreement, which HCC produced to defendants on August 8.
HCC argues that, under these circumstances, there is good
cause to justify the late amendment adding the claim and
allegations relating to the 2001 Release.
acknowledges that the 2001 Release was in its possession, HCC
asserts that its counsel did not discover the Release earlier
because the Release was contained in the files of the otherwise
unrelated 2001 security purchase agreement.
HCC argues that it
acted diligently in moving to amend the complaint once it
discovered the 2001 Release, and that permitting the amendment
will cause no prejudice to defendants.
They argue that HCC was not diligent
because the 2001 Release has been in HCC’s possession long
before HCC filed suit.
They further claim that they will suffer
prejudice if the motion is granted.
They assert that in
deciding to resign from HCC, Woodbury reviewed and relied on the
contents of his personnel file—which did not include the 2001
Defendants do not dispute that Woodbury signed the
Release, but they state that, at the time he resigned, Woodbury
had no memory of executing the document.
After weighing the arguments on both sides, the court
concludes that, although a close call, HCC has shown sufficient
good cause to permit the late amendments relating to the 2001
As set forth above, the predominant factor in the
court’s analysis is the diligence of the moving party.
O’Connell, 357 F.3d at 154-55.
Here, the court is satisfied
that HCC acted with diligence.
To be sure, the court recognizes
that the Release has been in HCC’s possession since 2001.
Still, the court finds HCC’s explanation for its late discovery
There appears to be no dispute that the late
discovery was a good faith oversight on the part of HCC—indeed,
defendants acknowledge that Woodbury too did not recall the
execution of the Release.
More importantly, once the Release
was discovered, HCC did not delay in producing the Release to
defendants or in seeking the proposed amendments.
In short, in
finding that HCC acted diligently, the court accords significant
weight both to the unusual circumstances presented here—that
both parties to the Release had no memory of its execution—as
well as to HCC’s conduct upon discovery of the Release.
Moreover, the court finds defendants’ prejudice argument
Defendants’ primary prejudice argument appears to
be related to the potential damage this evidence may do to their
case and their litigation strategy.2
However, the harm to
defendants’ case is caused by the mere existence of this
evidence rather than HCC’s belated discovery of it.
context of Rule 16(b), prejudice occurs “when amendments would
delay trial, restart a case at an earlier stage, or otherwise
unfairly limit a parties [sic] ability to present their case at
Robles v. Archer W. Contractors, LLC, No. 3:14-CV-1306-
M, 2015 WL 4979020, at *3 (N.D. Tex. Aug. 19, 2015).
do not allege this sort of prejudice.
Defendants’ argument that the recent discovery of this
evidence may alter their trial strategy is not sufficiently
persuasive to prohibit HCC’s amendment.
Such an event is common
to any case where a significant evidentiary discovery causes a
litigant to chart a different course.
The claimed prejudice is
Defendants also claim that HCC’s failure to include a copy
of the 2001 Release in Woodbury’s personnel file constitutes a
violation of Massachusetts state law. See Mass. Gen. Laws ch.
149, § 52C (2017) (requiring employers to keep complete
personnel records of employees). Even if defendants are
correct, defendants have not persuaded the court that such a
violation bears on whether there is good cause for the late
especially weak here because Woodbury does not dispute that he
executed the 2001 Release.
For these reasons, the court concludes that there is good
cause to allow the late amendments relating to the 2001 Release.
Misappropriation of Trade Secrets
With respect to the UTSA claim, HCC argues that it has
demonstrated good cause because it acted diligently in filing
the motion to amend.
Specifically, HCC states that it first
learned through discovery propounded on August 18 that Woodbury
retained confidential HCC information on his personal devices
after his resignation.
Defendants argue that HCC did not act with diligence
because it had a factual basis to raise a UTSA claim when it
filed the original complaint, but failed to do so.
defendants point to the factual allegations in the original
complaint concerning Woodbury’s “abnormal” computer activity, as
well as the allegations relating to defendants’ use of HCC’s
confidential information to compete against HCC.
Like defendants’ prejudice argument concerning the 2001
Release, defendants also contend that they have made strategic
decisions in defending the case based on the claims in the
Additionally, defendants argue that the
addition of a UTSA claim will prolong the litigation.
The court finds that there is good cause to allow HCC’s
With respect to diligence, defendants are correct
that there are some factual allegations in the original
complaint that could have arguably supported a UTSA claim.
Still, in the original complaint, the principal allegation
suggesting that Woodbury had taken and used HCC’s confidential
information was HCC’s claim that Woodbury had engaged in
“abnormal activity” on his work computer shortly before and
directly after his resignation.
Doc. no. 1 at ¶ 38.
provides a weaker inference of misappropriation than the
information recently disclosed by defendants—that Woodbury
continued to maintain confidential HCC information on his
personal devices at the time he was developing Buttine’s
Given that difference, the court cannot fault HCC for
initially foregoing a less robust claim and waiting until it
discovered more plausible evidence suggestive of
Further, the court is not inclined to fault
HCC where defendants did not produce the new discovery until
after the amendment deadline.
See Mudge v. Bank of America,
N.A., No. 13-cv-421-JD, 2014 WL 2196899, at *3 n.4 (stating that
“delay may be justified when it was caused by the opposing
party's production of critical information through discovery
after the scheduling deadline”).
Looking at HCC’s actions as a
whole, the court finds that HCC acted diligently.
Nor can the court agree with defendants that the late
amendment will cause them prejudice.
The UTSA claim arises out
of the same operative facts as HCC’s original claims.
the proposed amendment does introduce a new cause of action, the
facts and legal issues underlying the UTSA claim are, at bottom,
consistent with HCC’s original theory of the case—that
defendants have used HCC’s confidential information to unfairly
compete against HCC.
In short, the court is not convinced that
the current course of the proceedings will be so altered by the
proposed amendment that it will prolong the litigation.
White v. One World Techs., Inc., No. 09-10011-NMG, 2011 WL
5513192, at *2 (D. Mass. Nov. 10, 2011) (finding that prejudice
resulting from amendment would be “slight,” where proposed claim
was “fundamentally similar” to current claim and defendants
would not need to alter preparation to account for additional
Therefore, as to the amendments relating to the UTSA claim,
HCC’s motion is granted.
For the reasons stated herein, HCC’s motion to amend the
complaint (doc. no. 46) is granted.
HCC shall file the first
amended complaint as allowed by this order on or before December
United States District Judge
December 4, 2017
All Counsel of Record
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