Doe v. Brown University
MEMORANDUM AND ORDER denying 85 Motion to Amend; granting 86 Motion to Amend. So Ordered by Chief Judge William E. Smith on 11/9/2017. (Jackson, Ryan)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
C.A. No. 15-144 WES
MEMORANDUM AND ORDER
This case is before the Court on two motions: Plaintiff John
Doe’s to amend his complaint (ECF No. 85), and Defendant Brown
University’s to amend the Court’s scheduling order (ECF No. 86).
For the reasons stated below, Plaintiff’s motion is denied, and
Defendant’s motion granted.
Plaintiff John Doe filed his initial complaint on April 13,
2015, alleging unlawful defects in the administration and outcome
responsible for sexual assault. Compl. 1-47, ECF No. 1. On May 22,
2015, Brown moved to dismiss the complaint, Def.’s Mot. to Dismiss
Compl. 1, ECF No. 10, and this Court issued its decision on that
motion on February 22, 2016, Doe v. Brown Univ., 166 F. Supp. 3d
177 (D.R.I. 2016). Consistent with the Court’s scheduling order,
the parties completed fact discovery on July 14, 2017. Text Order
Granting ECF No. 76 Mot. to Am. Deadlines (May 25, 2017). The
latest scheduling order has, among other dates, November 14, 2017,
as the deadline for the parties to complete expert discovery and
Granting ECF No. 84 Mot. to Revise Pretrial Order (August 17,
Doe moved to amend the complaint to add “four new contractbased claims” on October 16, 2017. Pl.’s Mem. in Supp. of Mot. to
Am. Compl. 1, ECF No. 85-2. He claims his motion was “based on a
information developed in discovery[,] and the Court’s decision in
a case decided last year.” Id. (citations omitted). Federal Rule
of Civil Procedure 15(a)(2) states that a motion to amend a
complaint “should [be] freely give[n] when justice so requires.”
The breadth offered plaintiffs by Rule 15(a)(2) is not unbounded,
however. See Calderón-Serra v. Wilmington Tr. Co., 715 F.3d 14, 19
(1st Cir. 2013) (“The rule does not mean that a trial court must
mindlessly grant every request for leave to amend.”) (alteration
and quotations omitted)).
Indeed, “[u]ndue delay is a permissible ground for denying
leave to amend, and when a considerable period of time has passed
between the filing of the complaint and the motion to amend, courts
have placed the burden upon the movant to show some valid reason
for his neglect and delay.” U.S. ex rel. Wilson v. Bristol-Myers
Squibb, Inc., 750 F.3d 111, 119-20 (1st Cir. 2014) (citations and
quotations omitted); see also
Calderón-Serra, 715 F.3d at 19
(noting that other reasons to deny leave include “bad faith,
futility, or the absence of due diligence on the movant's part”
(alteration omitted)). Whether a considerable period has passed in
any particular case depends on the circumstances, see Kay v. N.H.
Democratic Party, 821 F.2d 31, 34 (1st Cir. 1987), but courts
regularly find that periods between twelve and twenty-four months
considerable, see, e.g., Acosta-Mestre v. Hilton Int’l of P.R.,
Inc., 156 F.3d 49, 52 (1st Cir. 1998) (affirming denial of leave
after fifteen-month delay); Grant v. News Grp. Bos., Inc., 55 F.3d
1, 5 (1st Cir.
delay); Stepanischen v.
Merchs. Despatch Transp. Corp., 722 F.2d 922, 933 (1st Cir. 1983)
Here, the period between when Doe filed his initial complaint
and when he moved to amend was over thirty months, see Pl’s. Compl.
47; Pl’s. Mot. to Am. Compl. 2, doubtless a considerable period
under First Circuit precedent, see, e.g., Acosta-Mestre, 156 F.3d
at 52, and one for which Doe has not provided a valid excuse.
In his second memorandum in support of his motion, Doe
argues that the proposed amended complaint was “shaped at least in
decision on Brown’s motion to dismiss and that after a bench trial
in a similar case – occurred over eighteen and twelve months ago,
respectively. See Doe v. Brown Univ., 166 F. Supp. 3d 177 (D.R.I.
2016) (motion to dismiss); Doe v. Brown Univ., 210 F. Supp. 3d 310
(D.R.I. 2016) (bench trial).
Moreover, the allegations in the latter case, sounding in
contract, were far from novel, Doe v. Brown Univ., 210 F. Supp. 3d
at 330-31, and relied on similar, recently decided cases brought
against colleges and universities, see, Havlik v. Johnson & Wales
Univ., 509 F.3d 25 (1st Cir. 2007); Doe v. Brandeis Univ., 177 F.
Supp. 3d 561 (D. Mass. 2016). To the extent, if any, that this
Court’s decision in the bench trial and that on Plaintiff’s motion
to dismiss added grist to the mill, there was more than enough
time for Doe to amend his complaint after considering the import
of these decisions, without waiting until three months after the
conclusion of fact discovery. Cf. Kay, 821 F.2d at 34 (affirming
denial of leave where plaintiff waited three months after dismissal
part by information derived in discovery.” Pl.’s Reply Mem. in
Further Supp. of Mot. to Am. Compl. 6, ECF. No. 89. But while it
may be true that discovery taken some time after the decision on
Brown’s motion to dismiss helped sharpen Doe’s understanding of
his case, the Court finds that the information Doe had after
perusing that decision provided basis enough – or should have so
provided – to amend his complaint shortly thereafter. See Leonard
v. Parry, 219 F.3d 25, 30 (1st Cir. 2000) (“What the plaintiff
knew or should have known and what he did or should have done are
relevant to the question of whether justice requires leave to amend
[the complaint] under [Fed. R. Civ. P. 15(a)].”).
of initial complaint to file motion to amend, and where plaintiff’s
reason for delay was, in part, that he needed time to adjust
complaint to cases cited in district court’s dismissal).
The circumstances of this case – specifically the fact that
(1) Doe waited thirty months after filing his initial complaint to
move for amendment; (2) he had all he needed to inform his proposed
amendment at least twelve months ago; (3) fact discovery has
closed; and (4) Brown’s summary judgment motion is due presently
make the proper course denial of Doe’s motion.
Brown has moved to extend the deadline by which to file its
summary judgment motion and by which to conclude expert discovery
from November 14, 2017, to November 30, 2017. Def’s. Mot. to Am.
uncertainty introduced by Doe’s motion to amend and the potential
participation in a trial and by potential logistical issues with
taking expert deposition testimony. Id. Doe assents to Brown’s
motion on the condition that Brown agree to a date to continue the
deposition of Bita Shooshani. Pl.’s Conditional Assent to Mot. to
Am. Scheduling Order 1, ECF No. 88.
The Court grants Brown’s motion without condition, but with
the expectation that the parties will find a mutually agreeable
time to continue Ms. Shooshani’s deposition. See O’Connell v. Hyatt
Hotels of P.R., 357 F.3d 152, 154 (1st Cir. 2004) (“[T]he court
may extend a scheduling order deadline on a showing ‘of good cause
if the [deadline] cannot reasonably be met despite the diligence
of the party seeking the extension.’”) (quoting Advisory Committee
Notes to the 1983 Amendments of Fed. R. Civ. P. 16(b)). The
deadlines in the current scheduling order are therefore modified
to comport with those proposed in Brown’s motion. Def’s. Mot. to
Am. Scheduling Order 3.
For these reasons, Doe’s motion (ECF No. 85) is DENIED, and
Brown’s motion (ECF No. 86) GRANTED.
IT IS SO ORDERED.
William E. Smith
Date: November 9, 2017
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