United States District Court, D. Massachusetts
PATRICIA A. MURPHY, V.M.D. and KEVIN F. MURPHY, as they are Guardians of Kathleen M. Murphy Plaintiffs
ROBIN HARMATZ and SERVICENET, INC. Defendants.
MEMORANDUM AND ORDER WITH REGARD TO PLAINTIFFS'
MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT (DKT. NO.
KATHERINE A. ROBERTSON United States Magistrate Judge.
Patricia A. Murphy and Kevin F. Murphy, as they are guardians
of Kathleen M. Murphy ("Plaintiffs"), have moved
for leave to file a second amended complaint ("Proposed
Complaint") pursuant to Federal Rule of Civil Procedure
16(b)(3)(A) (Dkt. No. 174), proposing to add four new
individual defendants (one of whom was previously dismissed
as a defendant) and counts against each of these individuals,
as well as two new counts against defendant ServiceNet, Inc.
("ServiceNet"). The defendants oppose the motion
(Dkt. Nos. 177, 178). For the following reasons,
Plaintiffs' motion for leave to file a second amended
complaint will be DENIED.
are the guardians of their sister, Kathleen M. Murphy
("Ms. Murphy"), an intellectually disabled adult
who qualifies by reason of her disabilities for residential,
educational, and day services from the Massachusetts
Department of Development Services ("DDS"). On
November 8, 2013, Plaintiffs filed their initial complaint
naming as defendants DDS, ServiceNet, four DDS employees, and
seven officers of ServiceNet. The overarching allegation in
Plaintiffs' complaint was that DDS operated a two-tier
system of residential care for the intellectually disabled:
homes operated directly by DDS, such as the home where Ms.
Murphy presently resides, which provided high quality care,
and homes operated by private corporations such as
ServiceNet, in which substandard care was provided.
Plaintiffs alleged that Ms. Murphy had received substandard
care in group homes operated under contract with DDS,
including a group home or homes operated by ServiceNet (Dkt.
No. 73 at 3-4, 11). On November 21, 2013, the presiding
District Judge held a hearing on, and denied without
prejudice, Plaintiffs' motion for a preliminary
injunction, finding that Plaintiffs had not adequately shown
irreparable harm or a likelihood of success on the merits of
their claims (id. at 11).
on December 20, 2013, while the defendants' motions to
dismiss were pending, Plaintiffs filed an amended complaint
as a matter of course (id). See Fed. R. Civ. P.
15(a)(1)(A) and (B) (a party may amend its pleading once as a
matter of course within 21 days after service or, if the
pleading is one to which a responsive pleading is required,
within 21 days after service of a responsive pleading or a
motion under Rule 12(b), (e), or (f), whichever comes
April 8, 2015, the presiding District Judge adopted in
substantial part Magistrate Judge David H. Hennessy's
Report and Recommendation on Defendants' Motions to
Dismiss the Amended Verified Complaint, dismissing a majority
of the claims and a majority of the defendants named in the
amended complaint (Dkt. Nos. 73, 86). The court held that
"[n]othing approaching a sufficiency may be located
within the [amended] complaint supporting an across-
the-board allegation of any discriminatory 'two-tier'
system [of care for the developmentally disabled operated by
DDS]" (Dkt. No. 86 at 3). The court's ruling on
defendants' motions to dismiss substantially limited the
scope of this suit: there remained only one count asserted
against ServiceNet for negligent infliction of emotional
distress and three counts against Robin Harmatz individually,
in her capacity as a former DDS employee, those being under
42 U.S.C. § 1983, the Massachusetts Civil Rights Act,
and for intentional infliction of emotional distress (Dkt.
No. 86 at 4-6).
the court's ruling on the defendants' motions to
dismiss, the parties appeared before the court on May 21,
2015 for an initial scheduling conference (Dkt. No. 90). The
resulting scheduling order set discovery deadlines, and, of
note for purposes of this motion, set a July 29, 2015
deadline for the parties to file motions for leave to amend
their pleadings (Dkt. No. 90). No party moved for an
extension of this deadline. Notwithstanding that the issues
in the case had been substantially narrowed, discovery was
contentious and time-consuming. Following several extensions
prompted by the parties' motions, non-expert discovery
closed on September 30, 2016 (Dkt. No. 144). On November 14,
2016, Plaintiffs filed the motion presently before the court
(Dkt. No. 174).
default rule mandates that leave to amend a complaint is to
be "'freely given when justice so
requires.'" Steir v. Girl Scouts of the
USA, 383 F.3d 7, 12 (1st Cir. 2004) (quoting
Fed.R.Civ.P. 15(a)). "As the case progresses, and the
issues are joined, the burden on a plaintiff seeking to amend
a complaint becomes more exacting." Id.
"Once [as in this case] a scheduling order is in place,
the liberal default rule is replaced by the more demanding
'good cause' standard of Fed. R. Civ P. 16(b)."
Id. (citing O 'Cornell v. Hyatt Hotels of
P.R., 357 F.3d 152, 154-55 (1st Cir. 2004)). "Rule
16's 'good cause' standard '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. Philips Med. Sys. Nederland, B.V.,
714 F.3d 62, 64 (1st Cir. 2013) (quoting Steir, 383
F.3d at 12). Nonetheless, prejudice to opposing parties and
the burden on the court remain factors that the court should
take into account. "Regardless of the context, the
longer a plaintiff delays, the more likely the motion to
amend will be denied, as protracted delay, with its attendant
burdens on the opponent and the court, is itself a sufficient
reason for the court to withhold permission to amend."
Steir, 383 F.3d at 12 (citing Acosta-Mestre v.
Hilton Int'l of P.R., Inc., 156 F.3d 49, 52-53 (1st
Cir. 1998)). "Particularly disfavored are motions to
amend whose timing prejudices the opposing party by
'requiring a re-opening of discovery with additional
costs, a significant postponement of the trial, and a likely
major alteration in trial tactics and strategy ...'"
Id. (quoting Acosta-Mestre, 156 F.3d at
'considerable' amount of time certainly has passed
here." United States ex rel Hagerty v. Cyberonics,
Inc., 146 F.Supp.3d 337, 343 (D. Mass. 2015). Plaintiffs
filed their initial complaint more than three years ago, in
November 2013. After the presiding District Judge denied
their motion for preliminary injunctive relief, they filed
their amended complaint on December 20, 2013. This motion was
filed on October 14, 2016, close to three years after the
initial complaint was filed, more than fourteen months after
the July 2015 deadline in the scheduling order for filing
motions for leave to amend a pleading, and two weeks after
the close of non-expert discovery, which had been extended
for limited purposes only. At this late stage of the
proceedings, after the close of non-expert discovery,
Plaintiffs propose to name four new individual defendants,
add counts against each of these individuals, add additional
allegations of misconduct by Ms. Harmatz, and assert new
theories of liability against Ms. Harmatz and ServiceNet
(Dkt. 174-1). Following dismissal of the claims Plaintiffs
advanced based on their allegations of a two-tiered system of
care, what remained of the initial complaint was focused
largely on allegations of misconduct by Ms. Harmatz. The
court credits ServiceNet's representation that it would
be required to make major alterations in its defense strategy
and trial tactics if Plaintiffs are permitted to amend their
complaint again at this late date (Dkt. No. 178 at 6-7).
sole justification for this tardy motion is their generalized
assertion that they have been "placed at an unfair
disadvantage concerning discovery" (Dkt. No. 174 at 2).
This assertion is unpersuasive. As Ms. Murphy's
guardians, Plaintiffs have had continuous access to knowledge
about her care while she resided in homes operated by
ServiceNet. As early as late 2008, through the attorneys who
continue to represent them, Plaintiffs were negotiating with
DDS for a change of residence for Ms. Murphy based on their
dissatisfaction with the care she was receiving in ServiceNet
facilities (Dkt. No. 174-1 at 24-25). The claims directed at
nurse Janet Cremins in the Proposed Complaint are based on
Ms. Cremins' alleged failure to monitor and treat Ms.
Murphy's high blood pressure (Dkt. No, 174-1 at 19-23).
Plaintiffs' initial complaint included allegations about
Ms. Murphy's blood pressure levels gleaned from review of
shift notes, weekly data sheets, medication reports, and
other records related to Ms. Murphy's treatment and care
(Dkt. No. 1 at 29), and it is apparent to the court, based on
discovery disputes, that Plaintiffs have been aware of Ms.
Cremins' role for some time (e.g., Dkt. Nos. 116-21).
named Abbas Hamdan as a defendant in their initial complaint,
and were aware of his role at ServiceNet (Dkt. No. 1). They
alleged in their amended complaint, as they do in the
Proposed Complaint, that Mr. Hamdan was at all relevant times
aware of the severe harm being inflicted on Ms. Murphy while
she was cared for in a ServiceNet facility (Dkt. No. 42 at
62). Plaintiffs deposed Mr. Hamdan in January 2016, some nine
months before the instant motion was filed. The first day of
deposition for Claire Kuhn, Ph.D., was on July 25, 2016 (Dkt.
No. 177 at 3). To the extent the claims in the Proposed
Complaint are based on affidavits attested to by Ms. Cremins
and Ms. Harmatz and filed in opposition to Plaintiffs'
motion for a preliminary injunction (Dkt. No. 174-1 at 19-23;
27-29), Plaintiffs have known about the contents of those
affidavits since November 21, 2013 (Dkt. No. 175, filed under
seal on November 21, 2013). Plaintiffs have failed to offer
any explanation as to why they would have been unaware prior
to October 2016 of alleged actions directed at Ms. Murphy by
Beverly Darby, ServiceNet's Program Director.
note, on July 29, 2016, Plaintiffs filed a complaint in the
Superior Court Department of the Massachusetts Trial Court
naming as defendants Ms. Cremins and Dr. Kuhn, raising
allegations about their alleged mistreatment of Ms. Murphy.
Plaintiffs did not serve the state court complaint until
October 31, 2016, after the close of non-expert discovery in
this case. The allegations in the state court complaint
concerning Ms. Cremins and Ms. Kuhn generally mirror the
allegations in the Proposed Complaint, and there is an
overlap of state law claims. If Plaintiffs could file the
state court complaint attached hereto as Exhibit 1 in July
2016, they could have filed the motion presently before the
court in the same timeframe, before the close of non-expert
discovery. They chose not to do so.
the court "rejects [Plaintiffs'] assurance that the
additional claims will not require further discovery,
engendering delay and prejudicing the [defendants."
Eastern, Fisheries, Inc. v. Airgas USA, LLC, 166
F.Supp.3d 124, 127 (D. Mass. 2016) (denying plaintiffs motion
for leave to file an amended complaint); see also Cyber
onics, Inc., 146 F.Supp.3d at 343 (collecting cases). At
the very least, any newly named defendant would be entitled
to conduct discovery, if not to move for dismissal of some or
all of the claims asserted in the Proposed Complaint, further
postponing resolution of a case that ...