United States District Court, D. Massachusetts
MEMORANDUM AND ORDER ON DEFENDANT, NSTAR ELECTRIC
& GAS COMPANY'S, MOTION TO STRIKE PLAINTIFF'S
AMENDED COMPLAINT (#34).
Page Kelley, United States Magistrate Judge.
7, 2017, plaintiff Jason Moore filed an amended complaint.
(#33.) Defendant Nstar Electric & Gas filed a motion to
strike in response. (#34.) Determining that the amended
complaint was improper as filed, the court construed it to be
a motion to file an amended complaint and defendant's
motion to strike to be an opposition. (#38.) Plaintiff was
granted leave to file a memorandum of law addressing
Nstar's opposition. Id. With plaintiff's
memorandum having been filed (#40), the motion stands ready
original complaint,  Moore alleged that he was wrongfully
terminated from his employment by Nstar due to a disability.
(#1 at 1.) As is required by both Title VII, 42 U.S.C. §
2000e-5(f), and Massachusetts General Laws chapter 151B,
§§ 5-9, prior to instituting this lawsuit,
plaintiff filed an administrative charge alleging that he
“was discriminated against by NSTAR, on the basis of
Disability.” (#35-1.) In the amended complaint, in
addition to claims relating to discrimination based on
disability, Moore included a claim for racial discrimination
in violation of Title VII. (#33, Count Two.)
argues that he is entitled to amend his complaint once as a
matter of right pursuant to Rule 15, Fed.R.Civ.P. (#40 at 1.)
Plaintiff is incorrect in his reading of the rule. Rule
15(a)(1), Fed. R. Civ. P., states that
[a] party may amend its pleading once as a matter of course
(A) 21 days after serving it, or
(B) if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or
21 days after service of a motion under Rule 12(b), (e), or
(f), whichever is earlier.
case, plaintiff's original complaint was served on or
before April 19, 2016, the date Nstar filed its
answer. An amended complaint filed on June 7,
2017, more than a year after service of the original
complaint and the filing of a responsive pleading, i.e., the
answer, plainly falls outside the 21-day time parameter set
out in the rule.
Rule 15(a)(1) is inapplicable, a plaintiff may make
amendments “only with the opposing party's written
consent or the court's leave.” Fed.R.Civ.P.
15(a)(2). The rule further provides that “[t]he court
should freely give leave [to amend] when justice so
requires.” Id. That said, “amendments
may be denied for several reasons, including undue delay, bad
faith, dilatory motive of the requesting party, repeated
failure to cure deficiencies, and futility of
amendment.” Hagerty ex rel. United States v.
Cyberonics, Inc., 844 F.3d 26, 34 (1st Cir. 2016)
(internal citations and quotation marks omitted). As
explained by the First Circuit, the court's leave to
amend analysis is context specific. See Nikitine v.
Wilmington Trust Co., 715 F.3d 388, 390 (1st Cir. 2013)
(addressing a district court's decision to deny a motion
for leave to amend, the court noted that “[e]verything
depends on context.”).
argues several reasons why the proposed amendment should be
denied, the first of which is futility. See Adorno v.
Crowley Towing And Transp. Co., 443 F.3d 122, 126 (1st
Cir. 2006) (“Consent to file amended pleadings shall be
freely given when justice so requires unless the amendment
would be futile or reward undue delay.”) (internal
citations and quotation marks omitted); Hatch v.
Dep't for Children, Youth & Their Families, 274
F.3d 12, 19 (1st Cir. 2001) (“futility is fully
sufficient to justify the denial of a motion to
amend”). In the proposed amended complaint, Moore
alleges that he was unlawfully terminated on December 14,
2010. (#33 ¶ 10.) As noted, the filing of an
administrative charge is a prerequisite to bringing a claim
under Title VII. Plaintiff has never filed an administrative
claim with respect to racial discrimination, and the time
within which to do so has long since passed. Nat'l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104-05
(2002) (“Section 2000e-5(e)(1) requires that a Title
VII plaintiff file a charge with the Equal Employment
Opportunity Commission (EEOC) either 180 or 300 days
‘after the alleged unlawful employment practice
occurred.'”). The First Circuit has reiterated
Before an employee may sue in federal court on a Title VII
claim, he must first exhaust administrative remedies. The
Title VII administrative process begins with the filing of an
administrative charge before the EEOC. The employee may sue
in federal court only if the EEOC dismisses the
administrative charge, or if it does not bring civil suit or
enter into a conciliation agreement within 180 days of the
filing of the administrative charge. In either case, the EEOC
must send the employee notice, in the form of what is known
as a right-to-sue letter. Upon receiving such notice, the
employee has ninety days to sue in federal court. With
limited exceptions [. . .] the failure to exhaust this
administrative process bars the courthouse door.
Franceschi v. U.S. Dep't of Veterans Affairs,
514 F.3d 81, 85 (1st Cir. 2008) (internal citations and
quotation marks omitted). Plaintiff's failure to exhaust
his administrative remedies with respect to his racial
discrimination claim is sufficient reason to deny a request
to amend his complaint to bring such a claim.
interest of completeness, Nstar's other arguments shall
be addressed briefly. Defendant contends that there has been
undue delay in seeking to file the amended complaint.
According to the First Circuit, “when considerable time
has elapsed between the filing of the complaint and the
motion to amend, the movant has [at the very least] the
burden of showing some valid reason for his neglect and
delay.” Invest Almaz v. Temple-Inland Forest Prod.
Corp., 243 F.3d 57, 71 (1st Cir. 2001) (internal
citation and quotation marks omitted). “[P]eriods of
fourteen months, fifteen months, and seventeen months”
have been deemed to constitute “considerable
time.” In re Lombardo, 755 F.3d 1, 3 (1st Cir.
2014) (internal citations and quotation marks omitted). Here,
more than eighteen months elapsed between the filing of the
original complaint and the proposed amended complaint. Moore
has proffered no explanation as to why the proposed amended
complaint could not have been filed earlier. While plaintiff
contends that a report he filed with Nstar concerning an
incident with a fellow worker evidences racial
discrimination, the incident occurred on September 3, 2010
and the report was authored on September 7, 2010. (#40 at 4;
#40-1.) Clearly, the facts were known to Moore for more than
five years before he filed his original complaint.
In these circumstances there is simply no justification for
the lengthy delay before attempting to amend.
Nstar claims that it would be unduly prejudiced if the
amendment were to be allowed. Defendant's point is well
taken. Discovery closed in May 2017. To allow a completely
new claim into the case at this juncture would mean not only
reopening discovery, but also likely redoing at least some of
what has already been ...