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O'Leary v. New Hampshire Boring, Inc.

United States District Court, D. Massachusetts

January 5, 2018

JASON P. O'LEARY, and RICHARD P. LEONARD, individually and on behalf of others similarly situated, Plaintiffs,


          DONALD L. CABELL, U.S.M.J.

         The plaintiffs have moved for leave to amend their complaint to add four new defendants, the Massachusetts Bay Transportation Authority (MBTA), Nobis Engineering, Inc. (Nobis), AECOM Technical Services, Inc. (AECOM), HNTB Corporation (HNTB), and several new common law claims. All of the proposed defendants received notice and all have opposed the motion except for the MBTA, which has not responded. (Dkt. Nos. 53, 54). As explained below, the motion will be allowed in part and denied in part; the complaint may be amended to assert a violation of M.G.L c. 149, § 27 against NHB and all of the proposed defendants, but will otherwise be denied.


         On August 5, 2015, the defendants moved to dismiss the original complaint for failure to state a claim. (Dkt. 13). On January 8, 2016, and while the motion to dismiss was pending, the plaintiffs moved jointly to extend the deadline to file motions seeking joinder of additional parties, third party complaints, amendment of pleadings, and/or class certification, to 30 days after the decision on the motion to dismiss. (Dkt. 32). The court granted the motion. (Dkt. 33). The court ruled on the motion to dismiss on March 31, 2016, creating a new filing deadline of May 2, 2016. Neither party filed a motion to add new parties or claims by that date.

         On October 31, 2016, about five months later, the parties jointly moved to extend the discovery deadline by 60 days. The parties also indicated that the plaintiffs intended to seek leave to amend the complaint to add the four proposed defendants. NHB indicated it was likely to assent to an amendment adding the MBTA, but expected that the plaintiff would not seek “in any way to revive the now-expired deadline for class certification motions.” (Dkt. No. 54). The parties further explained that, because the pertinent local rules required the plaintiff to first serve a motion to amend on each of the new parties 14 days prior to filing the motion to amend with the court, the plaintiffs would not file the motion to amend “until mid-November, after the discovery deadline.” (Dkt. 48). On November 3, 2016, the court granted the joint motion. (Dkt. 49).

         On November 28, 2016, and as presaged by the parties' joint motion, the plaintiffs moved for leave to amend the complaint. (Dkt. 50). Counts One and Two of the proposed amended complaint remain unchanged from the original complaint. Count Three continues to assert a violation of the prevailing wage statute, M.G.L. c. 149, § 27, but proposes to assert it against all of the proposed defendants as well. Count Four asserts a claim of quantum meruit against NHB and the four proposed defendants. Count Five asserts a claim of negligence against NHB and the four proposed defendants. Count Six asserts a claim of negligent misrepresentation against the four proposed defendants. Count Seven asserts a claim of negligent interference with advantageous relations against the four proposed defendants. Finally, Count Eight alleges a claim of civil conspiracy against NHB, Nobis, AECOM and HNTB.


         A party seeking to amend a complaint more than 21 days after “service of a responsive pleading or . . . motion under Rule 12(b), (e), or (f)” must seek leave of court to do so. Fed.R.Civ.P. 15(a). When deciding a motion to amend, the Court's task is to determine whether “justice … requires” that leave to amend be granted, a determination that requires the Court to “examine the totality of the circumstances and to exercise its informed discretion in construing a balance of pertinent considerations.” Id; Palmer v. Champion Mortg., 465 F.3d 24, 30-31 (1st Cir. 2006). “Reasons for denying leave [to amend] include undue delay in filing the motion, bad faith or dilatory motive, repeated failure to cure deficiencies, undue prejudice to the opposing party, and futility of amendment.” U.S. ex rel. Gange v. City of Worcester, 565 F.3d 40, 48 (1st Cir. 2009) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)).

         However, where a scheduling order setting out a deadline for amendment exists, “the liberal default rule is replaced by the more demanding ‘good cause' standard of Fed.R.Civ.P. 16(b).” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). “This standard focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent.” Id. “Nonetheless, prejudice to opposing parties and the burden on the court remain factors that the court should take into account.” Murphy v. Harmatz, Civil Case No. 13-CV-12839-MAP, 2016 WL 7468801, at *2 (D. Mass. Dec. 28, 2016). To show good cause, a party must demonstrate that despite their diligence the deadline in the scheduling order could not be reasonably met. House of Clean, Inc. v. St. Paul Fire and Marine Ins. Co., Inc., 775 F.Supp.2d 296, 298 (D. Mass. 2011). “The heightened good cause standard is. . .meant to preserve the integrity and effectiveness of Rule 16(b) scheduling orders.” Kane v. Town of Sandwich, 123 F.Supp.3d 147, 158 (D. Mass. 2015) (internal quotation and alteration marks omitted).

         III. ANALYSIS

         A. The Plaintiffs Have Been Diligent

         NHB argues that the plaintiffs have not been diligent in seeking to amend because they knew as early as April/June of 2016 of the facts underlying the proposed new claims. NHB argues that a diligent party would have at least sought to amend the scheduling order when it became aware of the factual predicate for the new claims. See Boston Scientific Corp. v. Radius Intern., L.P., Civil Action No. 06-10184-RGS, 2008 WL 1930423, at *2 (D. Mass. May 2, 2008). But, even assuming arguendo that the plaintiffs did not move to amend as soon as they became aware of a basis to do so, the court cannot say that they were not diligent.

         First, it would have been impractical if not impossible to hold the plaintiffs to the May 2, 2016 deadline. Among other things, the court effectively stayed discovery until after its resolution of the motion to dismiss, which in turn delayed the exchange of discovery potentially informing on the appropriateness or not of seeking leave to amend the complaint. For example, NHB provided discovery on April 29, 2016, only three days before the amendment deadline, indicating that certain third parties might also bear potential liability. The plaintiffs could not realistically investigate that allegation over the next three days and still comply with the amendment deadline.

         In that regard, it does appear that the plaintiffs did over the next few months investigate whether entities other than NHB might be liable. According to a timeline provided by the plaintiffs, to which no party has seriously objected, the parties sent a subpoena to the MBTA on March 21, 2016. The MBTA produced documents at various times but produced the bulk of them in August 2016. On September 22, 2016, the parties deposed the MBTA's Rule 30(b)(6) designee. Additionally, the plaintiff sent subpoenas to AECOM, HNTB, and Nobis on July 25, 2016. Nobis produced documents on September 1, 2016, and AECOM and HNTB produced documents on October 24, 2016. Against this backdrop, the plaintiffs acted reasonably quickly in notifying the ...

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