United States District Court, D. Massachusetts
JASON P. O'LEARY, and RICHARD P. LEONARD, individually and on behalf of others similarly situated, Plaintiffs,
NEW HAMPSHIRE BORING, INC., THOMAS A. GARSIDE, and JAYNE F. BURNE, Defendants.
MEMORANDUM AND ORDER ON PLAINTIFFS' MOTION FOR
LEAVE TO FILE AMENDED COMPLAINT (DKT. NO. 50)
L. CABELL, U.S.M.J.
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.
RELEVANT PROCEDURAL BACKGROUND
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.
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).
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.
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
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
The Plaintiffs Have Been Diligent
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.
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.
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 ...