DIANE HAMILTON, on behalf of herself and all other employees similarly situated; LYNNE P. CUNNINGHAM, on behalf of herself and all other employees similarly situated; CLAIRE KANE, on behalf of herself and all other employees similarly situated; MARIA VICTORIA SORENSEN, Consent to Sue Plaintiff, Plaintiffs, Appellants,
PARTNERS HEALTHCARE SYSTEM, INC.; PARTNERS COMMUNITY HEALTHCARE, INC.; THE BRIGHAM & WOMEN'S HOSPITAL; BRIGHAM & WOMEN'S/FAULKNER HOSPITALS, INC.; MARTHA'S VINEYARD HOSPITAL, INC.; THE MASSACHUSETTS GENERAL HOSPITAL; MCCLEAN HEALTHCARE, INC.; THE MCCLEAN HOSPITAL CORPORATION; NANTUCKET COTTAGE HOSPITAL; NEWTON WELLESLEY HOSPITAL; NEWTON WELLESLEY HEALTHCARE SYSTEM, INC.; NORTH SHORE CHILDREN'S HOSPITAL, INC.; NORTH SHORE MEDICAL CENTER, INC.; NSMC HEALTHCARE, INC.; THE SALEM HOSPITAL; UNION HOSPITAL AUXILIARY OF LYNN, INC.; FAULKNER HOSPITAL, INC., Defendants, Appellees, YOUVILLE HOSPITAL & REHABILITATION CENTER, INC.; JAMES J. MONGAN, MD; DENNIS D. COLLING, Defendants.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS [Hon. Douglas P. Woodlock, U.S.
Patrick J. Solomon, with whom Thomas & Solomon LLP was on
brief, for appellants.
A. Schreter, with whom Bradley E. Strawn and Littler
Mendelson, P.C. were on brief, for appellees.
Lynch, Thompson, and Kayatta, Circuit Judges.
an appeal from a purported denial of a motion for leave to
amend a complaint after certain court proceedings. We affirm,
on the particular facts of this case, concluding that the
district court did not abuse its discretion. Our reasons are
best understood from our recitation of the facts.
September 2009, Diane Hamilton, Lynne P. Cunningham, and
Claire Kane ("plaintiffs") filed suit in the
District of Massachusetts against a group of healthcare
entities allegedly affiliated with Partners Healthcare
System, Inc. ("defendants"), alleging that the
defendants' compensation practices violated the Fair
Labor Standards Act ("FLSA"), 29 U.S.C. § 201
et seq., the Employee Retirement Income Security Act
("ERISA"), 29 U.S.C. § 1001 et seq.,
and the Racketeer Influenced and Corrupt Organizations Act
("RICO"), 18 U.S.C. § 1961 et
seq. This was one of at least twenty-nine such
cases filed by plaintiffs' counsel across the country,
including four other cases filed in the District of
Massachusetts, all involving virtually identical
complaints. It purported to be brought as a class
complaint stated that the plaintiffs were "[a]t all
relevant times . . . employees under the FLSA, employed
within this District and resid[ing] within this District,
" but did not describe which of the defendants actually
employed the named plaintiffs and failed to state whether the
plaintiffs worked more than forty hours per week. In total,
plaintiffs' complaint listed twenty-seven healthcare
facilities associated with the named defendants and more than
100 "affiliated" healthcare facilities.
October 2009, defendants filed an answer to plaintiffs'
complaint, along with a motion to dismiss plaintiffs'
RICO claim. After briefing on the motion to dismiss, but
before the district court ruled on the motion, the parties
notified the district court that they had entered into a
structured mediation process. The mediation resulted in two
successive motions for preliminary approval of class and
collective action settlements, which were heard by the
district court. On December 27, 2010, the district court
rejected the first proposed settlement, stating, inter alia,
that there was potential for "fairly substantial
conflict among class members" because the contemplated
settlement could not account for potential disparities in the
damages suffered by class members. Several months later, the
district court rejected an amended settlement proposal on
March 9, 2011, reiterating its concern regarding class
conflict and stating that it could not find the proposed
settlement to be fair, adequate, and reasonable. The
plaintiffs were thus on notice of potential problems as to
the certification of a putative class based on their
pleadings. Settlement negotiations broke down after the
district court's second ruling.
April 1, 2011, defense counsel sent a letter to
plaintiffs' counsel with a number of requests, three of
which related to plaintiffs' federal claims as stated in
their complaint. First, defense counsel insisted that
plaintiffs' counsel dismiss all defendants, remove
references in the complaint to "Health Centers" and
"Affiliates" that did not employ any of the named
plaintiffs, and file an amended complaint containing
allegations sufficient to establish employment relationships
between the named plaintiffs and each defendant. To support
this request, defense counsel cited Manning v. Boston
Medical Center Corp. ("Manning I"),
No. 09-11463, 2011 WL 796505 (D. Mass. Feb. 28, 2011),
aff'd in part, vacated in part, remanded, 725
F.3d 34 (1st Cir. 2013), which dismissed a virtually identical
complaint based in part on its failure to identify which
defendant the named plaintiffs worked for, id. at
*1. Defense counsel also cited Nakahata v. New
York-Presbyterian Healthcare System, Inc., No. 10 Civ.
2661, 2011 WL 321186 (S.D.N.Y. Jan. 28, 2011), aff'd
in part, vacated in part, remanded, 723 F.3d 192 (2d
Cir. 2013),  which found another substantially similar
complaint to be deficient because of its "failure to
specify which entity, among the many named defendants,
employed the respective plaintiffs, " id. at
the letter urged plaintiffs' counsel to dismiss their
RICO and ERISA claims, which defense counsel contended were
"unfounded." As support, defense counsel cited
seven district court cases dismissing identical RICO claims,
including three District of Massachusetts cases, and two
district court cases dismissing identical ERISA claims,
including Manning I, in which the court found that
the plaintiffs' ERISA claims "fail[ed] as a matter
of law, " 2011 WL 796505, at *2.
the letter requested that plaintiffs' counsel amend and
replead the FLSA claims to comply with Bell Atlantic
Corp. v. Twombly, 550 U.S. 554 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009). Defense counsel warned
plaintiffs' counsel that other district courts had
dismissed nearly identical claims, citing Manning I,
which described the dismissed complaint as an
"aggregation of conclusory statements and general
allegations, " 2011 WL 796505, at *2; Pruell v.
Caritas Christi ("Pruell I"), No.
09-11466, 2010 WL 3789318 (D. Mass. Sept. 27, 2010), which
dismissed the plaintiffs' FLSA claims for failing to
allege the plaintiffs' weekly wages and hours worked or
even that the plaintiffs worked more than forty hours per
week, id. at *3; and DeSilva v. North Shore-Long
Island Jewish Health System, Inc., 770 F.Supp.2d 497
(E.D.N.Y. 2011), which dismissed the plaintiffs' FLSA
claims for failing to satisfy the "minimal burden"
of providing "some approximation of the overtime hours
that [plaintiffs] worked, " and for failing to identify
the type and nature of the purportedly unpaid work or
training, id. at 510.
the letter, plaintiffs' counsel informed defense counsel
on April 12, 2011 that they had no intention of repleading
any of their claims or providing any more specificity prior
to a status conference. Given plaintiffs' statement that
they would not seek to replead, defendants filed a motion for
judgment on the pleadings addressed to all of plaintiffs'
claims on April 19, 2011. Plaintiffs opposed the motion and,
in their memorandum in opposition, included a request to
replead "[s]hould the Court grant defendants'
later, the district court held a scheduling conference on
June 9, 2011. By this time, the district court had reviewed a
total of 58 pages of pleadings and dispositive motions, 145
pages of briefing associated with the dispositive motions,
125 pages of motions to approve settlement proposals, and 612
pages of relevant exhibits. During the conference, the
following exchange occurred between the district court and
THE COURT: . . . You should understand I'm not going to
permit amended pleadings in this matter. These are the
pleadings. We have been around on this enough, so this case
will rise and fall on the state of the pleadings after two
[PLAINTIFFS' COUNSEL]: If I may be heard on that, your
Honor, just briefly, very briefly, I would say.
THE COURT: What do you want, do you want to rebrief the thing
[PLAINTIFFS' COUNSEL]: The case has taken a long time to
get to a preliminary motion to dismiss stage, and the parties
spent a long time in mediation, and as part of that
mediation, we agreed as a courtesy to the defendants to
dismiss the individual defendants. That was never approved by
the Court, so the individual defendants are still around, but
there certainly has been a lot of case law change in the last
two years, particularly in the District of Massachusetts.
THE COURT: But you were afforded an opportunity by the
defendants to tidy up your pleadings and afforded that
opportunity in April, and so now you tell me when I set it
down for hearing for judgment on the pleadings that you want
to be able to take my temperature on the judgment on the
pleadings and then file another complaint?
[PLAINTIFFS' COUNSEL]: We didn't feel that we would
be in a position with the Court, the defendants were asking
us to do that. We didn't believe that the Court would
entertain an amended complaint while the motion on the
pleadings had been fully briefed.
THE COURT: Well, what makes you think that I'll do it
afterwards? Look it, I have taken several bites of this case.
I've seen it in what I consider to be inappropriate
posture for class settlement. I saw it originally in a motion
to dismiss posture, but this is not going to be Shahrazad, so
you now think you want to file an amended complaint?
[PLAINTIFFS' COUNSEL]: We would anticipate that the Court
would have since the motion was fully briefed, if there was
THE COURT: No, I asked you, is it your view that you now are
not satisfied with the pleading you've submitted?
[PLAINTIFFS' COUNSEL]: Well, in light of the recent
decisions that have come down, particularly yesterday, from
Judge Saylor, we would request the ability to submit an
amended complaint. All of the questions raised by the Court
there are very easy for us to remedy, and it's far more
efficient for the Court and for --
THE COURT: No, let me tell you, efficiency is when I say you
don't get a chance to replead, and I'm about at that
point. Now if you're telling me that you want to replead,
I'll consider it, but this is it. You've had a great
deal of litigation in a number of different fora. These are
not new issues to be perfectly candid, they've been out
there for some period of time, and I don't really fully
understand why I should permit this.
[PLAINTIFFS' COUNSEL]: Well, your Honor --
THE COURT: What are you going to do? What is it that provided
an epiphany in Judge Saylor's decision?
[PLAINTIFFS' COUNSEL]: Well, the complaint was dismissed
with prejudice. That was the defining moment. The courts have
liberally allowed amendments to pleading. When the case was
initially filed, we had numerous cases where on these very
similar pleadings, as the defendants point out, had been
successful. As the case law has been developing, courts are
now raising the standard, it appears, as to what level of
detail you need, but the situation that we're in --
THE COURT: What are you going to do? What is this amended
complaint going to do?
[PLAINTIFFS' COUNSEL]: It would answer the questions that
the courts have raised, it would provide additional detail as
to who the defendants are. We believe that we've
sufficiently alleged that the defendants are this entity, but
we can specifically allege, as we have in the 20 affidavits
that were submitted with the notice motion, where these
individuals worked, who supervised them and the type of work
they did. The evidence in this case is going to be extremely
strong on behalf of these clients.
THE COURT: Look it, you have to make it over the pleading
hurdle, and now I schedule it for a hearing on your
pleadings, and you view this as kind of an interim
undertaking that we'll see how this one turns out and
then we'll ask for another pleading. You have to come to
rest on your pleadings, and if you're telling me that if
you have not come to rest on your pleadings, I want to
understand what it is that you have recently learned that you
didn't know before.
[PLAINTIFFS' COUNSEL]: That the district courts in
Massachusetts are looking for more specificity.
THE COURT: And the Southern District.
[PLAINTIFFS' COUNSEL]: And the Southern District of New
York are looking for more specificity as to the defendant
that you specifically worked for, which location you worked
at of this large entity, specifically perhaps the number of
hours over 40 that you worked, what your job title was,
details like that.
Those are details that we in the notice pleading that
we've done in the past has never been subject to scrutiny
and has been accepted.
THE COURT: Of course it has, it's been subject to
scrutiny throughout, it was subject to scrutiny by Judge
Zobel in Manning, it was subject of scrutiny by
Judge Saylor, has been for some time. This is no big
surprise, Iqbal has been around for awhile now, and
this problem, which is a significant one, has been out there
for some time, so I'm a little perplexed about the impact
that this has on judicial efficiency.
end of the scheduling hearing, after hearing from defense
counsel, the district court engaged in the following exchange
with the parties:
THE COURT: Well, I'm not going to permit the amendment.
It's going on this complaint. You've had plenty of
time. You've been put on notice of potential deficiencies
here including a very detailed letter from the defendants
calling to your attention their intention to file judgment on
the pleadings, and you ignored it on the benighted assumption
that there was going to be some continued opportunity for
resurrection. This is the pleading. I'll evaluate this
pleading. If I think it is insufficient, I'll dismiss,
enter judgment on it, but there's not going to be a
repleading at this stage after all of this.
So we're on for August 3rd. Is there anything else that
we need to take up here?
[DEFENSE COUNSEL]: Not on our behalf, your Honor.
[PLAINTIFFS' COUNSEL]: Not on our behalf, your Honor.
Please note my exception to the Court's ruling.
THE COURT: Well, I haven't had a pleading submitted to
me, but I'm telling you ahead of time that having had
this in front of me, that's what I'm going to do. Now
if you want to test it by filing a new pleading, I suppose
you can. That's up to you. It's not as if you
haven't filed lots of paper, but this is a fairly serious
matter to file late like this and not bother to take the time
to plead it as fully as the developing case law suggests and
to wait until the last moment to hold out the prospect that
perhaps you will in two weeks. Not acceptable. We're in
the hearing, a docket entry was entered entitled
"ELECTRONIC Clerk's Notes for proceedings held
before [the district court], " stating, inter alia, that
"Plaintiff's oral Motion for Leave to File an
Amended Complaint is DENIED."
the court's invitation, plaintiffs failed to file a
motion for leave to amend with a new pleading between the
June 9, 2011 scheduling conference and the August 3, 2011
hearing on defendants' motion for judgment on the
pleadings, which had been scheduled at the June conference.
At the August hearing, the district court noted that
plaintiffs had "plenty of opportunity to assess the
shortcomings" of their complaint, but had failed to seek
leave to file an amendment. The court stated that, for this
reason, it would rule on defendants' motion on the basis
of the complaint as it stood. The court did not rule on the
motion for judgment on the pleadings for over a year.
Plaintiffs did not seek leave to amend in the interim.
September 30, 2012, the district court issued an electronic
order granting the defendants' motion for judgment on the
pleadings as to all of plaintiffs' claims. The court
explained the rationale for its September 2012 electronic
order in a memorandum and order issued nearly four years
later on July 21, 2016. In its explanation, the court
recounted that, during the June 9, 2011 scheduling
conference, plaintiffs' counsel had "voiced the
possibility that [plaintiffs] might seek leave to amend, but
. . . never followed through with a proper motion to
argue on appeal that the district court's response to
their June 9, 2011 oral request is properly reviewable,
despite their not having filed a written motion for leave to
amend, because the court heard from both parties and said
that it would not permit plaintiffs to amend their complaint
if they were to file a formal motion. Plaintiffs also argue
that the district court erred when it dismissed their
complaint with prejudice.
assume, without deciding, that plaintiffs are correct with
respect to the reviewability of their June 9, 2011 oral
request, so we move to the merits of their challenge.
review a district court's denial of a motion for leave to
amend for abuse of discretion, "deferring to the
district court for any adequate reason apparent from the
record." Universal Commc'n Sys., Inc. v. Lycos,
Inc., 478 F.3d 413, 418 (1st Cir. 2007) (quoting
Resolution Tr. Corp. v. Gold, 30 F.3d 251, 253 (1st
Cir. 1994)). Based on the cumulative thrust of the following
reasons, we find no such abuse here.
by no later than April 1, 2011, plaintiffs were admittedly
fully aware of the defects that at least nine district courts
had found in their pleading. Defense counsel highlighted
all of these defects and demanded correction. And
plaintiffs' counsel themselves later admitted that there
had been "a lot of case law change" in the two
years since the suit had been filed.
plaintiffs acknowledged before the district court that it
would have been "very easy" for them to eliminate
the defects in their complaint.
rather than filing a motion for leave to amend with some
modicum of dispatch, plaintiffs delayed -- waiting until June
to even broach the subject directly with the
and most importantly, when asked point blank why they did not
do what they say they could have done upon receiving defense
counsel's letter, plaintiffs' counsel gave the
district court an explanation that could not have been
correct -- i.e., that they "didn't believe that the
Court would entertain an amended complaint while the motion
on the pleadings had been fully briefed, " which, of
course, it had not been. As a result, the district court did
not err in concluding that plaintiffs intentionally delayed
in an effort to force the defendants to brief a motion and
the court to do the work of deciding the motion, all based on
a complaint that plaintiffs were apparently treating as a
risk-free trial balloon. We emphasize that it is not so much
the length of plaintiffs' delay but rather the manner in
which they seem to have exploited the delay that justifies
the district court's ruling. Cf. Kay v. N.H.
Democratic Party, 821 F.2d 31, 34 (1st Cir. 1987)
(finding that three months constituted undue delay where
plaintiff failed to offer any justification for the delay);
Villanueva v. United States, 662 F.3d 124, 127 (1st
Cir. 2011) (same finding for a delay of four months).
when the court -- after explaining why it would not allow
amendment -- nevertheless expressly offered plaintiffs an
opportunity to file a formal motion with an amended pleading
when the issues were fresh, plaintiffs decided not to do so.
As a result, we have no proposed pleading to consider.
a record, we cannot accept the contention that the district
court was required to allow leave to amend.
THOMPSON, Circuit Judge, dissenting.
disagree with the result reached by my colleagues in the
majority, and so I write separately to explain why I believe
the district court abused its discretion when it denied
plaintiffs' motion for leave to amend the
well aware that we afford the district court very deferential
abuse-of-discretion review when it comes to motions for leave
to amend. But Federal Rule of Civil Procedure 15 reflects a
liberal standard for motions to amend, see
Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25 (1st
Cir. 2007), one that requires the court to "freely give
leave when justice so requires, " Fed.R.Civ.P. 15(a)(2),
and "this mandate is to be heeded, " Foman v.
Davis, 371 U.S. 178, 182 (1962) (citing 3 Moore, Federal
Practice §§ 15.08, 15.10 (2d ed. 1948)).
some context, because the moment at which the relevant
procedural history of this case played out is critical. The
complaint was filed in 2009, in the wake of Bell Atl.
Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft
v. Iqbal, 556 U.S. 662 (2009), both of which rejected
the sixty-year-old standard set forth in Conley v.
Gibson, 355 U.S. 41, 47 (1957) (explaining that
pleadings need only "give the defendant fair notice of
what the plaintiff's claim is and the grounds upon which
it rests" to survive a motion to dismiss), and which
also injected uncertainty into the standard for reviewing
complaints. In the two years that followed
plaintiffs' 2009 complaint filing (leading up to
plaintiffs' eventual motion to amend), how the Supreme
Court's new pleadings plausibility test should be applied
was in flux. During that time, what was clear was that the
Court had infused the standard with some subjectivity, and
application of the new standard at times appeared to be at
the mercy of each different lower court judge and his or her
personal perspective, experience, and common sense. See
Iqbal, 556 U.S. at 679 ("Determining whether a
complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to
draw on its judicial experience and common
sense."). Against this backdrop, the complaint in
this case inevitably would face some adversity.
let's move to the moment when plaintiffs were convinced
it was time to move to amend: June 2011. This turning point
came courtesy of Cavallaro v. UMass Mem'l Health Care
Inc., No. 09-40152-FDS, 2011 WL 2295023 (D. Mass. June
8, 2011), vacated, 678 F.3d 1 (1st Cir. 2012),
issued the day before the status conference. The district
court there, in an about-face, dismissed (with prejudice)
claims very similar to those in the complaint at issue here.
But understand that, unlike here, those plaintiffs already
had been afforded multiple opportunities to amend the
complaint. Nonetheless, this Cavallaro dismissal
served as the impetus for plaintiffs' June 9, 2011 oral
motion. Plus, as it turns out, this court on appeal decided
the Cavallaro plaintiffs were entitled to yet
further amendment. Cavallaro, 678 F.3d at 10
(concluding that there had been no "prior abuse of the
amendment process, " and "one last amendment should
be permitted, if the plaintiffs are so minded").
majority explains that "any adequate reason apparent
from the record" will support the district court's
denial of the motion to amend. Universal Commc'n
Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir.
2007) (quoting Resolution Tr. Corp. v. Gold, 30 F.3d
251, 253 (1st Cir. 1994)). Five reasons, to be taken
cumulatively, are offered: (1) defendants' April 1, 2011
letter made plaintiffs "fully aware" of the
complaint's potential defects, and other courts had found
the complaint lacking in specificity; (2) plaintiffs told the
district court it would have been "very easy" to
correct the complaint; (3) plaintiffs delayed from April to
June before bringing up the subject of amendment; (4)
plaintiffs exploited the delay in moving to amend; and (5)
plaintiffs ignored an express offer from the district court
to file a formal motion to amend.
only do I not see these as adequate reasons, even in the
aggregate, but also I see some of them as
mischaracterizations of the record, this case, and our case
law. I take each in turn.
I do, I pause to emphasize that the "adequate
reason" here shouldn't be just any conceivable
reason, but rather the reason must fall within parameters
described by our Supreme Court:
In the absence of any apparent or declared
reason-such as undue delay, bad faith or dilatory
motive on the part of the movant, repeated failure to cure
deficiencies by amendments previously allowed, undue
prejudice to the opposing party by virtue of allowance of the
amendment, futility of amendment, ...