United States District Court, D. Massachusetts
ORDER ON MOTION TO AMEND (DOC. NO. 32) AND MOTION TO
COMPEL (DOC. NO. 36)
Sorokin United States District Judge.
Manganaro Northeast, LLC (“Manganaro”) sues its
former employee, Defendant Sandra De La Cruz, for injunctive
relief and damages in relation to De La Cruz's
resignation from Manganaro and current employment with one of
its competitors. Doc. No. 1. Presently before the Court are
De La Cruz's motion for leave to file an amended answer
and counterclaim, Doc. No. 32, and her motion to compel
production of certain documents she claims Manganaro has not
produced in discovery, Doc. No. 36.
Motion to Amend
La Cruz seeks leave to amend her answer to include a
counterclaim for abuse of process. Doc. No. 33-3. The
scheduling order in this case set October 15, 2018 as the
date after which no motions seeking leave to amend would be
permitted, except for good cause shown. Doc. No. 27 at 1. In
her motion to amend, Ms. De La Cruz acknowledges that her
request comes at a “somewhat late stage of the case,
” but argues that she has shown good cause to allow the
motion nonetheless. Manganaro opposed on the grounds that
amendment would be futile. Doc. No. 35.
states that a “court should freely give leave [to amend
a pleading] when justice so requires.” Fed.R.Civ.P. 15.
However, leave to amend need not be given where there is an
“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, [or] futility of
amendment.” Foman v. Davis, 371 U.S. 178, 182
(1962). Specifically, “a judge may deny leave if
amending the pleading would be futile-that is, if the
pined-for amendment does not plead enough to make out a
plausible claim for relief.” HSBC Realty Credit
Corp. (USA) v. O'Neill, 745 F.3d 564, 578 (1st Cir.
La Cruz seeks to add an abuse of process counterclaim. Under
Massachusetts law, “[t]o sustain an abuse of process
claim, the fact finder must find that process was used
‘to accomplish some ulterior purpose for which it was
not designed or intended, or which was not the legitimate
purpose of the particular process employed.'”
Millennium Equity Holdings, LLC v. Mahlowitz, 925
N.E.2d 513, 522 (Mass. 2010) (quoting Quaranto v.
Silverman, 187 N.E.2d 859 (Mass. 1963)). “The
three elements of the cause of action are that
‘process' was used, for an ulterior or illegitimate
purpose, resulting in damage.” Id. (quoting
Gutierrez v. Massachusetts Bay Transp. Auth., 772
N.E.2d 552 (Mass. 2002)).
La Cruz cites as the basis for her proposed abuse of process
counterclaim a series of emails she uncovered in discovery,
attached to her motion to amend. Doc. No. 33-1. The emails,
provide strong evidence that, when Manganaro filed this case,
Manganaro (1) considered Ms. De La Cruz to be a
“low-level” employee; (2) did not believe a suit
to enforce her non-compete agreement would be successful; (3)
had no evidence, after an investigation, to believe that Ms.
De La Cruz had taken any confidential information with her
when she left Manganaro; and (4) moved forward with the case
anyway only to “take a whack at PDC” and to put
“max pressure” on PDC to walk off the Amherst
Doc. No. 33 at 6. The emails, taken together with the other
factual allegations in the proposed amended answer, allow Ms.
De La Cruz to prevail at this stage, where she need only
“plead enough to make out a plausible claim for
relief” to avoid denial of her motion to amend on
grounds of futility. HSBC Realty Credit Corp., 745
F.3d at 578. The evidence submitted and factual allegations
contained within the proposed amended answer easily clear
this low bar.
Ms. De La Cruz seeks leave after the time established in the
scheduling order for amendment to the pleadings, she must
demonstrate good cause, which she has. Ms. De La Cruz
reasonably did not have access to the emails giving rise to
her counterclaims until they were produced in discovery,
after which she promptly moved to amend. In addition, the
amendment will require, at most, modest additional discovery
Accordingly, the motion to amend, Doc. No. 32, is ALLOWED.
Motion to Compel
La Cruz's motion to compel seeks additional documents and
emails which she asserts Manganaro has failed to produce.
Doc. No. 36. On June 17, 2019, after multiple hearings and
status reports, the parties filed a joint status report
regarding the outstanding discovery issues. Ms. De La Cruz
“remains concerned that Manganaro still has yet to even
search for, let alone produce, two categories of requested
documents.” Id. Those two categories are: 1)
internal emails about Ms. De La Cruz (corresponding to
Request No. 11) and 2) internal emails about the Amherst
College Project (corresponding to Request No. 18).
to Request No. 11, within seven days of the date of this
Order, Manganaro shall file one or more affidavits ...