Manganaro Northeast, LLC v. Sandra De La Cruz

          ORDER ON MOTION TO AMEND (DOC. NO. 32) AND MOTION TO COMPEL (DOC. NO. 36)

          Leo T. Sorokin United States District Judge.

         Plaintiff 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.

         I. DISCUSSION

         A. Motion to Amend

         Ms. De 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.

         Rule 15 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. 2014).

         Ms. De 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)).

         Ms. De 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, she argues,

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 College Project.

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.

         Because 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.

         B. Motion to Compel

         Ms. De 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^[1] (corresponding to Request No. 18).

         As to Request No. 11, within seven days of the date of this Order, Manganaro shall file one or more affidavits ...