United States District Court, D. New Hampshire
Corrina L. Hale, Esq.
Samantha Dowd Elliott, Esq.
Daniel Deane, Esq.
M. Richard, Esq.
L. Sy, Esq.
N. Laplante, United States District Judge
Mother Doe, as parent and next friend of minor John Doe,
seeks leave to amend her complaint after jury selection and
mere days before the beginning of the trial in this action.
As discussed below, the court concludes that plaintiff has
not demonstrated good cause to amend at this juncture, as
plaintiff's proposed amendments are both tardy and
futile. Accordingly, the court denies that motion.
filed this action on August 30, 2016. Plaintiff initially
sought a preliminary injunction, asking the court to order
PEA to allow John Doe to return to school for the fall
trimester. On the eve of the preliminary injunction hearing,
the parties agreed instead to an expedited schedule, provided
that trial occur before PEA's winter trimester begins in
December 2016. Under the court's order setting forth
that expedited schedule, plaintiff was given until September
27, 2016, to amend her complaint, which she
Around the same time, defendant moved for a protective order
preventing disclosure of the investigative report concerning
the encounter between John Doe and another student, Jane Roe,
that gives rise to this action. After multiple telephone
conferences between the court and counsel on October 4 and
October 6, the defendant produced that report to the
plaintiff's counsel on an attorneys'-eyes-only basis
October 6. The court subsequently issued its order denying
the defendant's motion for a protective
Mother Doe, as parent and next friend of minor John Doe, now
moves to amend her complaint to add: (1) theories of
contractual breach and breach of the covenant of good faith
and fair dealing arising from the report; and (2) a claim for
specific performance. A party seeking to amend its pleadings
after the relevant deadline has passed, as Mother Doe does,
must seek a modification of the court's scheduling order.
See United States ex rel D'Agostino v. EV3,
Inc., 802 F.3d 188, 192 (1st. Cir. 2015). At such a
time, the court's imposed schedule “may be modified
only for good cause and with the judge's consent.”
Fed. R. Civ. P. 16(b)(4). The “good
cause” standard “focuses on the diligence (or
lack thereof) of the moving party more than it does on any
prejudice to the party-opponent, ” Steir v. Girl
Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004),
though “prejudice to the opposing party remains
relevant, ” O'Connell v. Hyatt Hotels of
P.R., 357 F.3d 152, 155 (1st Cir. 2004).
first seeks to amend her complaint to add, in effect, the
claim, and underlying factual allegations, that PEA breached
the contract and/or the covenant of good faith and fair
dealing because the investigator's conclusion that John
committed sexual harassment under the EBook's definition
is not supported by the investigator's factual
findings. The plaintiff's request is not
entirely unreasonable. She has raised, since the beginning of
this lawsuit, the relevance of the investigator's report
and the defendant's reliance on it in placing John Doe on
dean's leave and subsequently asking him to withdraw from
the school. She did not receive that report in discovery
until after the deadline to amend pleadings, which delayed
her amendment on the basis of its contents. That amendment
was further delayed by the unfortunate passing of Father Doe
on October 19, to which the court is sympathetic.
same, the prejudice of amending the complaint at this late
hour weighs in favor of denying the plaintiff's motion.
By the time plaintiff filed her motion, the court had
selected a jury, the parties had filed pre-trial statements
and proposed jury instructions, and had filed and objected to
motions in limine, and the defendant had filed its pre-trial
memorandum (trial brief). Plaintiff, on the other hand, was
aware of the import of the investigative report from well
before this action began. Plaintiff's counsel received the
report on October 6, a full month before plaintiff moved to
amend. And, plaintiff's counsel represented at the
chambers conference held the following Tuesday, October 11,
that the plaintiff believed the investigator's findings
did not support her ultimate conclusion. While a month may be
a short period in the timeline of a case on a normal track,
it amounts to a full half of the schedule of this case. And
it afforded plaintiff ample time to draft the small handful
of amendments on that subject that plaintiff now proposes.
Accordingly, the court finds plaintiff's proposed
amendment to be unduly late in the context of this action.
addition to its lateness, plaintiff's proposed amendments
based on the investigator's report would also be futile.
In effect, these counts seek appellate review of the
investigator's factual findings and conclusions. That is
not the court's role in contract-based cases such as
this. See Doe v. Brown Univ., No. 16-017, 2016 WL
5409241, at *1 (D.R.I. Sept. 28, 2016) (“This Court is
not a super-appeals court for sexual misconduct cases, nor is
it an advisor to [the school] on how it should handle these
messy and unfortunate situations.”); see also Yu v.
Vassar Coll.,97 F.Supp.3d 448, 461 (S.D.N.Y. 2015)
(“The Court's role, of course, is neither to
advocate for best practices or policies nor to retry