United States District Court, D. Connecticut
PAUL T. EDWARDS, Plaintiff,
NORTH AMERICAN POWER AND GAS, LLC, Defendant.
RULING ON PLAINTIFF’S MOTION TO AMEND THE
A. Bolden United States District Judge
Paul T. Edwards has brought a putative class action against
North American Power and Gas, LLC
(“NAPG”). Mr. Edwards has filed a motion to amend
his Complaint. Mot. to Amend Compl., ECF No.
He asks the Court for leave to add Plaintiffs from Rhode
Island and New Hampshire as well as claims under each
respective state’s unfair trade practices law and
claims under each state’s law for breach of contract
and breach of the covenant of good faith and fair dealing.
Am. Mot. to Amend Compl., ECF No. 52; see Proposed
Am. Compl., ECF No. 52-1. He also seeks to add a breach of
contract claim under Connecticut law. See
Proposed Am. Compl. at Count IV, ECF No. 52-1. Finally, he
asks to add an additional named Plaintiff, Gerry Wendrovsky,
who resides in New York but owns property in Connecticut.
Id. ¶9. NAPG opposes Mr. Edwards’s
motion. Def.’s Opp. Br., ECF No. 53.
the Motion to Amend the Complaint was filed, the Court issued
an Order identifying some concerns about whether the
allegations in the Complaint established subject matter
jurisdiction sufficiently. Ruling Addressing the
Court’s Subject Matter Jurisdiction, ECF No. 60. Mr.
Edwards filed a Second Proposed Amended Complaint addressing
these concerns to the Court’s satisfaction. Am. Ex. A,
Proposed Second Am. Compl., ECF No. 61. Accordingly, the
Court can take up the Motion to Amend the Complaint. For the
reasons that follow, the motion is GRANTED IN PART and DENIED
Timeliness of the Motion
first argues that the Court should not evaluate Mr.
Edwards’s Motion to Amend his Complaint on the merits
because it is untimely. NAPG’s Opp. Br. 6-8, ECF No.
53. The Court agrees that the request is nunc pro
tunc but finds that there is good cause to excuse the
plaintiff moves to amend the complaint after the deadline for
filing such a motion has passed, that party must establish
“good cause” for the delay under Rule 16(b)(4),
which depends primarily on the “diligence of the moving
party.” Parker v. Columbia Pictures Indus.,
204 F.3d 326, 340 (2d Cir. 2000). District courts may also
consider “other relevant factors, including, in
particular, whether allowing the amendment of the pleading at
this stage of the litigation will prejudice
defendants.” Kassner v. 2nd Ave. Delicatessen,
Inc., 496 F.3d 229, 244 (2d Cir. 2007). Ultimately, the
decision whether to allow a late motion to amend the
complaint lies within the Court’s discretion. See
Ruling on NAPG’s Motion to Dismiss, the Court
explicitly gave Mr. Edwards leave to amend his Complaint to
add plaintiffs from other states. Mr. Edwards did not unduly
delay in doing so. He filed his Motion to Amend six days
after the first set of diverse plaintiffs retained him, and
less than two months after the Court’s deadline for
adding plaintiffs had elapsed. Mot. to Amend Compl. ¶4,
ECF No. 52; see also United States v. Cohan, No.
3:11-CV- 412(CSH), 2012 WL 4758142, at *1 (D. Conn. Oct. 5,
2012) (“[G]ood cause may be found where the movant
learns of the facts supporting amendment after expiration of
the relevant filing deadline….”). In the interim
period, the parties have only engaged in document discovery,
thus the prejudice NAPG will suffer if the Court allows Mr.
Edwards’s late motion is limited.
the delay was minimal, Mr. Edwards’s counsel acted
diligently in finding other diverse plaintiffs, and any
prejudice suffered by NAPG will be minimal, the Court will
accept Mr. Edwards’s late-filed Motion to Amend the
Complaint and will proceed to review it on the merits.
Analysis of Motion to Amend the Complaint
provides that “[t]he court should freely” grant
leave to amend “when justice so requires.”
Fed.R.Civ.P. 15(a)(2). In considering whether to grant a
litigant leave to amend, the Court considers such factors as
undue delay, bad faith, dilatory motive, undue prejudice, and
futility of amendment. See Foman v. Davis, 371 U.S.
178, 182 (1962); see also Block v. First Blood
Assocs., 988 F.2d 344, 350 (2d Cir. 1993) (“The
rule in this Circuit has been to allow a party to amend its
pleadings in the absence of a showing by the nonmovant of
prejudice or bad faith.”). A proposed amendment is
futile if it fails to state a claim that would survive a
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6). Lucente v. Int’l. Bus. Machs. Corp.,
310 F.3d 243, 258 (2d Cir. 2002).
Proposed Rhode Island Addition
argues that adding a Rhode Island plaintiff, John Arcaro, and
claims under Rhode Island law is inappropriate because
another Rhode Island plaintiff has filed a putative class
action against NAPG in the District of Connecticut, Fritz
v. North American Power & Gas, LLC, No.
3:14-cv-00634(WWE) (D. Conn.) and addresses the same conduct
and legal claims.NAPG’s Opp. Br. 8-16, ECF No. 53.
Thus, NAPG asks the Court to refuse the amendment under the
“prior pending action” or “first to
file” doctrine. Id. Mr. Edwards agrees that
his proposed Rhode Island claims are similar to those
currently pending in the Fritz case. Pl.’s
Reply Br. 2, ECF No. 54. But he argues that his Rhode Island
case was filed first and that this Court should consolidate
the Rhode Island aspect of his Proposed Amended Complaint
with the Fritz case, rather than dismiss it.
Court agrees that the Fritz case addresses the same
conduct and legal claimsimplicated by Mr. Edwards’s
proposed Rhode Island amendment. The Second Circuit has
indicated that, under the prior pending action doctrine,
“[w]here there are two competing lawsuits, the first
suit should have priority, absent the showing of balance of
convenience… or special circumstances… giving
priority to the second.” Adam v. Jacobs, 950
F.2d 89, 92 (2d Cir. 1991) (citation and internal quotation
marks omitted) (alterations in original). Mr. Edwards
included Rhode Island claims in his initial Complaint filed
in November 2014, four months before the Rhode Island claims
in the Fritz case were initially filed.
the Court finds that the balance of convenience tips in favor
of prioritizing the Fritz case. The Fritz
case is already well into discovery on the Rhode Island
claims. As a result, it would be more efficient to favor
Fritz over the instant case. Moreover, Mr.
Edwards’s counsel explicitly asks that his Rhode Island
case be consolidated with Fritz, not that it proceed
parallel to Fritz or instead of Fritz.