United States District Court, D. Connecticut
RULING ON MOTION TO AMEND COMPLAINT
Bond Arterton, U.S.D.J.
filed this product liability lawsuit originally in the
Connecticut Superior Court, alleging strict liability for
product defect, failure to warn, negligence, breach of
contract and violation of the Connecticut Unfair Trade
Practices Act ("CUTPA") in connection with the
installation and removal of spray polyurethane foam
("SPF") in their home. Defendants removed to
federal court on October 28, 2013. Thereafter, Plaintiffs
amended their complaint twice [Docs. # 28, 44] and Defendants
moved to dismiss the Second Amended Complaint, which was
granted on October 28, 2014 as to the CUTPA claims as
time-barred [Doc. # 46]. On February 26, 2017, after the
close of discovery and the Court's decision on
Defendant's motion for summary judgment, Plaintiffs moved
[Doc. # 268] to amend their complaint to include
characterizations of Defendant's conduct as
"reckless" and correspondingly to include a prayer
for punitive damages under the Connecticut Products Liability
Act (the "CPLA"), Conn. Gen. Stat. § 52-240b.
Jury selection is scheduled for March 7, 2017 and the trial
is to commence on March 9, 2017. For the reasons set forth
below, Plaintiffs' motion to amend is denied.
operative Second Amended Complaint, Plaintiffs alleged that
Defendants had violated CUTPA by deliberately misleading
Plaintiffs to believe that Anchor's installers were
qualified and that SPF was safer than other forms of
insulation and included in their prayer for relief a request
for punitive damages under CUPTA ("Plaintiffs'
prayer for relief: . . . Punitive Damages pursuant to
Connecticut General Statutes § 42-1 10g [CUTPA]."
(Am. Compl. [Doc. # 44] at 17.)) They did not allege
recklessness or deliberate disregard of risk in their
negligence or breach of implied warranty allegations, and
their prayer for relief did not reflect any request for
punitive damages pursuant to the Connecticut Products
Liability Act or in connection or in connection with any of
the other claims pleaded.
Federal Rule of Civil Procedure 15(a), a court "should
freely give leave [to amend] when justice so requires."
However, where a party moves to amend after a court-ordered
deadline to amend the pleadings, it must clear the hurdle of
Rule 16. See Parker v. Columbia Pictures Indus., 204
F.3d 326, 340 (2d Cir. 2000) ("[D]espite the lenient
standard of Rule 15(a), a district court does not abuse its
discretion in denying leave to amend the pleadings after the
deadline set in the scheduling order where the moving party
has failed to establish good cause."). Under Federal
Rule of Civil Procedure 16(b)(4), "a [court-ordered]
schedule maybe modified only for good cause and with the
judge's consent." Fed.R.Civ.P. 16(b)(4). "By
limiting the time for amendments, the rule is designed to
offer a measure of certainty in pretrial proceedings,
ensuring that at some point both the parties and pleadings
will be fixed." Parker, 204 F.3d at 340
(internal quotation marks omitted).
order to amend a complaint after the deadline for amendment
has passed, a party must show good cause, which "depends
on the diligence of the moving party." Id.
While district courts "may consider other relevant
factors, including, in particular, whether allowing the
amendment of the pleading at this stage of the litigation
will prejudice [the non-moving party], " "the
primary consideration is whether the moving party can
demonstrate diligence." Kassner v. 2nd Ave.
Delicatessen Inc., 496 F.3d 229, 244 (2d Cir. 2007);
see also Johnson v. Bryson, 851 F.Supp.2d 688, 703
(S.D.N.Y. 2012) ("Whether 'good cause' exists
turns primarily on the 'diligence' of the moving
party in seeking to meet the deadline in the scheduling
proposed Third Amended Complaint contains two changes
material to the instant motion. First, Plaintiffs propose to
add: "The harm Plaintiffs suffered was the result of
Defendant's reckless disregard for the safety of
consumers, Plaintiffs, whose property was damaged by the
product." (Ex. 19 ("Third Amended Complaint")
to Mot. to Amend [Doc. # 278-20] ¶ 32). The second
amended complaint, by contrast, did not describe any of
Defendant's actions as "reckless" or
"wanton" or as being taken with deliberate
disregard. Second, Plaintiffs propose to amend their prayer
for relief to request punitive damages under the CPLA.
Request for Punitive Damages Under CUTPA Does Not Carry Over
to the CPLA
argument, Plaintiffs maintained that the amendment was a mere
formality because the Defendants had been on notice since the
beginning of the case that Plaintiffs sought punitive
damages. This argument is without merit. Plaintiffs'
original prayer for relief limited their request for punitive
damages to punitive damages under CUTPA. This request is not
a demand for punitive damages based on Defendant's
conduct in general, because "a demand for punitive
damages is not a freestanding claim; rather, it is parasitic
and possesses no viability absent its attachment to a
substantive cause of action." Gallinari v.
Kloth, 148 F.Supp.3d 202, 217 (D. Conn. 2015).
Plaintiffs explicitly attached their request for punitive
damages to the CUTPA allegations alone.
dismissal of Plaintiffs' CUTPA claims, the
Plaintiffs' demand for punitive damages under 42 Conn.
Gen. Stat. 110(g) (CUTPA) was mooted. No prayer for punitive
damages remained associated with claims of common law
negligence or the CPLA violation as the CUTPA punitive
damages claim does not carry over to these remaining causes
of action. Thus, contrary to Plaintiffs' representation
at oral argument, the original request for punitive damages
did not serve to put Defendant on notice from the beginning
of the case that punitive damages were being sought beyond a
CUTPA claim, and thus the request to amend the complaint is
not a mere formality to conform pleadings to the tacit
assumptions of both parties during the course of discovery
and preparation of dispositive motions.
the good cause analysis required by Parker,
"the primary consideration is whether the moving party
can demonstrate diligence." Kassner, 496 F.3d
at 244. Plaintiffs' brief in support of its motion to
amend represents the existence of significant material
uncovered during course of discovery that might constitute
evidence of reckless disregard; it is therefore
understandable that the original complaint, before the
benefit of discovery, lacked such allegations. Indeed, some
of the evidence could bear directly on what Defendant knew
and when it knew it, including an email from Defendant to
Johns Manville dated October 1, 2010, during its installation
of SPF in Plaintiffs' home, explaining that Defendant
would like to cease selling the Johns Manville SPF to be
installed in ...