United States District Court, D. Connecticut
RULING ON PLAINTIFF'S THIRD MOTION TO AMEND
COMPLAINT [DOC. 150]
CHARLES S. HAIGHT, JR. SENIOR UNITED STATES DISTRICT JUDGE
Samantha Jansson brings this employment discrimination
action, alleging that she was wrongfully terminated by her
two former employers, Stamford Hospital (including Stamford
Health, Inc., doing business as Stamford Hospital) and
Stamford Anesthesiology Services P.C. ("SAS"). The
Court has recounted the facts of the case in its previous
ruling, familiarity with which is assumed. See Jansson v.
Stamford Health, Inc., No. 3:16-CV-260 (CSH), 2017 WL
1289824, at *1-3 (D. Conn. Apr. 5, 2017).
before the Court is Plaintiff's third motion to amend the
complaint. Doc. 150. Plaintiff's path to this request to
amend is convoluted in that, upon entry of the Court's
Ruling on her previous motion to amend, she first failed to
read the attached Ruling and filed an "Amended
Complaint" containing claims and parties the Court had
dismissed from the action. As Defendants noted in their
Objection to the pending motion, "Plaintiff continued to
include each and every one of the Dismissed Counts the Court
had ordered removed from the Amended Complaint and also
included all of the Dismissed Parties that the Court had
ordered removed from the case." Doc. 155, at 5 (citing
Defendants' counsel demanded that Plaintiff stipulate to
the dismissal of counts and parties in accordance with the
Court's Ruling [Doc. 138], Plaintiff moved for an
extension of time until May 12, 2017, to file a new Amended
Complaint "in accordance with the Court's Order of
April 5, 2017, " due to the fact that
"Plaintiff's lead counsel"was not fully aware
of the parameters of the Court's Order when the Amended
Complaint was filed on April 28, 2017." Doc. 140.
to Plaintiff's request to extend time, various defendants
consented to the extension provided Plaintiff would file an
Amended Complaint in compliance with the Court's order -
i.e., one that excluded the dismissed counts and
parties. See Doc.141, 142, 145. Despite the
Court's order in July 2016 that any amended complaint was
to be filed "forthwith, " Plaintiff intimated in
her reply brief that she believed that she had the right to
re-plead various causes of action that the Court had found
deficient in her Proposed Amended Complaint. Doc. 143.
4, 2017, although the Court granted Plaintiff's motion
for extension of time, it directed her to file an amended
complaint in the form directed by the applicable Ruling. Doc.
146. The Court specifically stated: "As to claims which
the Court dismissed, Plaintiff has no permission to replead
them at this time. Those counts were dismissed as failing to
state viable claims, which were 'futile' pursuant to
Foman v. Davis, 371 U.S. 178, 182 (1962). Absent
permission to file a second Amended Complaint, a re-draft of
her dismissed claims based on intervening discovery in this
action is not permitted." Doc. 146.
"in considering any such motion [to amend], in addition
to the possibility of 'futility' of the claims, the
Court must assess whether there is 'good cause' for
the amendment because such a motion would fall outside the
previously set deadlines to amend the Complaint (6/30/2016),
pursuant to the Court's  Scheduling Order,
as expanded for one amendment by  Order,
granting leave to amend (7/15/2016))." Id. In
so ordering, the Court stated that it would examine whether
Plaintiff "has demonstrated diligence . . . and whether
the amendment would not significantly prejudice
weeks later, on May 12, 2017, Plaintiff filed yet another
noncompliant amended complaint [Doc. 149], including the
dismissed parties as defendants but setting forth no causes
of action. Defendants' counsel then contacted
Plaintiff's counsel to advise of Defendants'
"intention to move to dismiss the facially invalid
Amended Complaint, " which resulted in Plaintiff filing
a "Notice of Revised Amended Complaint." Doc. 152,
152-1. That Notice stated that her May 12, 2017 Amended
Complaint-filed to "correct" the non-compliant
April 28, 2017 Amended Complaint - was inadvertently filed
without any causes of action included. Four days later, on
May 30, 2017, Plaintiff filed a "Revised" Amended
Complaint, " which is now the operative complaint in
this action. Doc. 153.
12, 2017, prior to filing the Revised Amended Complaint,
Plaintiff filed the current motion requesting leave to amend
her previous, deficient Amended Complaint [Doc. 149], with a
seventy-page, fifteen count "Proposed Second Amended
Complaint." Doc. 150.
more than 15 months of litigation and the Court's
sixty-page Ruling delineating which counts failed to state a
claim, Plaintiff now seeks to replace the operative Revised
Amended Complaint [Doc. 153] with this new pleading. Her
"new" claims include the following: retaliation and
interference under the Family and Medical Leave Act
("FMLA"), 29 U.S.C. § 2617, against Stamford
Hospital (Count Nine); claims for aiding and abetting under
the Connecticut Fair Employment Practices Act
("CFEPA"), Conn. Gen. Stat. § 46a-60(a)(5),
against VantagePoint LLC, Michael Coady, Salvatore Mancino,
Theresa Bowling, and Stamford Hospital (Counts Ten to
Fourteen); and interference under Title VII against Stamford
Hospital (Count Fifteen).
additional claims include claims against defendants whom the
Court dismissed from the action, directing the Clerk to
terminate them upon the filing of a compliant amended
complaint. Moreover, these claims encompass claims that were
dismissed "for failure to state a claim" in that
Ruling as well.
to say, the manner in which Plaintiff has filed her various
amended complaints has led to chaos and confusion among the
parties, including which parties will remain in the case and
which causes of action will go forward or be necessarily
eliminated for failing to state a claim. This Ruling resolves
Plaintiff's third motion to amend with finality
to end the confusion regarding Plaintiff's claims so that
the case may proceed.
Rule 15(a) and the Foman Standard
may only amend its pleading once as a matter of course within
21 days after serving it. Plaintiff's present motion to amend
is her "third" such motion and is thus governed by
Rule 15(a)(2), Fed. R. Civ. P., which provides that "a
party may amend its pleading only with the opposing
party's written consent or the court's leave"
and "[t]he court should freely give leave when justice
so requires." Plaintiff's motion to amend is
energetically opposed by Defendants so she has no written
consent from the opposing parties to amend. She must,
therefore, seek the Court's leave.
Foman v. Davis, 371 U.S. 178, 182 (1962), the United
States Supreme Court articulated the relevant standard for a
court to determine whether to grant a party's request to
amend his or her pleading under Federal Civil Rule 15(a). In
particular, the Foman court stated: "In the
absence of any 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, futility of the
amendment, etc. - the leave sought should, as the rules
require, be 'freely given.'" 371 U.S. at 182.
"Of course, the grant or denial of an opportunity to
amend is within the discretion of the District Court, but
outright refusal to grant the leave without any justifying
reason appearing for the denial is not an exercise of
discretion; it is merely abuse of that discretion and
inconsistent with the spirit of the Federal Rules."
Second Circuit consistently applies Foman in favor
of motions to amend. See, e.g., Knife Rights, Inc. v.
Vance, 802 F.3d 377, 389 (2d Cir. 2015) (Rule 15(a)(2)
"affords district courts considerable discretion to deny
amendment when there has been '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.'") (quoting
Foman, 371 U.S. at 182); Kroshnyi v. U.S. Pack
Courier Servs., Inc., 771 F.3d 93, 109 (2d Cir. 2014)
("The Federal Rules provide that courts 'should
freely give leave [to amend] when justice so
requires'" and "[i]n the absence of any
apparent or declared reason . . . such as undue delay, bad
faith or dilatory motive on the part of the movant . . . [or]
undue prejudice to the opposing party by virtue of allowance
of the amendment . . . the leave sought should, as the rules
require, be 'freely given.'") (quoting
Foman, 371 U.S. at 182); Grullon v. City of New
Haven, 720 F.3d 133, 139 (2d Cir. 2013) ("When a
party requests leave to amend his complaint, permission
generally should be freely granted.") (citing
Foman, 371 U.S. at 182); Milanese v. Rust-Oleum
Corp., 244 F.3d 104, 110 (2d Cir. 2001) ("Leave to
file an amended complaint 'shall be freely given when
justice so requires, ' Fed.R.Civ.P. 15(a), and should not
be denied unless there is evidence of undue delay, bad faith,
undue prejudice to the non-movant, or futility.").
Court has previously stated, "[i]nstructed by
Foman, federal trial courts are lenient in allowing
amendments to pleadings, but they are not supine. If the
party opposing amendment demonstrates the presence of one or
more of the negative factors listed in Foman, the
amendment will not be allowed, for in that circumstance the
cause of justice would not be served." Nwachukwu v.
Liberty Bank, 257 F.Supp.3d 280, 285 (D.Conn. 2017)
the Foman standard to Plaintiff's third motion
to amend, the Court finds that it must exercise its
discretion to determine whether it should review the motion
to amend on the merits or deny it in whole cloth to prevent
"undue prejudice" to the non-moving parties.
Plaintiff has shown no blatant bad faith so the Court
assesses the possibility of "undue delay" in filing
a third motion to amend.
undue delay in bringing a motion to amend is one of the
Foman factors, "[m]ere delay, . . . absent a
showing of bad faith or undue prejudice, does not provide a
basis for a district court to deny the right to amend."
State Teachers Ret. Bd. v. Fluor Corp., 654 F.2d
843, 856 (2d Cir. 1981). See also Richardson Greenshields
Sec., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987)
(collecting cases); Middle Atl. Utils. Co. v. S. M. W.
Dev. Corp., 392 F.2d 380, 384 (2d Cir. 1968).
"Delay must be considered in context; not all delay will
result in denial of a motion to amend." Oneida
Indian Nation of New York State v. Cty. of Oneida, N.Y.,
199 F.R.D. 61, 74 (N.D.N.Y. 2000).
'[u]ndue prejudice arises when an amendment comes on the
eve of trial and would result in new problems of
proof.'" Fresh Del Monte Produce, Inc. v. Del
Monte Foods, Inc., 304 F.R.D. 170, 174 (S.D.N.Y. 2014)
(quoting Ruotolo v. City of New York, 514 F.3d 184,
192 (2d Cir. 2008)). "Nonetheless, allegations that an
amendment will require the expenditure of additional time,
effort, or money do not themselves constitute undue
prejudice." Id. (citation and internal
quotation marks omitted). "[T]he fact that the opposing
party will have to undertake additional discovery,
'standing alone, does not suffice to warrant denial of a
motion to amend a pleading.'" Christians of
California, Inc. v. Clive Christian New York, LLP, No.
13 CIV. 0275 (KBF) (JCF), 2014 WL 3605526, at *5 (S.D.N.Y.
July 18, 2014) (quoting United States ex. Rel. Maritime
Administration v. Continental Illinois National Bank &
Trust Co. of Chicago, 889 F.2d 1248, 1255 (2d
case at bar, Plaintiff has represented to the Court that
"[f]or approximately the past nine months, the parties
have proceeded with discovery on all of the claims alleged in
the original complaint and the proposed amended
complaint." Doc. 150-1, at 5. She has further stated
that "[d]iscovery is ongoing" and the "parties
have exchanged documents." Id. It is out of
this ongoing discovery that Plaintiff has gathered the
additional facts she seeks to insert in her proposed amended
complaint to support the additional claims. Plaintiff also
states that the "key actors for the institutional
clients would be deposed irrespective of their status as
individual defendants" so that amendment at this time
"will not result in any expansion of discovery."
dispositive motion is pending and the parties "are
working together to create a proposed amended [Rule] 26(f)
scheduling order." Id., at 6. Under these
circumstances, Plaintiff suggests that there is no
"undue delay" with respect to her proposed
Court must therefore examine "undue prejudice, " as
claimed by the Defendants in this action. The Second Circuit
In determining what constitutes "prejudice, " we
consider whether the assertion of the new claim would: (i)
require the opponent to expend significant additional
resources to conduct discovery and prepare for trial; (ii)
significantly delay the resolution of the dispute; or (iii)
prevent the plaintiff from bringing a timely action in
Block v. First Blood Assocs., 988 F.2d 344, 350 (2d
case at bar, the present motion has required Defendants to
expend additional resources in opposing Plaintiff's
repeated motions to amend; and discovery has been ongoing on
all potential claims. The constant skirmishing over which
complaint is operative - given the Plaintiff's repeated
failure to file a compliant complaint following the
Court's prior Ruling, granting in part and denying in
part, her second motion to amend - has also drawn out the
dispute in this matter.
Plaintiff's third motion to amend was filed almost a year
after her first motion to amend [Doc. 48, filed June 29,
2016], two months after the Court last ruled on her second
motion to amend [Doc. 138, filed April 5, 2017], and more
than two years into these proceedings, which commenced by
removal on February 17, 2016. The fact that Plaintiff has
been given previous opportunities to amend militates against
allowing additional such opportunities.
other hand, Plaintiff has not intentionally repeatedly failed
to cure deficiencies by amendments previously allowed. Her
present motion to amend - albeit her third -was filed because
she claims she has diligently extracted sufficient facts
during discovery to make out her claims. It is on this basis
that she attempts to re-insert them in expanded form.
Although serial filing of motions to amend may create
"undue prejudice" to defendants in certain
circumstances, this case remains in the discovery phase and
the parties are now in the process of deciding what case
deadlines they will propose in a joint Rule 26(f)
due consideration of the facts presented regarding
"undue prejudice, " the Court finds that it is in
the interests of justice to consider the motion on its
merits. The fact that Defendants may have to undertake
additional discovery is not sufficient to constitute
"undue prejudice" and deny consideration of this
motion to amend where Plaintiff has obtained new facts during
discovery which give rise to her proposed amendments.
Moreover, discovery is not completed and there have been no
summary judgment motions filed. See, e.g., State Teachers
Ret. Bd. v. Fluor Corp., 654 F.2d 843, 855-56 (2d Cir.
1981) (three-year delay did not bar amendment where no trial
date had been set and no motion for summary judgment had been
filed by defendants); Olaf Soot Design, LLC v.
Daktronics, Inc., No. 15 CIV. 5024 (RWS), 2017 WL
4861994, at *3 (S.D.N.Y. Oct. 26, 2017) ("Courts are
more likely 'to find prejudice where the parties have
already completed discovery and the defendant has moved for
summary judgment.'") (quoting Werking v.
Andrews, 526 Fed.Appx. 94, 96 (2d Cir. 2013)). This is
clearly not a case "on the eve of trial, " where
Defendants might face problems of proof. See, e.g.,
Bradick v. Israel, 377 F.3d 262, 263 (2d Cir. 1967)
(per curiam), cert. denied, 389 U.S. 858 (1967).
due to the previous procedural chaos regarding
Plaintiff's filings, the Court takes the following
measure to prevent further delay. In the interest of justice,
in resolving Plaintiff's present motion, the Court states
definitively that the period to amend will close with
this Ruling. In so holding, the Court wishes to prevent
unlimited attempts by Plaintiff to amend, multiple rounds of
briefing regarding amendment, protracted initial stages of
this litigation, and confusion as to the relevant issues for
discovery. Upon conclusion of this Ruling, with input from
the parties, the Court will establish firm, viable case
deadlines for the remainder of this matter.
leniency as to this final request to amend, the
Court will now review Plaintiff's added factual
allegations in the complaint to determine whether they
actually clarify and sufficiently enhance her claims or
whether the new claims are futile, or subject to dismissal
for failure to state a claim.
respect to futility, "[w]here it appears that granting
leave to amend is unlikely to be productive, . . . it is not
an abuse of discretion to deny leave to amend."
Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131
(2d Cir. 1993) (citing Foman, 371 U.S. at 182).
See also Health-Chem Corp. v. Baker, 915
F.2d 805, 810 (2d Cir. 1990) ("[W]here . . . there is no
merit in the proposed amendments, leave to amend should be
denied."); Albany Ins. Co. v. Esses, 831 F.2d
41, 45 (2d Cir. 1987) ("[T]he district court may deny
leave to replead if the proposed amendments would be
general, leave to amend must be freely given. However, denial
is proper where the proposed amendment would be "futile,
" Foman, 371 U.S. at 182, so that the amended
pleading fails to state a claim or would be subject to
dismissal on some other basis, , Lucente v. Int'l
Bus. Machines Corp., 310 F.3d 243, 258 (2d Cir. 2002).
See also Donovan v. Am. Skandia Life Assur. Corp.,
217 F.R.D. 325, 325 (S.D.N.Y. 2003) ("Where a proposed
amended complaint cannot itself survive a motion to dismiss,
leave to amend would be futile and may clearly be
denied."), aff'd, 96 Fed.Appx. 779 (2d Cir.
2004); Bentley v. Greensky Trade Credit,
LLC, No. 3:14-CV-1157 (VAB), 2015 WL 9581730, at *2
(D.Conn. Dec. 30, 2015) ("[A] Court may deny leave to
amend if the proposed amendment would be futile because it
fails to state a claim that would survive a motion to dismiss
under Federal Rule of Civil Procedure 12(b)(6)."),
reconsideration denied sub nom., Bentley v. Tri
State of Branford, LLC, No. 3:14-CV-1157 (VAB), 2016 WL
2626805 (D. Conn. May 6, 2016). See also Faryniarz v.
Ramirez, 62 F.Supp.3d 240, 249 (D.Conn. Dec. 1, 2014)
is futile if it lacks the facts necessary to "state a
claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In deciding whether to dismiss for failure to state
a claim, a court must "take[ ] factual allegations [in
the complaint] to be true and draw[ ] all reasonable
inferences in the plaintiff's favor." Harris v.
Mills, 572 F.3d 66, 71 (2d Cir. 2009) (citation
omitted). Although a complaint need not contain
"detailed factual allegations, " it must contain
"more than an unadorned,
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
simply, "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice." Id. (citing Twombly, 550
U.S. at 555). Rather, the plaintiff's complaint must
include "enough facts to state a claim to relief that is
plausible on its face." Twombly, 550 U.S. at
570. "A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 663 (citing
Twombly, 550 U.S. at 556). "Determining whether
a complaint states a plausible claim is context-specific,
requiring the reviewing court to draw on its experience and
common sense." Id. at 663-64 (citing
Twombly, 550 U.S. at 556).
Plaintiff's Proposed "New"
assessing Plaintiff's proposed claims for potential
futility, the Court has previously examined these claims,
which now contain additional and newly designated paragraphs
of factual allegations. The Court reviews these claims to
determine whether, with the additional facts presented, they
state a plausible claim for relief. Iqbal, 556 U.S.
at 679. "[O]nly a complaint that states a plausible
claim for relief survives a motion to dismiss."
Nine - Violation of FMLA -
Retaliation - Stamford Hospital