United States District Court, D. Connecticut
VIRGINIA A. D'ADDARIO, Individually, and on behalf of the F. Francis D'Addario Testamentary Trust and the Virginia A. D'Addario Trust; and VIRGINIA A. DADDARIO, EXECUTRIX, as Executrix of the Probate Estate of Ann T. D'Addario, Deceased, and on behalf of the F. Francis D'Addario Testamentary Trust and the Ann T. D'Addario Marital Trust, Plaintiffs,
DAVID D'ADDARIO; MARY LOU D'ADDARIO KENNEDY; GREGORY S. GARVEY; RED KNOT ACQUISITIONS, LLC; SILVER KNOT, LLC; and NICHOLAS VITTI, Defendants.
RULING ON PLAINTIFF'S MOTION FOR LEAVE TO FILE
SECOND AMENDED COMPLAINT
Bond Arterton, U.S.D.J.
Virginia D'Addario moves for leave to file a Second
Amended Complaint. (Mot. for Leave to File Second Am. Compl.
[Doc. # 55].) Defendants oppose that motion. (Defs.'
Joint Opp. [Doc. # 62].) For the reasons that follow,
Plaintiffs motion is granted in part and denied in part.
Court assumes the parties' familiarity with the facts
alleged in this case, set out in detail in D'Addario
v. D'Addario, 901 F.3d 80, 86-91 (2d Cir. 2018). In
January 2016, Virginia D'Addario filed this action
against Defendants. (Compl. [Doc. # 1].) In May 2016, she
filed the First Amended Complaint ("FAC"),
asserting claims under the Racketeer Influenced and Corrupt
Organizations Act ("RICO") and Connecticut state
law. In keeping with the Court's procedures, Defendants
moved for a pre-filing conference, setting out in detail the
grounds for a forthcoming motion to dismiss the FAC. (Mot.
for Pre-Filing Conf. [Doc. # 27].) Plaintiff did not seek
leave to further amend her complaint to cure the asserted
deficiencies, and Defendants moved to dismiss the FAC. (Mot.
to Dismiss First Am. Compl. [Doc. # 37].) The Court granted
that motion to dismiss, holding that Plaintiff had failed to
plead a viable RICO claim and declining to exercise
supplemental jurisdiction over her remaining state law
claims. (Ruling Granting Mot. to Dismiss [Doc. # 49].)
Plaintiff appealed that ruling.
Second Circuit Court of Appeals upheld the dismissal of
certain of Plaintiffs claims but reinstated others.
Specifically, the Court of Appeals concluded that Plaintiff
"has sufficiently identified a distinct acquisition and
maintenance injury under section 1962(b) [of RICO] to support
her collection expenses claim with regard to [Defendants]
David [D'Addario], Gregory Garvey, and Red Knot, but not
with regard to the other defendants."
D'Addario, 901 F.3d at 92-93. It also determined
that "Virginia has also sufficiently alleged a section
1962(c) 'enterprise' with regard to all six
defendants, supporting her claim for collection expenses on
this theory of recovery as well." Id. at 93.
Thus the Court of Appeals vacated the "dismissal as to
Virginia's RICO claim on her own behalf and on behalf of
her mother's estate for collection expenses and
remand[ed] that claim and her state law claims for further
Virginia now moves for leave to file
her Proposed Second Amended Complaint ("PSAC")
"to (a) conform to the Second Circuit decision; (b) add
additional facts and claims as to the relevant enterprises
for Plaintiffs' RICO claims; (c) add two additional
causes of action against Defendant David D'Addario
related to the claims asserted in the prior Complaint; and
(d) clarify that Plaintiff Virginia A. D'Addario is also
asserting claims for and on behalf of the Probate Estate of
F. Francis D'Addario, Deceased." (Mem. Supp. Mot.
for Leave to File [Doc. # 55-2] at 1.)
may amend its pleading more than once only with "the
opposing party's written consent or the court's
leave." Fed.R.Civ.P. 15(a)(2). "The court should
freely give leave when justice so requires."
Id. But leave to amend "should generally be
denied in instances of futility, undue delay, bad faith or
dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, or undue prejudice to the
non-moving party." Burch v. Pioneer Credit Recovery,
Inc., 551 F.3d 122, 126 (2d Cir. 2008). Leave may be
denied where plaintiffs were "given ample prior
opportunity to allege a claim" but did not do so
previously. Dejesus v. Sears, Roebuck & Co., 87
F.3d 65, 72 (2d Cir. 1996).
argues that leave to file the PSAC should be given because
"[t]here is no undue delay[, ] ... no bad faith or
dilatory motive [, ] ... no prior failure by Plaintiffs to
cure pleading deficiencies, and no undue prejudice would
result to the Defendants." (Mem. Supp. Mot. for Leave to
File at 2.) She also contends that "it would not be
'futile' to allow Plaintiffs to assert the additional
claims set forth" because the "additional
'enterprises' for Plaintiffs' RICO claims are in
accordance with the Second Circuit's decision";
because "Plaintiffs have asserted additional viable
causes of action against David D'Addario for conversion
(Count Six) and for statutory theft [(Count Seven)]"
"based on the detailed factual allegations in the
proposed Second Amended Complaint"; and because
"the proposed Second Amended Complaint clarifies that
Plaintiff Virginia A. D'Addario is also asserting claims
against the Defendants for and on behalf of her deceased
father's probate Estate as allowed under Connecticut
law." (Id. at 2-3.)
respond that "the Plaintiffs now attempt to begin the
entire process again, alleging new legal theories, new causes
of action, and newly expanded damages claims, all based on
the same alleged conduct that occurred years before the
filing of the first Complaint in this matter" despite
"multiple prior opportunities to amend . . . after full
notice of all the deficiencies [of the FAC] the Defendants
ultimately raised in their motion to dismiss."
(Defs.' Joint Opp. at 1-2, 13-14.) Defendants explain
that "[a]ll of the alleged facts upon which the
Plaintiffs rely in crafting their new theories of liability
and causes of action were in existence for many years before
this Court provided the Plaintiffs with their 'final'
opportunity to amend the Complaint" following
Defendants' Motion for Pre-Filing Conference which
explained the bases for a forthcoming motion to dismiss.
(Id. at 16.) Moreover, "Plaintiffs have offered
no justification for why they failed to include these causes
of action and legal theories at that time, or why after
failing to do so, they should be allowed to assert new
theories now, years later, after a lengthy appeal
also contend that "[a]ll of the factors supporting
denial of leave to amend are present here and mandate denial
of Plaintiffs motion, including that Defendants would suffer
prejudice if they are "now required to begin the process
anew and litigate the new claims" after "already
dedicating] significant resources to litigating the claims in
the FAC" and that "any further amendment would be
futile." (Id.) Defendants argue that they would
"be significantly prejudiced if they are forced to
continue to incur litigation costs endlessly defending
against the Plaintiffs' repeated attempts to fashion
various causes of action and damages theories from the same
alleged facts." (Id. at 19.)
the PSAC represents Plaintiffs opportunity to accord with the
Second Circuit's opinion and because Defendants
acknowledge that "[although the Plaintiffs have
substantially revised their legal theories and claims [in the
PSAC], the alleged conduct underlying these claims remains
essentially the same, " (Defs.' Joint Opp. at 8),
the Court will not address individual embellishments and
changes made in the PSAC but rather will focus on the claims
and damages alleged in the PSAC.
Assertion of Claims on behalf of Estate of F. Francis
Virginia D'Addario now seeks to assert all of
the claims in this action on behalf of the Estate" of
her father, F. Francis D'Addario, in addition to the
capacities in which she first filed this action. (Defs.'
Joint Opp. at 20 (citing PSAC ¶ 7.3); see PSAC
¶ 3.) The FAC did not include any claims pleaded by
Virginia on behalf of her father's estate. By pleading in
this capacity, Virginia endeavors to recover "damages
proximately caused to the Estate and to Plaintiffs by
Defendants' wrongful conduct, " including the
"misappropriat[ion of] Estate assets ... in excess of
$588, 000, 000" and "over $1, 000, 000 in
unnecessary legal fees" incurred by the Estate. (PSAC
the lack of any changed circumstances or newly acquired
facts, " Defendants argue, "Virginia D'Addario
has now donned yet another 'hat' and now purports to
bring this action on behalf of her deceased father's
'probate estate' as 'a legatee under her
father's Will; and heir of her deceased father; a
beneficiary of her father's probate estate; and Executrix
of her mother's probate estate, ' in addition to the
various capacities through which she brought the" FAC.
(Id. at 9.) Defendants contend that Virginia's
attempt to proceed on behalf of her father's estate is
futile because "[u]nder Connecticut law, Plaintiffs-who
are not executors or administrators of the Estate [of F.
Francis D'Addario]-lack standing to assert any such
claims on behalf of the Estate, " and because any claims
on behalf of the Estate are "not ripe" and
"are also barred by the applicable statute of
limitations." (Id. at 19.)
designed to recover personalty belonging to the estate or for
its use, conversion, or injury are brought by the fiduciary
rather than by the beneficiaries." Geremia v.
Geremia, 159 Conn.App. 751, 781-82 (2015). However,
"an exception exists" to that general rule.
Id. "Where the executor or administrator has
been guilty of fraud or collusion with the party to be sued,
or where the interests of the personal representative are
antagonistic to those of the heirs or distributees, the heirs
or distributees may maintain actions relating to the
personalty of the estate in their own names."
Id. at 784. "Similarly, when the legal
representative has failed or refused to act, the heir may
maintain an action to recover assets for the benefit of the
Virginia perhaps could have brought some or all claims in
this action on behalf of her father's estate, had she
chosen to do so when filing the original complaint or the
FAC. But she offers no explanation as to why she chose not to
do so, nor any convincing argument as to why she should be
permitted to do so now, several years after this litigation
began and following thorough litigation of the adequacy of
the claims in the FAC. Virginia argues that "forcing
[her] to file a new action against the Defendants asserting
claims for and on behalf of her father's Probate Estate .
. . would result in unnecessary duplicative proceedings and
disserve judicial economy." (Reply Supp. Mot. for Leave
to File [Doc. # 67] at 6-7.) Though it might have been more
efficient had Virginia asserted claims in this new capacity
earlier in this case, the Court disagrees that it would serve
judicial economy to incorporate entirely new legal theories,
pleading capacities, and damages requests at this stage of
the litigation. In the absence of any explanation of the
delay in pleading in this capacity despite prior opportunity
to do so, and of any argument in support of her conclusory
assertion that "Defendants would not suffer undue
prejudice by the filing of the PSAC, " (Reply at 7),
Plaintiff may not now amend the complaint to assert claims on
behalf of her father's estate.