Bernier v. Simon-Telelect, et al.

Opinion

Bernier v. Simon-Telelect, et al. CV-96-009-M 06/11/98 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Gene F. Bernier Plaintiff

v. Civil No. 96-9-M

Simon-Telelect, Inc. and James A. Kilev Co., Defendants

O R D E R

Plaintiff moves to amend his complaint to add two counts for

enhanced compensatory damages. In support of his motion, he

explains that during the course of discovery he has found

evidence that defendants' actions relevant to his claims were

wanton, malicious, or oppressive. At this stage, a party may

amend his complaint "only by leave of court or by written consent

of the adverse party; and leave shall be freely given when

justice so reguires." Fed. R. Civ. P. 15(a) . Amendments are to

be allowed "[u]nless there appears to be an adeguate reason for

the denial of leave to amend (e.g., undue delay, bad faith,

dilatory motive, futility of amendment, prejudice)." Glassman v.

Computervision Corp., 90 F.3d 617, 622 (1st Cir. 1996). Both defendants object to plaintiff's motion to amend.1

Defendant Simon-Telelect argues, in essence, that plaintiff's

proposed amendment is futile as plaintiff has not pled malice and

will not be able to prove that defendants acted with "actual

malice." Under New Hampshire law, to recover enhanced

compensatory damages, plaintiff must show that the defendant's

act was oppressive, wanton, or malicious. Vratsenes v. New

Hampshire Auto, Inc., 112 N.H. 71, 73 (1972). Accordingly, a

showing of malice is not the only basis for enhanced compensatory

damages, and Simon-Telelect has not challenged the sufficiency of

Bernier's allegations of oppressive or wanton conduct. See

Minion, Inc. v. Burdin, 929 F. Supp. 521, 523 (D.N.H. 1996) .

Defendant James A. Kiley Company argues that it will be

prejudiced by allowing Bernier to amend his complaint to add

claims for enhanced damages because the new claim "could very

well reguire additional discovery." Kiley offers by way of

example that defendants were unaware of the claims when

plaintiff's experts were deposed and when defendant's experts

were retained. Kiley has not explained, however, what additional

information it would have elicited from plaintiff's expert or

what different expertise it would have reguired of its own expert

defendant Simon-Telelect, Inc. erroneously relies on New Hampshire's state law procedure pertaining to amendment of pleadings. In a diversity jurisdiction case, as here, the court applies the forum state's substantive law according to the Federal Rules of Civil Procedure. Hanna v. Plumer, 380 U.S. 460 (1965); Erie R.R. v. Tompkins, 304 U.S. 64 (1938); Commercial Union Ins. Co. v. Walbrook Ins. Co., 41 F.3d 764, 772-73 (1st Cir. 1994) .

2 based on plaintiff's new claim for enhanced damages. To the

extent Kiley finds it has a legitimate need for additional

discovery based on plaintiff's new claim for enhanced

compensatory damages, that limited discovery probably can be

accomplished by an agreed limited reopening of discovery or, if

necessary, an appropriate motion for relief from discovery

deadlines. Thus, Kiley has not shown that Bernier's proposed

amendment would cause undue prejudice such that defendants would

be deprived of an opportunity to present facts or evidence

pertaining to enhanced damages. See Ricoh Co., Ltd. v. Nashua

Corp., 947 F. Supp. 21, 24 (D.N.H. 1996).

There appears to be no adeguate reason to deny Bernier's

motion to amend. The court notes, however, that Bernier moves to

add counts for enhanced damages although he states no new causes

of action. A claim for enhanced damages is a reguest for a

particular remedy rather than a separate cause of action.

Minion, 929 F. Supp at 523. Bernier's claim for enhanced damages

would be more accurately stated by simply alleging wanton,

oppressive, or malicious conduct within the appropriate counts

describing substantive causes of action already stated in his

complaint. Accordingly, the court grants plaintiff's motion to

amend his complaint to add allegations supporting a reguest for

enhanced compensatory damages to counts now in his complaint.

Conclusion

3 For the foregoing reasons, plaintiff's motion to amend

(document no. 53) is granted in part as explained in this order.

Plaintiff shall file a properly amended complaint within ten days

of the date of this order.

SO ORDERED.

Steven J. McAuliffe United States District Judge

June 11, 1998

cc: Kenneth M. Brown, Esg. Jeffrey H. Karlin, Esg. William J. Thompson, Esg. Shaela M. Collins, Esg.