Desrochers v. Manchester Body . . . CV-94-604-SD 08/22/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Anthony Desrochers; Vicki Desrochers
v. Civil No. 94-604-SD
Manchester Body & Fender, Inc.; Thomas Redburn; Anthony Cilwa; Travelers Insurance Company
O R D E R
Presently before the court are: (1) plaintiffs' motion for
leave to file a second amended complaint, to which all defendants
object; (2) plaintiffs' motion to strike defendant Travelers'
objection,1 to which no objection or reply has been filed; (3)
Travelers' motion to strike plaintiffs' motion for leave to amend
complaint, to which plaintiffs object; and (4) Travelers' motion
for summary judgment, which defendants Manchester Body & Fender
1Such motion, document 67, was filed by plaintiffs as an "objection" to Travelers' own objection, document 66, arguing that Travelers' objection was untimely filed. Travelers' objection was filed on June 12, 1996, some nine days beyond the May 30, 1996, filing deadline for objections to the May 10, 1996, pleading. See Rules 6(a) and (e), Fed. R. Civ. P., and Local Rule 7.1(b) (noting ten-day filing window and three-day extension for filings submitted via mail). Accordingly, plaintiffs' motion (document 67) is granted, and Travelers' objection (document 66) is herewith ordered stricken. (MB&F) and Thomas Redburn move to join, and to which plaintiffs
object. Reply memoranda have additionally been filed by
plaintiffs and Travelers.
Discussion
1. Travelers' Motion to Strike, document 68
The basis for such motion is, apparently, that Travelers was
not served with a complete copy of plaintiffs' motion for leave
to amend their complaint, the defect being the omission of
certain exhibits identified in the pleadings. By medium of
plaintiffs' response, it is therein noted that " [w]ith the filing
of this response a copy of all attachments to the Motion for
Leave to Amend Complaint ha[s] been provided to counsel."
Plaintiffs' Response 5 2. Travelers having filed no pleading
indicating the contrary, the motion to strike is accordingly
denied as moot.
2. Motion for Leave to Amend Complaint, document 56
Plaintiffs move the court for leave to amend their complaint
for a second time, adding both new parties and new legal claims.
Defendant MB&F objects.2
travelers' objection has been stricken herein as untimely filed.
2 "The discretion to permit the amendment of pleadings is
derived from the language of Rule 15(a), Fed. R. Civ. P." King
v. King, 922 F. Supp. 700, 703 (D.N.H.), appeal filed. No. 96-
1756 (1st Cir. July 18, 1996) (footnote omitted). "A party may
amend the party's pleading once as a matter of course at any time
before a responsive pleading is served . . . . Otherwise a party
may amend the party's pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely
given when justice so reguires." Rule 15(a), Fed. R. Civ. P.
See also Foman v. Davis, 371 U.S. 178, 183 (1962).
"Where, as here, a belated attempt is made to revise the
pleadings, the court must 'examine the totality of the
circumstances and exercise sound discretion in light of the
pertinent balance of eguitable considerations.'" King, supra,
922 F. Supp. at 703 (guoting Quaker State Oil Ref. Corp. v.
Garritv Oil C o ., 884 F.2d 1510, 1517 (1st Cir. 1989)). Although
delay alone is rarely sufficient to justify denial of a motion to
amend, "it is clear that undue delay can be a basis for denial."
Id. (citing Haves v. New England Millwork Distribs., Inc., 602
F.2d 15, 19 (1st Cir. 1979)). Moreover, "'[w]hile motions to
amend are liberally granted, a court has the discretion to deny
them if it believes that, as a matter of law, amendment would be
futile.'" Carlo v. Reed Rolled Thread Die Co., 49 F.3d 790, 792
3 (1st Cir. 1995) (quoting Demars v. General Dynamics Corp., 779
F.2d 95, 99 (1st Cir. 1985)) (other citations omitted).
The First Circuit has previously identified numerous
factors, the existence of which would justify a district court's
denial of a motion to amend. See Kennedy v. Josephthal & Co.,
814 F.2d 798, 806 (1st Cir. 1987). Among such factors are
included the following: (1) would discovery need "to be reopened
after the accumulation of an extensive and expensive record and
after the legal issues involved had already been developed"?; (2)
would the threshold issue "still prove an insurmountable obstacle
to recovery"?; and (3) was the motion to amend filed after
summary judgment was under advisement? Id. As to this last
factor, the Circuit noted that "[u]nder these circumstances, the
motion for leave to amend could be viewed as an attempt to avoid
an adverse ruling on summary judgment." Id. (citing Local 472 v.
Georgia Power Co., 684 F.2d 721, 724 (11th Cir. 1982)).
Discovery in this matter closed, after a one-month
extension, on July 1, 1996. Trial is set for the two-week period
commencing on November 19, 1996. Although the addition of
Consolidated Group, Inc., as an additional defendant would not
delay the progress of this case to trial, addition of the new
legal claim most certainly will.
Delay issues notwithstanding, plaintiffs' proposed new legal
4 claim is unavailing. New Hampshire Revised Statutes Annotated
(RSA) 415:18, XII (Supp. 1995), provides, in relevant part, that
"[n]o insurer shall, when issuing or renewing a group or blanket
policy or contract of hospital or surgical expense or major
medical expense insurance . . . deny coverage or limit coverage
to any resident of this state . . . on the basis of health risk
or condition . . . ." Such paragraph, however, was not added to
this statute until the 1992 amendments. Insofar as the effective
date of the group coverage provided to MB&F by Travelers did not
commence until August 1, 1991, plaintiffs here attempt to assert
a claim under a statutory provision not yet in existence. Under
no interpretation of the facts will plaintiffs be entitled to
recovery pursuant to RSA 415:18, XII, and thus amendment of the
complaint to include such provision would simply constitute an
exercise in futility.
In conseguence thereof, plaintiffs' motion for leave to
amend the complaint is granted in part and denied in part. The
proposed second amended complaint accompanying the motion for
leave is rejected. Plaintiffs are granted leave to refile a
newly constituted second amended complaint naming Consolidated
Group, Inc., as an additional defendant. However, no further
legal claims may be raised therein. Plaintiffs' entitlement to
recovery, if any, is bound and defined by their ERISA claim, and
further leave of the court will not be granted, whether such
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Desrochers v. Manchester Body . . . CV-94-604-SD 08/22/96 UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEW HAMPSHIRE
Anthony Desrochers; Vicki Desrochers
v. Civil No. 94-604-SD
Manchester Body & Fender, Inc.; Thomas Redburn; Anthony Cilwa; Travelers Insurance Company
O R D E R
Presently before the court are: (1) plaintiffs' motion for
leave to file a second amended complaint, to which all defendants
object; (2) plaintiffs' motion to strike defendant Travelers'
objection,1 to which no objection or reply has been filed; (3)
Travelers' motion to strike plaintiffs' motion for leave to amend
complaint, to which plaintiffs object; and (4) Travelers' motion
for summary judgment, which defendants Manchester Body & Fender
1Such motion, document 67, was filed by plaintiffs as an "objection" to Travelers' own objection, document 66, arguing that Travelers' objection was untimely filed. Travelers' objection was filed on June 12, 1996, some nine days beyond the May 30, 1996, filing deadline for objections to the May 10, 1996, pleading. See Rules 6(a) and (e), Fed. R. Civ. P., and Local Rule 7.1(b) (noting ten-day filing window and three-day extension for filings submitted via mail). Accordingly, plaintiffs' motion (document 67) is granted, and Travelers' objection (document 66) is herewith ordered stricken. (MB&F) and Thomas Redburn move to join, and to which plaintiffs
object. Reply memoranda have additionally been filed by
plaintiffs and Travelers.
Discussion
1. Travelers' Motion to Strike, document 68
The basis for such motion is, apparently, that Travelers was
not served with a complete copy of plaintiffs' motion for leave
to amend their complaint, the defect being the omission of
certain exhibits identified in the pleadings. By medium of
plaintiffs' response, it is therein noted that " [w]ith the filing
of this response a copy of all attachments to the Motion for
Leave to Amend Complaint ha[s] been provided to counsel."
Plaintiffs' Response 5 2. Travelers having filed no pleading
indicating the contrary, the motion to strike is accordingly
denied as moot.
2. Motion for Leave to Amend Complaint, document 56
Plaintiffs move the court for leave to amend their complaint
for a second time, adding both new parties and new legal claims.
Defendant MB&F objects.2
travelers' objection has been stricken herein as untimely filed.
2 "The discretion to permit the amendment of pleadings is
derived from the language of Rule 15(a), Fed. R. Civ. P." King
v. King, 922 F. Supp. 700, 703 (D.N.H.), appeal filed. No. 96-
1756 (1st Cir. July 18, 1996) (footnote omitted). "A party may
amend the party's pleading once as a matter of course at any time
before a responsive pleading is served . . . . Otherwise a party
may amend the party's pleading only by leave of court or by
written consent of the adverse party; and leave shall be freely
given when justice so reguires." Rule 15(a), Fed. R. Civ. P.
See also Foman v. Davis, 371 U.S. 178, 183 (1962).
"Where, as here, a belated attempt is made to revise the
pleadings, the court must 'examine the totality of the
circumstances and exercise sound discretion in light of the
pertinent balance of eguitable considerations.'" King, supra,
922 F. Supp. at 703 (guoting Quaker State Oil Ref. Corp. v.
Garritv Oil C o ., 884 F.2d 1510, 1517 (1st Cir. 1989)). Although
delay alone is rarely sufficient to justify denial of a motion to
amend, "it is clear that undue delay can be a basis for denial."
Id. (citing Haves v. New England Millwork Distribs., Inc., 602
F.2d 15, 19 (1st Cir. 1979)). Moreover, "'[w]hile motions to
amend are liberally granted, a court has the discretion to deny
them if it believes that, as a matter of law, amendment would be
futile.'" Carlo v. Reed Rolled Thread Die Co., 49 F.3d 790, 792
3 (1st Cir. 1995) (quoting Demars v. General Dynamics Corp., 779
F.2d 95, 99 (1st Cir. 1985)) (other citations omitted).
The First Circuit has previously identified numerous
factors, the existence of which would justify a district court's
denial of a motion to amend. See Kennedy v. Josephthal & Co.,
814 F.2d 798, 806 (1st Cir. 1987). Among such factors are
included the following: (1) would discovery need "to be reopened
after the accumulation of an extensive and expensive record and
after the legal issues involved had already been developed"?; (2)
would the threshold issue "still prove an insurmountable obstacle
to recovery"?; and (3) was the motion to amend filed after
summary judgment was under advisement? Id. As to this last
factor, the Circuit noted that "[u]nder these circumstances, the
motion for leave to amend could be viewed as an attempt to avoid
an adverse ruling on summary judgment." Id. (citing Local 472 v.
Georgia Power Co., 684 F.2d 721, 724 (11th Cir. 1982)).
Discovery in this matter closed, after a one-month
extension, on July 1, 1996. Trial is set for the two-week period
commencing on November 19, 1996. Although the addition of
Consolidated Group, Inc., as an additional defendant would not
delay the progress of this case to trial, addition of the new
legal claim most certainly will.
Delay issues notwithstanding, plaintiffs' proposed new legal
4 claim is unavailing. New Hampshire Revised Statutes Annotated
(RSA) 415:18, XII (Supp. 1995), provides, in relevant part, that
"[n]o insurer shall, when issuing or renewing a group or blanket
policy or contract of hospital or surgical expense or major
medical expense insurance . . . deny coverage or limit coverage
to any resident of this state . . . on the basis of health risk
or condition . . . ." Such paragraph, however, was not added to
this statute until the 1992 amendments. Insofar as the effective
date of the group coverage provided to MB&F by Travelers did not
commence until August 1, 1991, plaintiffs here attempt to assert
a claim under a statutory provision not yet in existence. Under
no interpretation of the facts will plaintiffs be entitled to
recovery pursuant to RSA 415:18, XII, and thus amendment of the
complaint to include such provision would simply constitute an
exercise in futility.
In conseguence thereof, plaintiffs' motion for leave to
amend the complaint is granted in part and denied in part. The
proposed second amended complaint accompanying the motion for
leave is rejected. Plaintiffs are granted leave to refile a
newly constituted second amended complaint naming Consolidated
Group, Inc., as an additional defendant. However, no further
legal claims may be raised therein. Plaintiffs' entitlement to
recovery, if any, is bound and defined by their ERISA claim, and
further leave of the court will not be granted, whether such
5 leave seeks to add new defendants or new claims. This relatively
straightforward litigation is well over two years old now, and
all parties should be exercising their best efforts to prepare
their respective cases for the impending November trial.
3. Travelers' Motion for Summary Judgment, document 47
a. Summary Judgment Standard
The entry of summary judgment is appropriate when the
"pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to judgment as a matter of law."
Rule 56(c), Fed. R. Civ. P. Thus, the role of summary judgment
among the array of pretrial devices is to "pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually reguired." Wynne v. Tufts
Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir. 1992), cert.
denied, 507 U.S. 1030 (1993).
Among the guidelines to be followed by the court in assaying
the summary judgment record is "to interpret the record in the
light most hospitable to the nonmoving party, reconciling all
competing inferences in that party's favor." McIntosh v.
Antonino, 71 F.3d 29, 33 (1st Cir. 1995) (citation omitted).
"Nonetheless, a party contesting summary judgment must offer the
6 court more than posturing and conclusory rhetoric." Id.
(citations omitted).
"Moreover, summary judgment may be appropriate '[e]ven in
cases where elusive concepts such as motive or intent are at
issue, ... if the non-moving party rests merely upon conclusory
allegations, improbable inferences, and unsupported
speculation.'" Woods v. Friction Materials, Inc., 30 F.3d 255,
259 (1st Cir. 1994) (guoting Medina-Munoz v. R.J. Reynolds
Tobacco C o ., 896 F.2d 5, 8 (1st Cir. 1990)).
b. The Merits
Travelers moves for summary judgment on plaintiffs' sole
remaining claim, which is asserted under the Employee Retirement
Income Security Act of 1974 (ERISA), Pub. L. No. 93-406, 88 Stat.
829 (codified, as amended, at 29 U.S.C. § 1001, et sea. (1988 &
Supp. 1996)). This assault follows two prongs: (1) that
defendant Cilwa was not acting as Travelers' agent when he sold
the Travelers group insurance policy to defendant MB&F or that,
if Cilwa was Travelers' agent, the alleged forgery was not an act
within the scope of his agency; and (2) Travelers would have
declined the group coverage had plaintiffs initially reguested
coverage for their daughter Laura and made a full disclosure of
7 her medical health.3
Having reviewed the pleadings and exhibits attached thereto
the court finds and rules that genuine issues remain as to
whether defendant Cilwa was Travelers' agent, or so held himself
out to be. Moreover, it is unclear when, exactly, plaintiffs'
daughter obtained the diagnosis that made her subseguently
uninsurable. Travelers asserts that such diagnosis occurred
prior to June 5, 1991, the date plaintiffs completed the
insurance enrollment application, and thus their disclosure was
both incomplete and fraudulent. See March 26, 1991,
Echocardiogram Report (attached to Travelers' Motion as Albert B
Horan Affidavit Exhibit 4). Whether this initial, apparently
uncorroborted, diagnosis was sufficient to trigger plaintiffs'
duty to disclose is a guestion of fact for the jury.
Moreover, plaintiff Anthony Desrochers, however, has
verified the allegations in the amended complaint, see
Plaintiff's Verification of Facts (attached to plaintiffs'
3It is upon the force of this latter argument that defendants MB&F and Redburn move to join in Travelers' motion. MB&F and Redburn co-opt Travelers' argument that, even if all of plaintiffs' allegations are taken as true, no damages accrued to plaintiffs due to the conduct of any of the defendants because Travelers would have declined the group coverage policy had Laura's alleged pre-existing condition been forthrightly disclosed. The motion to join (document 63) is granted, the merits of the argument advanced therein to be addressed infra. 8/21/95 summary judgment objection), wherein it is asserted that
"[a]fter the insurance paperwork was submitted to the Traveler's
[sic] Insurance Company . . . the plaintiffs' daughter . . . was
diagnosed as having several serious medical health problems . . .
, " Amended Complaint 5 10. Laura Desrochers' diagnosis--and the
corresponding duty of plaintiffs to disclose all pre-existing
health conditions--thus either preceded the insurance application
or followed its submission, but it cannot have occurred at both
times. The identification of this highly relevant date is
material to the outcome, yet is in genuine dispute. Accordingly,
Travelers' motion for summary judgment must be and herewith is
denied.
Conclusion
For the reasons set forth herein, plaintiffs' motion for
leave to file second amended complaint (document 56) is granted
in part and denied in part. Plaintiffs may add Consolidated
Group, Inc., as a named defendant, but shall not add any new
legal claims. Additionally, plaintiffs' converted motion to
strike (document 67) is granted. Travelers' motion to strike
(document 68) is denied as moot, MB&F's and Redburn's motion to
join (document 63) is granted, and Travelers' motion for summary judgment (document 47) is denied.
SO ORDERED.
Shane Devine, Senior Judge United States District Court
August 22, 1996
cc: Peter G. McGrath, Esg. H. Jonathan Meyer, Esg. Anthony Cilwa, pro se Edward P. O'Leary, Esg.