Doe v Phillips Exeter Academy

2016 DNH 205

• Court: District Court, D. New Hampshire
• Decided: November 10, 2016
• Docket: 16-cv-396-JL
• Status: Published

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF NEW HAMPSHIRE

Mother Doe as parent and next friend of John Doe

v. Civil No. 16-cv-396-JL Opinion No. 2016 DNH 205 Phillips Exeter Academy

ORDER

Plaintiff Mother Doe, as parent and next friend of minor

John Doe, seeks leave to amend her complaint after jury

selection and mere days before the beginning of the trial in

this action. As discussed below, the court concludes that

plaintiff has not demonstrated good cause to amend at this

juncture, as plaintiff’s proposed amendments are both tardy and

futile. Accordingly, the court denies that motion.

Plaintiff filed this action on August 30, 2016. Plaintiff

initially sought a preliminary injunction, asking the court to

order PEA to allow John Doe to return to school for the fall

trimester. On the eve of the preliminary injunction hearing,

the parties agreed instead to an expedited schedule, provided

that trial occur before PEA’s winter trimester begins in December 2016.1 Under the court’s order setting forth that

expedited schedule, plaintiff was given until September 27,

2016, to amend her complaint, which she did.2 Around the same

time, defendant moved for a protective order preventing

disclosure of the investigative report concerning the encounter

between John Doe and another student, Jane Roe, that gives rise

to this action.3 After multiple telephone conferences between

the court and counsel on October 4 and October 6, the defendant

produced that report to the plaintiff’s counsel on an

attorneys’-eyes-only basis October 6. The court subsequently

issued its order denying the defendant’s motion for a protective

order.4

John Doe, now moves to amend her complaint to add: (1) theories

of contractual breach and breach of the covenant of good faith

and fair dealing arising from the report; and (2) a claim for

1 See Joint Discovery Plan and Schedule (doc. no. 22); Order of Sept. 14, 2016 (doc. no. 23). 2 Order of Sept. 14, 2016 (doc. no. 23); First Amended Compl. (doc. no. 26). 3 As the court discussed the report at some length in its order denying that protective order, it need not and does not repeat that discussion here. See Order of Oct. 14 (doc. no. 44). 4 Order of Oct. 13, 2016 (doc. no. 44).

2 specific performance. A party seeking to amend its pleadings

after the relevant deadline has passed, as Mother Doe does, must

seek a modification of the court’s scheduling order. See United

States ex rel D’Agostino v. EV3, Inc., 802 F.3d 188, 192 (1st.

Cir. 2015). At such a time, the court’s imposed schedule “may

be modified only for good cause and with the judge’s consent.”

Fed. R. Civ. P. 16(b)(4). The “good cause” standard “focuses on

the diligence (or lack thereof) of the moving party more than it

does on any prejudice to the party-opponent,” Steir v. Girl

Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004), though

“prejudice to the opposing party remains relevant,” O'Connell v.

Hyatt Hotels of P.R., 357 F.3d 152, 155 (1st Cir. 2004).

Plaintiff first seeks to amend her complaint to add, in

effect, the claim, and underlying factual allegations, that PEA

breached the contract and/or the covenant of good faith and fair

dealing because the investigator’s conclusion that John

committed sexual harassment under the EBook’s definition is not

supported by the investigator’s factual findings.5 The

plaintiff’s request is not entirely unreasonable. She has

raised, since the beginning of this lawsuit, the relevance of

5 See Proposed Second Amended Compl. (doc. no. 74-2) ¶¶ 7, 43, 73-74, 103, 109.

3 the investigator’s report and the defendant’s reliance on it in

placing John Doe on dean’s leave and subsequently asking him to

withdraw from the school. She did not receive that report in

discovery until after the deadline to amend pleadings, which

delayed her amendment on the basis of its contents. That

amendment was further delayed by the unfortunate passing of

Father Doe on October 19, to which the court is sympathetic.

All the same, the prejudice of amending the complaint at

this late hour weighs in favor of denying the plaintiff’s

motion. By the time plaintiff filed her motion, the court had

selected a jury, the parties had filed pre-trial statements and

proposed jury instructions, and had filed and objected to

motions in limine, and the defendant had filed its pre-trial

memorandum (trial brief). Plaintiff, on the other hand, was

aware of the import of the investigative report from well before

this action began.6 Plaintiff’s counsel received the report on

October 6, a full month before plaintiff moved to amend. And,

plaintiff’s counsel represented at the chambers conference held

the following Tuesday, October 11, that the plaintiff believed

the investigator’s findings did not support her ultimate

conclusion. While a month may be a short period in the timeline

6 Mot. to Amend (doc. no. 74) at 6.

4 of a case on a normal track, it amounts to a full half of the

schedule of this case. And it afforded plaintiff ample time to

draft the small handful of amendments on that subject that

plaintiff now proposes. Accordingly, the court finds

plaintiff’s proposed amendment to be unduly late in the context

of this action.

In addition to its lateness, plaintiff’s proposed

amendments based on the investigator’s report would also be

futile. In effect, these counts seek appellate review of the

investigator’s factual findings and conclusions. That is not

the court’s role in contract-based cases such as this. See Doe

v. Brown Univ., No. 16-017, 2016 WL 5409241, at *1 (D.R.I.

Sept. 28, 2016) (“This Court is not a super-appeals court for

sexual misconduct cases, nor is it an advisor to [the school] on

how it should handle these messy and unfortunate situations.”);

see also Yu v. Vassar Coll., 97 F. Supp. 3d 448, 461 (S.D.N.Y.

2015) (“The Court's role, of course, is neither to advocate for

best practices or policies nor to retry disciplinary

proceedings”); Gomes v. Univ. of Maine Sys., 365 F. Supp. 2d 6,

14 (D. Me. 2005) (not the court’s task “to make an independent

determination about” the underlying events).

5 Plaintiff’s proposed amendment to include a count for

specific performance7 is likewise denied. This is -- and has

been since the initial complaint -- an action for breach of

contract. Plaintiff has also consistently requested injunctive

relief, including performance of the contract. Accordingly,

plaintiff’s attempt to add specific performance as a separate

count is futile. To the extent it were not, plaintiff had every

opportunity to include this requested remedy in its previously-

filed complaints, and thus any addition at this late-stage is

tardy. This denial, however, is without prejudice to

plaintiff’s ability to request such relief as a remedy under

plaintiff’s breach of contract count to the extent that it was

sufficiently asserted in the First Amended Complaint and is

supported at trial and in any accompanying hearing regarding

equitable relief.

Finding that plaintiff has not demonstrated good cause for

amending the scheduling order so as to amend her complaint on

the eve of trial, the court denies that motion.8

7 Proposed Second Amended Compl. (doc no. 74-2) ¶¶ 125-129. 8 Doc. no. 74.

6 SO ORDERED.

Joseph N. Laplante United States District Judge

Dated: November 10, 2016

cc: Megan Deluhery, Esq. Max D. Stern, Esq. Corrina L. Hale, Esq. Samantha Dowd Elliott, Esq. W. Daniel Deane, Esq. Steven M. Richard, Esq. Emily L. Sy, Esq.