Joseph v. Factory Stores

• Court: District Court, D. New Hampshire
• Decided: May 17, 1995
• Docket: CV-94-490-L
• Status: Published

Opinion

Joseph v. Factory Stores CV-94-490-L 05/17/95

THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Colleen F. Joseph

v. #C-94-4 90-L

Factory Stores of America

ORDER ON MOTION FOR LEAVE OF COURT TO FILE ______________________FIRST AMENDED COMPLAINT

By motion (Doc. 15) filed April 18, 1995 plaintiff seeks, in

accordance with Fed. R. Civ. P. 15(c), to amend her complaint.

The defendant objects to the granting of plaintiff's motion.

PROCEDURAL BACKGROUND

Suit in this case originated in Rockingham County when

plaintiff filed her complaint on August 12, 1994. Defendant then

removed the case from Rockingham County Superior Court to this

Court on September 21, 1994. Defendant filed its answer on

September 28, 1994 and on March 2, 1995, its amended answer and

counterclaim.

Plaintiff in her original complaint filed an Employment

Agreement Breach of Contract Action seeking to recover the sum of

$67,500.00.

The court issued a discovery schedule on November 4, 1994

establishing a discovery deadline of April 1, 1995. The following discovery was completed.

A. By Plaintiff:

December 1, 1994 Deposition of Janet Grady;

December 2, 1994 Deposition of John M. Slocum;

December 22, 1994 FSA's answer to interrogatories;

January 10, 1995 Deposition of Connell L. Radcliff;

January 10, 1995 Deposition of Barbara Stoddard; and

April 25, 1995 FSA's answers to Plaintiff's second set of interrogatories.

B. By F S A .

November 30, 1994 Deposition of plaintiff;

January 13, 1995 Deposition of Richard G. Lannan;

February 3, 1995 Deposition of G. Robert Joseph;

February 3, 1995 Deposition of Sue C. Sullivan; and

April 7, 1995 Plaintiff's answers to inter­ rogatories .

On April 7, 1995, a week after discovery closed, plaintiff

indicated to the defendant, in response to its interrogatories,

the identity of two witnesses who would testify at trial as to

plaintiff's claim for emotional injury and damage to her career

development. The damages were estimated between $327,631.00 and

$386,104.00.

The amended complaint is twenty-one pages in length. There

2 are seven

counts.

Count 1 is a reiteration of the original complaint.

Count 2 is also a reiteration of the original complaint

further stating that she suffered injury to her career.

Count 3 sounds in contract stating that the contract was

violated because plaintiff was not given ample notice as reguired

by the contract.

Count 4 alleges a violation of good faith in the breach of

the contract.

Count 5 alleges negligent infliction of severe emotional

distress.

Count 6 alleges intentional infliction of severe emotional

Count 7 alleges punitive damages.

The defendant objects to plaintiff's motion with respect to

counts 5, 6 and 7 on the basis of undue delay in filing the

motion and unfair prejudice to the plaintiff.

DISCUSSION

The decision to grant or deny a Rule 15 motion to amend lies

within the sound discretion of the district court. Tiernan v.

Blvth, Eastman, Dillon & Co . , 719 F.2d 1 , 4 (1st Cir. 1983).

3 This discretion, however, is subject to stricture: it is mandated

that leave to amend "shall be freely given when justice so

requires." Fed. R. Civ. P. 15(a); Foman v. Davis, 371 U.S. 178,

182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962) . Amendments are not

to be denied solely on the basis of delay. Haves v. New England

Millwork Distrib., 602 F.2d 15, 19-20 (1stCir. 1979). Merrimack

Street Garage v. General Motors Corp., 667 F. Supp. 41 (D.N.H.

1987) .

It is axiomatic that amendments which unfairly prejudice a

litigant should not be granted. DCPB, Inc. v. City of Lebanon,

957 F .2d 913, 917 (1st Cir. 1992).

Late pleading amendments may be "allowed under Rule 15 (b) at

the discretion of the court, but only to the extent that the

party opposing the amendment will not be unduly prejudiced."

Campana v. Elder, 755 F.2d 212, 215 (1st Cir. 1985) .

In Wildauer v. Frederick County, 993 F.2d 369 (4th Cir.

1993) it was held to be within the discretion of the district

court to deny a motion to amend filed 120 days after discovery

had closed.

In this case plaintiff's motion to amend was filed two and

one half weeks after close of discovery. As counsel for the

defendant had pointed out, plaintiff on the date of the filing of

her complaint, was then aware of her own "severe emotional

4 distress."

The trial is scheduled to commence after June 1, 1995. To

allow the motion to amend as of this date May 16, 1955 would put

an impossible onus on the defendant. In all probability it would

necessitate redeposing plaintiff on her claim of emotional dis­

tress, and the deposing of the expert witnesses Judy Czarnecki,

Ph.D. and Peter E. Clarke, M.Ed., C.R.C. After deposing plain­

tiff's two proposed experts the court can then foresee the de­

fendant having one or more experts examining the plaintiff and

the plaintiff then deposing defendant's expert or experts.

Commencement of the trial would then have to be delayed until

some date in 1996.

Accordingly, the motion to amend (Doc. 15) is denied. The

court at this time sees no reason to allonge the trial by

addressing the conflicts of law issue which can be disposed of by

agreement or at the final pretrial hearing.

May 17, 1995

Martin F. Loughlin Senior Judge

John H. MacEachern, Esg. James M. Saffian, Esg.