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Chretien v. Berman & Simmons

Superior Court of Maine, Cumberland

August 31, 2018

RUSSELL CHRETIEN Plaintiff
v.
BERMAN & SIMMONS and WILLIAM ROBITZEK Defendants

          Plaintiff's Counsel: David Webbert, Esq. Philip Johnson, Esq. Johnson Webbert & Young

          Defendants' Counsel: John Aromando, Esq. Katharine Rand, Esq. Sara Murphy, Esq. Pierce Atwood

          ORDER ON PLAINTIFFS MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT

          A. M. HORTON, JUSTICE

         Plaintiff Russell Chretien has brought an action for legal malpractice against Defendants Berman & Simmons, P.A. and William Robitzek, Esq. Plaintiff has filed a Motion for Leave to File Second Amended Complaint. Defendants have filed an opposition and Plaintiff has filed a reply memorandum.

         Shortly after filing their opposition, Defendants filed a Motion for Summary Judgment that, as of this writing, is not fully briefed. For reasons set forth below, the court has elected to take up the Plaintiffs Motion separately rather than defer consideration until Defendants' Motion is ready for decision.

         Plaintiffs Motion seeks to add to the theories of liability already set forth in his first Amended Complaint claims for fraudulent concealment, intentional misrepresentation and punitive damages, and also seeks to add factual allegations intended to support the existing and new claims.

         Defendants' opposition to the Motion asserts two major objections-that the Plaintiffs Motion is untimely and that the Motion is futile because Plaintiff cannot prevail on any of the proposed additional claims.

         The starting point for the analysis is Rule 15(a) of the Maine Rules of Civil Procedure, which calls for leave to amend to be "freely given when justice so requires." See Diversified Foods, Inc. v. First National Bank, 605 A.2d 609, 616 (Me. 1992). "This mandate means that 'if the moving party is not acting in bad faith or for delay, the motion will be granted in the absence of undue prejudice.'" Id., quoting 1 Field, McKusick & Wroth, § 15.4 (1970).

         The factors that go into determining whether leave to amend should be granted include:

• The timing of the motion for leave: A motion made within the period set in the scheduling order for the case is presumptively timely. A motion made beyond that deadline is not necessarily untimely, but other factors may result in leave being denied.
• The reasons for any delay in the timing of the motion: If the moving party legitimately could not have made the motion earlier, the timing of the motion, in and if itself, will not weigh against granting leave to amend. However, "undue delay removes any presumption in favor of allowing amendment." Diversified Foods, Inc., 605 A.2d at 616 (internal quotes omitted).
• Bad faith: An improper purpose or motive on the part of the moving party weighs substantially against granting leave to amend.
• Undue prejudice: A request for leave to amend that will cause undue prejudice to an opposing party, meaning harm or detriment beyond the mere potential for liability on the proposed new claims or allegations, may be denied on that ground. See Holden v. Weinschenk, 1998 ME 185, ¶6, 715 A.2d 915 (leave to amend properly denied when request made after entry of summary judgment against the moving party); Drinkwater v. Patten Realty Corp., 563 A.2d 772, 778 (Me. 1989) (denial upheld of motion for leave to amend made three years after commencement of case and five days before trial).
• Futility: When the proposed amendment would be futile, i.e. the moving party could not prevail on the proposed additional claims, leave to amend may be denied on that ground alone. See Glynn v. City of South Portland,640 A.2d 1065, 1067 (Me. 1994) ([W]hen ... a proposed amended complaint would be subject to a motion to dismiss, the ...

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