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
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.
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
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.
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.
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).
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 ...