United States District Court, D. Maine
DAVID E. MURRAY, Plaintiff
WAL-MART STORES, INC., and WAL-MART STORES EAST, L.P., Defendants
MEMORANDUM DECISION AND ORDER ON MOTION TO AMEND
H. RICH, III UNITED STATES MAGISTRATE JUDGE
than two years after the expiration of the parties'
deadline to amend pleadings and two days prior to the
expiration of their discovery deadline, plaintiff David E.
Murray, now proceeding pro se in this employment
action, moved to amend his complaint for a third time.
See Plaintiff's Motion for Leave To File Third
Amended Complaint (“Motion”) (ECF No. 160). The
defendants, Wal-Mart Stores, Inc., and Wal-Mart Stores East,
L.P. (together, “Wal-Mart”), oppose the motion on
the bases that Murray fails to demonstrate good cause for his
delay in moving to amend and that, in any event, his
amendment is futile. See Defendants' Opposition
to Plaintiff's Motion for Leave To File Second Amended
Complaint (“Opposition”) (ECF No. 170) at 3-10. I
agree in both respects and, accordingly, deny the motion.
Applicable Legal Standards
to Federal Rule of Civil Procedure 15(a)(2), “[t]he
court should freely give leave [to amend a pleading] when
justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave to
amend should be granted in the absence of reasons “such
as undue delay, bad faith or dilatory motive on the part of
the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc ..... ” Foman v.
Davis, 371 U.S. 178, 182 (1962).
First Circuit has explained:
A motion to amend a complaint will be treated differently
depending on its timing and the context in which it is filed.
. . . As a case progresses, and the issues are joined, the
burden on a plaintiff seeking to amend a complaint becomes
more exacting. Scheduling orders, for example, typically
establish a cut-off date for amendments (as was apparently
the case here). Once a scheduling order is in place, the
liberal default rule is replaced by the more demanding
“good cause” standard of Fed.R.Civ.P. 16(b). This
standard focuses on the diligence (or lack thereof) of the
moving party more than it does on any prejudice to the
party-opponent. Where the motion to amend is filed after the
opposing party has timely moved for summary judgment, a
plaintiff is required to show “substantial and
convincing evidence” to justify a belated attempt to
amend a complaint.
Steir v. Girl Scouts of the USA, 383 F.3d 7, 11-12
(1st Cir. 2004) (citations, internal quotation marks, and
Murray filed the instant motion long after the parties'
March 25, 2016, deadline for doing so, see
Scheduling Order (ECF No. 12) at 2, the more demanding
“good cause” standard applies.
amendment is futile when “the complaint, as amended,
would fail to state a claim upon which relief could be
granted.” Glassman v. Computervision Corp., 90
F.3d 617, 623 (1st Cir. 1996). “In assessing futility,
the district court must apply the standard which applies to
motions to dismiss under [Federal Rule of Civil Procedure]
12(b)(6).” Adorno v. Crowley Towing & Trans.
Co., 443 F.3d 122, 126 (1st Cir. 2006).
Supreme Court has stated:
While a complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the grounds of his
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a
cause of action will not do. Factual allegations must be
enough to raise a right to relief above the speculative
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citations and internal punctuation omitted). This
standard requires the pleading of “only enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
Rule 12(b)(6), a court assumes the truth of all of the
well-pleaded facts in the complaint and draws all reasonable
inferences in favor of the plaintiff.
Román-Oliveras v. P.R. Elec. Power Auth., 655
F.3d 43, 45 (1st Cir. 2011).