United States District Court, D. Maine
ORDER ON PLAINTIFFS' MOTIONS TO REMAND AND TO
FILE AMENDED COMPLAINTS
LEVY CHIEF U.S. DISTRICT JUDGE.
Plaintiffs' complaint asserts a variety of claims arising
out of their allegedly wrongful exclusion from business
opportunities associated with a long-term energy supply
contract with the University of Maine System. The Plaintiffs
have moved to remand the case to state court (ECF No. 45),
and have filed two successive motions for leave to amend
their complaint (ECF Nos. 78, 91). Because the resolution of
these motions turns largely on this case's procedural
history, I address that history in some detail.
RELEVANT PROCEDURAL HISTORY
action was removed from the Maine Superior Court to this
Court in January 2019. Federal jurisdiction was premised on
the presence of a federal question, namely two counts in the
127-page complaint alleging violations of the Racketeer
Influenced and Corrupt Organization Act (“RICO”),
with supplemental federal jurisdiction over the 12 state-law
claims. See 28 U.S.C.A. §§ 1331, 1367
(West 2019). In February, I granted the parties' Joint
Proposed Briefing Schedule, which required the Defendants to
file their motions to dismiss at the end of the month and the
Plaintiffs to file their responses in opposition by April 15.
The Plaintiffs also filed a Motion to Remand to State Court,
asserting that the case should be remanded primarily on
April 8, after the Defendants filed their motions to dismiss,
and one week before the Plaintiffs' responses were due,
the Plaintiffs filed a Motion for Leave to File First
Amended Complaint (ECF No. 54) but failed to submit a
draft of the proposed amended complaint. The next day,
Magistrate Judge John H. Rich III ordered the Plaintiffs to
file the proposed First Amended Complaint within seven days,
explaining that it was needed “to provide the
defendants with a fair opportunity to respond to the
plaintiffs' motion” and “to provide the court
with a meaningful opportunity to adjudicate the merits of the
plaintiffs' motion.” ECF No. 55. The following day,
on April 10, the Plaintiffs moved to amend Magistrate Judge
Rich's scheduling order to extend the period for the
filing of the proposed First Amended Complaint from April 15,
2019 to May 3, 2019. The motion asserted that the
Plaintiffs' attorney was “leaving on an
international family vacation the morning of Saturday, April
13, 2019” without indicating his scheduled return date.
ECF No. 56 at 1. The motion further asserted that the
Plaintiffs' attorney had to prepare the Plaintiffs'
response to the Defendants' motions to dismiss due April
15, in addition to performing work required on other cases.
On April 12, 2019, the Court denied the Plaintiffs'
Motion to Amend the Procedural Order, noting that the
Plaintiffs had not made a “particularized
showing” as to the need for an extension beyond
“a busy April 12 and a vacation starting April 13 prior
to multiple April 15 deadlines.” ECF No. 59. In
addition, the Order noted that the motion failed to explain
why the Plaintiffs “waited more than five weeks after
the filing of the defendants' motions to dismiss and just
one week before the deadline for their responses to file
their motion to amend, without the proposed amended
complaint.” Id. (emphasis in original). On
April 16, 2019, one day after the Court's deadline for
the Plaintiffs to file the proposed First Amended Complaint,
the Plaintiffs filed a notice with the Court
“voluntarily withdraw[ing] their Motion for Leave to
Amend, without prejudice to or waiver of their right to file
such a motion at a later time.” ECF No. 63.
28, 2019, the Court scheduled a hearing to be held on the
motions to dismiss and the motion to remand for June 18.
Nearly two weeks later, Plaintiffs filed a motion to continue
the hearing, which stated that their attorney had a
“long-scheduled family vacation” out of state.
ECF. No. 73. The Defendants opposed the motion, arguing that
the Plaintiffs' counsel delayed in alerting the Court to
his vacation and that the Plaintiffs' counsel had
previously “attempt[ed] to alter settled schedules with
untimely assertions of vacation.” ECF No. 74 at 1. In
the Plaintiffs' reply, counsel asserted that he
“misread his calendar when the hearing was originally
scheduled, but immediately notified the Court as soon as he
saw the conflict.” ECF No. 75 at 1. The Court granted
the continuance on June 11, 2019, setting the hearing for the
13, 2019, the Plaintiffs filed a second Motion for Leave to
File First Amended Complaint, this time
attaching a 99-page amended complaint with exhibits. A
hearing on that motion, the motion to remand, and the
Defendants' motions to dismiss was held on July 18, 2019.
At the hearing, the Plaintiffs' attorney offered the
following explanation as to why, when the Plaintiffs filed
their motion to continue the June hearing, he had not alerted
the Defendants or the Court that the Plaintiffs would again
seek to amend their complaint:
I didn't deem it pertinent to the request to continue
frankly. The sole reason I was seeking continuance was to go
on vacation with my family, a long-scheduled vacation. I
noted that I had misread my calendar in my motion and
apologized for that inadvertent mistake; but as stated in the
motion, as this Court is well aware, that there isn't
necessarily even a need to file a motion for leave to amend
before motions to dismiss are heard.
84 at 37.
September 30, 2019, I issued my decision on the
Defendant's motions to dismiss, granting them in part and
denying them in part. See ECF No. 86. Pertinent to
the issue of remand, the order dismissed the complaint's
two RICO counts, which were the sole basis for the
Court's federal question subject-matter jurisdiction.
Id. at 15. In light of that decision, the Court
scheduled a hearing for November 4, 2019, on the
Plaintiffs' motion to remand and motion for leave to file
a First Amended Complaint. On the morning of the hearing, the
Plaintiffs filed their Motion for Leave to File Second
Amended Complaint, attaching a proposed 112-page
complaint and exhibits.
MOTIONS FOR LEAVE TO AMEND
circumstances, a party may amend its pleading as a matter of
course. See Fed. R. Civ. P. 15(a)(1). Otherwise,
“a party may amend its pleading only with the opposing
party's written consent or the court's leave.”
Fed.R.Civ.P. 15(a)(2). “The court should freely give
leave when justice so requires.” Id.
“[T]he ‘spirit of the rule' dictates a
preference for decisions ‘on the merits, not because of
missteps by counsel in pleading.'” J.S.
McCarthy, Co. v. Brausse Diecutting & Converting
Equip., Inc., 226 F.R.D. 14, 17 (D. Me. 2005)
(quoting Allendale Mut. Ins. Co. v. Rutherford, 178
F.R.D. 1, 3 (D. Me. 1998)); see also 6 Charles
Wright & Arthur R. Miller, Federal Practice and Procedure
§ 1474 (3d ed. 2019). But Rule 15(a)(2) “does not
mean . . . that a trial court must mindlessly grant every
request for leave to amend.” Aponte-Torres v. Univ.
of P.R., 445 F.3d 50, 58 (1st Cir. 2006). “Rather,
a district court may deny leave to amend when the request is
characterized by ‘undue delay, bad faith, futility,
[or] the absence of due diligence on the movant's
part.'” Nikitine v. Wilmington Tr. Co.,
715 F.3d 388, 390 (1st Cir. 2013) (quoting Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006));
see also In re Curran, 855 F.3d 19, 27-28 (1st Cir.
whether to grant leave to amend depends upon the totality of
the circumstances. See Mulder v. Kohl's Dep't
Stores, Inc., 865 F.3d 17, 20-21 (1st Cir. 2017). This
includes whether the plaintiff was “attempting to
torpedo [the Court's] briefing schedule, ”
D'Agostino v. EV3, Inc., 802 F.3d 188, 194-95
(1st Cir. 2015) (citing Quaker State Oil Ref. Corp. v.
Garrity Oil Co., 884 F.2d 1510, 1517-18 (1st Cir.
1989)), whether the plaintiff, “by rule or court order,
had a prior opportunity to amend, ” Nikitine,
715 F.3d at 390 (citations omitted), and any other
“pertinent considerations, ” Mulder, 865
F.3d at 20-21 (quoting Palmer, 465 F.3d at 30-31).
“Everything depends on context.”
Nikitine, 715 F.3d at 390.
The Plaintiffs' Motion for Leave to File First ...