United States District Court, D. Rhode Island
MEMORANDUM AND ORDER
case is before the Court on two motions: Plaintiff John
Doe's to amend his complaint (ECF No. 85), and Defendant
Brown University's to amend the Court's scheduling
order (ECF No. 86). For the reasons stated below,
Plaintiff's motion is denied, and Defendant's motion
John Doe filed his initial complaint on April 13, 2015,
alleging unlawful defects in the administration and outcome
of the disciplinary proceedings that ultimately found Doe
responsible for sexual assault. Compl. 1-47, ECF No. 1. On
May 22, 2015, Brown moved to dismiss the complaint,
Def.'s Mot. to Dismiss Compl. 1, ECF No. 10, and this
Court issued its decision on that motion on February 22,
2016, Doe v. Brown Univ., 166 F.Supp.3d 177 (D.R.I.
2016). Consistent with the Court's scheduling order, the
parties completed fact discovery on July 14, 2017. Text Order
Granting ECF No. 76 Mot. to Am. Deadlines (May 25, 2017). The
latest scheduling order has, among other dates, November 14,
2017, as the deadline for the parties to complete expert
discovery and for Brown to submit its summary judgment
motion. Text Order Granting ECF No. 84 Mot. to Revise
Pretrial Order (August 17, 2017).
moved to amend the complaint to add “four new
contract-based claims” on October 16, 2017. Pl.'s
Mem. in Supp. of Mot. to Am. Compl. 1, ECF No. 85-2. He
claims his motion was “based on a review of the
Court's decision on the Motion to Dismiss, information
developed in discovery[, ] and the Court's decision in a
case decided last year.” Id. (citations
omitted). Federal Rule of Civil Procedure 15(a)(2) states
that a motion to amend a complaint “should [be] freely
give[n] when justice so requires.” The breadth offered
plaintiffs by Rule 15(a)(2) is not unbounded, however.
See Calderón-Serra v. Wilmington Tr. Co., 715
F.3d 14, 19 (1st Cir. 2013) (“The rule does not mean
that a trial court must mindlessly grant every request for
leave to amend.”) (alteration and quotations omitted)).
“[u]ndue delay is a permissible ground for denying
leave to amend, and when a considerable period of time has
passed between the filing of the complaint and the motion to
amend, courts have placed the burden upon the movant to show
some valid reason for his neglect and delay.” U.S.
ex rel. Wilson v. Bristol-Myers Squibb, Inc., 750 F.3d
111, 119-20 (1st Cir. 2014) (citations and quotations
omitted); see also Calderón-Serra, 715 F.3d
at 19 (noting that other reasons to deny leave include
“bad faith, futility, or the absence of due diligence
on the movant's part” (alteration omitted)).
Whether a considerable period has passed in any particular
case depends on the circumstances, see Kay v. N.H.
Democratic Party, 821 F.2d 31, 34 (1st Cir. 1987), but
courts regularly find that periods between twelve and
twenty-four months considerable, see, e.g.,
Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156
F.3d 49, 52 (1st Cir. 1998) (affirming denial of leave after
fifteen-month delay); Grant v. News Grp. Bos., Inc.,
55 F.3d 1, 5 (1st Cir. 1995) (fourteen-month delay);
Stepanischen v. Merchs. Despatch Transp. Corp., 722
F.2d 922, 933 (1st Cir. 1983) (seventeen-month delay).
the period between when Doe filed his initial complaint and
when he moved to amend was over thirty months, see
Pl's. Compl. 47; Pl's. Mot. to Am. Compl. 2,
doubtless a considerable period under First Circuit
precedent, see, e.g., Acosta-Mestre, 156
F.3d at 52, and one for which Doe has not provided a valid
excuse. Indeed, the primary stimuli for Doe's motion - the
Court's decision on Brown's motion to dismiss and
that after a bench trial in a similar case - occurred over
eighteen and twelve months ago, respectively. See Doe v.
Brown Univ., 166 F.Supp.3d 177 (D.R.I. 2016) (motion to
dismiss); Doe v. Brown Univ., 210 F.Supp.3d 310
(D.R.I. 2016) (bench trial).
the allegations in the latter case, sounding in contract,
were far from novel, Doe v. Brown Univ., 210
F.Supp.3d at 330-31, and relied on similar, recently decided
cases brought against colleges and universities,
see, Havlik v. Johnson & Wales Univ.,
509 F.3d 25 (1st Cir. 2007); Doe v. Brandeis Univ.,
177 F.Supp.3d 561 (D. Mass. 2016). To the extent, if any,
that this Court's decision in the bench trial and that on
Plaintiff's motion to dismiss added grist to the mill,
there was more than enough time for Doe to amend his
complaint after considering the import of these decisions,
without waiting until three months after the conclusion of
fact discovery. Cf. Kay, 821 F.2d at 34 (affirming
denial of leave where plaintiff waited three months after
dismissal of initial complaint to file motion to amend, and
where plaintiff's reason for delay was, in part, that he
needed time to adjust complaint to cases cited in district
circumstances of this case - specifically the fact that (1)
Doe waited thirty months after filing his initial complaint
to move for amendment; (2) he had all he needed to inform his
proposed amendment at least twelve months ago; (3) fact
discovery has closed; and (4) Brown's summary judgment
motion is due presently - make the proper course denial of
has moved to extend the deadline by which to file its summary
judgment motion and by which to conclude expert discovery
from November 14, 2017, to November 30, 2017. Def's. Mot.
to Am. Scheduling Order 1-3. The reasons for its doing so are
the uncertainty introduced by Doe's motion to amend and
the potential for delay caused both by Brown's lead
outside counsel's participation in a trial and by
potential logistical issues with taking expert deposition
testimony. Id. Doe assents to Brown's motion on
the condition that Brown agree to a date to continue the
deposition of Bita Shooshani. Pl.'s Conditional Assent to
Mot. to Am. Scheduling Order 1, ECF No. 88.
Court grants Brown's motion without condition, but with
the expectation that the parties will find a mutually
agreeable time to continue Ms. Shooshani's deposition.
See O'Connell v. Hyatt Hotels of P.R.,
357 F.3d 152, 154 (1st Cir. 2004) (“[T]he court may
extend a scheduling order deadline on a showing ‘of
good cause if the [deadline] cannot reasonably be met despite
the diligence of the party seeking the
extension.'”) (quoting Advisory Committee Notes to
the 1983 Amendments of Fed.R.Civ.P. 16(b)) . The deadlines in
the current scheduling order are therefore modified to
comport with those proposed in Brown's motion. Def's.
Mot. to Am. Scheduling Order 3.
these reasons, Doe's motion (ECF No. 85) is DENIED, and