United States District Court, D. Rhode Island
ELSON M. DE BARROS, Plaintiff,
FROM YOU FLOWER, LLC; ROBYN FONTAINE & DELIVERY COMPANY CAMBRIDGE, MASSACHUSETTS, Defendants.
MEMORANDUM AND ORDER
PATRICIA A. SULLIVAN UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's motion (ECF No. 37) seeking
three more weeks to file a response to all decisions made by
the Court, as well as to amend his complaint by adding
another defendant. Based on the following analysis, both
aspects of the motion are denied.
his respect to the request for more time, Plaintiff has not
specified what decision he needs more time to respond to.
Accordingly, the Court cannot ascertain whether the time has
already run, so that Plaintiff must show excusable neglect,
or whether the time has not yet run, so that Plaintiff must
show only good cause. Fed.R.Civ.P. 6(b)(1); Providence
Piers, LLC v. SMM New England, Inc., No. 12-532-S, 2015
U.S Dist. LEXIS 182002, at *8 (D.R.I. May 13, 2015). While
Plaintiff's representation that he was hospitalized for a
week and a half would likely amount to good cause, and even
excusable neglect, to the extent that the illness overlapped
with the time to be extended,  it does not aid the Court in this
instance in that no information has been provided about the
timing of the hospitalization or regarding how it affected
Plaintiff's ability to respond to any specific decision.
Accordingly, the motion for more time is denied. Should
Plaintiff refile the motion to extend time to respond to a
specific decision, the Court will revisit this ruling.
aside: with increasing urgency, Defendant argues that this
motion for more time is part of a pattern of delay to avoid
responding to Defendants' discovery. Plaintiff has sought
additional time to discharge his obligations as a plaintiff,
yet he has continuously been able to file motion after
motion. In that regard, the Court reiterates its
caution to Plaintiff stated during the June 4, 2019,
telephone conference - as a plaintiff, he has an obligation
to respond to discovery and, if he continues to fail to do
so, there is a risk that his case could be dismissed. While
delay for a specified reason is likely to be granted, subject
to Defendants' arguments that the delay would cause
prejudice, in this case, Plaintiff has sought delays at the
same time that he has been actively prosecuting his case.
Such activity will undermine an argument that he was
incapable of complying with his obligation to respond to
discovery during the same period.
respect to Plaintiff's motion to amend his complaint by
adding a new defendant, Plaintiff has failed to attach a copy
of the proposed amended complaint, which is a mandatory
prerequisite to the granting of a motion to amend. DRI LR Cv
15. For that reason alone, the Court cannot grant the motion.
Emrit v. Universal Music Grp., Inc., CA No.
13-181-ML, 2013 WL 3730420, at *1 (D.R.I. July 12, 2013)
(motion to amend cannot be granted until plaintiff complies
with DRI LR Cv 15 and attaches copy of proposed amended
complaint to the motion to amend). More substantively,
Plaintiff has provided nothing to establish that the motion
would not be futile, in that he has proffered no facts or
argument to suggest that he has a viable claim against
Michael Chapin, apparently the chief executive officer of
Defendant From You Flower, LLC. Petaway v. Duarte,
C.A. No. 11-497-ML, 2012 WL 1883506, at *6 (D.R.I. May 22,
2012) (proposed amendment to pleading should not be allowed
if the amended complaint would be futile) (citing Foman
v. Davis, 371 U.S. 178, 182 (1962) (futility of
amendment is reason to deny motion to amend)).
read, Plaintiff's complaint alleges that he is the victim
of a breach of a contract arguably formed in Massachusetts
between him and an entity, From You Flower, LLC, which is a
limited liability company. Such a claim does not support
joinder of Chapin as a defendant merely because he is alleged
to be an officer of the entity. See Selfridge v.
Jama, 172 F.Supp.3d 397, 428 (D. Mass. 2016) (limited
liability company officers are not generally held personally
liable for breach of contract by corporation); Silber v.
Carotenuto & Sons Gen. Contractor's, Inc., No.
CV980416562, 2000 WL 226378, at *2 (Conn. Super. Ct. Feb. 8,
2000) (status as a corporate officer insulates defendant from
plaintiff's breach of contract claims against
corporation). Even if Chapin had signed the contract (which
he did not), because Chapin is not an individual party to the
contract, he cannot be held personally liable for an alleged
breach. See McCarthy v. Azure, 22 F.3d 351, 356 (1st
Cir. 1994) (“[I]t is settled beyond peradventure that a
person signing a contract only in a corporate capacity . . .
does not thereby become a party to the agreement.”);
SJJ Enters., LLC v. ICOA, Inc., No. Civ.A. 04-435-T,
2006 WL 319285, at *2 (D.R.I. Feb. 10, 2006) (“In cases
where the officer executes a contract on behalf of the
corporation and has been authorized to do so, the officer
cannot personally be held liable for any breach of that
contract.”). Similarly, Plaintiff's defamation and
negligence claims are hollow as applied to Chapin because
Plaintiff has failed to allege any facts that point to
Chapin's direct involvement in the events giving rise to
Plaintiff's alleged injuries. See Escude Cruz v.
Ortho Pharm. Corp., 619 F.2d 902, 907 (1st Cir. 1980)
(“[M]erely being an officer or agent of a corporation
does not render one personally liable for a tortious act of
the corporation.”); SJJ Enters., LLC, 2006 WL
319285, at *2 (“corporate officer may be personally
liable for tortious acts that he commits”)
(emphasis supplied). And last, to the extent that Plaintiff
seeks to assert claims grounded in the constitution pursuant
to 42 U.S.C. § 1983, it is well settled that officials
like Chapin may not be held liable for the unconstitutional
conduct of their subordinates under a theory of
respondeat superior. Ashcroft v. Iqbal, 556
U.S. 662, 676 (2009); Reise v. Wall, No. C.A.04-158
ML, 2004 WL 2287808, at *3 (D.R.I. Sept. 27, 2004). Thus,
joinder of Chapin by an amended pleading adding him to the
pending claims must be denied as futile.
on the foregoing, Plaintiff's motion (ECF No. 37) for
more time to file a response to all decisions made by the
Court and to add another defendant is DENIED.
 This motion has been read with the
leniency required for all filings of pro se
litigants. Diaz v. Wall, C.A. No. 17- 94 WES, 2018
WL 1224457, at *3 (D.R.I. Mar. 8, 2018).
 During the June 4, 2019, telephone
conference, Plaintiff told the Court that, in addition to the
hospitalization, he has had multiple issues, including an
eviction, homelessness, living in a shelter, and the denial
of state benefits. Any one of these might present good cause
for an extension, but the reason must be clearly and candidly
stated and must relate to the time actually sought.
Relatedly, Plaintiff represented that he has lost the
documents responsive to Defendants' discovery due to
homelessness; if true, he still must respond to the discovery
requests by identifying the responsive documents and stating
the best information he has regarding their present
 For example, in March 2019, adverting
to his lack of money for an attorney and to medical concerns,
Plaintiff asked for a ninety-day extension to respond to all
discovery, yet he was able to file five motions during the
period covered by the requested extension. Nevertheless, on
April 8, 2019 (ECF No. 23), he appealed to the District Court
from the Text Order allowing only a forty-five-day extension.