Opinion
No. 11–P–2058.
2012-10-5
Charles FLYNN & another v. BECKET POLICE DEPARTMENT & others.
By the Court (GRAINGER, BROWN & SULLIVAN, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiffs, Charles and Theresa Flynn, appeal from a judgment dismissing their complaint against the town. On appeal, they maintain that a judge of the Superior Court erred in denying their motion to amend their complaint to add Indian Lake Association, Inc. (ILA), as a defendant. We affirm.
The town has not filed a brief on appeal. ILA moved in this court to be added as an appellee and was granted leave to be added as an interested party.
The plaintiffs maintain that the judge abused his discretion in denying their motion to amend to add ILA as a party, because they did not learn of ILA's potential culpability for the bridge washout that caused their motor vehicle accident until late in the litigation. “The decision whether to grant a motion to amend is within the discretion of the judge, but leave should be granted unless there are good reasons for denying the motion.” Mathis v. Massachusetts Elec. Co., 409 Mass. 256, 264, 565 N.E.2d 1180 (1991). See generally Mass.R.Civ.P. 15(a), 365 Mass. 761 (1974). Good reason to deny a motion to amend includes “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 the amendment, etc.” Castellucci v. United States Fid. & Guar. Co., 372 Mass. 288, 290, 361 N.E.2d 1264 (1987), quoting from Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962). The judge acted within his discretion in denying the motion on the basis of undue delay. See Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 621–622, 537 N.E.2d 99 (1989). The motion to amend was filed almost five years after the accident giving rise to the complaint occurred. The plaintiffs were put on notice by the town's July, 2007, response to the presentment letter, in which the town stated that a dam breach may have contributed to the washout, and by the town's October, 2009, answers to interrogatories stating that ILA “may have information as to the release of water from the dam at Indian Lake [ ].” However, the plaintiffs did not move to amend the complaint until August, 2010. The motion, filed less than three weeks before the close of discovery, was sparse with respect to the reason for delay and did not identify the steps taken by the plaintiffs to investigate the location of the dam, any breach of the dam, or the potential liability of the dam owner. In short, the affidavit failed to demonstrate diligence. “[A]n unexcused delay in seeking to amend is a valid basis for denial of a motion to amend.” Mathis v. Massachusetts Elec. Co., supra at 264–265, 565 N.E.2d 1180. “[T]he plaintiffs reasonably should have known ‘long before’ moving to amend the complaint” the identity of the party responsible for the dam. Afarian v. Massachusetts Elec. Co., 449 Mass. 257, 270, 866 N.E.2d 901 (2007).
The town's response to the presentment letter stated that the “incident occurred during the torrential storms and the Town was unaware that a dam had collapsed upstream which certainly could have contributed to the massive amount of water that caused the washout.” On appeal, plaintiffs claim that they did not know what dam this letter referenced. This may be the case, but the obligation to investigate rested with the plaintiffs. Both the language of the response to the presentment letter, and the subsequent disclosures in discovery of the existence of the dam on ILA property, were sufficient to place the plaintiffs on notice that a dam had been breached, and to place the burden of further inquiry on the plaintiffs to determine the location and ownership of the dam, and the circumstances of the breach, in a timely manner.
The plaintiffs argue that ILA's knowledge of the accident and the ensuing presentment letter provided ILA with sufficient opportunity to investigate the plaintiffs' claims, and that ILA was not prejudiced as a result of the delay. The presentment letter put ILA on notice of a pending suit against the town, not a claim against ILA. ILA notes that it had been unable to protect its interests for the full five years of the litigation, and that the dam had since been repaired. In light of the disposition of this matter on the grounds of undue delay, we do not and need not reach the question of prejudice. See Barbosa v. Hopper Feeds, Inc., 404 Mass. at 621–622, 537 N.E.2d 99;Mathis v. Massachusetts Elec. Co., 409 Mass. 264–265.
Judgment affirmed.