Weatherly v. Gravel and Shea, PC ( 2015 )

Weatherly v. Gravel and Shea, PC, No. 977-9-11 Cncv (Toor, J., May 11, 2015).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
VERMONT SUPERIOR COURT
CHITTENDEN UNIT
CIVIL DIVISION
│
CRAIG WEATHERLY │
Plaintiff │
│
v. │ Docket No. 977-9-11 Cncv
│
│
GRAVEL AND SHEA PC │
Defendant │
│
RULING ON MOTIONS FOR SUMMARY JUDGMENT AND TO AMEND THE
COMPLAINT
This case between a lawyer and his former firm was tried to a jury on all but one count,
which the parties agreed would be tried to the court. Trial was scheduled for March 30. On
March 2, Plaintiff filed a motion for summary judgment that would not be ripe for decision
before the trial date, and asked that in the alternative it be treated as a pretrial memorandum.
Defendant filed a response on March 19. The trial was then continued on March 25 for unrelated
reasons. The court thus indicated that it would address the motion for summary judgment before
rescheduling the trial. On March 26, Plaintiff filed a motion to amend the complaint.
Motion for Summary Judgment
Plaintiff argues in his motion that he is entitled to “guaranteed compensation” under the
employment contract, even though he was terminated. However, he asserts no such claim in
Count III of the complaint.
Plaintiff was terminated as of February 10, 2011. In Count III of the Complaint, he
alleges that he was disabled as of November 30, 2010 and was entitled to compensation at his
regular salary for three months and at half salary for six months. It further alleges that he was fit
to return to work on January 6, 2011 and his alcoholism was certified to be “in remission” as of
January 18, 2011. The complaint alleges that Defendant stopped paying regular compensation on
December 31, 2010 and “is liable for those payments due under Section 10 of the Employment
Agreement.” Complaint ¶¶ 52-57.
At trial, the jury found that Weatherly failed to prove that his current use of alcohol did
not prevent him from performing his job and/or that he did not pose a threat to the safety of
others. Verdict Form Question 5. Thus, under the Fair Employment Practices Act, he was not a
“qualified individual with a disability.” 21 V.S.A. 495d(6)(B). To the extent that the jury’s
verdict was based on the date of termination and not the period before that, the court finds based
upon the evidence at trial that he was not a qualified individual with a disability at any relevant
time, because he did not have an impairment that substantially limited any of his major life
activities, had no history or record of same, and was not viewed as such.
For these reasons, Weatherly has failed to establish the claims asserted in Count III of the
complaint.
Motion to Amend the Complaint
Apparently realizing the problem discussed above, Plaintiff now seeks to amend the
complaint to add an entirely new allegation to Count III. He now wishes to add a claim for a
“guaranteed salary” pursuant to the employment agreement. Plaintiff argues that amendments are
to be granted freely, and that Defendant will suffer no prejudice because this issue was briefed
once before in an earlier summary judgment motion.
This case has been pending since September of 2011. Plaintiff offers no justification for
failing to amend the complaint during the last three and a half years. He alleges no newly
discovered evidence, no misunderstanding of the law, no reason whatsoever. “When amendment
is sought at a late stage in the litigation, there is an increased burden to show justification for
2
failing to move earlier.” Wade v. Knoxville Utilities Bd., 259 F.3d 452, 459 (6th Cir. 2001).
Since the claim is based upon the employment agreement, plaintiff should have known of this
claim from the start. “[L]ate amendments to assert new theories are not reviewed favorably when
the facts and the theory have been known to the party seeking amendment since the inception of
the cause of action.” Kaplan v. Rose, 49 F. 3d 1363, 1370 (9th Cir.1994)(citation omitted); see
also, Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014) (finding denial
of amendment justified where Plaintiff “could have amended his complaint, had he wished to do
so, prior to summary judgment.”); Compton v. Rent-A-Center, Inc., 350 Fed. Appx. 216, 221
(10th Cir. 2009) (affirming denial of leave to amend where plaintiff “did not request leave to
amend until the litigation had progressed well into the summary-judgment stage, and he did not
proffer an adequate explanation for the delay”); Bethany Pharmacal Co., Inc. v. QVC, Inc., 241
F.3d 854, 861 (7th Cir. 2001) (denial of amendment proper where plaintiff “has offered no
explanation for waiting until it was faced with a summary judgment motion before attempting to
add its promissory estoppel claim”).
The court also notes that, as Defendant points out, the need to amend Count III if this
claim was to be asserted was made clear a year ago when Judge Grearson noted that Count III
only raised the issue of disability payments. See Decision on Cross-Motions at 25, n. 20 (May1,
2014). There is just no excuse for waiting until now to seek to add this new claim.
The court finds that waiting three and a half years with no cause whatsoever, much less
good cause, is unjustified. Moreover, although Plaintiff alleges that Defendant would not be
prejudiced because it has known of this claim all along, he filed a motion for summary judgment
to which Defendant had to respond before seeking to amend to assert the claims on which the
motion is based. That is in itself prejudice.
3
Order
The motion to amend the complaint is denied. The motion for summary judgment on
Count III is denied. The court grants summary judgment to Defendant on this claim based upon
the testimony at trial. V.R.C.P. 56(f). All claims in this case having now been resolved, final
judgment will be entered for Defendant.
Dated at Burlington this 11th day of May, 2015.
________________________________
Helen M. Toor
Superior Court Judge
4