'Good Cause' Standard Not Needed to Amend Complaints

By Jonathan R. Tung, Esq. on October 05, 2015 | Last updated on March 21, 2019

It's always nice when a panel of judges rule unanimously on a particular issue -- thereby creating the much sought after "bright-line" rule.

The three-judge panel of the First Circuit ruled that Massachusetts Judge Richard Stearns erred in applying the "good cause" standard when purported whistleblower, Jeffrey D'Agostino, sought to amend his complaint for a fourth time. D'Asostino, now an ex-sales rep for Covidien's vascular business, lost this job when Covidien fired him for blowing the cover to the feds on a kickback scheme.

Wishful Thinking

D'Agostino claimed that he had an unfettered right to amend his complaint under FRCP 15(a)(1). The court, however, saw this as nothing more than "wishful thinking." Certain amendments to complaints absolutely require leave of the court.

The Court also described D'Agostino's interpretation of FRCP 15(a)(1) as "tortured," as "def[ying] common sense," and as "run[ning] contrary to the ... histor[y] ... and ... stated purpose of the 2009 amendments to the Rule." Ouch.

Fortunately for the relator, his "tortured" interpretation of Federal Rules of Civil Procedure was at least moot in the eyes of the court. It turns out the court took the relator's filing to amend as an implicit request to amend. Whether or not D'Agostino intended this or planned this, who can know.

The First Circuit found that even though the lower court was proper to interpret the petition as an implied leave-request, the court applied the wrong standard. Two standards typically apply to amend pleadings: a liberal "freely given (leave)" standard; and "good cause."

"Freely given" is the default and switches to the "good cause" standard when a scheduling order sets a deadline for amendment. Since the lower court never issued a scheduling order, application of the "good cause" standard was wrong. In the words of the 1st Circuit, "the gears of Rule 16(b) were not engaged."

Motives and Oversight

The district judge sought to apply the higher standard as a not too veiled "tsk-tsk" that was designed to teach D'Agonstino some respect. The circuit court, however, found that since a deadline was never set, the relator did not flout the orders of the lower court. As practitioners, however, it's always nice to see clear language from the court as to what is and what is not allowed so far as court procedure is concerned.

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