Steir v. Girl Scouts of the Usa

Decision Date03 September 2004
Docket NumberNo. 04-1012.,04-1012.
PartiesLinda J. STEIR m/n/f of Marika Steir, Plaintiff, Appellant, v. GIRL SCOUTS OF THE USA; Spar & Spindle Council, Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

Appeal from the United States District Court for the District of New Hampshire, Paul J. Barbadoro, Chief Judge.

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Amy B. Messer for appellant.

Kenneth Kirschner with whom Patricia A. Cody and Jennifer L. Parent were on brief, for appellee Girl Scouts of the USA.

Richard G. Pichette with whom Paul T. Muniz was on brief, for appellee Spar & Spindle Council.

Before TORRUELLA and HOWARD, Circuit Judges, and STEARNS,* District Judge.

STEARNS, District Judge.

This appeal arises from a failed discrimination lawsuit brought on behalf of Marika Steir by her mother, Linda Steir, against the Girl Scouts of the USA (Girl Scouts) and Spar & Spindle Council, a regional agency that supervises local Girl Scout troops. Because the case was ultimately dismissed for reasons that are not a reflection on the merits of the complaint, we will only lightly sketch the underlying allegations.

Marika Steir has been afflicted with cerebral palsy since birth. Although Marika requires the use of a wheelchair for mobility, and a computer console for communication, she leads an active life. She became a member of Spar & Spindle's Girl Scout Troop 467 in Atkinson, New Hampshire, as a second-grader in 1994, and remained a Girl Scout until 1999 when she entered the seventh grade. For most of that time, Marika was happy with scouting, earning numerous merit badges and enjoying a good relationship with her fellow scouts and troop leaders.

Marika alleges that beginning in 1997, discriminatory conduct on the part of Girl Scout troop leaders cast a pall over her scouting experience. Specifically, Marika cites a 1998 camping trip planned for the girls of her troop to a campground that lacked handicapped-accessible restrooms, an excursion taken the same year to an indoor amusement park which offered no activities in which she could participate, and meetings that were held at a troop leader's home, the front steps of which Marika could not negotiate in her wheelchair. Marika's mother sought to transfer Marika to a neighboring troop whose leader she thought would be more sensitive to Marika's physical limitations. The troop leader, however, refused to enroll Marika, allegedly because of her disabilities. Although Marika remained an active member of Troop 467 during the 1998-1999 scouting season, Linda Steir was unable to obtain a firm guarantee of appropriate accommodations for Marika from officials of Spar & Spindle. On September 16, 1999, in response to an invitation to register Marika for the 1999-2000 scouting year, Linda Steir wrote to Marika's troop leader that "Marika will not be joining Girl Scouts this year." Marika thereafter ceased all participation in scouting.

On February 1, 2000, Marika filed a discrimination charge against the Girl Scouts and Spar & Spindle with the New Hampshire Commission for Human Rights. On July 19, 2000, at the request of Marika's counsel, the Commission terminated its investigation and authorized the filing of a lawsuit.

On August 11, 2000, a complaint was filed by Linda Steir as mother and next friend of Marika against the Girl Scouts and Spar & Spindle in the Rockingham County Superior Court. The complaint asserted violations of New Hampshire's Law Against Discrimination, N.H.Rev.Stat. Ann. § 354-A, and claims of intentional and negligent infliction of emotional distress. On September 20, 2000, the case was removed by the defendants to the United States District Court on diversity of citizenship grounds, 28 U.S.C. § 1441. On November 1, 2000, the district court permitted Marika to amend her complaint by adding a claim for injunctive relief under Title III of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12101, et seq.1 (The negligent infliction of emotional distress count was voluntarily dismissed).

On November 9, 2000, the district court adopted the parties' jointly proposed scheduling order. The order provided that discovery would be concluded on November 30, 2001, that motions for summary judgment would be filed by January 15, 2002, and that the parties would be ready for trial on April 1, 2002. On December 7, 2001, a week after the agreed date for the close of discovery, Marika moved to amend her complaint further by adding a claim for money damages under the federal Rehabilitation Act, 29 U.S.C. § 794. With the motion to amend, Marika also filed a motion for partial summary judgment seeking a declaration that the Girl Scouts and Spar & Spindle are places of public accommodation within the meaning of Title III of the ADA.2 On December 27, 2001, the district court denied the motion to amend.3 Shortly thereafter, the court continued the April 1, 2002 trial date while it considered the parties' motions for summary judgment.

On September 10, 2002, the district court entered judgment for the defendants on the intentional infliction of emotional distress claim. The court also indicated in its memorandum that it had come to the tentative conclusion that Marika lacked standing to pursue injunctive relief under the ADA. After inviting submissions on the issue from the parties, the district court on April 2, 2003, definitively so ruled. On October 29, 2003, the New Hampshire Supreme Court, answering a question certified by the district court, ruled that the disability tolling provision of N.H.Rev.Stat. Ann. § 508:8 did not relieve Marika of strict observance of the 180-day limitation period on the filing of a charge under the New Hampshire Law Against Discrimination and that her statutory claims were therefore time-barred. Steir v. Girl Scouts of the U.S.A., 150 N.H. 212, 834 A.2d 385 (N.H.2003). Final judgment entered for the Girl Scouts and Spar & Spindle on November 24, 2003. A timely notice of appeal was filed, claiming error in the district court's denial of the motion to amend the complaint and in its ruling that Marika lacked standing under Title III of the ADA.

DISCUSSION
A. The Motion to Amend

A motion to amend a complaint will be treated differently depending on its timing and the context in which it is filed. A plaintiff is permitted to amend a complaint once as a matter of right prior to the filing of a responsive pleading by the defendant. Fed.R.Civ.P. 15(a). Thereafter, the permission of the court or the consent of the opposing party is required. The default rule mandates that leave to amend is to be "freely given when justice so requires," id., unless the amendment "would be futile, or reward, inter alia, undue or intended delay." Resolution Trust Corp. v. Gold, 30 F.3d 251, 253 (1st Cir.1994).

As a case progresses, and the issues are joined, the burden on a plaintiff seeking to amend a complaint becomes more exacting. Scheduling orders, for example, typically establish a cut-off date for amendments (as was apparently the case here).4 Once a scheduling order is in place, the liberal default rule is replaced by the more demanding "good cause" standard of Fed.R.Civ.P. 16(b). O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152, 154-155 (1st Cir.2004). This standard focuses on the diligence (or lack thereof) of the moving party more than it does on any prejudice to the party-opponent.5 Id. Where the motion to amend is filed after the opposing party has timely moved for summary judgment, a plaintiff is required to show "substantial and convincing evidence" to justify a belated attempt to amend a complaint. Gold, 30 F.3d at 253.

Regardless of the context, the longer a plaintiff delays, the more likely the motion to amend will be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend. Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156 F.3d 49, 52-53 (1st Cir.1998). Particularly disfavored are motions to amend whose timing prejudices the opposing party by "requiring a re-opening of discovery with additional costs, a significant postponement of the trial, and a likely major alteration in trial tactics and strategy...." Id. at 52. We review the denial of a motion to amend under Rule 15(a) for an abuse of discretion, and we "defer to the district court if any adequate reason for the denial is apparent on the record." Grant v. News Group Boston, Inc., 55 F.3d 1, 5 (1st Cir.1995).

That the motion to amend by adding the Rehabilitation Act claim, if granted, would have prejudiced the Girl Scouts and Spar & Spindle by injecting a new theory of relief into the litigation, goes without saying. Title III of the ADA, the gravamen of the original amended complaint, permits only equitable relief, while the Rehabilitation Act has been judicially construed to permit the recovery of money damages. See Schultz v. Young Men's Christian Ass'n of the United States, 139 F.3d 286, 290 (1st Cir.1998). In defending against the Steirs' lawsuit, the Girl Scouts and Spar & Spindle made a tactical decision to forego any attempt to explore the basis and extent of Marika's claim for compensatory damages.6 To delve into this issue at the penultimate phase of the litigation would have required the re-opening of discovery to permit a deposition of Marika and the obtaining of any relevant medical records, a postponement of the hearing scheduled on the pending motions for summary judgment, and almost certainly, the delay of any trial. The issue thus is not whether allowing the amendment would have been prejudicial — it would have been — but whether it would have been unfairly so.

Marika argues that no unfairness was involved because the reason for the delay lies squarely at the feet of the Girl Scouts and Spar & Spindle. An indispensable jurisdictional element of a Rehabilitation Act claim is a showing that a...

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