          United States Court of Appeals
                        For the First Circuit


Nos. 12-2313, 16-2087

   DIANE HAMILTON, on behalf of herself and all other employees
  similarly situated; LYNNE P. CUNNINGHAM, on behalf of herself
    and all other employees similarly situated; CLAIRE KANE, on
  behalf of herself and all other employees similarly situated;
         MARIA VICTORIA SORENSEN, Consent to Sue Plaintiff,

                        Plaintiffs, Appellants,

                                  v.

PARTNERS HEALTHCARE SYSTEM, INC.; PARTNERS COMMUNITY HEALTHCARE,
INC.; THE BRIGHAM & WOMEN'S HOSPITAL; BRIGHAM & WOMEN'S/FAULKNER
      HOSPITALS, INC.; MARTHA'S VINEYARD HOSPITAL, INC.; THE
  MASSACHUSETTS GENERAL HOSPITAL; MCCLEAN HEALTHCARE, INC.; THE
MCCLEAN HOSPITAL CORPORATION; NANTUCKET COTTAGE HOSPITAL; NEWTON
  WELLESLEY HOSPITAL; NEWTON WELLESLEY HEALTHCARE SYSTEM, INC.;
    NORTH SHORE CHILDREN'S HOSPITAL, INC.; NORTH SHORE MEDICAL
 CENTER, INC.; NSMC HEALTHCARE, INC.; THE SALEM HOSPITAL; UNION
    HOSPITAL AUXILIARY OF LYNN, INC.; FAULKNER HOSPITAL, INC.,

                        Defendants, Appellees,

    YOUVILLE HOSPITAL & REHABILITATION CENTER, INC.; JAMES J.
                  MONGAN, MD; DENNIS D. COLLING,

                              Defendants.


          APPEALS FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

         [Hon. Douglas P. Woodlock, U.S. District Judge]


                                Before

                  Lynch, Thompson, and Kayatta,
                         Circuit Judges.
     Patrick J. Solomon, with whom Thomas & Solomon LLP was on
brief, for appellants.
     Lisa A. Schreter, with whom Bradley E. Strawn and Littler
Mendelson, P.C. were on brief, for appellees.


                       January 12, 2018
                LYNCH, Circuit Judge. This is an appeal from a purported

denial of a motion for leave to amend a complaint after certain

court proceedings.         We affirm, on the particular facts of this

case,      concluding   that   the   district    court   did   not   abuse   its

discretion.        Our reasons are best understood from our recitation

of the facts.

                                       I.

                In September 2009, Diane Hamilton, Lynne P. Cunningham,

and Claire Kane ("plaintiffs") filed suit in the District of

Massachusetts against a group of healthcare entities allegedly

affiliated with Partners Healthcare System, Inc. ("defendants"),1

alleging that the defendants' compensation practices violated the

Fair Labor Standards Act ("FLSA"), 29 U.S.C. § 201 et seq., the

Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. §

1001       et   seq.,   and    the   Racketeer    Influenced     and    Corrupt

Organizations Act ("RICO"), 18 U.S.C. § 1961 et seq.2                  This was

one of at least twenty-nine such cases filed by plaintiffs' counsel

across the country, including four other cases filed in the




       1  Plaintiffs voluntarily dismissed their claims against
two hospital executives named as defendants.
       2  An additional cause of action for estoppel was dismissed
by stipulation of the parties.

                                      - 2 -
District   of   Massachusetts,   all   involving   virtually   identical

complaints.3    It purported to be brought as a class action.4

           The complaint stated that the plaintiffs were "[a]t all

relevant times . . . employees under the FLSA, employed within

this District and resid[ing] within this District," but did not

describe which of the defendants actually employed the named

plaintiffs and failed to state whether the plaintiffs worked more

than forty hours per week.    In total, plaintiffs' complaint listed

twenty-seven    healthcare   facilities   associated   with    the   named

defendants and more than 100 "affiliated" healthcare facilities.




     3    We have called these lawsuits "hospital compensation
cases." Pruell v. Caritas Christi ("Pruell II"), 678 F.3d 10, 14
(1st Cir. 2012).    Three other hospital compensation cases have
reached this court. In Cavallaro v. UMass Memorial Healthcare,
Inc. ("Cavallaro II"), 678 F.3d 1 (1st Cir. 2012), we affirmed the
district court's dismissal of the plaintiffs' state law claims but
remanded to allow plaintiffs "one last amendment" with respect to
their federal claims. Id. at 10. In Pruell II, we affirmed the
district court's dismissal of the plaintiffs' FLSA claim but
remanded to provide plaintiffs with "a final opportunity to file
a sufficient complaint." 678 F.3d at 15. And in Manning v. Boston
Med. Ctr. Corp. ("Manning II"), 725 F.3d 34 (1st Cir. 2013), we
vacated the district court's dismissal of certain claims against
two of the defendants, affirmed its dismissal of similar claims
against a third defendant, and upheld its denial of plaintiffs'
request for leave to amend their complaint a second time to correct
remaining deficiencies. Id. at 39, 42, 61.
     4    Plaintiffs later filed a separate action in state court,
asserting state law claims based on the same facts underlying their
federal claims. The defendants removed the state action to federal
court in October 2009.     The state law claims were ultimately
dismissed along with the federal claims.      The district court's
dismissal of the state law claims is not on appeal.

                                 - 3 -
             In   October    2009,   defendants      filed    an     answer   to

plaintiffs' complaint, along with a motion to dismiss plaintiffs'

RICO claim.       After briefing on the motion to dismiss, but before

the district court ruled on the motion, the parties notified the

district court that they had entered into a structured mediation

process.     The mediation resulted in two successive motions for

preliminary approval of class and collective action settlements,

which were heard by the district court.        On December 27, 2010, the

district court rejected the first proposed settlement, stating,

inter alia, that there was potential for "fairly substantial

conflict among class members" because the contemplated settlement

could not account for potential disparities in the damages suffered

by class members.           Several months later, the district court

rejected   an     amended    settlement   proposal    on     March    9,   2011,

reiterating its concern regarding class conflict and stating that

it could not find the proposed settlement to be fair, adequate,

and reasonable.      The plaintiffs were thus on notice of potential

problems as to the certification of a putative class based on their

pleadings.    Settlement negotiations broke down after the district

court's second ruling.

             On April 1, 2011, defense counsel sent a letter to

plaintiffs' counsel with a number of requests, three of which

related to plaintiffs' federal claims as stated in their complaint.

First, defense counsel insisted that plaintiffs' counsel dismiss


                                     - 4 -
all defendants, remove references in the complaint to "Health

Centers" and "Affiliates" that did not employ any of the named

plaintiffs, and file an amended complaint containing allegations

sufficient to establish employment relationships between the named

plaintiffs and each defendant.         To support this request, defense

counsel cited Manning v. Boston Medical Center Corp. ("Manning

I"), No. 09-11463, 2011 WL 796505 (D. Mass. Feb. 28, 2011), aff'd

in part, vacated in part, remanded, 725 F.3d 34 (1st Cir. 2013),5

which dismissed a virtually identical complaint based in part on

its failure to identify which defendant the named plaintiffs worked

for, id. at *1.    Defense counsel also cited Nakahata v. New York-

Presbyterian Healthcare System, Inc., No. 10 Civ. 2661, 2011 WL

321186 (S.D.N.Y. Jan. 28, 2011), aff'd in part, vacated in part,

remanded,   723   F.3d   192   (2d   Cir.    2013),6   which   found   another

substantially similar complaint to be deficient because of its

"failure to specify which entity, among the many named defendants,

employed the respective plaintiffs," id. at *4.




     5    Manning I was later affirmed in part and vacated in part
by this court in Manning II, which also upheld the district court's
denial of the plaintiffs' request for leave to file a second
amended complaint. 725 F.3d at 61; see supra note 3.
     6    The Second Circuit later affirmed Nakahata with respect
to its dismissal with prejudice of, inter alia, the plaintiffs'
FLSA and RICO claims, but remanded to allow the plaintiffs to
replead their FLSA claims.     Nakahata v. New York-Presbyterian
Healthcare Sys., Inc., 723 F.3d 192, 195 (2d Cir. 2013).

                                     - 5 -
            Second, the letter urged plaintiffs' counsel to dismiss

their RICO and ERISA claims, which defense counsel contended were

"unfounded."       As support, defense counsel cited seven district

court cases dismissing identical RICO claims, including three

District of Massachusetts cases, and two district court cases

dismissing identical ERISA claims, including Manning I, in which

the court found that the plaintiffs' ERISA claims "fail[ed] as a

matter of law," 2011 WL 796505, at *2.

            Third, the letter requested that plaintiffs' counsel

amend and replead the FLSA claims to comply with Bell Atlantic

Corp. v. Twombly, 550 U.S. 554 (2007), and Ashcroft v. Iqbal, 556

U.S. 662 (2009).       Defense counsel warned plaintiffs' counsel that

other   district      courts    had    dismissed       nearly   identical      claims,

citing Manning I, which described the dismissed complaint as an

"aggregation of conclusory statements and general allegations,"

2011 WL 796505, at *2; Pruell v. Caritas Christi ("Pruell I"), No.

09-11466,   2010      WL    3789318    (D.    Mass.     Sept.    27,    2010),    which

dismissed the plaintiffs' FLSA claims for failing to allege the

plaintiffs'      weekly     wages     and    hours    worked    or     even   that   the

plaintiffs worked more than forty hours per week, id. at *3; and

DeSilva v. North Shore-Long Island Jewish Health System, Inc., 770

F. Supp. 2d 497 (E.D.N.Y. 2011), which dismissed the plaintiffs'

FLSA    claims   for   failing      to      satisfy    the    "minimal    burden"     of

providing     "some        approximation      of      the    overtime     hours      that


                                         - 6 -
[plaintiffs] worked," and for failing to identify the type and

nature of the purportedly unpaid work or training, id. at 510.

             Despite the letter, plaintiffs' counsel informed defense

counsel on April 12, 2011 that they had no intention of repleading

any of their claims or providing any more specificity prior to a

status conference.       Given plaintiffs' statement that they would

not seek to replead, defendants filed a motion for judgment on the

pleadings addressed to all of plaintiffs' claims on April 19, 2011.

Plaintiffs     opposed   the   motion     and,   in   their     memorandum   in

opposition, included a request to replead "[s]hould the Court grant

defendants' motion."

             Months   later,   the    district   court   held    a   scheduling

conference on June 9, 2011.          By this time, the district court had

reviewed a total of 58 pages of pleadings and dispositive motions,

145 pages of briefing associated with the dispositive motions, 125

pages of motions to approve settlement proposals, and 612 pages of

relevant exhibits.7      During the conference, the following exchange

occurred between the district court and plaintiffs' counsel:

             THE COURT: . . . You should understand I'm not
             going to permit amended pleadings in this
             matter.   These are the pleadings.    We have
             been around on this enough, so this case will
             rise and fall on the state of the pleadings
             after two years.


     7    We assume that the district court had read the documents
associated with the motion for judgment on the pleadings, which
had been filed weeks earlier.

                                      - 7 -
[PLAINTIFFS' COUNSEL]: If I may be heard on
that, your Honor, just briefly, very briefly,
I would say.

THE COURT: What do you want, do you want to
rebrief the thing altogether?

[PLAINTIFFS' COUNSEL]: The case has taken a
long time to get to a preliminary motion to
dismiss stage, and the parties spent a long
time in mediation, and as part of that
mediation, we agreed as a courtesy to the
defendants   to    dismiss    the   individual
defendants.   That was never approved by the
Court, so the individual defendants are still
around, but there certainly has been a lot of
case law change in the last two years,
particularly in the District of Massachusetts.

THE   COURT:   But   you   were   afforded   an
opportunity by the defendants to tidy up your
pleadings and afforded that opportunity in
April, and so now you tell me when I set it
down for hearing for judgment on the pleadings
that you want to be able to take my temperature
on the judgment on the pleadings and then file
another complaint?

[PLAINTIFFS' COUNSEL]: We didn't feel that we
would be in a position with the Court, the
defendants were asking us to do that.      We
didn't believe that the Court would entertain
an amended complaint while the motion on the
pleadings had been fully briefed.

THE COURT: Well, what makes you think that
I'll do it afterwards? Look it, I have taken
several bites of this case. I've seen it in
what I consider to be inappropriate posture
for class settlement. I saw it originally in
a motion to dismiss posture, but this is not
going to be Shahrazad, so you now think you
want to file an amended complaint?

[PLAINTIFFS' COUNSEL]: We would anticipate
that the Court would have since the motion was
fully briefed, if there was --


                    - 8 -
          THE COURT: No, I asked you, is it your view
          that you now are not satisfied with the
          pleading you've submitted?

          [PLAINTIFFS' COUNSEL]: Well, in light of the
          recent   decisions   that  have   come   down,
          particularly yesterday, from Judge Saylor,[8]
          we would request the ability to submit an
          amended complaint.[9]   All of the questions
          raised by the Court there are very easy for us
          to remedy, and it's far more efficient for the
          Court and for --

          THE COURT: No, let me tell you, efficiency is
          when I say you don't get a chance to replead,
          and I'm about at that point. Now if you're
          telling me that you want to replead, I'll
          consider it, but this is it.    You've had a
          great deal of litigation in a number of
          different fora. These are not new issues to
          be perfectly candid, they've been out there
          for some period of time, and I don't really
          fully understand why I should permit this.

          [PLAINTIFFS' COUNSEL]: Well, your Honor --

          THE COURT: What are you going to do? What is
          it that provided an epiphany in Judge Saylor's
          decision?

          [PLAINTIFFS' COUNSEL]: Well, the complaint was
          dismissed with prejudice.       That was the
          defining moment.   The courts have liberally
          allowed amendments to pleading. When the case
          was initially filed, we had numerous cases
          where on these very similar pleadings, as the

     8    Plaintiffs' counsel was referring to Cavallaro v.
UMass Memorial Health Care Inc. ("Cavallaro I"), No. 09-40152,
2011 WL 2295023 (D. Mass. June 8, 2011), vacated sub nom., 678
F.3d 1 (1st Cir. 2012), which had been issued the prior day and
which had dismissed with prejudice substantially identical
claims to those pressed by plaintiffs here. See id. at *6-7.
     9    Plaintiffs could no longer amend as a matter of course
under Fed. R. Civ. P. 15(a)(1) because more than twenty-one days
had passed since defendants filed their answer.

                              - 9 -
defendants point out, had been successful. As
the case law has been developing, courts are
now raising the standard, it appears, as to
what level of detail you need, but the
situation that we're in --

THE COURT: What are you going to do?    What is
this amended complaint going to do?

[PLAINTIFFS' COUNSEL]: It would answer the
questions that the courts have raised, it
would provide additional detail as to who the
defendants are.      We believe that we've
sufficiently alleged that the defendants are
this entity, but we can specifically allege,
as we have in the 20 affidavits that were
submitted with the notice motion, where these
individuals worked, who supervised them and
the type of work they did. The evidence in
this case is going to be extremely strong on
behalf of these clients.

THE COURT: Look it, you have to make it over
the pleading hurdle, and now I schedule it for
a hearing on your pleadings, and you view this
as kind of an interim undertaking that we'll
see how this one turns out and then we'll ask
for another pleading.    You have to come to
rest on your pleadings, and if you're telling
me that if you have not come to rest on your
pleadings, I want to understand what it is
that you have recently learned that you didn't
know before.

[PLAINTIFFS' COUNSEL]: That the district
courts in Massachusetts are looking for more
specificity.

THE COURT: And the Southern District.

[PLAINTIFFS' COUNSEL]: And the Southern
District of New York are looking for more
specificity as to the defendant that you
specifically worked for, which location you
worked at of this large entity, specifically
perhaps the number of hours over 40 that you



                   - 10 -
          worked, what your job title was, details like
          that.

          Those are details that we in the notice
          pleading that we've done in the past has never
          been subject to scrutiny and has been
          accepted.

          THE COURT: Of course it has, it's been subject
          to scrutiny throughout, it was subject to
          scrutiny by Judge Zobel in Manning, it was
          subject of scrutiny by Judge Saylor, has been
          for some time. This is no big surprise, Iqbal
          has been around for awhile now, and this
          problem, which is a significant one, has been
          out there for some time, so I'm a little
          perplexed about the impact that this has on
          judicial efficiency.

At the end of the scheduling hearing, after hearing from defense

counsel, the district court engaged in the following exchange with

the parties:

          THE COURT: Well, I'm not going to permit the
          amendment.    It's going on this complaint.
          You've had plenty of time. You've been put on
          notice   of    potential   deficiencies   here
          including a very detailed letter from the
          defendants calling to your attention their
          intention to file judgment on the pleadings,
          and you ignored it on the benighted assumption
          that there was going to be some continued
          opportunity for resurrection.     This is the
          pleading. I'll evaluate this pleading. If I
          think it is insufficient, I'll dismiss, enter
          judgment on it, but there's not going to be a
          repleading at this stage after all of this.

          So we're on for August 3rd. Is there anything
          else that we need to take up here?

          [DEFENSE COUNSEL]: Not on our behalf, your
          Honor.




                             - 11 -
          [PLAINTIFFS' COUNSEL]: Not on our behalf, your
          Honor.    Please note my exception to the
          Court's ruling.

          THE COURT: Well, I haven't had a pleading
          submitted to me, but I'm telling you ahead of
          time that having had this in front of me,
          that's what I'm going to do. Now if you want
          to test it by filing a new pleading, I suppose
          you can. That's up to you. It's not as if
          you haven't filed lots of paper, but this is
          a fairly serious matter to file late like this
          and not bother to take the time to plead it as
          fully as the developing case law suggests and
          to wait until the last moment to hold out the
          prospect that perhaps you will in two weeks.
          Not acceptable. We're in recess.

After the hearing, a docket entry was entered entitled "ELECTRONIC

Clerk's Notes for proceedings held before [the district court],"

stating, inter alia, that "Plaintiff's oral Motion for Leave to

File an Amended Complaint is DENIED."

          Despite the court's invitation, plaintiffs failed to

file a motion for leave to amend with a new pleading between the

June 9, 2011 scheduling conference and the August 3, 2011 hearing

on defendants' motion for judgment on the pleadings, which had

been scheduled at the June conference.   At the August hearing, the

district court noted that plaintiffs had "plenty of opportunity to

assess the shortcomings" of their complaint, but had failed to

seek leave to file an amendment.   The court stated that, for this

reason, it would rule on defendants' motion on the basis of the

complaint as it stood.   The court did not rule on the motion for




                              - 12 -
judgment on the pleadings for over a year.                 Plaintiffs did not

seek leave to amend in the interim.

              On September 30, 2012, the district court issued an

electronic order granting the defendants' motion for judgment on

the pleadings as to all of plaintiffs' claims. The court explained

the    rationale     for   its   September    2012    electronic   order     in   a

memorandum and order issued nearly four years later on July 21,

2016.10      In its explanation, the court recounted that, during the

June    9,    2011   scheduling    conference,       plaintiffs'   counsel    had

"voiced the possibility that [plaintiffs] might seek leave to

amend, but . . . never followed through with a proper motion to

amend."

                                       II.

              Plaintiffs argue on appeal that the district court's

response to their June 9, 2011 oral request is properly reviewable,

despite their not having filed a written motion for leave to amend,

because the court heard from both parties and said that it would

not permit plaintiffs to amend their complaint if they were to

file a formal motion.            Plaintiffs also argue that the district

court erred when it dismissed their complaint with prejudice.




       10 The court also granted defendants' motion for judgment
on the pleadings as to plaintiffs' state law claims in a separate
memorandum and order issued that same day.

                                     - 13 -
          We will assume, without deciding, that plaintiffs are

correct with respect to the reviewability of their June 9, 2011

oral request, so we move to the merits of their challenge.

          We review a district court's denial of a motion for leave

to amend for abuse of discretion, "deferring to the district court

for any adequate reason apparent from the record."       Universal

Commc'n Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 418 (1st Cir.

2007) (quoting Resolution Tr. Corp. v. Gold, 30 F.3d 251, 253 (1st

Cir. 1994)).   Based on the cumulative thrust of the following

reasons, we find no such abuse here.

          First, by no later than April 1, 2011, plaintiffs were

admittedly fully aware of the defects that at least nine district

courts had found in their pleading.11   Defense counsel highlighted


     11   Prior to plaintiffs' announced refusal to amend on April
12, 2011, there were at least six district court cases dismissing
similar FLSA claims filed by plaintiffs' counsel, at least eight
district court cases dismissing similar RICO claims filed by
plaintiffs' counsel, and at least five district court cases
dismissing similar ERISA claims filed by plaintiffs' counsel. See
DeSilva, 770 F. Supp. 2d at 547-48 (dismissing FLSA, RICO, and
ERISA claims); Manning I, 2011 WL 796505, at *3 (same); Sampson v.
Medisys Health Network, Inc., No. 10–CV-1342, 2011 WL 579155, at
*10 (E.D.N.Y. Feb. 8, 2011) (dismissing FLSA and RICO claims);
Nakahata, 2011 WL 321186, at *3-5 (same); Pruell I, 2010 WL
3789318, at *5 (dismissing FLSA, RICO, and ERISA claims); Wolman
v. Catholic Health Sys. of Long Island, No. 10-CV-1326, 2010 WL
5491182, at *7 (E.D.N.Y. Dec. 30, 2010), aff'd in part, rev'd in
part sub nom. Lundy v. Catholic Health Sys. of Long Island Inc.,
711 F.3d 106 (2d Cir. 2013) (dismissing FLSA and RICO claims);
Cavallaro v. UMass Mem'l Health Care Inc., No. 09-40152, 2010 WL
3609535, at *1 (July 2, 2010) (dismissing RICO claim); Kuznyetsov
v. W. Penn Allegheny Health Sys., Inc., No. 9-379, 2010 WL 597475,
at *7 (W.D. Pa. Feb. 16, 2010) (dismissing RICO and ERISA claims);

                              - 14 -
all of these defects and demanded correction.         And plaintiffs'

counsel themselves later admitted that there had been "a lot of

case law change" in the two years since the suit had been filed.

          Second,   plaintiffs    acknowledged   before   the   district

court that it would have been "very easy" for them to eliminate

the defects in their complaint.

          Third, rather than filing a motion for leave to amend

with some modicum of dispatch, plaintiffs delayed -- waiting until

June to even broach the subject directly with the court.12

          Fourth, and most importantly, when asked point blank why

they did not do what they say they could have done upon receiving



Camesi v. Univ. of Pittsburgh Med. Ctr., No. 09-85J, 2010 WL
235123, at *1 (W.D. Pa. Jan. 11, 2010) (dismissing ERISA claims).
We assume plaintiffs' counsel was familiar with these rulings in
their other cases.    Moreover, defense counsel's April 1, 2011
letter specifically referenced many of these cases.
     12   We do not count the period of the settlement negotiations
in assessing the period of delay.     Plaintiffs argue that their
settlement negotiations were "a valid reason to 'delay' seeking
leave to file an amend[ed] complaint." But the parties' settlement
discussions and exploration of class certification between the
filing of plaintiffs' complaint on September 3, 2009 and the
termination of mediation on March 30, 2011 provided plaintiffs'
counsel with an opportunity to decide whether and how to change
its pleadings.
          In any case, plaintiffs' counsel's failure to even bring
up the subject of an amended complaint until the scheduling
conference -- despite being put on notice of their complaint's
deficiencies by April 1, 2011 -- itself constituted delay that
prejudiced defendants and the district court. Defendants had to
file nearly 300 pages in support of their motion for judgment on
the unamended pleadings, which the district court had to read and
consider, and was preparing to rule on by the time of the
scheduling conference.

                                 - 15 -
defense counsel's letter, plaintiffs' counsel gave the district

court an explanation that could not have been correct -- i.e.,

that they "didn't believe that the Court would entertain an amended

complaint   while   the   motion    on    the   pleadings    had   been   fully

briefed," which, of course, it had not been.                As a result, the

district    court   did   not   err      in   concluding    that   plaintiffs

intentionally delayed in an effort to force the defendants to brief

a motion and the court to do the work of deciding the motion, all

based on a complaint that plaintiffs were apparently treating as

a risk-free trial balloon.         We emphasize that it is not so much

the length of plaintiffs' delay but rather the manner in which

they seem to have exploited the delay that justifies the district

court's ruling.     Cf. Kay v. N.H. Democratic Party, 821 F.2d 31, 34

(1st Cir. 1987) (finding that three months constituted undue delay

where plaintiff failed to offer any justification for the delay);

Villanueva v. United States, 662 F.3d 124, 127 (1st Cir. 2011)

(same finding for a delay of four months).

            Finally, when the court -- after explaining why it would

not allow amendment -- nevertheless expressly offered plaintiffs

an opportunity to file a formal motion with an amended pleading

when the issues were fresh, plaintiffs decided not to do so.                 As

a result, we have no proposed pleading to consider.

            On such a record, we cannot accept the contention that

the district court was required to allow leave to amend. Affirmed.


                                   - 16 -
-Dissenting Opinion Follows-




           - 17 -
          THOMPSON, Circuit Judge, dissenting.    I disagree with

the result reached by my colleagues in the majority, and so I write

separately to explain why I believe the district court abused its

discretion when it denied plaintiffs' motion for leave to amend

the complaint.13

          I am well aware that we afford the district court very

deferential abuse-of-discretion review when it comes to motions

for leave to amend.     But Federal Rule of Civil Procedure 15

reflects a liberal standard for motions to amend, see Torres-Álamo

v. Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007), one that requires

the court to "freely give leave when justice so requires," Fed. R.

Civ. P. 15(a)(2), and "this mandate is to be heeded," Foman v.




     13   The majority assumes without deciding that the other big
issue in this case -- whether the oral motion for leave to amend
was valid and therefore reviewable -- is indeed reviewable. But
I believe this question deserves a decision on its merits.      We
have said that "[t]here may be exceptional circumstances in which
a request to amend will become the functional equivalent of a
motion to amend." Gray v. Evercore Restructuring L.L.C., 544 F.3d
320, 327 (1st Cir. 2008) (examining and finding insufficient the
undeveloped request plaintiffs had made in their written
opposition to a dispositive motion). Here, this motion to amend
was valid:    Plaintiffs' counsel engaged in a lengthy, on-the-
record back-and-forth with the district court when he orally moved
to amend the complaint; defense counsel had an opportunity to
respond; the court's repeated oral denial of leave to amend
signaled that it considered, assessed, and rejected the motion;
and the district court's written denial of the motion for leave to
amend appeared on the docket that very same day. And so, I believe
this case presents just the sort of "exceptional circumstances"
that make plaintiffs' motion, if not proper all on its own, "the
functional equivalent" of a proper motion, and our decision should
reflect that conclusion. See id.

                              - 18 -
Davis, 371 U.S. 178, 182 (1962) (citing 3 Moore, Federal Practice

§§ 15.08, 15.10 (2d ed. 1948)).

           First, some context, because the moment at which the

relevant procedural history of this case played out is critical.

The complaint was filed in 2009, in the wake of Bell Atl. Corp. v.

Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662

(2009), both of which rejected the sixty-year-old standard set

forth in Conley v. Gibson, 355 U.S. 41, 47 (1957) (explaining that

pleadings need only "give the defendant fair notice of what the

plaintiff's claim is and the grounds upon which it rests" to

survive a motion to dismiss), and which also injected uncertainty

into the standard for reviewing complaints.14          In the two years

that followed plaintiffs' 2009 complaint filing (leading up to

plaintiffs' eventual motion to amend), how the Supreme Court's new

pleadings plausibility test should be applied was in flux.          During

that time, what was clear was that the Court had infused the

standard   with   some   subjectivity,    and   application   of   the   new

standard at times appeared to be at the mercy of each different




     14   It's 2018, and 2009-11 seems an age ago. In this case,
we mustn't forget that the issues were happening between 2009 and
2011, not years later.     The fourteen-plus months between the
hearing on the motion for judgment on the pleadings (August 3,
2011) and the electronic order granting the motion for judgment on
the pleadings (September 30, 2012), combined with the passage of
nearly four years between the September 30, 2012, electronic order
and the issuance of the explanatory memorandum and order (July 21,
2016) tells the story of how we wound up so far removed from 2011.

                                 - 19 -
lower court judge and his or her personal perspective, experience,

and common sense. See Iqbal, 556 U.S. at 679 ("Determining whether

a complaint states a plausible claim for relief will . . . be a

context-specific task that requires the reviewing court to draw on

its   judicial    experience   and    common   sense.").15    Against   this

backdrop, the complaint in this case inevitably would face some

adversity.

             Next, let's move to the moment when plaintiffs were

convinced it was time to move to amend:          June 2011.   This turning

point came courtesy of Cavallaro v. UMass Mem'l Health Care Inc.,

No. 09-40152-FDS, 2011 WL 2295023 (D. Mass. June 8, 2011), vacated,

678 F.3d 1 (1st Cir. 2012), issued the day before the status

conference.      The district court there, in an about-face, dismissed

(with prejudice) claims very similar to those in the complaint at


      15   Motions to dismiss complaints swept the nation during
this time; notably higher filing rates post-"Twiqbal" crossed
disciplines and cluttered judges' desks. See, e.g., JOE S. CECIL ET
AL., FED. JUDICIAL CTR., Motions to Dismiss for Failure to State a
Claim after Iqbal:      Report to the Judicial Conference Advisory
Committee on Civil Rules 8, 9 (Mar. 2011), available at
http://www.uscourts.gov/sites/default/files/motioniqbal_1.pdf
(recording a marked increased rate of challenges to the sufficiency
of complaints in the post-Iqbal period (2009-2010) as opposed to
the pre-Twombly period (2005-2006)); see also Jonah B. Gelbach,
Note, Locking the Doors to Discovery? Assessing the Effects of
Twombly and Iqbal on Access to Discovery, 121 YALE L. J. 2270, 2291
(2012) (observing that "Twombly and Iqbal were accompanied by a
substantively large increase in the rate at which defendants filed
Rule 12(b)(6) MTDs").       I note that the Supreme Court tasked
reviewing judges to draw on judicial experience (drumroll for that
conjunctive word "and") and common sense, so a newly appointed
judge was to drink from what well?

                                     - 20 -
issue here.     But understand that, unlike here, those plaintiffs

already had been afforded multiple opportunities to amend the

complaint.     Nonetheless, this Cavallaro dismissal served as the

impetus for plaintiffs' June 9, 2011 oral motion.           Plus, as it

turns out, this court on appeal decided the Cavallaro plaintiffs

were entitled to yet further amendment.       Cavallaro, 678 F.3d at 10

(concluding that there had been no "prior abuse of the amendment

process," and "one last amendment should be permitted, if the

plaintiffs are so minded").

             The majority explains that "any adequate reason apparent

from the record" will support the district court's denial of the

motion to amend.    Universal Commc'n Sys., Inc. v. Lycos, Inc., 478

F.3d 413, 418 (1st Cir. 2007) (quoting Resolution Tr. Corp. v.

Gold, 30 F.3d 251, 253 (1st Cir. 1994)).      Five reasons, to be taken

cumulatively, are offered:      (1) defendants' April 1, 2011 letter

made   plaintiffs    "fully   aware"   of   the   complaint's   potential

defects, and other courts had found the complaint lacking in

specificity; (2) plaintiffs told the district court it would have

been "very easy" to correct the complaint; (3) plaintiffs delayed

from April to June before bringing up the subject of amendment;

(4) plaintiffs exploited the delay in moving to amend; and (5)

plaintiffs ignored an express offer from the district court to

file a formal motion to amend.




                                 - 21 -
            Not only do I not see these as adequate reasons, even in

the aggregate, but also I see some of them as mischaracterizations

of the record, this case, and our case law.    I take each in turn.

            Before I do, I pause to emphasize that the "adequate

reason" here shouldn't be just any conceivable reason, but rather

the reason must fall within parameters described by our Supreme

Court:

       In the absence of any apparent or declared reason—such
       as 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 amendment, etc.—the leave sought should, as
       the rules require, be 'freely given.'

Foman, 371 U.S. at 182 (emphasis added).    I read this to mean that

our high court expects the denial of a motion to amend to be

supported by one of these reasons or something akin to these

reasons.    Otherwise, "as the rules require," leave to amend is to

be "freely given."    Id.

            Onward.

  1.     The import of defendants' April 1, 2011 letter and other
                           courts' decisions

            The majority writes that plaintiffs were aware of the

defects in their complaint because of the April letter sent by




                                - 22 -
defendants, and other courts found problems with the complaint as

well.        A few points about this, starting with the April letter.

                According to the majority, defendants demanded that the

complaint's defects be corrected.                True:    The letter was a take-

it-or-leave-it, unequivocal demand that plaintiffs amend some

aspects of the complaint and, importantly, dismiss other pled

causes of action with prejudice.16           But such a demand by defendants

does not compel plaintiffs to address the perceived defects when,

upon their own independent evaluation of their pleadings and the

moving-target case law, they genuinely and in good faith disagreed

with defendants' position.             The majority points out that multiple

district courts took issue with the complaint, but, critically, no

appellate        court   had    yet    weighed    in     (more   on   that   below).

Meanwhile, I am unable to find, and the majority does not point

to, any case law suggesting that one side in litigation can or

should be compelled to do what the other side has suggested (in

this     case,    kowtow   to    the   demands     in    defendants'    letter   and

immediately set to work on crafting an amended complaint) where

clear and binding precedent is not in place and where reasonable


        16As for that invitation, it was worded as follows:
" . . . Defendants request that Plaintiffs take the steps
below . . . If you refuse to do so, we will move to dismiss these
claims and seek an appropriate award of fees and costs."
Defendants later used different but equally clear language in the
letter when they explained that if plaintiffs did not "comply" and
"execute these requests," defendants would seek dismissal and Rule
11 fees.

                                        - 23 -
legal minds could differ.       And I certainly see nothing to support

the notion that a side presumably proceeding in good faith can

later be punished for not doing what the other side demanded.

Similarly, I can find no legal support for the notion that one

side can or should be held to some sort of higher notice because

the other side flagged some perceived issues.                The majority's

reliance on this letter imbues the letter with a heightened

importance not supported by our jurisprudence, and I fear it sends

the wrong signal to litigants who may be on the ultimately losing

end of a validly contested legal dispute.

             Moreover,   I   find   nothing   in   the   record    to    suggest

plaintiffs did not have a good faith basis to believe their

complaint was viable as drafted, particularly since there was no

appellate authority from any circuit opining as to whether the

complaint was, in fact, sufficient. Plaintiffs, in defending their

own   legal    arguments     rather    than   adopting     those    of    their

adversaries, did not act unreasonably.

             On to the majority's other reason in support of the

denial of leave to amend:           Other courts were taking issue with

this complaint.     Yes, some district courts had problems with the

complaint.     Others did not:        Obviously presumed by some named

defendants to be adequate, the complaint went entirely uncontested

in some of the hospital compensation cases.              See, e.g., Woolfson

v. Caregroup, Inc., No. 1:09-cv-11464, 2010 WL 10063268 (D. Mass.


                                    - 24 -
Sept. 13, 2010); Meyers v. Crouse Health Sys., Inc., 274 F.R.D.

404 (N.D.N.Y. 2011); Hamelin v. Faxton-St. Luke's Healthcare, 274

F.R.D. 385 (N.D.N.Y. 2011); see also Pruell v. Caritas Christi

(Pruell II), 678 F.3d 10, 14 & n.2 (1st Cir. 2012) (noting that

not all courts "have expressed their displeasure and found the

complaints inadequate").

            Bear with me while I develop this point.          Even in the

cases where the complaint was contested and amendment was sought,

the results were not dismissals without any opportunity to amend.

For example, in another one of these hospital compensation cases

decided by us, Pruell II, we took a lenient approach that aligned

with the spirit of our rules of amendment.            The story goes as

follows:    The plaintiffs' complaint was dismissed, but with leave

to amend, Pruell v. Caritas Christi, No. 09-11466-GAO, 2010 WL

3789318    (D.   Mass.   Sept.   27,   2010);   thereafter,   the   amended

complaint was deemed insufficient, and the complaint was again

dismissed, this time without leave to amend, Pruell v. Caritas

Christi, No. 09-11466-GAO, 2010 WL 3789318 (D. Mass. July 13,

2011).    But on appeal, we cut the plaintiffs a good deal of slack

because, as I have already discussed, the post-Twombly and -Iqbal

timeframe in question (the same timeframe at issue in the instant

case) presented a hot mess for litigants trying to navigate it:

"The precedents on pleading specificity [we]re in a period of

transition, and precise rules [would] always be elusive because of


                                   - 25 -
the great range and variations in causes of action, fact-patterns

and attendant circumstances."            Pruell II, 678 F.3d at 15.       "[S]ome

latitude,"      we   said,   "has   to   be    allowed   where   a   claim     looks

plausible based on what is known."             Id.

               Here, the majority departs from the Pruell II model --

and it does so in a case where, unlike Pruell II with its multiple

amendment requests, plaintiffs sought leave to amend only one time.

               Aware of the contested defects or not, plaintiffs should

have been afforded leave to amend, just as leave to amend should

have    been    allowed   in   Pruell     II   (hence    our   remand    for    that

purpose).17      Defendants' letter and some courts coming down on the

complaint do not negate the fact that Pruell II shows us that the

specificity in these complaints remained a moving target, and it

wasn't totally clear yet what worked and what didn't.                   Id. at 14-

15.

               And, what's more, I do not think this reason is one (or

similar to one) that was contemplated by the Foman Court when it

laid out circumstances in which it would be appropriate to deny

leave rather than freely grant it, "as the rules require."                   Foman,

371 U.S. at 182.




       17 And don't forget, we did the same thing in Cavallaro v.
UMass Mem'l Healthcare, Inc., when we remanded to allow plaintiffs
"one last amendment." 678 F.3d 1, 10 (1st Cir. 2012).

                                     - 26 -
  2.     Ease with which plaintiffs could provide more specificity

                  The majority's next reason in support of the denial of

leave        to     amend    is   that     plaintiffs     indicated   at   the   status

conference in June 2011 that it would be "very easy" to eliminate

the complaint's defects.                 I am not persuaded by this either.

                  As    an   initial     matter,    let   me   once   again   say     that

plaintiffs had, they believed, a good faith basis for not seeking

amendment prior to this conference, and they planned to stick to

their        guns      and   their   own    legal   arguments    in   support    of    the

complaint's sufficiency.                 That changed when Cavallaro came along

the very day before that conference.

                  Context is important.18           Here, plaintiffs' counsel did

indeed explain that it would be "very easy" to remedy the complaint

-- but he specifically said he could easily remedy "[a]ll of the

questions raised by the Court there."                       (Emphasis added.)          The

"there" he refers to is the decision from Judge Saylor (Cavallaro)

that came out the day before.                  So, in context, it became "easy"

only after the Cavallaro decision, which triggered plaintiffs'

decision to move to amend after all.

                  Lastly, as with the previous reason offered in support

of the denial of leave to amend, I do not think the ultimate ease


        18To that end, and for completeness, I append to the
dissent the entire transcript of this conference so the interested
reader can take a look and make his or her own assessment of the
exchange.

                                             - 27 -
with which plaintiffs may have been able to fix the complaint falls

under what the Foman Court had in mind when it spoke of denying

leave to amend for "justifying reasons."    371 U.S. at 182.


 3.   Plaintiffs waited until June to discuss amendment with the
              district court, resulting in prejudice

           Another reason the majority offers is that plaintiffs

failed to file a motion to amend "with some modicum of dispatch,"

instead delaying, or "waiting until June to even broach the subject

directly with the court."     The majority elaborates:   Plaintiffs'

failure to bring up the subject of amendment, even though they

were "put on notice of their complaint's deficiencies by April 1,

2011," was a "delay that prejudiced defendants and the district

court."   I disagree.

           Remember that not just any delay will do on this topic

-- the delay must be undue.    Foman, 371 U.S. at 182.   But in any

event, in my view, the subject two-month period falls short of

constituting delay, undue or otherwise. Cf. Hagerty ex rel. United

States v. Cyberonics, Inc., 844 F.3d 26, 34 (1st Cir. 2016)

(reasoning that plaintiff's "listless approach toward amending"

-- waiting 13 months -- constituted undue delay); Feliciano–

Hernández v. Pereira–Castillo, 663 F.3d 527, 538 (1st Cir. 2011)

(finding undue delay when motion to amend was filed "nearly a year

after" a motion to dismiss was filed); see also Torres-Álamo, 502

F.3d at 25–26 (reversing district court's denial of a motion to


                               - 28 -
amend because the motion was filed less than two months after the

answer and six months after the initial complaint).                  Besides, even

assuming it was an undue delay, plaintiffs have a supportable

explanation for it:         They disagreed with the arguments advanced in

defendants' April letter, they wanted to stick to their own legal

arguments, and they thought it would be premature to amend when no

appellate court had affirmed any district court's take on the

complaint.

              And let's take another step back.                At the risk of

sounding like a broken record, it is important to recall and

emphasize the spirit and policy behind our rules of amendment.

Not only is liberality favored for good reason,19 but also we must

bear    in   mind    that   a   fundamental    reason   we     take    issue   with

protracted delay in filing a motion to amend is the "attendant

burdens      on   the   opponent   and   the   court"   that    it    can   create.

Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62,



       19 Liberality is so favored, in fact, that Rule 15(b)
permits pleading amendment in some instances during and after
trial. Fed. R. Civ. P. 15. And by the way, the policy behind
this liberality stems from our preference to have disputes resolved
on the merits. See, e.g., Coon v. Grenier, 867 F.2d 73, 76 (1st
Cir.   1989)   (citations   omitted)   (observing   the   important
"philosophy that actions should ordinarily be resolved on their
merits"); Richman v. Gen. Motors Corp., 437 F.2d 196, 199 (1st
Cir. 1971) (emphasizing the strong "policy of the law favoring the
disposition of cases on their merits"); see also Fed. R. Civ. P.
1 (instructing that the civil rules "should be construed . . . to
secure the just . . . determination of every action and
proceeding").

                                     - 29 -
64 (1st Cir. 2013) (per curiam) (quoting Steir v. Girl Scouts of

the USA, 383 F.3d 7, 12 (1st Cir. 2004)).20

              The   majority   says    the   two-month   "delay"    in   seeking

amendment prejudiced defendants and the district court, so let's

talk prejudice and burdens.           I cannot see the prejudicial effect

suffered by defendants -- it was plaintiffs' first request to

amend, and the actual litigation of this case was in its infancy

(with settlement negotiations having broken down only a few months

earlier, discovery wasn't even underway, nor was trial even a

glimmer in anyone's eye).         And it's not as though defendants can

say they didn't know what plaintiffs' claims would be; not only

had they spent ample time discussing the claims during mediation,

but   also,    as   defendants   are    quick   to   point   out,   these   same

compensation issues were being delved into all over the country,




      20  See also Frappier v. Countrywide Home Loans, Inc., 750
F.3d 91, 96 (1st Cir. 2014) (explaining that concern arises when
additional discovery or re-opening discovery would be required due
to the proposed amendment); Steir, 383 F.3d at 12–13 (taking issue
with the proposed amendment because it came at "the penultimate
phase of the litigation" and "would have required the re-opening
of discovery," conducting a new deposition, seeking new records,
postponing the summary-judgment hearing, "and almost certainly,
the delay of any trial"); Acosta-Mestre v. Hilton Int'l of Puerto
Rico, Inc., 156 F.3d 49, 52 (1st Cir. 1998) (approving denial of
motion to amend because of undue delay and undue prejudice -- "by
the time of the motion for leave to amend, nearly all the case's
pre-trial work was complete"); Grant v. News Grp. Boston, Inc., 55
F.3d 1, 5–6 (1st Cir. 1995) (agreeing that denial of motion to
amend was appropriate when the motion came after discovery was
complete, and the opposing party was almost done with its motion
for summary judgment and "was well into its trial preparation").

                                      - 30 -
and defense counsel represented many of the defendant-entities in

those suits.

          The majority writes that defendants' burden is that they

had to file a twenty-page motion for judgment on the pleadings and

they were forced to file many documents in support of that motion.

I find no precedent which supports the proposition that when a

party opponent takes a contrary, but defensible, legal position

which generates the filing of a single dispositive motion, that

such amounts to prejudice or the kind of burden that would justify

denial of leave to amend.        This is litigation, plain and simple

-- it is not the kind of unwarranted "attendant burden[] on the

opponent" that our case law disfavors.         Somascan, Inc., 714 F.3d

at 64.

          As   for   the    prejudicial    effect   on   the   court,   I   am

similarly at a loss.       The majority writes that the district court

had to read and consider the motion for judgment on the pleadings

and "was preparing to rule on [that motion] by the time of the

scheduling conference."21 First, and once again, that is the nature

of litigation and what judges are called upon (and paid a decent


     21   The majority provides a list of pleadings, motions, and
exhibits dating back to October 2009 that the district court had
reviewed in advance of the June 9, 2011 conference. I see this as
beside the point -- the routine work the district court had put in
on this litigation prior to the conference is irrelevant as to the
supposed burden and prejudice the majority says resulted from the
two-month span of time (or the "delay") between April and June of
2011.

                                  - 31 -
salary) to do. Judges review motions filed and, indeed, eventually

rule on those motions.    Second, there is no (zilch) record support

for the majority's assumption that the district court had already

taken a deep dive into the motion for judgment on the pleadings

(as of the date of the June status conference, no hearing date had

been set, and, all told, the hearing would not take place for

another two months),22 nor is there evidence that the court was

somehow already "preparing to rule" on a motion that had not even

been scheduled for hearing. This rank speculation is not the stuff

of burden or prejudice.

                  4.    Exploitation of the "delay"

          Next,   my     colleagues   take   issue    with   what   they

characterize as plaintiffs' exploitation of their own supposed

delay, and this is offered as the penultimate reason supporting

the conclusion that there was no abuse of discretion by the

district court judge.     I don't see things the same way.

          The majority begins its explication by writing "when

asked point blank why they did not do what they say they could

have done upon receiving defense counsel's letter, plaintiffs'

counsel gave the district court an explanation that was simply


     22   In fact, the district court judge told the parties "I do
want to stay discovery in the further briefing on the certification
motions until I've sorted through the state of the pleadings here."
(Emphasis added.) From this, it is most reasonable to infer that
the district court judge definitely had not done a deep dive on
the motion for judgment on the pleadings.

                                - 32 -
untrue."   A quick read of the transcript, however, puts things in

context and shows this isn't quite how that scene played out:

     THE COURT: But you were afforded an opportunity by the
     defendants to tidy up your pleadings and afforded that
     opportunity in April, and so now you tell me when I set
     it down for hearing for judgment on the pleadings that
     you want to be able to take my temperature on the
     judgment on the pleadings and then file another
     complaint?

     MR. SOLOMON:    We didn't feel that we would be in a
     position with the Court, the defendants were asking us
     to do that.    We didn't believe that the Court would
     entertain an amended complaint while the motion on the
     pleadings had been fully briefed.

Describing the district court's inquiry as a point-blank question

as to why plaintiffs didn't do what defendants' letter said to is

misleading.   The question is far less direct than that, as the

above excerpt shows.    But the majority's treatment and view of

this exchange actually clears up some confusion:      The majority

suggests plaintiffs' answer here is untrue, but that is because

the majority frames the court's question differently than it was

actually put to plaintiffs' counsel at the conference.       By my

reading, treating the "tidy up your pleadings" phrase as an

introductory statement, not a question (because it isn't a question

on its own), counsel believed he was answering the second portion

of the district court judge's statement, which constituted the

court's actual inquiry.   It is clear to me that counsel's point

-- that he worried the court wouldn't look favorably on a motion

to amend while a dispositive motion was pending -- is fair,


                              - 33 -
particularly since defendants actually filed their dispositive

motion in April.          It simply is not an incorrect response, as the

majority says.

            The majority also says the district court "conclud[ed]

that plaintiffs intentionally delayed in an effort to force the

defendants to brief a motion and the court to do the work of

deciding the motion." But defendants filed their motion only seven

days after plaintiffs notified them they would not be amending

their pleading, and defendants' ten-page, single-spaced April

letter bears a resemblance to the dispositive motion defendants

filed.     It does not take a seasoned litigator to understand that

defendants'       April    letter   was,    in     large   part,       their   motion.

Moreover,    defendants       renewed    arguments     made   in       their   earlier

motion to dismiss as to the RICO claim.                So plaintiffs' supposed

"delay"    in   seeking     amendment      after    rejecting      the    demands   in

defendants'     letter      did   not   force    defendants       to    reinvent    any

particular wheel or flesh out brand new arguments when briefing

the motion -- much of that work was already done.                        And even if

this was not true, I spy nothing in the record (because there is

nothing) which demonstrates that any such delay (once again, even

assuming a two-month delay from the April letter to the court

conference is the kind of delay our case law condemns in this

context)    was    intentionally        created,    nor    that    it    was   created

specifically with an eye towards later taking advantage of it.


                                        - 34 -
               The   majority    paints     a    picture   in    which     plaintiffs

"force[d]" defendants to file a motion and "force[d]" the court to

do the work of deciding it, all while knowing they viewed their

complaint "as a risk-free trial balloon." Again, this is an unfair

mischaracterization of the record in this case.                    Plaintiffs said

many times they believed their own legal arguments in support of

the sufficiency of their complaint had merit, and that it was, up

to a time, premature to amend the complaint.                    Plus, the majority

conveniently ignores the fact that plaintiffs filed a twenty-page

brief        vigorously   opposing         defendants'      dispositive       motion

substantively, as a matter of law, and they did this because they

believed -- at the time -- they had viable legal footing for that

position.       If, as the majority seems to believe, plaintiffs had

this nefarious "trial balloon" plan in place, they would not have

gone to the trouble of drafting and filing a well-argued (though

perhaps wrong in the end) substantive opposition.

               My final point on this fourth offered reason responds to

my colleagues' observation that the length of the delay (the undue

delay reason Foman laid out) is less the problem than the perceived

(but, in my view, unsupported) manner in which plaintiffs "seem to

have     exploited"    that     delay.23        It's   unclear   to   me    what   the


        23The majority points to two cases in support of this
exploitation point. I fail to see how these cases relate to or
support exploitation of delay as a reason to deny a motion to
amend, and regardless, these cases do not persuade on the delay

                                      - 35 -
exploitation is, but in any event, I do not share the majority's

impression of plaintiffs and I see no such exploitation. Moreover,

any supposed exploitation of (a mere two-month) delay is not delay

itself, and it does not fall under the Foman Court's vision of

undue delay as an example of a requisite "justifying reason."   371

U.S. at 182.

 5.   Plaintiffs ignored an express offer from the district court
                  to file a formal motion to amend

           As far as reasons to support the denial of the motion to

amend go, this one similarly falls short of the "justifying

reasons" that would do the trick.      Here's what happened.    The




piece. Villanueva v. United States, 662 F.3d 124, 127 (1st Cir.
2011), tackled a delay in moving to amend that related to
information a plaintiff omitted from the complaint but was aware
of before he even filed his complaint.      Limiting itself to the
"circumstances at hand," and even though "the four month period
between the filing of the complaint and the request to amend may
not on its face seem particularly long," this court concluded that
no justification had been offered for that delay.        Id.   This
holding was confined to the specific facts of the case, and those
facts are not the same as those presented. Moreover, as I have
written already, plaintiffs did offer reasonable justification for
waiting to move to amend.
          Next up, Kay v. New Hampshire Democratic Party, 821 F.2d
31 (1st Cir. 1987), cited by Villanueva, clearly explained that a
motion to amend a complaint was properly denied "for the sole
reason that such an amendment would have been futile." Kay, 821
F.2d at 24. In dicta, and again limiting itself to the particular
facts of that case, this court explained that the justification
for the amended complaint did not account for the three-month delay
(after new information came to light) in moving for amendment "in
this case." This dicta is unrelated to the circumstances of our
case, it is not binding, and it is limited. And once again, I
believe plaintiffs did offer valid reasons for waiting to move to
amend.

                              - 36 -
district court judge repeatedly indicated that he would not permit

amendment.     At the close of the conference, the district court

judge stated, "Well, I haven't had a pleading submitted to me, but

I'm telling you ahead of time that having had this in front of me,

that's what I'm going to do.     Now if you want to test it by filing

a new pleading, I suppose you can.        That's up to you."      So when

plaintiffs were told, essentially, that "a written motion will be

denied just like your oral motion has been denied, but sure, go

ahead and file it if you want," little wonder they saw that route

as futile and/or unnecessary. Plaintiffs took their cue from these

statements and repeated denials, in conjunction with the court's

same-day written denial on the docket. They did not file a written

motion, clearly satisfied that their (validly made, they believed)

motion   had   been   flatly   denied,   any   future   filing   had   been

preemptively denied, and any written motion would be, at best,

futile or a waste of time and client money, or, at worst, Rule 11

sanctionable.     Seems to me plaintiffs opting not to chart that

course is understandable; it is not a reason to affirm the denial

of their motion for leave to amend.

                               Conclusion

             Given that I see the majority's outcome as completely at

odds with our case law and the spirit of our rules, I respectfully,

but emphatically, dissent.




                                 - 37 -
                               APPENDIX
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 1 of 16
                                                                        1

 1                    IN THE UNITED STATES DISTRICT COURT
 2                     FOR THE DISTRICT OF MASSACHUSETTS

 3

 4

 5

 6
       - - - - - - - - - - - - - - - - - - - - - -
 7                                                         CIVIL ACTION
       DIANE HAMILTON, ET AL,
 8                                                          No. 09-11461-

 9                                                          No. 09-11725-

10
         PARTNERS HEALTHCARE SYSTEM, INC., ET
                        AL., -
11

12
                        STATUS/SCHEDULING CONFERENCE
13
                                  JUNE 9, 2011
14

15                                  2:10 P.M.
16

17                      BEFORE DISTRICT COURT JUDGE
18
                             DOUGLAS P. WOODLOCK
19

20                    JOHN J. MOAKLEY U.S. COURTHOUSE

21
                            1 COURTHOUSE WAY
22
                            BOSTON, MA
23
                                VALERIE A. O'HARA
24                           OFFICIAL COURT REPORTER
25



                                - 38 -
Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 2 of 16

                                                                    2


        A P P E A R A N C E S:
   1    FOR THE PLAINTIFF:
   2    Thomas & Solomon LLP, by PATRICK J. SOLOMON, ESQ. and
        JESSICA L. WITENKO, ATTORNEY, 693 East Avenue, Rochester,
   3    New York    14607
   4
        FOR THE DEFENDANT:
   5

   6    Littler Mendelson, P.C.,
        by LISA A. SCHRETER, ATTORNEY, ANGELO SPINOLA, ESQ. and
   7    PATRICK J. SOLOMON, ESQ., 3344 Peachtree Road,
        Suite 1500, Atlanta, Georgia 30326
   8

   9    Littler Mendelson P.C., by DAVID C. CASEY, ESQ.,
        One International Place, Suite 2700, Boston,
  10    Massachusetts 02110

  11
        ALSO PRESENT:       Julie Chattopadhyay, in-house counsel
  12

  13

  14

  15

  16

  17

  18

  19

  20

  21

  22

  23

  24

  25




                                      - 39 -
        Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 3 of 16

                                                                             3




                                    PROCEEDINGS

    1               THE CLERK:     All rise.   This Honorable Court is now

    2   in session.    You may be seated.      Calling Civil Action 09-11461

    3   and 09-11725, Diane Hamilton vs. Partners Healthcare Systems

    4   Inc., et al.

    5               MR. SOLOMON:     Good afternoon, plaintiff's counsel,

    6   Patrick Solomon and my colleague, Jessica Witenko for the

    7   plaintiffs.

    8               MS. SCHRETER:     Good afternoon, your Honor,

9       Lisa Schreter on behalf of Partners Healthcare.          I'm joined to

10      my right by David Casey from our Boston office, Mr. Spinola to

11      his right, and to his right is Julie Chattopadhyay, who's with

12      the Partners Healthcare System in-house.

13                  THE COURT:     Well, let me tell you how I think I'd

14      like to proceed in this.       I want to set the motions for

15      judgment on the pleadings down for July 27th, and I set that

16      date, if there's a vacation problem, tell me, and I'll

17      accommodate that, but that was what works for me.          Is that

18      workable?

19                  MS. SCHRETER:     I don't believe that's a problem,

20      your Honor.

21                  MR. SOLOMON:     I don't think that's a problem, your

22      Honor.

23                  THE COURT:     Okay.   Well, having tested you on that

24      and being reminded by Mr. Lovett that that date does not work




                                    - 40 -
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 4 of 16

                                                                          4




 1   for me, can I move it to August 3rd?

 2              MS. SCHRETER:     That would be fine for us, your

 3   Honor.

 4              MR. SOLOMON:     Fine for the plaintiffs, your Honor.

 5              THE COURT:     All right.   So we'll set it down for

 6   August 3rd at 2:30.     Now I think I want to set virtually

 7   everything else off that with this exception that I do want to

 8   stay discovery in the further briefing on the certification

 9   motions until I've sorted through the state of the pleadings

10   here.

11              As to consolidation, I'll consolidate it only to the

12   degree that I'll hear the motions at the same time.          I want to

13   see how it sorts out to see whether further consolidation is

14   necessary in this case, and so to work my way through the

15   outstanding motions, we've set No. 115 in the 09-11461 case

16   down for August 3rd for hearing, and the parallel motion in

17   09-11725 will also be heard on that day, and to that degree,

18   they're consolidated for hearing, and so to that degree I

19   allow the motion No. 141 and the motion in support of the

20   motion to consolidate the related actions solely for the

21   purpose of the hearing and to stay discovery and the filing of

22   briefing of certification motions until I've sorted through at

23   that time, so it's allowed without prejudice to further

24   refinement.

25              With respect to the motion to expedite, I want to




                                - 41 -
         Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 5 of 16

                                                                                5




     1   hear that on the same day as well.       All of this depends upon

     2   the nature of the pleadings in the case and whether or not

     3   they're going to successfully permit continuation of the case

     4   or some part of the case.

 5                  I have the defendant's motion to file supplemental

     6   authority that was just filed I guess today.         That's document

     7   No. 120, and that's allowed as well.        Now, let me understand

     8   the posture of Manning.      Is there any appeal in Manning now?

     9   One part of it stayed alive, as I understood it, but maybe you

 10      can tell me.

11                  MR. SOLOMON:     Sure.   There is an appeal, it's not

 12      fully briefed yet on the state law claims, preemption.

13                  THE COURT:     The preemption one, it was the March

 14      decision that Judge Zobel had?

15                  MR. SOLOMON:     That would have been

 16      Judge Saylor in the UMass.

17                  MS. SCHRETER:     He's asking about Manning.

18                  THE COURT:     I was asking about Manning.

19                  MR. SOLOMON:     I'm sorry, yes, correct.      The status

 20      of Manning is that in the Caritas matter, there was an appeal

 21      that has been argued.      We submitted supplemental briefing for

 22      Circuit's request, and we're waiting on a decision on that.

 23      The BMC matter, BMC, we've just filed amended pleadings.

24                  THE COURT:     Because she permitted you to file

 25      amended pleadings.      You should understand I'm not going to




                                    - 42 -
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 6 of 16

                                                                           6




 1   permit amended pleadings in this matter.         These are the

 2   pleadings.     We have been around on this enough, so this case

 3   will rise and fall on the state of the pleadings after two

 4   years.

 5                MR. SOLOMON:     If I may be heard on that, your Honor,

 6   just briefly, very briefly, I would say.

 7                THE COURT:     What do you want, do you want to rebrief

 8   the thing altogether?

 9                MR. SOLOMON:     The case has taken a long time to get

10   to a preliminary motion to dismiss stage, and the parties

11   spent a long time in mediation, and as part of that mediation,

12   we agreed as a courtesy to the defendants to dismiss the

13   individual defendants.        That was never approved by the Court,

14   so the individual defendants are still around, but there

15   certainly has been a lot of case law change in the last two

16   years, particularly in the District of Massachusetts.

17                THE COURT:     But you were afforded an opportunity by

18   the defendants to tidy up your pleadings and afforded that

19   opportunity in April, and so now you tell me when I set it

20   down for hearing for judgment on the pleadings that you want

21   to be able to take my temperature on the judgment on the

22   pleadings and then file another complaint?

23                MR. SOLOMON:     We didn't feel that we would be in a

24   position with the Court, the defendants were asking us to do

25   that.    We didn't believe that the Court would entertain an




                                  - 43 -
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 7 of 16

                                                                           7




 1   amended complaint while the motion on the pleadings had been

 2   fully briefed.

 3               THE COURT:     Well, what makes you think that I'll do

 4   it afterwards?    Look it, I have taken several bites of this

 5   case.    I've seen it in what I consider to be inappropriate

 6   posture for class settlement.        I saw it originally in a motion

 7   to dismiss posture, but this is not going to be Shahrazad, so

 8   you now think you want to file an amended complaint?

 9               MR. SOLOMON:     We would anticipate that the Court

10   would have since the motion was fully briefed, if there was --

11               THE COURT:     No, I asked you, is it your view that

12   you now are not satisfied with the pleading you've submitted?

13               MR. SOLOMON:     Well, in light of the recent decisions

14   that have come down, particularly yesterday, from

15   Judge Saylor, we would request the ability to submit an

16   amended complaint.       All of the questions raised by the Court

17   there are very easy for us to remedy, and it's far more

18   efficient for the Court and for --

19               THE COURT:     No, let me tell you, efficiency is when

20   I say you don't get a chance to replead, and I'm about at that

21   point.    Now if you're telling me that you want to replead,

22   I'll consider it, but this is it.        You've had a great deal of

23   litigation in a number of different fora.         These are not new

24   issues to be perfectly candid, they've been out there for some

25   period of time, and I don't really fully understand why I




                                 - 44 -
         Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 8 of 16

                                                                                  8




     1   should permit this.

 2                    MR. SOLOMON:     Well, your Honor --

 3                    THE COURT:     What are you going to do?     What is it

     4   that provided an epiphany in Judge Saylor's decision?

 5                    MR. SOLOMON:     Well, the complaint was dismissed with

     6   prejudice.     That was the defining moment.        The courts have

     7   liberally allowed amendments to pleading.           When the case was

     8   initially filed, we had numerous cases where on these very

     9   similar pleadings, as the defendants point out, had been

 10      successful.     As the case law has been developing, courts are

 11      now raising the standard, it appears, as to what level of

 12      detail you need, but the situation that we're in --

13                    THE COURT:     What are you going to do?     What is this

 14      amended complaint going to do?

15                    MR. SOLOMON:     It would answer the questions that the

 16      courts have raised, it would provide additional detail as to

 17      who the defendants are.        We believe that we've sufficiently

 18      alleged that the defendants are this entity, but we can

 19      specifically allege, as we have in the 20 affidavits that were

 20      submitted with the notice motion, where these individuals

 21      worked, who supervised them and the type of work they did.

 22      The evidence in this case is going to be extremely strong on

 23      behalf of these clients.

24                    THE COURT:     Look it, you have to make it over the

 25      pleading hurdle, and now I schedule it for a hearing on your




                                      - 45 -
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 9 of 16

                                                                        9




 1   pleadings, and you view this as kind of an interim undertaking

 2   that we'll see how this one turns out and then we'll ask for

 3   another pleading.     You have to come to rest on your pleadings,

 4   and if you're telling me that if you have not come to rest on

 5   your pleadings, I want to understand what it is that you have

 6   recently learned that you didn't know before.

 7              MR. SOLOMON:     That the district courts in

 8   Massachusetts are looking for more specificity.

 9              THE COURT:     And the Southern District.

10              MR. SOLOMON:     And the Southern District of

11   New York are looking for more specificity as to the defendant

12   that you specifically worked for, which location you worked at

13   of this large entity, specifically perhaps the number of hours

14   over 40 that you worked, what your job title was, details like

15   that.

16              Those are details that we in the notice pleading

17   that we've done in the past has never been subject to scrutiny

18   and has been accepted.

19              THE COURT:     Of course it has, it's been subject to

20   scrutiny throughout, it was subject to scrutiny by Judge Zobel

21   in Manning, it was subject of scrutiny by Judge Saylor, has

22   been for some time.     This is no big surprise, Iqbal has been

23   around for awhile now, and this problem, which is a

24   significant one, has been out there for some time, so I'm a

25   little perplexed about the impact that this has on judicial




                                - 46 -
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 10 of 16

                                                                            10




 1   efficiency.

 2               It's not as if I hadn't made clear, although I

 3   haven't been required to rule on much other than the

 4   inadequacy of the arrangement that the defendants and you

 5   reached for your own reasons, no doubt, to buy hospital peace,

 6   but you're going to have to explain to me why it is after I

 7   set the date for the judgment on the pleadings you now say

 8   that you want the opportunity to replead.

 9               MR. SOLOMON:     The case law is very strong in our

10   favor on the ability to amend a pleading post...

11               THE COURT:     No, it's not, not at this point.        Let me

12   tell you something, there are anodynes for painful thought

13   that can be found imbedded in cases about repleading that

14   don't deal with the more specific circumstances of continued

15   recourse to the Court to get some idea of what the case is

16   about and the waiting until the last possible moment in a

17   fashion that is going to interfere with the proper resolution

18   of this case, so it's not going to be enough to tell me about

19   how Rule 15 has forms of liberality with respect to pleading.

20               MR. SOLOMON:     The defendants have not taken a

21   singular position against our complaint.         They've filed

22   amended motions for judgment on the pleadings.          They have

23   added additional arguments as we've moved along.          If this was

24   the first day I filed one complaint and we were doing nothing

25   at that point, I would understand.




                                 - 47 -
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 11 of 16

                                                                          11



 1               THE COURT:     You don't think anything here has

 2   signaled the concern that you're now attempting to address?

 3   The idea that you've sued what could be viewed as a blob

 4   consisting of multiple entities, you haven't identified who it

 5   is who's the employer except in the most generalized terms.

 6   You think that's something new?

 7               MR. SOLOMON:     I do.   Judge O'Toole in an early

 8   decision said it's a very lenient standard, there is a very

 9   lenient standard set in Massachusetts.         He had one minor

10   change that he wanted us to do.        Nearly a year later a

11   separate Judge in the District of Massachusetts raised the bar

12   and said that --

13               THE COURT:     There was no raising the bar, but the

14   point is that you haven't bothered to concern yourself with

15   whether the bar has been raised or whether or not.           You've got

16   vulnerabilities, you simply wait until I have to deal with

17   this issue and then tell me that you want to throw sugar in

18   the gas tank?

19               MR. SOLOMON:     That is not it at all.     We're not

20   looking for the Court to guide us to tell us what, you know,

21   to give us the feedback of how to plead the case.           We have now

22   seen that the courts have taken a stance, and it seems to be

23   in favor of more information than we've provided.           It is very

24   simple information for us to provide.

25               THE COURT:     When you say simple, how quickly can you




                                 - 48 -
         Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 12 of 16

                                                                             12




1        replead?

2                   MR. SOLOMON:      Probably within two weeks.

3                   THE COURT:      No, no, two weeks, if it's so simple, I


     4   don't understand why it takes two weeks.

     5               MR. SOLOMON:     It's only the press of business

     6   operations, your Honor.       We have many cases going on and court

     7   appearances.

     8               THE COURT:     In which you're repleading?

     9               MR. SOLOMON:     All sorts of manners, your Honor, but

    10   two weeks I don't believe would be a prejudicial amount of

    11   time to the defendants, and that would provide us sufficient

    12   time to set forth the details that the pleadings require, and

    13   I think that's a very quick turnaround that we can do that.

    14               THE COURT:     Why is it a very quick turnaround when

    15   it's been kicking around for awhile?        I don't see that at all.

    16   I have to tell you that this is not the way that I think

    17   litigation should be conducted, and so what you're going to

    18   necessitate is the refiling of motions for judgment on the

    19   pleadings or to dismiss, right?

    20               MR. SOLOMON:     I think the pleadings would -- either

    21   the amended complaint either answers the allegations in the

    22   pleadings or they --

    23               THE COURT:     How are they going to present that to

    24   me, by new motion?

    25               MR. SOLOMON:     I think the Court could just assess



                                     - 49 -
         Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 13 of 16

                                                                                  13


1        it.

2              THE COURT:           I don't sit freeform as a kind of roving


     3   rit to decide which of the pleadings is okay without some

     4   assistance.     We do have an adversarial system, although one

     5   would wonder about that in light of the settlement agreements

     6   that the parties were prepared to proffer to the Court, but

     7   this is real litigation, and from my perspective, I want it

     8   done with rigor that so far has been lacking by the plaintiff

     9   and to some degree by the defendant in the gadarene rush to

    10   buy in hospital peace.

    11               So you say two weeks.     It's going to require the

    12   filing of a new set of motions, I anticipate, and you have 20

    13   named people.     Now that's not going to cover all of the

    14   defendants, is it?

    15               MR. SOLOMON:     Your Honor, there are more than 300

    16   people that have opted into the litigation.          There are 20

    17   people from whom we've submitted affidavits for the notice

    18   motion.   There is not an affidavit that we have from every

    19   single location, that is correct.

    20               MS. SCHRETER:     Your Honor, might I be heard on this?

    21               THE COURT:     Yes.

    22               MS. SCHRETER:     At every turn in this case,

    23   plaintiffs have vacuously multiplied these proceedings.             We

    24   sent them a letter detailing each of the grounds on which we

    25   intended to move to dismiss.       There's nothing new here.        There




                                     - 50 -
     Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 14 of 16

                                                                           14




 1   are no new facts that the plaintiffs obtained.          They could

 2   have put these facts in from the beginning.          They were

 3   confronted with these arguments through the mediation process,

 4   and they made a deliberate decision.        Judge Saylor noted this

 5   in his decision not to plead these facts, so we would

 6   strenuously oppose any ability on their part now that we have

 7   moved for them to kind of waltz back in here and seek to amend

 8   their pleadings as an afterthought.

 9                If you look even at their motion for conditional

10   certification, it's classic.       In the motion for conditional

11   certification, they've added in a defendant they dismissed.

12   There are people who they have submitted consents from who

13   have no relationship to Partners, and all this time they

14   continue to solicit individuals on behalf of this case for all

15   of these different entities who they didn't even bother to

16   serve and name as named defendants, so we would rigorously

17   oppose any effort on this kind of 11th-hour attempt to amend

18   this, your Honor.

19                THE COURT:   Well, I'm not going to permit the

20   amendment.     It's going on this complaint.      You've had plenty

21   of time.     You've been put on notice of potential deficiencies

22   here including a very detailed letter from the defendants

23   calling to your attention their intention to file judgment on

24   the pleadings, and you ignored it on the benighted assumption

25   that there was going to be some continued opportunity for




                                 - 51 -
          Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 15 of 16
                                                                             15

      1    resurrection.     This is the pleading.     I'll evaluate this

      2    pleading.     If I think it is insufficient, I'll dismiss, enter

      3    judgment on it, but there's not going to be a repleading at

      4    this stage after all of this.

      5                 So we're on for August 3rd.     Is there anything else

      6    that we need to take up here?

      7                 MS. SCHRETER:     Not on our behalf, your Honor.

      8                 MR. SOLOMON:     Not on our behalf, your Honor.
                                         Please

      9    note my exception to the Court's ruling.

     10                 THE COURT:     Well, I haven't had a pleading submitted

     11    to me, but I'm telling you ahead of time that having had this

     12    in front of me, that's what I'm going to do.         Now if you want

     13    to test it by filing a new pleading, I suppose you can.

     14    That's up to you.     It's not as if you haven't filed lots of

     15    paper, but this is a fairly serious matter to file late like

     16    this and not bother to take the time to plead it as fully as

     17    the developing case law suggests and to wait until the last

     18    moment to hold out the prospect that perhaps you will in two

     19    weeks.   Not acceptable.       We're in recess.

     20                 THE CLERK:     All rise.

     21                 (Whereupon, the hearing was suspended at

22         2:45 p.m.)

23
24
25




                                        - 52 -
         Case 1:09-cv-11461-DPW Document 153 Filed 06/13/11 Page 16 of 16
1

     2

     3                             C E R T I F I C A T E

     4

     5     UNITED STATES DISTRICT

     6     DISTRICT OF                        )

     7     CITY OF                            )

     8

     9     I, Valerie A. O'Hara, Registered Professional Reporter,

    10     do hereby certify that the foregoing transcript was
    11     recorded by me stenographically at the time and place
    12     aforesaid in Nos. 09-11461-DPW and 09-11725-DPW, Diane
    13
           Hamilton vs. Partners Healthcare System, Inc., et al.
    14
           and thereafter by me reduced to typewriting and is a
    15
           true and accurate record of the proceedings.
    16

    17

    18

    19                                   VALERIE A. O'HARA

    20                                   REGISTERED PROFESSIONAL
    21                                   REPORTER DATED JUNE 10, 2011
    22

    23

    24

    25




                                     - 53 -
