Weatherly v. Gravel and Shea, PC, No. 977-9-11 Cncv (Toor, J., May 11, 2015).

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
                                                     VERMONT SUPERIOR COURT
                                                        CHITTENDEN UNIT
                                                         CIVIL DIVISION

                                                                         │
CRAIG WEATHERLY                                                          │
 Plaintiff                                                               │
                                                                         │
 v.                                                                      │                 Docket No. 977-9-11 Cncv
                                                                         │
                                                                         │
GRAVEL AND SHEA PC                                                       │
 Defendant                                                               │
                                                                         │

          RULING ON MOTIONS FOR SUMMARY JUDGMENT AND TO AMEND THE
                                  COMPLAINT

           This case between a lawyer and his former firm was tried to a jury on all but one count,

which the parties agreed would be tried to the court. Trial was scheduled for March 30. On

March 2, Plaintiff filed a motion for summary judgment that would not be ripe for decision

before the trial date, and asked that in the alternative it be treated as a pretrial memorandum.

Defendant filed a response on March 19. The trial was then continued on March 25 for unrelated

reasons. The court thus indicated that it would address the motion for summary judgment before

rescheduling the trial. On March 26, Plaintiff filed a motion to amend the complaint.

                                                  Motion for Summary Judgment

           Plaintiff argues in his motion that he is entitled to “guaranteed compensation” under the

employment contract, even though he was terminated. However, he asserts no such claim in

Count III of the complaint.

           Plaintiff was terminated as of February 10, 2011. In Count III of the Complaint, he

alleges that he was disabled as of November 30, 2010 and was entitled to compensation at his

regular salary for three months and at half salary for six months. It further alleges that he was fit
to return to work on January 6, 2011 and his alcoholism was certified to be “in remission” as of

January 18, 2011. The complaint alleges that Defendant stopped paying regular compensation on

December 31, 2010 and “is liable for those payments due under Section 10 of the Employment

Agreement.” Complaint ¶¶ 52-57.

       At trial, the jury found that Weatherly failed to prove that his current use of alcohol did

not prevent him from performing his job and/or that he did not pose a threat to the safety of

others. Verdict Form Question 5. Thus, under the Fair Employment Practices Act, he was not a

“qualified individual with a disability.” 21 V.S.A. 495d(6)(B). To the extent that the jury’s

verdict was based on the date of termination and not the period before that, the court finds based

upon the evidence at trial that he was not a qualified individual with a disability at any relevant

time, because he did not have an impairment that substantially limited any of his major life

activities, had no history or record of same, and was not viewed as such.

       For these reasons, Weatherly has failed to establish the claims asserted in Count III of the

complaint.

                                Motion to Amend the Complaint

       Apparently realizing the problem discussed above, Plaintiff now seeks to amend the

complaint to add an entirely new allegation to Count III. He now wishes to add a claim for a

“guaranteed salary” pursuant to the employment agreement. Plaintiff argues that amendments are

to be granted freely, and that Defendant will suffer no prejudice because this issue was briefed

once before in an earlier summary judgment motion.

       This case has been pending since September of 2011. Plaintiff offers no justification for

failing to amend the complaint during the last three and a half years. He alleges no newly

discovered evidence, no misunderstanding of the law, no reason whatsoever. “When amendment

is sought at a late stage in the litigation, there is an increased burden to show justification for


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failing to move earlier.” Wade v. Knoxville Utilities Bd., 259 F.3d 452, 459 (6th Cir. 2001).

Since the claim is based upon the employment agreement, plaintiff should have known of this

claim from the start. “[L]ate amendments to assert new theories are not reviewed favorably when

the facts and the theory have been known to the party seeking amendment since the inception of

the cause of action.” Kaplan v. Rose, 49 F. 3d 1363, 1370 (9th Cir.1994)(citation omitted); see

also, Frappier v. Countrywide Home Loans, Inc., 750 F.3d 91, 96 (1st Cir. 2014) (finding denial

of amendment justified where Plaintiff “could have amended his complaint, had he wished to do

so, prior to summary judgment.”); Compton v. Rent-A-Center, Inc., 350 Fed. Appx. 216, 221

(10th Cir. 2009) (affirming denial of leave to amend where plaintiff “did not request leave to

amend until the litigation had progressed well into the summary-judgment stage, and he did not

proffer an adequate explanation for the delay”); Bethany Pharmacal Co., Inc. v. QVC, Inc., 241

F.3d 854, 861 (7th Cir. 2001) (denial of amendment proper where plaintiff “has offered no

explanation for waiting until it was faced with a summary judgment motion before attempting to

add its promissory estoppel claim”).

       The court also notes that, as Defendant points out, the need to amend Count III if this

claim was to be asserted was made clear a year ago when Judge Grearson noted that Count III

only raised the issue of disability payments. See Decision on Cross-Motions at 25, n. 20 (May1,

2014). There is just no excuse for waiting until now to seek to add this new claim.

       The court finds that waiting three and a half years with no cause whatsoever, much less

good cause, is unjustified. Moreover, although Plaintiff alleges that Defendant would not be

prejudiced because it has known of this claim all along, he filed a motion for summary judgment

to which Defendant had to respond before seeking to amend to assert the claims on which the

motion is based. That is in itself prejudice.




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                                            Order

       The motion to amend the complaint is denied. The motion for summary judgment on

Count III is denied. The court grants summary judgment to Defendant on this claim based upon

the testimony at trial. V.R.C.P. 56(f). All claims in this case having now been resolved, final

judgment will be entered for Defendant.

Dated at Burlington this 11th day of May, 2015.

                                                    ________________________________
                                                    Helen M. Toor
                                                    Superior Court Judge




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