UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

NORTHWEST BYPASS GROUP, et al. )

)

Plaintiffs, )

)

v. ) Civil No. 06-CV-00258-JAW

)

U.S. ARMY CORPS )

OF ENGINEERS, et al. )

) 

Defendants. )

ORDER ON MOTION TO RECONSIDER ORDER ON MOTIONS FOR LEAVE TO 

AMEND COMPLAINT

The Plaintiffs’ have moved for reconsideration of the Court’s denial of their motions to 

amend the complaint. The Plaintiffs have failed, however, to meet the substantive standards of 

Local Rule 7.2(e). Further, even if the motion to amend complaint were considered under the 

“freely given” standard of Rule 15, the Court would deny the motion, because to amend the 

complaint at this late date would cause undue delay and prejudice and the Plaintiffs failed to 

demonstrate due diligence. 

I. STATEMENT OF FACTS

On May 18, 2007, this Court issued an Order granting in part and denying in part the 

Plaintiffs’ motion for leave to amend the complaint. Order on Pls.’ Mot. for Leave to Amend the 

Compl. (Docket # 119) (Order). On June 4, 2007, the Plaintiffs moved for reconsideration. Pls.’

Mot. to Recon. Order on Pls.’ Mot. for Leave to Amend the Compl. (Docket # 123). The 

Defendants and Intervenors objected to the motion to reconsider. Obj. to Pls.’ Mot. to Recon. 

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Order on Pls.’ Mot. for Leave to Amend the Compl. (Docket # 126) (City’s Obj.); Intervenors’ 

Obj. to Pls.’ Mot. to Recons. Order on Pls.’ Mot. for Leave to Amend (Docket # 132); Fed. Defs.’

Opp’n to Pls.’ Mot. to Recons. (Docket # 133); Intervenors’ Am. Obj. to Pls.’ Mot. to Recons. 

Order on Pls.’ Mot. for Leave to Amend Compl. (Docket # 134). 

The Plaintiffs’ main discontent is that the Order analyzed their motion under Rule 16, 

which requires “good cause” for leave to amend the scheduling order, and not Rule 15, which 

provides that leave to amend pleadings shall be “freely given.” See FED. R. CIV. P. 15, 16. In 

their motion, the Plaintiffs do not attack the Court’s conclusion that if Rule 16 applies, the 

motion to amend should be denied. However, they strenuously contend that the more liberal

provisions of Rule 15 should be applied and, if so, the motion should be granted. 

II. DISCUSSION

The brief answer is that just as their motion fails under Rule 16, it also fails under the 

more liberal standard of Rule 15.1 In its original Order, the Court ruled that to the extent the 

allegations in the amended complaint were already set forth in the original complaint, the motion 

to amend was superfluous. The Plaintiffs do not have a right to amend a complaint to make 

assertions that are already there. See Foman v. Davis, 371 U.S. 178, 182 (1962) (listing “futility 

of amendment” as a basis to deny a motion to amend); Palmer v. Champion Mortgage, 465 F.3d 

24, 30 (1st Cir. 2006). As the Court’s Order explained, there was no need to amend the 

complaint to assert the allegations in paragraphs 92, 93, 427, 428, 431, and 491, and to withdraw 

and replace Count IX, because those allegations were already before the Court and to amend 

would be redundant. Order at 7-9. 

 

1

 For the reasons the Court explained in its original Order, the Court disagrees with the Plaintiffs that the provisions 

of Rule 15(a) should be applied. Order at 3-6. It now addresses the Plaintiffs’ Rule 15 argument only in the 

alternative. 

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There were only two disallowed amendments that would have set forth new claims: 

Count XX, which sought to assert that the Corps’s decision was arbitrary and capricious because 

it failed to hold a public hearing, and in paragraph 510, which alleges that Advocates For 

Transportation Alternatives, Inc. v. United States Army Corps of Engineers, 453 F. Supp. 2d 

289, 302 (D. Mass. 2006), creates a new legal standard for evaluating the Corps’s finding of no 

significant impact. The first disallowed amendment was the subject of a motion the Plaintiffs 

filed on January 29, 2007; the second disallowed amendment was the subject of a motion the 

Plaintiffs filed on March 6, 2007. 

The Court denied the motions based on its concerns for undue delay and the Plaintiffs’ 

absence of due diligence. Palmer, 465 F.3d at 30 (stating that a court may deny a request to 

amend in “appropriate circumstances – undue delay, bad faith, futility, and the absence of due 

diligence on the movant’s part are paradigmatic examples . . . .”) (emphasis supplied). This case 

is unusual because it represents the culmination of a dispute that has been roiling for years. The 

Plaintiffs are old, intense, familiar foes of the project, thoroughly cognizant of the bases for 

mounting a legal challenge to the Corps’s permitting process. Thus, after the Corps issued its 

decision on January 10, 2006, the Plaintiffs spent six months preparing their Complaint. The 

result was an impressive pleading consisting of “one hundred and forty pages and nineteen

separate counts” and amounting to “an articulate treatise on environmental and administrative 

law complete with case law, statutory, and regulatory support.” Northwest Bypass Group v. 

United States Army Corps of Eng’rs, 470 F. Supp. 2d 30, 65 (D.N.H. 2006) (Northwest II), 

(quoting Northwest Bypass Group v. United States Army Corps of Eng’rs, 453 F. Supp. 2d 333, 

336 (D.N.H. 2006) (Northwest I)). In its initial ruling, the Court declined to “fault the Plaintiffs 

for the delay in bringing their complaint.” Northwest II, 470 F. Supp. 2d at 65. But, having 

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given the Plaintiffs the benefit of six months to prepare their Complaint, the Court is not inclined 

to excuse their failure to include facts and theories that could and should have been alleged when 

the pleading was filed or shortly thereafter. 

Here, the Plaintiffs filed their Complaint with a motion for temporary restraining order 

and motion for preliminary injunction. By January 5, 2007, the parties and the Court had 

thoroughly and exhaustively addressed each theory under which the Plaintiffs were proceeding. 

See Northwest I; Northwest II. Further, by January 11, 2007, the magistrate judge had ruled that 

“discovery is not warranted.” Order on Pls.’ Mot. to Take Disc. (Docket # 86). The case was 

then postured for final resolution, once the Plaintiffs’ non-dispositive motions were resolved.

However, as the Court recited in its Order, the case then devolved into a plethora of 

motions, objections, and increasingly acrimonious accusations, including allegations of bad faith, 

abuse of the judicial process, and unethical conduct. Order at 5-7. As the Court has already 

explained, to the extent the Plaintiffs wished to “add new allegations and theories into a case that 

has been so thoroughly and exhaustively presented, the Court is concerned that amended

pleadings at this late date will only further delay and complicate a case that has already

experienced more than its fair share of delay and complication.” Id. at 7. Further, based on the 

travel of the case to date, the Plaintiffs might view the presence of new theories as a vehicle to 

attempt to revisit the Court’s earlier determination, for example, that discovery was unnecessary 

and to move to reconsider any denial of such a motion. All the while, the case would remain

unresolved, the parties would incur ongoing litigation expenses, and a final ruling on its merits 

would be delayed. 

Here, as the Court pointed out, time is not a “trivial matter.” Order at 7. The City has 

been building the road at considerable public expense under a cloud of federal litigation, and the 

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parties deserve a resolution to the merits of the action so that they can order their affairs and 

move on. Long ago, the Supreme Court pointed out that if there was “undue prejudice to the 

opposing party,” a court could deny a motion to amend. Foman, 371 U.S. at 182. Even under 

the “freely given” standard of Rule 15, the Court would have been most chary about allowing the 

Plaintiffs at this late date to infuse new allegations and theories into such complex, expensive, 

and contentious litigation to the substantial prejudice to the City and other interested parties. 

Thus, in the unusual circumstances of this case, even applying the more liberal provisions 

of Rule 15, the Court would have denied the Plaintiffs’ motion to amend the complaint. 

Notwithstanding the Defendants’ serious allegations that the Plaintiffs’ multiplicity of motions 

are “designed to maximize the cost of litigation in terms of the resources of the Courts and the 

parties,” City’s Obj. at 1, the Court bases its decision on its conclusion that: (1) to add new 

theories at this stage to the case would cause “undue delay,” (2) that the Plaintiffs have not 

demonstrated “due diligence” by offering a satisfactory explanation as to why the complaint as 

originally drafted did not contain these allegations and theories, and (3) that there is a likelihood 

of undue prejudice to the City and interested parties. See Foman, 371 U.S. at 182; Palmer, 465 

F.3d at 30. 

Finally, the Plaintiffs have failed to address and to meet the substantive standards for a 

motion for reconsideration. They have failed to “demonstrate either that newly discovered

evidence (not previously available) has come to light or that the rendering court committed a

manifest error of law.” Palmer, 465 F.3d at 30; LR 7.2(e) (“A motion to reconsider an

interlocutory order of the court . . . shall demonstrate that the order was based on a manifest error 

of fact or law . . . .”). 

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III. CONCLUSION

The Court DENIES the Plaintiffs’ Motion for Reconsideration (Docket # 123). 

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

SITTING BY DESIGNATION

Dated this 27th day of June, 2007

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