UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Samuel J. Bourne

v. No. 05-cv-365-JD

Opinion No. 2006 DNH 136

Town of Madison et al.

O R D E R

Plaintiff, Samuel J. Bourne, moves to amend his first

amended complaint. The defendants, who are the town of Madison,

New Hampshire, its board of selectmen, the individual members of

the board, and Robert D. King, who allegedly served as an

unauthorized alternate on a Madison town committee, object.

After a responsive pleading has been served, the plaintiff

may amend the complaint only by the consent of the defendant or

leave of the court. Fed. R. Civ. P. 15(a). Although leave to

amend “shall be freely given when justice so requires,” id., “the

liberal amendment policy prescribed by Rule 15(a) does not mean

that leave will be granted in all cases.” Invest Almaz v.

Temple-Inland Forest Prods. Corp., 243 F.3d 57, 71 (1st Cir.

2001) (internal quotation marks omitted). For example, leave to

amend need not be granted where the amendment “would be futile,

or reward, inter alia, undue or intended delay.” Steir v. Girl

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

quotation marks omitted). Moreover, after the deadline set forth

Case 1:05-cv-00365-JD Document 33 Filed 12/05/06 Page 1 of 11
1The disputes between Bourne and Madison have not been

limited to federal court. In 2003, the town brought an action in

Carroll County superior court challenging the validity of an

agreement between Bourne and Madison that purported to grant

Bourne exclusive use of the access road. The parties ultimately

settled that case and executed a release the scope of which is a

disputed issue in this case. Bourne has also initiated a series

of suits in state court challenging the legal classification of

the road. These actions have been consolidated, and trial is

2

in the scheduling order for filing an amendment has passed, “the

liberal default rule is replaced by the more demanding ‘good

cause’ standard of Fed. R. Civ. P. 16(b).” Id.; Fed. R. Civ. P.

16(b) (“A schedule shall not be modified except upon a showing of

good cause and by leave of the district judge.”). It is

incumbent upon the party moving to amend in such circumstances to

explain the reason for the late filing. “[I]ndifference by the

moving party seal[s] off this avenue of relief . . . because such

conduct is incompatible with the showing of diligence necessary

to establish good cause.” O’Connell v. Hyatt Hotels of P.R., 357

F.3d 152, 155 (1st Cir. 2004) (internal quotation marks omitted).

This case began in June 2005 when Bourne filed a complaint

in Massachusetts federal district court alleging constitutional

violations and violations of state law in a land use dispute with

the town. In a nutshell, the dispute concerns the use of an

access road on Bourne’s property in Madison. Bourne believes he

is entitled to exclude the public from the road, and the town

believes otherwise.1 

Case 1:05-cv-00365-JD Document 33 Filed 12/05/06 Page 2 of 11
pending.

3

Bourne filed his first amendment to the complaint while the

case was still in Massachusetts. After the case was transferred

here, the court approved the parties’ proposed discovery plan and

adopted it as the pretrial scheduling order. See Fed. R. Civ. P.

16(b), 26(f). The scheduling order provided that discovery would

be completed, and any dispositive motions for summary judgment

would be filed, by September 30, 2006. The scheduling order also

provided that Bourne had until March 1, 2006, to amend his

complaint.

On July 6, 2006, the court granted Bourne’s motion to

dismiss the defendants’ counterclaim alleging abuse of process. 

The court concluded that order by noting its disfavor for

“scattershot pleading” and its expectation that Bourne would

“review his complaint with a view to elimination of any count

that is unnecessary or redundant because it does not materially

differ from another count in terms of the elements that must be

proved, or the remedy available.” 

Following that order, the defendants requested Bourne to

remove any claims from his complaint that he could agree were

redundant or that were already under consideration in parallel

state court proceedings. Bourne’s counsel agreed that they would

“amend[] the Complaint pursuant to the Court’s 6 July 2006

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2Because of the fast approaching deadline for summary

judgment motions, the defendants were forced to file a motion for

summary judgment before this court could rule on the motion to

amend the complaint. The defendants’ summary judgment motion

appears to respond solely to the first amended complaint.

4

Order.” Reply at 8. Based on this assurance from Bourne’s

counsel, the defendants filed an assented-to motion to extend the

time for filing summary judgment motions. The defendants hoped

that the requested 21-day extension would “permit the plaintiff

to file his amended complaint and allow the defendants to submit

a motion addressing only such Counts remaining.” Mot. to Extend

at 2-3. The court granted that motion, extending the summary

judgment deadline to October 21, 2006. On October 2, 2006,

Bourne filed a motion to amend and served his second amended

complaint.2

 Unfortunately, Bourne’s proposed second amended complaint

does little to reduce the redundancies in the first amended

complaint. More distressing, contrary to the court’s direction

in the July 6 order, the second amended complaint adds several

new claims. Bourne provides no explanation for why these new

claims have surfaced so late in the proceeding. He argues that

he is merely complying with the court order to amend his

complaint to “rectify problems associated with ‘scattershot

pleading.’” Reply at 2. Thus, he asserts that he amended the

complaint to provide better “organization” of his claims. 

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Bourne misinterprets the import of the court’s “scattershot”

analogy. Bourne was not ordered to file an amended complaint,

nor was he ordered to reorganize his complaint. Rather, he was

warned that the court does not favor an approach to pleading

whereby the plaintiff attempts to allege every possible claim

that he can imagine in hopes that one of them might hit its

target. See The Random House Dictionary of the English Language

1712 (2d ed. 1987) (unabridged) (defining “scattershot” as a shot

“delivered over a wide area and at random”). Other courts have

used similar analogies to note displeasure with such litigation

strategy. See, e.g., Confederated Tribes of Siletz Indians of

Or. v. Weyerhaeuser Co., No. 00-1693, 2003 WL 23715982 at *5 (D.

Or. 2003) (unpublished) (“Plaintiff has employed the venerable

‘toss a plate of spaghetti at the wall and hope some of it

sticks’ approach.”). In short, the court’s July 6 order did not

invite the addition of new claims and Bourne has presented no

satisfactory justification for presenting new claims at this late

stage -- one year after the transfer and seven months after the

scheduling order deadline for amendments. Cf. O’Connell, 357

F.3d at 155.

Nevertheless, the court will exercise its discretion to

grant the motion to amend in part. The second amended complaint

is better organized and does provide a somewhat more coherent

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explanation of Bourne’s claims. It also narrows the relief

sought. Finally, the court has not found, nor have the

defendants objected to, any new material factual allegations in

the second amended complaint. Therefore, the court will allow

the second amended complaint to serve as the operative complaint

subject to the limitations that follow. Those claims in the

second amended complaint that, on a fair reading, could have been

considered to have been pleaded in the first amended complaint

will remain. However, those claims that spring anew from the

second amended complaint will be disallowed.

There are three new counts in the second amended complaint: 

fraud in the inducement, breach of the duty of good faith and

fair dealing, and nuisance. With good reason, the defendants

object to these newly presented claims. In response, Bourne

argues that: 

Breach of Good Faith and Fair Dealing has been broken

out as a logical outgrowth and implicit part of the

Breach of Contract claim set forth in Count II; Fraud

in the Inducement has been [] an outgrowth of the

breach of contract and fraud claims and based on the

allegations in the original complaint; and a count for

nuisance [was] implicit in the long dissertation of

factual occurrences in the case. 

Reply at 7. 

A plaintiff may not plead claims by implication. Even under

the liberal pleading regime, “a defendant must be afforded both

adequate notice of any claims asserted against him and a

meaningful opportunity to mount a defense.” Díaz-Rivera v.

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Rivera-Rodríguez, 377 F.3d 119, 123 (1st Cir. 2004) (quoting

Rodríguez v. Doral Mortgage Corp., 57 F.3d 1168, 1172 (1st Cir.

1995)). The federal rules require, at a minimum, “a short and

plain statement of the claim showing that the pleader is entitled

to relief.” Fed. R. Civ. P. 8(a). The first amended complaint

did not give the defendants a whiff of the above claims. 

Bourne’s addition of these claims, following the court’s order

urging a narrowing of issues, attests to the apparent willingness

of his counsel to evade the orders of this court.

The second amended complaint, like the first, asserts an

estoppel claim. The two claims are, however, materially

different. The first amended complaint alleged that Bourne had

relied to his detriment on several easements that had been

granted to the town that Bourne believed restricted the public’s

use of the disputed property. The second amended complaint

alleges that Bourne detrimentally relied on direct promises of

the defendants concerning the public’s right to use the property

and to grant Bourne a building permit. Because Bourne did not

allege the latter claims in the first amended complaint, they

cannot be added now. Moreover, since Bourne has not re-alleged

the estoppel claim from his first amended complaint, that claim

also drops out of the case.

The first count in both complaints alleges violations of the

federal and New Hampshire constitutions. The second amended

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complaint specifically alleges that the town violated Bourne’s

due process and equal protection rights under the Fourteenth

Amendment, and under Part I, Articles 1 and 14 of the New

Hampshire constitution. The defendants object that the second

amended complaint adds several new theories of how the town

violated Bourne’s constitutional rights. But the first amended

complaint expressly incorporated the same factual allegations. 

The second amended complaint simply does a better job of directly

linking the specific factual allegations to the specific

constitutional claims. Because the first amended complaint

adequately put the defendants on notice of the constitutional

claims alleged in the second amended complaint, the court will

allow amendment of that count.

The second count in the second amended complaint alleges the

breach of two separate contracts. The first was a standard form

waiver that Bourne’s attorney altered by adding terms and that

the board of selectmen thereafter signed. The language added to

the waiver purported to give Bourne exclusive rights to the

access road. The second agreement was drafted by the board of

selectmen after they informed Bourne that the first agreement was

invalid because of the language added by Bourne’s attorney. In

both agreements the town promised, inter alia, to issue a

building permit to Bourne. The defendants argue that the first

amended complaint only alleged a breach of contract as to the

Case 1:05-cv-00365-JD Document 33 Filed 12/05/06 Page 8 of 11
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first contract. The court agrees. Although the facts are

largely the same in both complaints, the first amended complaint

clearly limits its breach of contract allegation to the first

agreement. The first amended complaint did not give the

defendants fair notice of the second breach of contract claim.

The negligence claim of the first amended complaint is

styled in the second amended complaint as a claim of negligent

misrepresentation. Nevertheless, the theory for relief and its

factual basis -- that the defendants were negligent in signing

the revised waiver agreement because they did not read it --

remains the same. Moreover, the defendants do not specifically

object to this claim. The defendants also do not object to the

second amended complaint’s claims of fraud and interference with

contractual relations. Both of these claims were presented in

the first amended complaint. Therefore, the claims of negligent

misrepresentation, fraud, and interference with contractual

relations will remain.

To summarize, there are five counts remaining in the second

amended complaint: that the defendants (1) violated Bourne’s

federal and state constitutional rights to due process and equal

protection, (2) breached the waiver agreement that had been

revised by Bourne’s attorney, (3) perpetrated fraud, (4) made a

negligent misrepresentation, and (5) interfered with contractual

relations. As to the relief sought, the second amended complaint

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seeks monetary damages and an injunction ordering the defendants

to “specifically perform their agreements by granting plaintiff a

building permit.” These requests for relief will remain in the

case. Bourne has dropped his request for declaratory relief as

well as his request for an injunction to prevent the defendants

from classifying the access road as a Class VI highway.

Because the defendants had fair notice of the claims

outlined above, a reopening of discovery is unnecessary. 

Nevertheless, because the second amended complaint more clearly

defines Bourne’s claims, particularly the constitutional claims,

the court will permit the defendants an opportunity to file a

supplemental memorandum in support of their motion for summary

judgment.

Finally, the defendants request relief in the event the

court grants the motion to amend the complaint. They request the

court to stay this case “until the resolution of the pending

state court action and schedule a new structuring conference to

take place at the conclusion of the state litigation at which

time the Court and parties can address the proper scope of

federal claims, a new discovery schedule, motion schedule and

trial date.” Obj. ¶ 25. If the defendants would like to pursue

a stay, they may file an appropriate motion explaining precisely

the grounds for such relief.

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Conclusion

The plaintiff’s motion to amend the complaint (document no.

22) is granted in part. The second amended complaint shall serve

as the operative complaint to the extent outlined above. If the

defendants wish to file a supplemental memorandum in support of

their motion for summary judgment, they must do so by December

22, 2006. If Bourne wishes to file an opposition, he may do so

by January 5, 2007.

SO ORDERED.

____________________________

Joseph A. DiClerico, Jr.

United States District Judge

December 5, 2006

cc: Brian J.S. Cullen, Esquire

Rachel A. Hampe, Esquire

Richard D. Sager, Esquire

Gerald F. Williamson, Esquire 

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