American Trucking Associations, Inc. et al v. Alviti

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
AMERICAN TRUCKING ASSOCIATIONS, 	)
INC.; CUMBERLAND FARMS, INC.; 	)
M&M TRANSPORT SERVICES, INC.; and 	)
NEW ENGLAND MOTOR FREIGHT, INC., 	)
)
Plaintiffs, 	)
)
v. 	) 	C.A. No. 18-378 WES
)
PETER ALVITI, JR., in his official 	) 	FILED UNDER SEAL
capacity as Director of the Rhode 	)
Island Department of Transportation;)
and RHODE ISLAND TURNPIKE AND 	)
BRIDGE AUTHORITY, 	)
)
Defendants. 	)
____________________________________)
MEMORANDUM AND ORDER ON MOTION TO AMEND ANSWER
Before the Court is Defendants’ Motion to Amend Their Answer
to 	Assert 	the 	Defense 	of 	Unclean 	Hands, 	ECF 	No. 	130. 	For 	the
reasons that follow, the Motion is GRANTED.
I. 	Background
The following facts, derived from Defendants’ Motion to Amend,
ECF No. 130, are accepted as true for the purposes of this Motion.
See Morell v. United States, 185 F.R.D. 116, 117–18 (D.P.R. 1999).
General familiarity with the case is assumed.
On May 26, 2015, an employee of CDM Smith sent an email to a
vice 	president 	at 	the 	American 	Transportation 	Research 	Institute
(“ATRI”), an affiliate of Plaintiff American Trucking Associations
(“ATA”), 	warning 	that 	“RI 	is 	on 	a 	quest 	to 	impose 	truck 	tolls 	in
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RI[,]” and requesting a phone call to discuss. 	See Mot. to Amend
4, ECF No. 130. 	The ATRI vice president later asked if CDM Smith
was the source of a statistic estimating that “trucks cause 80% of
all 	road 	damage 	in 	RI[.]” 	Id. 	The 	CDM 	Smith 	employee 	responded
that the statistic was computed by the Rhode Island Department of
Transportation 	(“RIDOT”), 	based 	on 	a 	1979 	report 	from 	the 	U.S.
Government 	Accountability 	Office 	stating 	that 	a 	loaded 	five-axle
truck 	causes 	damage 	equivalent 	to 	that 	of 	9600 	cars. 	Id. 	at 	5.
The 	CDM 	Smith 	employee 	further 	stated 	that 	RIDOT 	“computed
equivalent cars for each truck class[,] [a]dded up the total, and
computed 	the 	proportion 	of 	[passenger 	cars] 	represented 	by 	heavy
trucks 	(class 	6 	and 	up).” 	Id. 	RIDOT’s 	reliance 	on 	the 	1979 	GAO
report 	was 	not 	a 	closely 	guarded 	secret, 	as 	the 	RhodeWorks
legislation 	explicitly 	referenced 	the 	GAO 	report. 	See 	R.I. 	Gen.
Laws § 42-13.1-2(8).1
II. 	Discussion
Defendants 	argue 	that 	the 	ATA 	wrongfully 	solicited
information 	it 	knew 	was 	confidential 	and 	protected 	by 	the
legislative and deliberative process privileges. 	See Mot. to Amend
2. 	Defendants 	thus 	wish 	to 	assert 	the 	defense 	of 	unclean 	hands
against Plaintiffs’ prayer for injunctive relief. 	See Dr. Jose S.
1 Plaintiffs note as well that a publicly available CDM Smith
report referenced the report. 	See Pls.’ Opp’n 6 n.3, ECF No. 139
(citing 	Rhode 	Island 	Department 	of 	Transportation, 	RhodeWorks
(June 	17, 	2015), 	http://www.dot.ri.gov/documents/news/Truck-Car-
Studies-FINAL.pdf).
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Belaval, 	Inc. 	v. 	Perez-Perdomo, 	488 	F.3d 	11, 	15 	(1st 	Cir. 	2007).
Leave to file amended pleadings shall be freely given where justice
so requires. 	Fed. R. Civ. P. 15(a). 	The Court “enjoys significant
latitude 	in 	deciding 	whether 	to 	grant 	leave 	to 	amend.” 	ACA 	Fin.
Guar. 	Corp. 	v. 	Advest, 	Inc., 	512 	F.3d 	46, 	55 	(1st 	Cir. 	2008).
“Grounds for denial include . . . futility of amendment.” 	Id. at
56 (citation and quotations omitted).
Plaintiffs 	argue 	that 	Defendants’ 	Motion 	to 	Amend 	should 	be
denied as futile. 	More specifically, Plaintiffs contend that (a)
the 	amended 	pleading 	fails 	to 	allege 	that 	the 	ATA 	solicited
information, (b) the information at issue was not secret, (c) the
privileges – which have already been rejected in a related context
by 	the 	Court’s 	October 	23, 	2020 	Opinion 	and 	Order, 	ECF 	No. 	129 	–
were 	waived 	by 	the 	CDM 	Smith 	employee’s 	actions, 	(d) 	the 	alleged
misconduct 	is 	insufficiently 	related 	to 	the 	merits 	of 	the 	case,
and 	(e) 	the 	alleged 	misconduct 	implicates 	only 	one 	of 	several
Plaintiffs. 	See Pls.’ Opp’n 4-12, ECF No. 139.
The 	Court 	agrees 	that 	these 	arguments 	cast 	doubt 	on 	the
applicability 	and 	potency 	of 	the 	unclean 	hands 	doctrine. 	But
Defendants 	have 	pointed 	to 	at 	least 	some 	evidence 	that 	could
support 	an 	unclean 	hands 	defense. 	If 	it 	had 	been 	included 	in
Defendants’ 	original 	Answer, 	the 	defense 	would 	have 	survived 	a
motion to strike. 	See Fed. R. Civ. P. 12(f) (“The court may strike
from 	a 	pleading 	an 	insufficient 	defense 	or 	any 	redundant,
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immaterial, 	impertinent, 	or 	scandalous 	matter.”); 	see 	also
DeMoulis v. Sullivan, CIV. A. 91-12533-Z, 1993 WL 81500, at *6 (D.
Mass. 	Feb. 	26, 	1993) 	(“[M]otions 	[to 	strike] 	are 	generally
disfavored and will usually be denied unless the allegations have
no possible relation to the controversy and may cause prejudice to
one 	of 	the 	parties.” 	(citation 	and 	quotations 	omitted)). 	More
importantly, 	the 	tardiness 	of 	this 	affirmative 	defense 	does 	not
prejudice Plaintiffs and is justified by the fact that Defendants
only 	recently 	obtained 	the 	emails 	in 	question. 	See 	Klunder 	v.
Brown U., 778 F.3d 24, 35 (1st Cir. 2015). 	Thus, in its discretion,
the Court concludes that the amendment should be allowed. 	See ACA
Fin. 	Guar. 	Corp., 	512 	F.3d 	at 	55 	(“[R]ule 	[15(a)] 	reflects 	a
liberal amendment policy[.]” (citation omitted)).
III. Conclusion
For 	the 	reasons 	given 	herein, 	Defendants’ 	Motion 	to 	Amend
Their Answer to Assert the Defense of Unclean Hands, ECF No. 130,
is GRANTED.
IT IS SO ORDERED.
William E. Smith
District Judge
Date: 	December 7, 2020
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