Torres v. Manchester, NH, City of et al

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
Jeremy Torres
v. Civ. No. 22-cv-93-JL
City of Manchester, et al.
REPORT AND RECOMMENDATION
The court has under consideration the defendant’s motion to
strike (Doc. No. 91) plaintiff’s amended complaint (Doc. No.
77). For the reasons that follow, the defendants’ motion should
be granted.1
Procedural Background
Mr. Torres filed his original complaint in March 2022,
asserting civil rights claims arising from police encounters in
Manchester, New Hampshire in 2021, which he alleged, involved
false arrests and assaults by Manchester Police Department
(“MPD”) officers. As he was unable to identify the MPD officers
by name, the suit was initiated against ten “John Doe” officers.
On May 9, 2024, the court granted Mr. Torres’s motion to amend
to add officers’ names to replace the “John Doe” officers. See
1 Although the time for plaintiff to object to this motion
has not yet expired, the court construes his proposed amended
complaint as a motion to amend, and construes the defendants’
motion to strike as an objection to that motion.
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April 23, 2025 Report and Recommendation (Doc. No. 43); Order
Approving R&R (Doc. No. 45). The defendants answered the amended
complaint on June 25, 2024 (Doc. No. 47).
On July 15, 2025, the court, with the plaintiff’s
agreement, approved the parties’ motion to enlarge discovery
deadlines (Doc. No. 66). That schedule, now the operative
schedule in this case, contained revised deadlines for
completion of discovery, expert disclosures and summary
judgment. Notably, the long-expired, August 30, 2024, deadline
for plaintiff to amend his complaint set forth in the original
discovery plan (Doc. No. 51) was not changed.
On October 10, 2025, roughly thirty days before the
scheduled close of discovery, plaintiff filed an amended
complaint, which the defendants timely moved to strike.
Discussion
A party may amend its pleading once as a matter of course
within twenty-one days of serving it, within twenty-one days of
service of a motion to dismiss, or by leave of court, which
“should be freely given when justice so requires.” Fed. R. Civ.
P. 15(a). But where a scheduling order is in place, “[a]
schedule may be modified only for good cause and with the
judge's consent.” Fed. R. Civ. P. 16(b)(4). Where the scheduling
order sets deadlines for amending the pleading and a motion to
amend is filed after that deadline, Rule 16(b)’s “good cause”
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standard, rather than Rule 15(a)’s “freely given” standard
governs. See O'Connell v. Hyatt Hotels of P.R., 357 F.3d 152,
154-5 (1st Cir. 2004).
“Rule 16(b)’s ‘good cause’ standard emphasizes the
diligence of the party seeking the amendment.” O'Connell, 357
F.3d at 155. Under this inquiry, “[p]rejudice to the opposing
party remains relevant but is not the dominant criterion.” Id.
Rather, “‘[i]ndifference’ by the moving party” may preclude
leave to amend “irrespective of prejudice because such conduct
is incompatible with the showing of diligence necessary to
establish good cause.” Id. (citation omitted). “Particularly
disfavored are motions to amend whose timing prejudices the
opposing party by ‘requiring a re-opening of discovery with
additional costs, a significant postponement of trial, and a
likely major alteration in trial tactics and strategy ....’”
Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)
(quoting Acosta-Mestre v. Hilton Int'l of P.R., Inc., 156 F.3d
49, 52 (1st Cir. 1998)). Moreover, “[a]s a case progresses, . .
. the burden on a plaintiff seeking to amend a [pleading]
becomes more exacting.” Id.
“In determining whether to grant a motion to amend, the
Court must examine the totality of the circumstances and
‘exercise its informed discretion in constructing a balance of
pertinent considerations.’” U.S. ex rel. Hagerty v. Cyberonics,
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Inc., 146 F. Supp. 3d 337, 342 (D. Mass. 2015) (quoting Palmer
v. Champion Mortg., 465 F.3d 24, 30–31 (1st Cir. 2006)); see
also Martins v. Vt. Mut. Ins. Co., 662 F. Supp. 3d 55, 60-61 (D.
Mass. 2023)(same), aff’d, 92 F.4th 325 (1st Cir. 2024)
This case was filed in 2022 and discovery is scheduled to
close on November 15, 2025. As noted above, the progress of this
case makes plaintiff’s burden “more exacting.” Steir, 383 F.3d
at 12. It is a burden he cannot meet.
The factual information necessary to support the claims Mr.
Torres seeks to add – violations of the Americans With
Disabilities Act and 42 U.S.C. § 1983 – was in his possession
from the inception of this lawsuit or, at a minimum, when he
amended his complaint to name the “John Doe” officers. Thus, the
court cannot conclude that plaintiff has been “diligent.” In
addition, all deadliness except discovery and for filing summary
judgment motions have passed. Thus, the putative amendment would
likely require a significant extension of a discovery deadline
that is soon to expire, including an allowance for the
defendants to seek dismissal of any new claims. This, in turn,
would require further delaying trial from its scheduled
commencement in April 2026. Accordingly, and after “balancing
[the] pertinent considerations.’” Hagerty, 146 F. Supp. 3d at
342, the court recommends that the district judge grant the
defendants’ motion to strike.
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Conclusion
For the foregoing reasons, it is recommended that the
district judge grant the defendants’ motion to strike
plaintiff’s amended complaint.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. Fed. R.
Civ. P. 72(b)(2). The fourteen-day period may be extended upon
motion. Failure to file any objection within the specified time
waives the right to appeal the district court’s Order. See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016). Only those issues raised in the written objections to
this Report and Recommendation “‘are subject to review in the
district court,’” and any issues “‘not preserved by such
objection are precluded on appeal.’” Id. (citations omitted).
______________________________
Andrea K. Johnstone
United States Magistrate Judge
October 27, 2025
cc: Jeremy Jason Torres, pro se
Counsel of Record
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