Case 1:17-cv-11042-NMG Document 87 Filed 11/20/20 Page 1 of 5
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF MASSACHUSETTS
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`CIVIL ACTION NO.
`NO. 1:17-CV-11042-NMG
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`MARGARET LEE, on behalf of herself and all
`others similarly situated,
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`Plaintiff,
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`v.
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`CONAGRA BRANDS, INC., ROCHE BROS.
`SUPERMARKETS, INC., ROCHE BROS.
`INC., ROCHE BROS. SUPERMARKETS,
`LLC, and THE STOP & SHOP
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`SUPERMARKET COMPANY LLC,
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`Defendants.
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`CONAGRA’S RESPONSE IN OPPOSITION TO PLAINTIFF’S
`MOTION FOR LEAVE TO AMEND COMPLAINT
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`Case 1:17-cv-11042-NMG Document 87 Filed 11/20/20 Page 2 of 5
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`Plaintiff’s years-late attempt to amend her complaint to conform to the proper requirements
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`of Chapter 93A should be denied. Plaintiff last filed an amended complaint in this case in July
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`2017. Only now, after Conagra has moved this Court for summary judgement, does Plaintiff
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`request a third bite at the pleading apple. But Plaintiff falls woefully short of providing “substantial
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`and convincing evidence to justify a belated attempt to amend [her] complaint.” Steir v. Girl
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`Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004). Clear First Circuit precedent explains that post-
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`summary judgment motions to amend are disfavored and must meet this heightened standard. Id.
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`Here, Plaintiff did not even attempt to satisfy that higher standard by providing “substantial and
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`convincing evidence to justify” her amendment. As the First Circuit explained in Steir:
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`“Regardless of the context, the longer a plaintiff delays, the more likely the motion to amend will
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`be denied, as protracted delay, with its attendant burdens on the opponent and the court, is itself a
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`sufficient reason for the court to withhold permission to amend.” Id.
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`Plaintiff has filed her motion to amend only in the face of Conagra’s pending summary
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`judgment motion. See ECF No. 86, at 2 (“Plaintiff is prepared to amend her complaint to …
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`negate[] entirely any conceivable basis to dismiss the case….”). In so moving, Plaintiff continues
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`her transparent attempts to muddy the waters on that issue by continuing to assert that “no demand
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`was required” while at the same time arguing that “her demand complied with Chapter 93A” and
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`therefore Conagra should be prejudiced for not responding to that demand. See id. at 3. What
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`Plaintiff fails to recognize is that Conagra offered Plaintiff an opportunity to cure the deficiencies
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`caused by her deficient demand letter before Conagra moved for summary judgment. See ECF No.
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`70, at 3-4. Plaintiff refused that offer to cure. Notably “failure to cure deficiencies” is one of the
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`bases for denying leave to amend, even under the more liberal interpretation of Rule 15(a)
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`espoused in Foman v. Davis, 371 U.S. 178, 182 (1962). So too is “undue delay.” Id. Because
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`Case 1:17-cv-11042-NMG Document 87 Filed 11/20/20 Page 3 of 5
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`Plaintiff failed to cure the deficiencies when raised by Conagra, and now fails to “justify” her
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`undue delay with the requisite “substantial and convincing evidence,” the Court has ample
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`“justifying reason” to deny Plaintiff’s requested amendment. See Foman, 371 U.S. at 182 (“denial
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`of an opportunity to amend is within the discretion of the District Court” if supported by “any
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`justifying reason”). Here, the justifying reasons support denial of Plaintiff’s motion to amend.
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`But in the event the Court does allow the amended Complaint, the Court’s order should
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`expressly state that Conagra be afforded the opportunity to make a “written offer of relief” “as
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`soon as practicable” as set forth in Mass. Gen. Laws ch. 93A, § 9(3). While Conagra maintains
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`that the proper remedy is dismissal for the reasons set forth above and in the related briefing in
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`support of summary judgement, in the event the Court grants Plaintiff leave to amend it should
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`only do so with an express finding that Conagra is entitled to make a ch. 93A, § 9(3) tender and
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`that such tender triggers all the benefits and protections that ch. 93A, § 9(3) provides to a tendering
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`party. Such a finding would be necessary because Plaintiff continues to play games with her
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`proposed amended complaint – specifically, although paragraph 62 of the proposed amended
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`complaint now states that “no pre-suit demand is required,” paragraph 63 of the same pleading
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`states “[a]lthough not required, Plaintiff sent Defendant written demand for relief pursuant to
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`Chapter 93A” and “Defendant did not respond to Plaintiff’s demand.” See ECF No. 83-1, ¶¶ 62-
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`63. Thus, despite now pleading that no ch. 93A letter was required, Plaintiff’s proposed amended
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`complaint still appears to (1) seek legal advantage from a deficient (and allegedly unnecessary)
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`ch. 93A letter and (2) prejudice Conagra by denying a right to tender in response to the proposed
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`amended complaint. Indeed, while Conagra believes this continued gamesmanship is an additional
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`basis for denying leave to amend and granting Conagra’s summary judgment motion, should this
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`Case 1:17-cv-11042-NMG Document 87 Filed 11/20/20 Page 4 of 5
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`Court be inclined to permit the amendment, it should only do so in an order expressly protecting
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`Conagra’s ch. 93A tender rights and remedies, as intended by the statute.
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`Respectfully submitted,
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`/s/ Angela Spivey
`ALSTON & BIRD LLP
`Angela Spivey (admitted pro hac vice)
`angela.spivey@alston.com
`Andrew Phillips (admitted pro hac vice)
`Andrew.Phillips@alston.com
`1201 West Peachtree Street
`Atlanta, GA 30309
`Tel.: 404-881-7000
`Fax: 404-881-7777
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`DONNELLY, CONROY & GELHAAR, LLP
`Joshua N. Ruby (BBO #679113)
`jnr@dcglaw.com
`260 Franklin St., Suite 1600
`Boston, MA 02110
`Tel.: (617) 720-2880
`Fax: (617) 720-3554
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`Case 1:17-cv-11042-NMG Document 87 Filed 11/20/20 Page 5 of 5
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`CERTIFICATE OF SERVICE
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`I hereby certify that this document filed through the ECF system will be sent electronically
`to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper
`copies will be sent to those indicated as non-registered participants on November 20, 2020.
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` Joshua N. Ruby
`Joshua N. Ruby
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