The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
SCOTT FORTUNA, )
)
Plaintiff, )
)
v. )
)
WINSLOW SCHOOL )
COMMITTEE a/k/a )
WINSLOW SCHOOL BOARD, ) No. 1:21-cv-00248-JAW
WINSLOW PUBLIC SCHOOLS, )
and )
PETER THIBOUTOT, as )
Superintendent )
and in his individual capacity, )
)
Defendants. )
ORDER ON MOTION TO AMEND
In this challenge to a school district’s mask mandate, which the school district
recently lifted, the Court grants the plaintiff’s motion for leave to amend his
complaint to add additional factual allegations and a specific assertion that even if
the school district modifies its recommendations on universal masking, there is a
likelihood it will reimpose the masking mandate in the future.
I. PROCEDURAL HISTORY
On August 27, 2021, Scott Fortuna filed a complaint against Peter Thiboutot,
the town of Winslow, Maine, Winslow Public Schools, and the Winslow School
Committee (the School Defendants). Compl. (ECF No. 1). On September 7, 2021, the
School Defendants filed a motion to dismiss the Complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6). Mot. to Dismiss for Failure to State a Claim of Defs.
Winslow Public Schools, Winslow School Board, and Peter Thiboutot (ECF No. 10).
On September 20, 2021, Mr. Fortuna filed an unopposed motion to dismiss without
prejudice the Town of Winslow as a defendant, which the Court granted. Pl.’s Mot.
for Leave to Dismiss Town of Winslow Without Prejudice (ECF No. 14); Order (ECF
No. 15).
On October 28, 2021, Mr. Fortuna filed an amended complaint, in which he
abandoned Counts II and III. First Am. Compl. (ECF No. 18) (First Am. Compl.). On
November 1, 2021, the School Defendants withdrew their earlier motion and filed a
new motion to dismiss Mr. Fortuna’s first amended complaint. Defs.’ Withdrawal of
Mot. to Dismiss Compl. for Failure to State a Claim (ECF No. 20); Defs.’ Mot. to
Dismiss First Am. Compl. for Failure to State a Claim (ECF No. 21). On November
15, 2021, Mr. Fortuna filed his response in opposition to the School Defendants’
motion to dismiss. Pl.’s Opp’n to Defs.’ Mot. to Dismiss (ECF No. 22). The School
Defendants replied on November 22, 2021. Defs.’ Reply in Supp. of Mot. to Dismiss
(ECF No. 23).
On February 24, 2022, Mr. Fortuna filed a motion to amend, attaching his
proposed second amended complaint. Mot. for Leave to File Second Am. Compl. (ECF
No. 25) (Pl.’s Mot.). On February 25, 2022, the School Defendants responded in
opposition to Mr. Fortuna’s request to amend. Defs.’ Opp’n to Pl.’s Mot. for Leave to
File Second Am. Compl. (ECF No. 26) (Defs.’ Opp’n). Mr. Fortuna filed his reply on
March 3, 2022. Pl.’s Reply to Defs.’ Opp’n to Mot. to File Second Am. Compl. (ECF
No. 27) (Pl.’s Reply).
On March 10, 2022, the Court ordered the parties to update the record on
whether the School Defendants had recently lifted the mask mandate by making
mask wearing optional in Winslow schools. Order (ECF No. 29). On March 11, 2022,
the School Defendants responded that:
On Monday, March 7, 2022, the Winslow School Board voted to make
masks optional in the Winslow Public Schools based on updated
guidance from the Maine Department of Education and public health
authorities.
The new optional mask policy took effect on Wednesday, March 9, 2022.
Resp. to Ct.’s Order at 1 (ECF No. 30). Counsel for the parties “agreed that this
change in the Winslow Public Schools mask policy does not render this case, or the
pending motions, moot because the Winslow Public Schools could reimpose a
mandatory masking policy if guidance from public health authorities changed again.”
Id.
II. THE PARTIES’ POSITIONS
A. Scott Fortuna’s Request to Amend
According to Mr. Fortuna, “[s]ince the filing of the First Amended Complaint,
there have been significant developments across the Coun[r]ty in regards to mask
mandates for school children.” Pl.’s Mot. ¶ 4 (collecting mask mandate news articles).
He submits “that there is a demonstrated probability, even if the Defendants modify
or rescind [their] current mandate, that Defendants will reimpose the same or similar
mandate in the future.” Id. ¶ 5. Citing the leave “freely given” standard to amend a
pleading under Rule 15(a)(2), Mr. Fortuna reasons that a pending motion to dismiss
a lawsuit “is not grounds to deny a Motion to Amend.” Id. ¶ 7 (quoting Roller Bearing
Co. of Am., Inc. v. Am. Software, Inc., 570 F. Supp. 2d 376, 384 (D. Conn. 2008)). He
explains that he “seeks to incorporate these recent developments [regarding the
lifting of mask mandates in other states, cities, and school districts] into his
Complaint for the Court’s consideration.” Id. ¶ 8.
B. The School Defendants’ Opposition
The School Defendants argue Mr. Fortuna’s proposed amendment would be
futile because the proposed Second Amended Complaint still fails to state a plausible
substantive due process claim. Defs.’ Opp’n at 2. They emphasize the high standard
applicable to Mr. Fortuna’s due process claim, insisting that “[t]he factual allegations
that Plaintiff seeks to add in the Second Amended Complaint would make absolutely
no difference to the conscience-shocking analysis.” Id. at 3. The School Defendants
submit that “[t]he fact that some commentators disagree with the CDC’s mask
recommendation and that some states and school districts have chosen to lift mask
mandates does not somehow transform the School Department’s reasonable decision
to require students to wear masks indoors into ‘a brutal and inhumane abuse of
official power literally shocking to the conscience.’” Id. (quoting Harron v. Town of
Franklin, 660 F.3d 531, 536 (1st Cir. 2011)).
They go on to contend that Mr. Fortuna’s “proposed additional factual
allegations also do not change the level of scrutiny that applies to [his] substantive
due process claim,” which they maintain is “subject only to either rational basis
review or review under the standard set forth in Jacobson v. Massachusetts, 197 U.S.
11 (1905).” Id. “[B]ecause the School Department has articulated a plausible
justification for its decision” sufficient under either standard, “[t]he fact that other
school districts have made a different choice is irrelevant.” Id. at 3-4. The School
Defendants conclude that because courts should hesitate to interfere in local decision
making regarding public health and education matters and “nothing in Plaintiff’s
Proposed Second Amended Complaint would change the calculus,” the Court should
deny Mr. Fortuna’s motion to amend as futile. Id. at 4.
C. Scott Fortuna’s Reply
According to Mr. Fortuna, the School Defendants’ “shock the conscience”
standard “only applies to Mr. Thiboutot.” Pl.’s Reply ¶ 2. He maintains that Winslow
Public Schools and Winslow School Committee are “legislative bodies [for which] no
such heightened showing is required.” Id. Mr. Fortuna also “disputes that only
rational basis review applies as his fundamental right to parent has been infringed
warranting strict scrutiny.” Id. ¶ 3. Regardless, he says that his proposed
amendment “provides additional evidence to satisfy the ‘shock the conscience’
standard, and provides additional studies and authority that mask mandates harm
children.” Id. ¶ 4. He also requests to add “examples from other states that are
rescinding mask mandates and allowing alternatives, or allowing parents to make
the determination of whether their child will wear a mask.” Id. ¶ 5.
III. DISCUSSION
Mr. Fortuna seeks to amend his complaint for a second time to (1) add factual
allegations that some states and school districts have recently lifted mask mandates
and additional allegations regarding the supposed risks posed to children from
wearing a mask; and (2) add a claim that:
As WSC has indicated it follows CDC guidance and as the CDC
previously modified its recommendations on universal masking, from
allowing vaccinated students to remove masks to recommending
universal masking regardless of vaccination status, there is a
demonstrated probability that even if WSC modifies or rescinds its
current Mask Mandate, that it will reimpose the same or similar
mandate in the future.
Pl.’s Mot., Attach. 1, Proposed Second Am. Compl. ¶ 69. The School Defendants urge
that Mr. Fortuna’s request should be denied as futile because his proposed
amendments would not change the Court’s analysis and the proposed Second
Amended Complaint still fails to state a plausible substantive due process claim.
A. Legal Standard
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading
“only with the opposing party’s written consent or the court’s leave” once the time to
amend “as a matter of course” has passed. FED. R. CIV. P. 15(a)(2). Although “[t]he
court should freely give leave [to amend] when justice so requires,” id., “[t]he liberal
amendment policy prescribed by Rule 15(a) does not mean that leave will be granted
in all cases.” Thurlow v. York Hosp., No. 2:16-cv-179-NT, 2017 U.S. Dist. LEXIS 3187,
at *8 (D. Me. Jan. 10, 2017) (quoting 6 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,
FEDERAL PRACTICE AND PROCEDURE § 1487 (3d ed.) (WRIGHT & MILLER)). The Court
may deny a request to amend the complaint if “the request is characterized by ‘undue
delay, bad faith, futility, [or] the absence of due diligence on the movant’s part.’” Id.
at *8-9 (alterations in Thurlow) (quoting Calderón-Serra v. Wilmington Tr. Co., 715
F.3d 14, 19 (1st Cir. 2013)).
“Where a plaintiff seeks to amend her complaint while a motion to dismiss is
pending, a court ‘has a variety of ways in which it may deal with the pending motion
to dismiss, from denying the motion as moot to considering the merits of the motion
in light of the amended complaint.’” Claes v. Boyce Thompson Inst. for Plant Rsch.,
88 F. Supp. 3d 121, 125 (N.D.N.Y. 2015) (quoting Roller Bearing Co., 570 F. Supp. 2d
at 384). “[T]here is no recognized rule under which a pending motion to dismiss
renders premature any motion for leave to amend under Rule 15(a).” Roller Bearing
Co., 570 F. Supp. 2d at 384. Such a motion to amend is subject to the discretion of
the Court.
B. Analysis
Although Mr. Fortuna amended his complaint once already, reliance on a
pending motion to dismiss as justification to deny a motion to amend “would appear
to contravene the principle that leave to amend should be freely given.” Id. (citing
Foman v. Davis, 371 U.S. 178, 182 (1962)). Moreover, the Winslow School Board’s
decision to make masks optional as of March 9, 2022, particularly in light of the
parties’ stipulation that this policy change does not moot the case because Winslow
could reimpose the masking requirement, strengthens Mr. Fortuna’s argument that
he should be allowed to amend.
The School Defendants argue that, aside from their pending motion to dismiss,
Mr. Fortuna’s amendment would be futile under Rule 15(a)(2). “‘Futility’ means that
the complaint, as amended, would fail to state a claim upon which relief could be
granted.” Thurlow, 2017 U.S. Dist. LEXIS 3187, at *9 (quoting Glassman v.
Computervision Corp., 90 F.3d 617, 623 (1st Cir. 1996)). “In assessing futility, the
district court must apply the standard which applies to motions to dismiss under Fed.
R. Civ. P. 12(b)(6).” Id. (quoting Morgan v. Town of Lexington, 823 F.3d 737, 742 (1st
Cir. 2016)).
Here, the Court deems it preferable to address the merits of the futility
argument in the context of the pending motion to dismiss, rather than on a motion to
amend. For the sake of efficiency, particularly given the interwoven nature of the
arguments contained within the motion to amend and the motion to dismiss, the
Court grants Mr. Fortuna’s Motion to Amend and will substitute the Second
Amended Complaint for the First Amended Complaint in considering the School
Defendants’ motion to dismiss. See Campos v. Louisville Metro Police Officers Credit
Union, No. 3:18-cv-196-CRS, 2018 U.S. Dist. LEXIS 169824, at *14 (W.D. Ky. Sept.
28, 2018) (finding that when there are “pending motions to dismiss and to amend . . .
[i]t is simply more efficient to grant the motion to amend and then consider whether
the amended complaint can survive the pending motion to dismiss”).
The Court recognizes that the new allegations in the Second Amended
Complaint may affect the parties’ arguments in the pending motion to dismiss. At
the same time, the Court also acknowledges that the parties may be satisfied with
their current filings on the motion to dismiss. Accordingly, the Court grants the
parties seven days to give notice as to whether they wish to supplement their filings
on the pending motion to dismiss. If they are satisfied with the current state of their
filings, the Court will decide the pending motion to dismiss on the basis of the current
record. If the parties wish to supplement their filings, the Court urges the parties
consult each other and agree to deadlines for such supplementation within the seven
day period the Court has imposed.
IV. CONCLUSION
The Court GRANTS Scott Fortuna’s Motion to Amend (ECF No. 25) and
DEFERS RULING on the School Defendants’ Motion to Dismiss (ECF No. 21). The
Court ORDERS Scott Fortuna and the School Defendants to inform the Court within
seven days of the date of this Order whether the parties wish to maintain their
briefing on the motion to dismiss as currently filed, supplement their briefing on the
motion to dismiss, or dismiss the motion to dismiss and, if further filings are
necessary, to jointly propose a schedule for such filings.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 22nd day of March, 2022