United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE
seeks reconsideration of this Court's  Order and
 Memorandum Opinion denying leave to amend his Second
Amended Complaint (“SAC”). ECF No. 440. Upon
consideration of the briefing,  the relevant legal authorities,
and the record as a whole, the Court DENIES
Plaintiff's  Motion for Reconsideration of the
Court's Substantive Order of January 19, 2018
(“Motion for Reconsideration”), for the reasons
set forth below and in the Court's Memorandum Opinion of
January 19, 2018, ECF No. 434 (“Jan. 19, 2018 Mem.
Op.”), which is expressly incorporated herein.
risk of repetition, some of the Court's prior decision
warrants repetition to emphasize certain exigencies of this
case. As the Court discussed in its January 19, 2018,
opinion, this case was docketed nearly twelve years ago, and
trial on the parties' remaining claims is scheduled for
February 26, 2018. See Jan. 19, 2018 Mem. Op. at 1.
That opinion also recites, in part, the string of this
Court's prior rulings that have found, in summary, that
Plaintiff's only remaining claims in this case are
certain of his allegations of breach of contract asserted in
Counts Seven and Eight of his SAC. Id. at 2 (citing
Mem. Op. and Order, ECF No. 401 (“June 15, 2017 Mem.
Op. and Order”), at 3 (citing Klayman v. Judicial
Watch, Inc., 628 F.Supp.2d 112, 118 (D.D.C. 2009)
(Kollar-Kotelly, J.))). Those remaining allegations are as
(1) Defendants' alleged failure to make a good faith
effort to remove Plaintiff as guarantor of a lease for
Judicial Watch's headquarters;
(2) Defendants' failure to pay health insurance for
(3) Defendants' filing a motion to strike Plaintiff's
appearance in a Florida litigation;
(4) Defendants' failure to provide Plaintiff with access
to documents regarding a client; and
(5) Defendants' alleged disparagement of Plaintiff and
misrepresentations of the reasons for his departure from the
Id. at 2, 7. The Court also previously determined
that Plaintiff is foreclosed from pursuing damages for the
tort of intentional infliction of emotional distress
(“IIED”) under the above-described allegations
that remain. Id. at 2 (citing June 15, 2017 Mem. Op.
and Order at 5, 19). The Court rejected Plaintiff's
argument that the tort of IIED “merged” with his
existing breach of contract claims, such that he could
recover damages for emotional distress under the latter
claims. June 15, 2017 Mem. Op. and Order at 15-19.
Plaintiff's remaining allegations did not meet the
threshold requirement for such a merger under District of
Columbia case law, namely that they be tortious independent
of the existence of the contract. Id. at 16-19
(citing Choharis v. State Farm Fire & Cas. Co.,
961 A.2d 1080 (D.C. 2008)) (finding that Defendants would
have no independent duty apart from any they may have under
the Severance Agreement in this case as to allegations
(1)-(5) above). “Accordingly, as all of the remaining
claims sound in breach of contract, and do not constitute
independent torts, recovery of emotional distress damages is
foreclosed by Choharis, the controlling authority
for this purpose.” Id. at 19.
the Court ruled on June 15, 2017, that Plaintiff could not
recover for the tort of IIED under the operative SAC,
Plaintiff sought the Court's permission to amend the SAC
to add a claim for the tort of IIED. Order, ECF No. 402, at
3. Despite the Court's indication on several occasions
that such a request “would be met with extreme
skepticism by this Court, given the stage of proceedings in
this matter, and the likely futility of such a claim, ”
the Court granted Plaintiff's request. Id.
(quoting June 15, 2017 Mem. Op. and Order at 15) (internal
quotation marks omitted). After an extension, Plaintiff filed
his  Motion for Leave to Amend the Second Amended
Complaint (“Motion to Amend”) on July 18, 2017.
The Court denied Plaintiff's  Motion in its 
Order and  Memorandum Opinion of January 19, 2018, and
Plaintiff filed the present  Motion for Reconsideration
on January 30, 2018. Plaintiff's  Motion for
Reconsideration was opposed and fully briefed by February 12,
Motion to Amend
ease of reference, the Court recalls the standard that it
applied when ruling on Plaintiff's  Motion to Amend.
In cases where plaintiffs have already amended their
complaint, Federal Rule of Civil Procedure 15(a)(2) provides
that “a party may amend its pleading only with the
opposing party's written consent or the court's leave
[and] [t]he court should freely give leave when justice so
requires.” Fed.R.Civ.P. 15(a)(2); see Willoughby v.
Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C. Cir.
1996) (finding that leave to amend a complaint is within the
court's discretion and “should be freely given
unless there is a good reason . . . to the contrary”),
cert den., 520 U.S. 1197 (1997); Firestone v.
Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (noting
that “it is an abuse of discretion to deny leave to
amend unless there is sufficient reason”).
evaluating whether to grant leave to amend, the Court must
consider (1) undue delay; (2) prejudice to the opposing
party; (3) futility of the amendment; (4) bad faith; and (5)
whether the plaintiff has previously amended the
complaint.” Howell v. Gray, 843 F.Supp.2d 49,
54 (D.D.C. 2012) (citing Atchinson v. District of
Columbia, 73 F.3d 418 (D.C. Cir. 1996) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
“Courts that have found an undue delay in filing [a
proposed amended complaint] have generally confronted cases
in which the movants failed to promptly allege a claim for
which they already possessed evidence.” United
States ex rel. Westrick v. Second Chance Body Armor,
Inc., 301 F.R.D. 5, 9 (D.D.C. 2013). An amendment would
be prejudicial if it “substantially changes the theory
on which the case has been proceeding and is proposed late
enough so that the opponent would be required to engage in
significant new preparation”; it would “put [the
opponent] to added expense and the burden of a more
complicated and lengthy trial”; or it raises
“issues . . . [that] are remote from the other issues
in the case.” Djourabchi v. Self, 240 F.R.D.
5, 13 (D.D.C. 2006) (internal quotation marks omitted). With
respect to the futility of an amendment, a district court may
properly deny a motion to amend if “the amended
pleading would not survive a motion to dismiss.” In
re Interbank Funding Corp. Sec. Litig., 629 F.3d 213,
218 (D.C. Cir. 2010) (citing, e.g., Foman, 371 U.S.
amendments are to be liberally granted, the non-movant bears
the burden of showing why an amendment should not be
allowed.” Abdullah v. Washington, 530
F.Supp.2d 112, 115 (D.D.C. 2008).
Motion for Reconsideration
Federal Rule of Civil Procedure Rule 54(b), “any order
. . . that adjudicates fewer than all the claims or the
rights and liabilities of fewer than all the parties . . .
may be revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities.” Fed.R.Civ.P. 54(b). As it has before,
the Court again shares the view in this district that a Rule
54(b) motion may be granted “as justice
requires.” E.g., Coulibaly v.
Tillerson, Civil Action No. 14-189, 2017 WL 4466580, at
*5 (D.D.C. Oct. 5, 2017) (Contreras, J.); United States
v. Dynamic Visions, Inc., 321 F.R.D. 14, 17 (D.D.C.
2017) (Kollar-Kotelly, J.); Singh v. George Washington
Univ., 383 F.Supp.2d 99, 101 (D.D.C. 2005) (Lamberth,
J.) (quoting Cobell v. Norton, 224 F.R.D. 266, 272
(D.D.C. 2004) (Lamberth, J.)). The proponent carries the
burden of proving “that some harm, legal or at least
tangible, would flow from a denial of reconsideration,
” and accordingly persuading the Court that in order to
vindicate justice it must reconsider its decision.
Dynamic Visions, Inc., 321 F.R.D. at 17 (quoting
Cobell, 355 F.Supp.2d at 540) (internal quotation
general, a court will grant a motion for reconsideration of
an interlocutory order only when the movant demonstrates:
‘(1) an intervening change in the law; (2) the
discovery of new evidence not previously available; or (3) a
clear error in the first order.” Zeigler v.
Potter, 555 F.Supp.2d 126, 129 (D.D.C. 2008) (quoting
Keystone Tobacco Co., Inc. v. U.S. Tobacco ...