Motion for Leave to Amend Pleadings in Theberge, Nancy vs. ACV Environmental Services, Inc. et al| Trellis.Law

On August 10, 2020 a Motion-Secondary was filed involving a dispute between Theberge, Nancy, and Acv Environmental Services, Inc., Souza, Jane, Workman, Allison, for Torts in the District Court of Essex County.

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Case 1:20-cv-11661-RWZ Document 23
FEBO NICVIO
Filed 09/28/21 Page 1of5
“IIOA

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO.: 1:20-11661
NANCY THEBERGE,
Plaintiff,
Vv,

ACV ENVIRONMENTAL SERVICES,
INC., ALLISON WORKMAN, JANE
SOUZA, and RICHARD COSSETTE
Defendants,

REPLY BRIEF IN SUPPORT OF
PLAINTIFF’S MOTION TO AMEND THE COMPLAINT

On August 13, 2021, Plaintiff Nancy Theberge (“Plaintiff”) filed her first motion to amend

and attached the initial amended complaint (“Original Amendment”). Due to a clerical error

committed by Plaintiff’s Counsel, the Original Amendment mistakenly listed one of the proposed

defendants, Jane Souza, as being a resident of New Hampshire. In fact, Ms. Souza resides at 23

Davis Lane, Reading, Massachusetts 01867. See Jane Souza RMV Report (attached hereto as,

Exhibit A). As such, Plaintiff intends on filing a Motion for Leave to Correct Clerical Error in

Amended Complaint and File New Amended Complaint and a Revised Third Amended Complaint

(“Revised Amendment”) to correct the clerical error and replace the Original Amendment. See

Plaintiff's Motion for Leave to Correct Clerical Error in Amended Complaint and File New

Amended Complaint and accompanying Memorandum of Law (“Motion to Correct”) (attached

hereto as, Exhibit
B).
Case 1:20-cv-11661-RWZ Document 23 Filed 09/28/21 Page 2 of 5

For reasons explained below, Plaintiff's Motion to Amend should be allowed and Cossette,

Souza, and Workman should be added as defendants in this matter because joinder is proper and

equitable under 28 U.S.C. § 1447(e) and the corresponding four-factor analysis.'

I Plaintiff’s Motion is not Intended to Defeat Federal Diversity.

The analysis under § 1447(e) does not require that plaintiffs clearly contemplsis claims

against all parties in the original complaint. See e.g., Croteau v. MiTek Inc., 2020 WL 4673532,

at 9* (D. Mass. 2020). Regardless, Plaintiff did not learn of Cossette’s identity until August 10,

2021.2 Nevertheless, Plaintiff did not originally list Souza or Workman as defendants in this action

because, before October of 2020, Plaintiff was still a coworker of Workman’s and Souza’s at

Winchester Hospital core lab and was concerned that a lawsuit against them would create a hostile

work environment upon her return to work for the Hospital.> See generally, McLaughlin v. Liberty

Mutual Insurance Company, Civil Action No. 03-10316-REK, 224 F.R.D. 304, 309 (D. Mass.

2004). Therefore, Plaintiff's Motion to Amend is not intended to defeat federal jurisdiction.

I Plaintiffs Motion is not Dilatory.

Under the second factor of the 1447(e) analysis, courts are concerned with the significance

and timing of facts newly discovered or occurring between the date of removal and the date on

which plaintiff moves to amend. See generally Mullane v. Portfolio Media, Inc., Civil Action No.

19-11496-PBS, 2019 WL 12316202, at *8 (D. Mass. 2019) (Recommendation of the District

Magistrate). As discussed above, the discovery of Cossette’s identity prompted Plaintiff to seek

to seek leave to amend her complaint to add new defendants. Also, Plaintiff specifically requested

! Plaintiff has analyzed the reasons supporting joinder of the newly named defendants under 28 U.S.C. § 1447(e)
and the corresponding four-factor analysis in detail in her Motion for Leave to Correct Clerical Error in Amended
Complaint and File New Amended Complaint. See Motion to Correct.
2 Defendant has not yet produced any responses to Plaintiff's written discovery requests beyond Cossette’s identity.
3 Plaintiff was on medical leave at the time of filing of her original complaint, but intended to return to work at
Winchester Hospital until her employment with the Hospital terminated as part of a worker’s compensation settlement.
2
Case 1:20-cv-11661-RWZ Document 23 Filed 09/28/21 Page 3 of 5

that this Honorable Court extend her deadline to file an Amended Complaint in the Parties Joint

Motions to enlarge the ‘Scheduling Order on two occasions in order to add Workman, Souza, and

Cossette (not identified at the time of each motion).4 The Court allowed each motion and Plaintiff

filed her Motion to Amend the Complaint on August 13, 2021, as proscribed in the Court’s most

recent order. Accordingly, Plaintiff
has not been dilatory in filing her Motion to Amend:

Ill. Denial of Plaintiff’s Motion to Amend will Result in Prejudice to the Plaintiff
Here, denial of the addition of Workman, Souza, and Cossette to Plaintiff's. Complaint

would deprive Plaintiff of the opportunity for complete relief. Cossette’s negligent mishandling

of the hazardous waste drum and Workman and Souza’s negligent remedial efforts contributed

separately and jointly to the cause of Plaintiff’s injuries. The sum of each of their negligent actions

represents the total cause of Plaintiff's injuries, and they must be joined in the instant action to

ensure a “complete, consistent, and efficient settlement” of Plaintiff's claims, See N.E. Bridge

Contractors, Inc. v. Aspen Aerials, Inc., 363 F.Supp.3d 217, 220 (D. Mass. 2019). The absence of
a
any of these parties creates “a risk that the party actually responsible for a component of the vi

damage” Plaintiff suffered would not be held liable.” Id., quoting Patterson, 390 U.S. at 111.

Iv. Denying joinder of Cosette or Souza to the instant action would be inequitable,

This instant action has only been before this Court for under a year, and thus remanding it

to state court would not prejudice Defendant. Further, Defendant has yet to produce discovery to

Plaintiff. In contrast, Plaintiff cannot file a separate state action against Workman, Souza, or

Cossette if this motion is denied, as the statute of limitations has passed on her claims. Cf. Town

Berkley,
of at *3 (“Moreover, Berkley has not shown that it will be significantly injured if

4 When conferring with Counsel for Defendant with regards to drafting each of the Parties’ Joint Motions to Enlarge
the Scheduling Order, Plaintiffs Counsel specifically informed Defendant’s Counsel of Plaintiff's intent to Amend
the Complaint to Add New Parties.

3
Case 1:20-cv-11661-RWZ Document 23 Filed 09/28/21 Page 4 of 5

amendment is not allowed. In contrast, defendants would be forced to return to state court after

litigating this case for over three years in this court.”). Accordingly, joinder is proper here. Id.

WHEREFORE, the Plaintiff, Nancy Theberge, respectfully requests that her Motion to

Amend be GRANTED and the Revised Amendment be incorporated into the Complaint. :

Dated: September 28, 2021 Respectfully submitted,

Oy a2 C
Timothy D. Rodden Jr., Esq.
Upper Charles Law Group, LLC
81 Hartwell Avenue, Suite 101
Lexington, MA 02421
P: (617) 600-7170
trodden@uclawgroup.com
Case 1:20-cv-11661-RWZ Document 23 Filed 09/28/21 Page 5 of 5

CERTIFICATE OF SERVICE

I, Timothy D. Rodden Jr., counsel for Plaintiff, hereby certify that this document has

been filed through the Court’s ECF system and will be sent electronically to the registered

participants as identified on the Notice of Electronic Filing (NEF).

Cy =a.
Timothy D. Rodden Ir. Ea

*®

a
Case 1:20-cv-11661-RWZ Document 23-1 Filed 09/28/21 Page 1 of 2

EXHIBIT A
Case 1:20-cv-11661-RWZ Document 23-1 Filed 09/28/21 Page 2 of 2

SOUZA, JANE A *7133
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Individual Attributes Balance

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23 DAVIS LN CMVI : 0.00
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READING MA 01867-1763 Balance
SSN **#-*#-7433 Identity Level 1 - Lawful
Level Presence
Verified
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Case 1:20-cv-11661-RWZ ‘Document 23-2 Filed 09/28/21 Page 1 of 18

EXHIBIT B
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 2 of 18

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

C.A. No.: 1:20-11661-RWZ

NANCY THEBERGE

Plaintiff,

Vv.

ACV ENVIRONMENTAL SERVICES, INC. )
)
Defendant, )
)
)

MOTION FOR LEAVE TO
CORRECT CLERICAL ERROR IN AMENDED COMPLAINT
AND FILE NEW AMENDED COMPLAINT

Pursuant to Federal Rule of Civil Procedure 15 and Local Rule 15, Plaintiff Nancy

Theberge (“Plaintiff”) hereby respectfully requests leave to correct a clerical error appearing in the

original Amended Complaint (“the Original Amendment”) that was filed on August 13, 2021, and

to file a revised version of the Amended Complaint (‘the Revised Amendment”). Specifically,

Plaintiff seeks leave to correct the town and state of residence of Jane Souza as listed in the Original

Amendment. In the Original Amendment, Counsel for Plaintiff inadvertently misstated that Ms.

Souza is a resident of New Hampshire. However, at all times material, Plaintiff and her Counsel

believed Ms. Souza resided in the Commonwealth of Massachusetts, and Counsel originally

intended to state as much. Plaintiff's Counsel has since confirmed that Ms. Souza resides at 23

Davis Lane, Reading, Massachusetts 01867. To date, the Court has issued no order regarding the

Original Amendment and accompanying Motion.

8
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 3 of 18

In support of the instant Motion, Plaintiff submits the attached Revised Amendment—to

replace the Original Amendment—and the accompanying Memorandum of Law in Support of

Plaintiff's Motion. Counsel for Plaintiff contacted counsel for Defendant ACV Environmental

Services, Inc. (“Defendant”) on September 24, 2021, to request Defendant’s position. on this

motion. On September 27, 2021, Counsel for Defendant indicated to Counsel for Plaintiff that

Defendant intended to oppose this motion.

For all these Teasons, and those stated in the attached memorandum in support, Plaintiff

respectfully requests that the Court grant Plaintiff leave to file the attached Revised Amendment,

Also attached is a proposed order.

Respectfully submitted,

Dated: September 28, 2021
CO
Timothy D. Rodden Jr., Esq.
(BBO#: 691228)
Upper Charles Law Group, LLC
81 Hartwell Avenue, Suite 101
Lexington, MA 02421
P: (617) 600-7170
tro claw} .com

a
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 4 of 18

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

C.A. No.: 1:20-11661-RWZ,

NANCY THEBERGE

Plaintiff,

Vv.

ACV ENVIRONMENTAL SERVICES, INC. )
)
Defendant. )
)
)
PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF
HER MOTION FOR LEAVE TO CORRECT CLERICAL ERROR IN AMENDED
LAINT AND FILE NE’ EN! LAINT
Pursuant to Federal Rule of Civil Procedure 15 and Local Rule 15, Plaintiff Nancy

Theberge (“Plaintiff”) hereby respectfully requests leave to file the attached Amended Complaint

(“the Revised Amendment”). Plaintiff seeks to correct a clerical error appearing in the original

amended complaint (‘the Original Amendment”) that was filed on August 13, 2021, and to

substitute the attached Revised Amendment for the Original Amendment. Through the proposed

Revised Amendment, Plaintiff seeks to add one additional diverse party and two nondiverse parties

to this action.

L BACKGROUND

Plaintiff filed the instant negligence action against Defendant ACV Environmental

Services, Inc., in the Essex Superior Court on or about August 10, 2020. At that time, Plaintiff did

not individually name as defendants Allison Workman, Jane Souza, or Richard Cossette. On

September 8, 2020, Defendant removed the instant action to federal court based upon diversity *
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 5 of 18

jurisdiction under 28 U.S.C. § 1332. Thereafter, the parties engaged in discovery. Throughout

this period, several developments occurred.

In or around the fall of 2020, Plaintiff ceased working for Winchester Hospital oa part ofa

lump sum settlement of a worker’s compensation claim with the Hospital on or about October 5,

2020. As a result, she ceased working alongside Workman and Souza in the Winchester Hospital

core lab. Additionally, in or around July of 2021, Plaintiff learned for the first time Richard

Cossette’s full legal name after Defendant produced it as part of discovery. Shortly thereafter, on

August 13, 2021, Plaintiff moved to add Workman, Souza, and Cossette, as new defendants in the

instant action.' In the Original Amendment, Counsel for Plaintiff erroneously and inadvertently

listed Jane Souza’s state of residence as New Hampshire. At all times material, however, Counsel

intended to list Souza as being a resident of the Commonwealth of Massachusetts,

IL. LEGAL STANDARD

Federal Rule of Civil Procedure 15(a)(2) allows for the amendment of pleadings with leave

of court, or with the opposing counsel’s written consent, before trial. Fed. R. Civ. P.. 15(a)(2).

Under 28 U.S.C. § 1447(e), the court may permit joinder of nondiverse parties and remand the

action to the State court. Most court decisions on the matter of post-removal joinder “simply speak

in terms of the court exercising its discretion to obtain an ‘equitable’ result.” See Mullane v.

Portfolio Media, Inc., Civil Action No. 19-11496-PBS, 2019 WL 12316202, at *8 (D. Mass. 2019)

(Recommendation of the District Magistrate), citing Irizzary v. Marine Powers Int’1., 153.F.R.D.

12, 14 (D.P.R. 1994). This involves a fact-specific analysis of the proposed joinder. SeeKelley v.

| Plaintiff specifically requested that this Honorable Court extend her deadline to file an Amended Complaint in the
Parties Joint Motions to enlarge the Scheduling Order as follows: by August 13, 2021 in the parties July 30, 2021
joint motion, by July 30, 2021 in the parties June 25, 2021 joint motion, When conferring with Counsel for Defendant
with regards to drafting each of the Parties’ Joint Motions to Enlarge the Scheduling Order, Plaintiff's Counsel
specifically informed Defendant’s Counsel of Plaintiff's intent to Amend the Complaint to Add New Parties,
4

i
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 6 of 18

Vt. Mut. Ins. Co., 407 F, Supp. 2d. 301, 305 (D. Mass. 2005); Hensgrens
v. Deere & Co., 833 F.2d

1179, 1182 (Sth Cir. 1987).

In exercising its discretion under § 1447(e), “the district court is entitled to consider all

relevant factors, including...the extent to which the purpose of the amendment is to defeat federal

jurisdiction, whether the plaintiff has been dilatory in asking for amendment, whether the plaintiff

will be significantly injured if amendment is not allowed, and any other factors bearing on the

equities.” N.E. Bridge Contractors, Inc. v. Aspen Aerials, Inc., 363 F.Supp.3d 217, 219 (D. Mass.

2019). Additionally, while the issue of post-removal joinder does not require a strict Fed, R. Civ.

P. 19(b) analysis for dispensability, it is still a relevant factor to the analysis. See N.E. Bridge

Contractors, 363 F.Supp.3d at 219, citing C: fi i ic. v. Mita . Inc.

42 F.3d 668 (1st Cir. 1994) (holding that indispensability is relevant to a § 1447(e) analysis).

I. ARGUMENT

Since § 1447(e) governs the Court’s review of Plaintiff's Revised Motion to Amend, the

proposed facts and procedural history of the instant action should be examined under the four

Hengrens factors, and it is proper for this Court to consider the indispensability of the parties for

whom joinder is sought.

A. The Purpose of Plaintiff’s Revised Motion to Amend is not to Defeat Federal af
Jurisdiction.
Under the first factor of the § 1447(c) analysis, plaintiffs are not required to show that they

clearly contemplated claims against all parties in the original complaint. See e.g., Croteau_v.

Mi Tek Inc., 2020 WL 4673532, at 9* (D. Mass. 2020) (concluding that Plaintiff did not add non-

diverse defendant only to destroy federal jurisdiction, even though addition was sought after

removal had occurred and despite Plaintiff specifically referencing individual defendant by name

throughout original complaint). Nonetheless, where plaintiffs seek to join a nondiverse party
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 7 of 18

immediately after removal is granted but before any discovery is provided, courts are hesitant to

approve joinder. See Mayes
v. Rapoport, 198 F.3d 457, 463 (4th Cir. 1999),

Here, Plaintiff did not seek to join Workman, Souza, or Cossette immediately after removal

was granted but before any discovery had been produced. Cf., Mayes, 198 F.3d at 463 (“Especially

where, as here, a plaintiff seeks to add a nondiverse defendant immediately after removal but

before any additional discovery has taken place, district courts should be wary that the amendment

sought is for the specific purpose of avoiding federal jurisdiction.”). Rather, new developments

and the discovery of new facts prompted Plaintiff to seek to add Workman, Souza, and Cossette

as individual defendants. Id.

First, neither Plaintiff nor the undersigned Counsel learned of Cossette’s identity until July

of 2021, when the Defendant produced it as part of a partial response to Plaintiff's First Set of

Interrogatories in the instant action.” Second, Plaintiff did not originally name Workman and Souza ag!

as defendants because, at the time of filing, Plaintiff was still employed at Winchester Hospital

core lab and feared that a lawsuit would create a hostile working environment? See generally,

McLay in v. Li M Insurance Cor Civil Action No. 03-10316-REK, 224 F.R.D.

304, 309 (D. Mass. 2004) (“Many courts have suggested that the employer-employee relationship

is of such a nature that an employee ‘may feel inhibited to sue making joinder unlikely.’”), quoting

Ladegaard v. Inc., 2000 WL 1774091, at *4 (N.D. Ill. 2000); Scott

Servic
etal. v. Aetna Inc., 210 F.R.D. 261, 266-67, (D. Conn. 2002) (““[I]n light of the evidence
es, al

that potential class members failed to join the FLSA class action because they feared reprisal, the a

Court declines to find that every Systems Engineer who desires to participate in this litigation has

2 As of the date of this filing, Defendant has not produced any further responses to Plaintiff's First Set of Interrogatories
or any responsive documents to Plaintiffs First Request for Production of Documents whatsoever.
3 Plaintiff was on medical leave at the time she filed her Complaint in the Essex County Superior Court, but intended
to return to work up until she settled her worker’s compensation claim with Winchester Hospital.
6
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 8 of 18

already joined.”). Plaintiff ceased working for the same employer as Workman and Souza after

removal had occurred, on October 5, 2020—the date on which she settled her Worker’s

Compensation claims against Winchester Hospital—but after removal had occurred. These

circumstances clearly demonstrate that Plaintiff did not seek to add Workman, Souza, or Cossette

for the purposes of defeating diversity jurisdiction. See Mayes, 198 F.3d at 463.

B. Plaintiff's Intent in Seeking to Amend the Complaint is not Dilatory.

In examining whether the plaintiff has been dilatory in seeking amendment, courts have

held that “’[t]he only delay that is relevant to joinder considerations...is that between the removal

of the case and the plaintiff’s motion for joinder and remand,’ not the period between any previous

complaints and the attempt at joinder.” See Mullane, at *10, quoting Kelley, 407 F. Supp. 2d. at

308. However, courts recognize the inherent tension between the temporal examination of the first

factor, i.e. whether the purpose of an amendment is to defeat federal jurisdiction, and this second

factor, i.e. whether the plaintiff has been dilatory in seeking amendment. See Drelick v. Innovativ

Dev. Co., LLC, No. 08-CV-112-JL, 2008 WL 2486040, at *4 (D.N.H. 2008); Mullane, at *10.

Ultimately, courts are concerned with the significance and timing of facts newly discovered

between the date of removal and the date on which plaintiff moves to amend. See generally

Drelick, at *4; Mullane, at *10.

Here, Plaintiff has not been dilatory in seeking to amend her Complaint and add Workman,

Souza, and Cossette, as individual defendants. Plaintiff only discovered the identity of Richard

Cossette on August 10, 2021, which Defendant produced as part of a partial response to Plaintiff's

initial written discovery requests.* Additionally, Plaintiff sought to join Workman and Souza in

the instant action after her employment with Winchester Hospital ended. Lastly, Plaintiff notified fa

4See Footnote 2, supra.
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 9 of 18

Defendant as early as June of 2021 of her intent to amend the Complaint, and the parties thereafter

filed joint motions to enlarge the Scheduling Order with the explicit understanding that Plaintiff's

intent was to seek to amend the Complaint to add new parties.> See supra note 1. This Honorable

Court allowed each motion and the Plaintiff filed her Motion for Leave to Amend the Complaint

on the date proscribed in the most recent court order. Id.

C. Plaintiff will be Prejudiced if the Court does not Allow the Revised Amendment.

Under the third factor of the § 1447(e) analysis, “courts have examined ‘whether a plaintiff

can be afforded complete relief in the absence of the amendment.’” See Mullane, at *10, quoting

Jerido v. Am, Gen. Life & Acc. Ins. Co., 127 F. Supp. 2d 1322, 1325 (M.D. Ala. 2001). This issue

“relates to the public interest in ‘complete, consistent, and efficient settlement of controversies.”

Bridge
Contractors,
NE. 363 F.Supp.3d at 220, quoting Provident Tradesmens Bank & Trust Co.
vy.Patterson, 390 U.S. 102, 111 (1968). For example, where the absence of a party “would create

arisk that the party actually responsible for a component of the damage would not be held liable,’

courts favor the approval of joinder. See N.E. Bridge Contractors, 363 F.Supp.3d at 220.

Here, Plaintiff will not be afforded complete relief if the proposed Revised Amendment is

& Acc. Ins. Co., 127 F. Supp.
at *10, quoting Jerido v. Am. Gen. Life
not allowed. See Mullane,

2d 1322, 1325 (M.D. Ala. 2001). Cossette, through his negligent mishandling of the hazardous

waste bag, and Workman and Souza, through their negligent remedial attempts, contributed

separately and jointly to the cause of Plaintiff's injuries. Nonetheless, the sum of each of their

negligent actions represents the total cause of Plaintiff's injuries, and they must be joined in the

instant action to ensure a “complete, consistent, and efficient settlement” of Plaintiff's ‘claims.

N.E. Bridge Contractors, 363 F.Supp.3d at 220, q ig Patterson, 390 U.S. at 111. The absence

5 The Parties filed Motions to Enlarge the Scheduling Order, in part, because the Defendant had not been able to
provide the identity of Cossette by the deadline set by the Court to amend the Complaint.
8
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 10 of 18

of any of the additional parties “would create a risk that the party actually responsible for a

component of the damage” Plaintiff suffered would not be held liable.” Id. (“This Court

agrees, ..that there is a risk of...deflection of blame to absent defendants resulting in inadequate
D
Tecovery.”).

D. It would be inequitable to deny joinder.

Lastly, courts can consider any other factors impacting the equities of the decision on

joinder. See Mullane, at *11. For example, courts might consider any inefficiencies or prejudice

that would result from remanding the case to state court. See Town of Berkley v. Meridian at

Padelford, Inc., 2011 WL 13365609, at *3 (D. Mass. 2011).

Here, the equities weigh in favor of joining Cossette, Workman, and Souza. See Mullane,

at *11. There is still significant discovery to be provided by Defendant. Moreover, the instant

action has been before this Court for less than a year, and thus remanding it to state court would

not prejudice Defendant. In contrast, Plaintiff cannot file a separate state action against Cossette

or Souza as the statute of limitations has passed on her claims. Cf. Town of Berkley, at *3
i

(“Moreover, Berkley has not shown that it will be significantly injured if amendment is not
ay
allowed. In contrast, defendants would be forced to return to state court after litigating this case i

for over three years in this court.”). Accordingly, joinder is proper here. Id.

Iv. CONCLUSION af

WHEREFORE, the Plaintiff Nancy Theberge respectfully requests that her Motion to

Amend be GRANTED and the Revised Amendment be incorporated into the Complaint. .

ie
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 11 of 18

Respectfully submitted,

Dated: September 28, 2021

“
'
=
Timothy D. Rodden Jr., Esq.
(BBO#: 691228) .
Upper Charles Law Group, LL
81 Hartwell Avenue, Suite 101
Lexington, MA 02421
P: (617) 600-7170
trodden@uclawgroup.com

10
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 12 of 18

CERTIFICATE OF SERVICE

I, Tim D. Rodden Jr., counsel for Plaintiff, hereby certify that this document has been

filed through the Court’s ECF system and will be sent electronically to the registered participants

as identified on the Notice of Electronic Filing (NEF).

.
TimothyD. Rodden Jr., Esq.

11
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 13 of 18

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

sen
C.A. No.: 1:20-1 1661-RWZ

NANCY THEBERGE

Plaintiff,

Vv.

ACV ENVIRONMENTAL SERVICES, INC. )
)
Defendant. )
)
)

ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO CORRECT CLERICAL
ERROR IN AMENDED COMPLAINT AND FILE NEW AMENDED COMPLAINT

AND NOW, on this day of _, 2021, upon consideration of

Plaintiff's Motion for Leave to Correct Clerical Error in Amended Complaint and File New

Amended Complaint, it is hereby ORDERED that Plaintiffs Motion is GRANTED.

BY THE COURT:

Hon. Rya W. Zobel

12
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 14 of 18 i

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

CIVIL ACTION NO.: 1:20-11661

NANCY THEBERGE,
Plaintiff,
Vv.

ACV ENVIRONMENTAL SERVICES,
INC., ALLISON WORKMAN, JANE
SOUZA, and RICHARD COSSETTE
Defendants.

PLAINTIFF’S FIRST AMENDED COMPLAINT AND DEMAND FOR TRIAL BY JURY

PARTIES

1, The Plaintiff, Nancy Theberge (hereinafter referred to as, “Plaintiff” or “Mrs. Theberge”),
is an individual residing at 7 Pauline Road, Danvers, Essex County, Massachusetts 01923.

The Defendant, ACV Environmental Services, Inc. (hereinafter referred to as “ACV”) is
a corporation organized under the laws of the state of New York that is registered with the
Secretary of the Commonwealth of Massachusetts to conduct business within the
Commonwealth and does, indeed, conduct business within the Commonwealth of
Massachusetts with an office location at 6 Shire Drive, Norfolk, Massachusetts 02056, and
with a registered agent for service within the Commonwealth located at C T Corporation
System 155 Federal Street, Suite 700, Boston, Suffolk County, Massachusetts 02110.

The Defendant, Allison Workman (hereinafter referred to as “Workman” or “Ms.
Workman”), is an individual who resides at 20 Alvirne Drive, Hudson, New Hampshire
03051, and who maintains a usual place of business located at 262-264 West Cummings
Park, Woburn, MA 01801.

The Defendant, Jane Souza (hereinafter referred to as “Souza” or “Ms. Souza”), is an
individual who resides at 23 Davis Lane, Reading, Massachusetts 01867, and who
maintains a usual place of business located at 262-264 West Cummings Park, Woburn, MA
01801.

5
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 15 of 18

The Defendant, Richard Cossette (hereinafter referred to as “Cosette” or “Mr. Cosette”),
is an individual residing at 10 Cottage Court, Franklin, Franklin County, Massachusetts
02038. .

FACTS
6. At all times material, Defendants Workman and Souza were Medical Technologists at the
Winchester Hospital Core Lab, located at 262-264 West Cummings Park, Woburn, MA
01801.
As Medical Technologists, Defendants, Workman and Souza’s, essential job
responsibilities were to perform “various clinical laboratory tests as requested in physician
orders.”

As Medical Technologists, Defendants, Workman and Souza, were not employed to
perform remediation of chemical and other hazardous waste spills.

The Winchester Core Lab’s job description for Medical Technologists makes no mention
of the remediation of chemical and other hazardous waste spills as a job responsibility of
Medical Technologists.

10. Defendant, ACV, was hired by the Winchester Core Lab as an independent third-party
contractor to perform the removal of chemical and other hazardous waste materials from
the Winchester Core Lab.

11. Upon information and belief, as part of its contract with the Winchester Core Lab, ACV,
was responsible for the remediation of any chemical or other hazardous waste spills that
occurred over the course of its performance of its contract with the Winchester Core Lab
to remove chemical and other hazardous waste materials.

12. On November 14, 2017 around 7:15 AM, Defendant, Cossette, a service technician from
Defendant, ACV, arrived at Mrs. Theberge’s workplace, Winchester Hospital Core Lab,
located at 262-264 West Cummings Park, Woburn, MA 01801, to remove a container of
liquid hazardous waste containing the following chemicals: Crystal violet, Gram's Iodine,
Gram's Decolorizer, Safranin, Methanol, Carbolfuchsin, TB Auramine O, TB Decolorizer,
Hydrochloric Acid, TB Potassium Permanganate, Hemo De, Gomori Trichrome Stain,
Methylene Blue, Glacial Acetic Acid, and Ethanol, and other chemicals,
A
13. Mrs. Theberge was sitting at her bench working when Defendant, Cossette, dragged the
container of hazardous waste behind Mrs. Theberge, leaving a trail of liquid waste.

14, Defendant, Cossette, continued down a couple of stairs, spilling more liquid waste.

15. At all times material, Defendant, Cossette, was acting within the scope of his employment
for Defendant, ACV, and in furtherance of ACV’s purpose.
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 16 of 18

16. Following Defendant, Cossette’s, spill of liquid waste, bleach was poured on the liquid
waste by Defendants, Workman and Souza.

17. At all times material, Defendants, Workman and Souza, were acting outside the scope of
their employment with the Winchester Core Lab, as they were not employed to perform
remediation of spills of chemical or other hazardous waste.

18. The liquid waste reacted with the bleach and caused a toxic chemical reaction which was
released into the air near Mrs. Theberge’s work space.

19. Defendant, Cossette’s, failure to exercise reasonable care in handling and cleaning the toxic
chemical waste, which caused the chemical reaction resulting in the release. of toxic
inhalants, created for Mrs, Theberge and similarly-situated persons a dangerous condition
that was allowed to exist for an unreasonable amount of time.

20. Defendants, Workman and Souza’s, failure to exercise reasonable care in handling and
cleaning the toxic chemical waste, which caused the chemical reaction resulting in the
release of toxic inhalants, created for Mrs. Theberge and similarly-situated persons a
dangerous condition that was allowed to exist for an unreasonable amount of time.

21. As a result of the Defendants’ negligence as set forth above, the Plaintiff suffered serious
personal injuries and great pain of body and mind.

‘0
NEGLIGENCE

22. Plaintiff re-alleges and incorporates by reference the allegations made in paragraphs 1
through 21, inclusive, as if separately set forth herein.

23. At all times relevant hereto, Defendant, ACV Environmental Services, Inc., in its capacity
as an industrial cleaning, environmental remediation, and hazardous waste handling
company, owed an affirmative and non-delegable duty of care to handle all hazardous
waste with reasonable care.

24, At all times relevant hereto, Defendant, Richard Cossette, in his capacity as a hazardous
waste removal employee of an industrial cleaning, environmental remediation, and
hazardous waste handling company, owed an affirmative and non-delegable duty of care
to handle all hazardous waste with reasonable care.

25. At all times relevant hereto, Defendants, Workman and Souza owed a duty of care to
conduct themselves and their actions in a lawful and proper manner, including but not
limited to refraining from pouring bleach on hazardous chemicals.

26. At all times relevant hereto, Defendants, Workman and Souza, owed an affirmative and
non-delegable duty of care to not cause dangerous conditions to arise.

a%
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 17 of 18

27. At all times relevant hereto, Defendants ACV and Cossette, breached their non-delegable
duty of care to the Plaintiff by permitting a dangerous condition to arise during the course
of the removal of hazardous waste via the negligent handling of the hazardous waste near
Plaintiff's work space — a condition of which they were aware or should have been aware.

28. At all times relevant hereto, all Defendants breached their non-delegable duty of care to
the Plaintiff by negligently handling the hazardous waste near Plaintiff's work space, which
caused a dangerous condition to arise near Plaintiff's work space.

29. At all times relevant hereto, Defendants, ACV and Cossette, in their capacity as and
industrial cleaning, environmental remediation, and hazardous waste handling company,
and its employee owed an affirmative and non-delegable duty to warn of dangerous
conditions related to chemical spills that arise over the course of its handling of hazardous
waste.

30, At all times relevant hereto, Defendants, ACV and Cossette, breached their non-delegable
duty of care to the Plaintiff by failing to warn of the dangerous condition related to the
chemical spill that arose over the course of its handling of hazardous waste near Plaintiff's
work space.

31. On November 14, 2017, Plaintiff encountered the aforementioned dangerous conditions,
which caused the Plaintiff to inhale toxic chemicals.

32. As a direct and proximate result of all Defendants negligence, Plaintiff suffered bodily
injury, and resulting pain and suffering, disability, mental anguish, and has incurred
medical expenses for treatment and care, past, present and future.

WHEREFORE, the Plaintiff, Nancy Theberge, demands judgment against all Defendants
together with interest, costs, attorney’s fees and such other and further relief as this Honorable
Court deems equitable and just.

RES IPSA LOQUITUR

33. Plaintiff re-alleges and incorporates by reference the allegations made in paragraphs 1
through 32, inclusive, as if separately set forth herein.

34, At all relevant times, all Defendants maintained control over the chemical waste that
reacted with bleach to cause toxic chemicals to be released in the air near Plaintiff's work
space.

35. Atall relevant times, all Defendants were responsible for the safe handling of the chemical
waste that reacted with the bleach to cause toxic chemicals to be released in the air near
Plaintiff's work space.
Case 1:20-cv-11661-RWZ Document 23-2 Filed 09/28/21 Page 18 of 18

36. At all relevant times, Defendants, ACV and Cossette, were responsible for the safe
remediation of any spills that occurred over the course of its handling of the chemical waste
that reacted with the bleach to cause toxic chemicals to be released in the air near Plaintiff's
work space.

37. At all relevant times, all Defendants were responsible to warn of dangerous conditions
telated to chemical spills that arise over the course of its handling of hazardous waste

38. Plaintiff would not have suffered an acute exposure to toxic chemicals but for negligence
by all Defendants.

39, As a result, the doctrine of res ipsa loquitur applies, permitting an inference of negligence
against all Defendants.

40. As a direct and proximate result of all Defendants’ negligence, Plaintiff suffered bodily
injury, and resulting pain and suffering, disability, mental anguish, and has incurred
medical expenses for treatment and care, past, present and future.

WHEREFORE, the Plaintiff, Nancy Theberge, demands judgment against all Defendants,
together with interest, costs, attorney’s fees and such other and further relief as this Honorable
Court deems equitable and just.

DE! RR RELIEF

A. The Plaintiff, Nancy Theberge, demands judgment against all Defendants together with
interest costs and attorneys fees as to all Causes of Action.

JURY CLAIM

PLAINTIFF CLAIMS TRIAL BY JURY ON ALL ISSUES.

The Plaintiff, Nancy Theberge,
By her Attorney,

0 ee
Timothy D. Rodden Jr.
BBO #691228
Upper Charles Law Group, LLC
81 Hartwell Avenue, Suite 101
Lexington, MA 02421
(617) 600-7170
trodden@uclawgroup.com

Date: September 28, 2021

Case Info

Judge

Salim R. Tabit Track Judge’s New Case

Case No.

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Document Filed Date

November 24, 2021

Case Filing Date

August 10, 2020

County

Parties

ACV Environmental Services, Inc. Defendant
Armato, Esq., Stephen T Attorney for the Defendant
Bailey, Esq., Gregg P Attorney for the Defendant
Comenzo, Esq., Joseph F Attorney for the Plaintiff
Kilroy, Esq., Robert L Attorney for the Defendant
Koury, Esq., John B Attorney for the Plaintiff
Rodden, Jr., Esq., Timothy Daniel Attorney for the Plaintiff
Souza, Jane Defendant
Theberge, Nancy Plaintiff
Wakefield, Esq., Reid Michael Attorney for the Defendant
Workman, Allison Defendant

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Motion-Secondary: Theberge, Nancy vs. ACV Environmental Services, Inc. et al

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