UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Joseph Chalifoux

v. Case No. 23-cv-23-SE Opinion No.

Proto Labs, LLC

O R D E R

Pro se plaintiff Joseph Chalifoux’s pending motions to

amend his complaint (doc. no. 8) and to remand this case to

state court (doc. no. 10) largely turn on the application of the

relation back doctrine, which treats an amended complaint for

the purpose of the statute of limitations as if it had been

filed on the date of the original complaint. If the doctrine

applies and Chalifoux can add otherwise time-barred claims

against a newly-named defendant, then the court may have the

authority to grant his motions. If it does not and the relevant

proposed amendments are futile because they are time-barred, as

defendant Proto Labs, Inc.1 argues, then the case will remain in

this court, and with fewer claims than Chalifoux now seeks to

assert.

Because the court concludes that Chalifoux has not carried

his burden to show that the relation back doctrine applies, his

1 The complaint names “Proto Labs, LLC” as the defendant. The defendant states that such an entity does not exist, and it presumes that Chalifoux intended to name as a defendant Proto Labs, Inc. claims against the newly-named defendant are time-barred and

thus futile. For that reason, the court denies Chalifoux’s

motion for leave to amend his complaint in that regard. The

court also denies Chalifoux’s motion to remand and, because it

does allow Chalifoux to amend his complaint in part, denies as

moot Proto Labs’s motion to dismiss the original complaint.

Background2

Chalifoux worked as an employment recruiter at Proto Labs

from September 2018 until December 31, 2019. He was hired as a

contract worker through a staffing agency, Precision Resources

Company, Inc.

During his time at Proto Labs, Chalifoux allegedly raised

concerns about the company’s operations and certain employees’

behavior. Those concerns allegedly included:

• Proto Labs’s purportedly improper policy of refusing to

hire individuals with temporary visas because it was an

ITAR-registered employer;

• Linda Peters, Proto Labs’s HR manager, engaged in unlawful

hiring practices, including considering information about

2Chalifoux’s original complaint (doc. no. 1-1) and his proposed amended complaint (doc. no. 8-1) contain mostly identical factual allegations. Unless otherwise noted, this order includes facts that Chalifoux alleges in both his original complaint and his proposed amended complaint.

2 candidates that she found on the internet and applying

certain policies inconsistently, such as allowing family

members to work together in some instances but not always;

• Peters intentionally misreported recruiting numbers to

Proto Labs’s headquarters and often made offers to

candidates herself rather than having them go through

recruiting;

• Peters and Joelle Stone, Proto Labs’s HR Director, bullied

and picked on certain contract workers; and

• Proto Labs hired less qualified candidates who were younger

in order to pay them less money.

Chalifoux allegedly raised these complaints to Peters and

Stone. On January 17, 2019, Chalifoux wrote a “lengthy

communication” to Kevin Nyenhuis, Proto Labs’s Global Talent

Acquisition Manager, detailing his concerns.

Chalifoux alleges that Peters retaliated against him after

he complained. Her retaliatory actions included commenting to

other employees on Chalifoux’s attire, reporting that Chalifoux

did not attend work when she knew that he was at a doctor’s

appointment with his wife, monitoring Chalifoux’s actions

closely, insulting Chalifoux’s job performance, and working with

another Proto Labs employee, Mark Dirsa, to make it appear as if

Chalifoux was making mistakes at work.

3 On October 31, 2019, Nyenhuis told Chalifoux that December

31, 2019, would be his last day. On November 21, 2019, Chalifoux

reported his concerns about Proto Labs’s policies and Peters’s

retaliatory actions to Renee Conklin, Proto Labs’s Vice

President. Conklin hired outside counsel to conduct an

investigation, in which Chalifoux participated. Chalifoux

described it as a “mock” investigation which, nevertheless,

substantiated his account. Conklin, however, did not extend

Chalifoux’s contract or discipline Peters.

Chalifoux filed his complaint in this case in New Hampshire

Superior Court on October 31, 2022. He alleged nine claims

against Proto Labs: wrongful termination (Count I); breach of

contract (Count II); termination by association with a protected

class under the New Hampshire Constitution and

(Count III); hostile work environment (Count IV); intentional

infliction of emotional distress (Count V); misclassification

(Count VI); whistleblower claims (Count VII); slander (Count

VIII); and libel (Count IX).

Proto Labs removed the case to this court on January 17,

2023, on the basis of both federal question jurisdiction

(because Chalifoux alleged a § 1983 claim in Count III) and

diversity jurisdiction. It then moved to dismiss all counts in

the complaint other than Counts I (wrongful termination) and VII

(whistleblower claims). See doc. no. 7. With regard to

4 Chalifoux’s claims for slander and libel, Proto Labs argued,

among other things, that both claims are barred by the

applicable statute of limitations.

In response, Chalifoux moved for leave to file an amended

complaint. Doc. no. 8. In his proposed amended complaint,

Chalifoux adds Mark Dirsa as a defendant, adds certain claims,

and removes certain claims, including Count III, termination by

association with a protected class. See doc. no. 8-1. The

proposed amended complaint also adds two paragraphs of factual

allegations about Peters’s and Proto Labs’s behavior after he

was terminated. Chalifoux also separately objected to the motion

to dismiss, ostensibly arguing that the motion to dismiss is

moot because of his motion for leave to amend his complaint.

Doc. no. 9.

Based on his proposed amended complaint, Chalifoux moved to

remand the case back to New Hampshire state court. Doc. no. 10.

Although he offers no grounds in support of his motion, he

references his proposed amended complaint and the addition of

Dirsa, a New Hampshire resident, as a defendant. Presumably,

Chalifoux intended to argue that the addition of Dirsa as a

defendant destroys diversity jurisdiction. Chalifoux does not

address that Proto Labs also removed the case to this court on

the basis of federal question jurisdiction. In light of

Chalifoux’s pro se status and as discussed herein, the court

5 assumes for the purpose of this order that Chalifoux also

intended to argue that the court lacks federal question

jurisdiction because his proposed amended complaint does not

include his § 1983 claim, the only federal cause of action in

his original complaint.

Discussion

The resolution of Proto Labs’s motion to dismiss and

Chalifoux’s motion to remand depend, in part, on the court’s

ruling on Chalifoux’s motion for leave to amend his complaint.

Therefore, the court first addresses the motion for leave to

amend before turning to the remaining motions.

I. Motion to Amend (doc. no. 8)

As mentioned, Chalifoux’s proposed amended complaint adds a

defendant, Mark Dirsa, adds certain factual allegations

regarding Peters’s and Proto Labs’s conduct after Chalifoux’s

termination, and both deletes and adds certain claims. Proto

Labs objects to the motion to amend only to the extent that it

adds Dirsa as a defendant.

The proposed amended complaint asserts three claims against

Dirsa: slander, libel, and tortious interference with

Chalifoux’s economic relationship with Proto Labs. Proto Labs

argues that allowing Chalifoux to add Dirsa as a defendant would

6 be futile because the claims against Dirsa are barred by the

applicable statute of limitations.

Under Federal Rule of Civil Procedure 15(a)(2), the court

will allow amendment of a complaint “when justice so requires.”3

A court will deny leave to amend, however, if amendment would be

futile because the proposed amendment fails to state an

actionable claim, Rife v. One West Bank, F.S.B.,

(1st Cir. 2017), or “if the relevant statute of

limitations has elapsed,” Holbrook v. Bos. Sci. Corp.,

, 104 (D. Mass. 2020).

A. Statute of Limitations

RSA 508:4 sets forth the statute of limitations applicable

to the three claims that Chalifoux alleges against Dirsa in the

proposed amended complaint. The statute provides:

all personal actions, except actions for slander or libel, may be brought only within 3 years of the act or omission complained of, except that when the injury

3 Chalifoux asserts in his motion to amend that the court should permit him to amend his complaint because he specifically stated in his original complaint that he reserved the right to amend. He is mistaken. The right to amend a complaint is governed by the Federal Rules of Civil Procedure. A plaintiff may amend his or her complaint as a matter of course within 21 days of the defendant’s responsive pleading or a motion under Federal Rule of Civil Procedure 12(b)(6). Fed. R. Civ. P. 15(a)(1). Chalifoux does not contend that he amended within that time. Rather, he filed his motion seeking leave to amend. Even if Chalifoux were able to amend his complaint without the court’s leave, his claims against Dirsa would be subject to dismissal for the reasons stated in this order.

7 and its causal relationship to the act or omission were not discovered and could not reasonably have been discovered at the time of the act or omission, the action shall be commenced within 3 years of the time the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its causal relationship to the act or omission complained of.

RSA 508:4, I. Actions for slander and libel “may be brought only

within 3 years of the time the cause of action accrued.” RSA

508:4, II. Chalifoux’s slander and libel claims accrued for the

purpose of the statute of limitations analysis “when the

defamatory matter [wa]s published to a third person and that

person underst[ood] the defamatory meaning.” McNell v. Hugel,

No. CIV. 93-462-JD,

, at *6 (D.N.H. May 16, 1994),

aff’d,

(1st Cir. 1996). His tortious interference

claim accrued as soon as he was damaged by Dirsa’s alleged

interference. See Singer Asset Fin. Co., LLC v. Wyner,

(N.H. 2007).

Chalifoux alleged in his complaint that Proto Labs informed

him of his termination on October 31, 2019, and that the

termination was effective on December 31, 2019. He further

alleged that Dirsa had been involved with one or more other

employees in actions that he understood caused his termination.

The proposed amended complaint makes no changes to those

allegations, and Chalifoux acknowledges in his motion to amend

that his original complaint “spoke at length of the tortious

8 actions of Mark Dirsa.” Doc. no. 8, ¶ 1. Although the proposed

amended complaint adds certain factual allegations, it does not

allege any new conduct by Dirsa. Rather, it alleges that Peters

continued to disparage Chalifoux and lie about him to several

Proto Labs employees after his termination, which has damaged

his reputation. See doc. no. 8-1, ¶¶ 86-87. It also alleges that

Proto Labs terminated Peters on January 5, 2023, but that the

company protected her by sending an email, stating that she was

retiring.4 Id., ¶ 87.

Based on the allegations in the proposed amended complaint,

Chalifoux knew that he had been injured by Dirsa’s alleged

actions, including making allegedly false statements about him,

by the time he was given notice of his termination on October

31, 2019. Therefore, under RSA 508:4, Chalifoux had to bring his

claims against Dirsa no later than October 31, 2022. He filed

his amended complaint on February 15, 2023, after the expiration

of the limitations period. The claims are barred unless they are

deemed timely due to the operation of some principle of law

affecting the application of the statute of limitations.

4 Chalifoux states in his motion to amend that he has “become aware of, and victimized by, continued tortious behavior by both Dirsa and the defendants toward him, effectively availing themselves for additional claims against them, as well as extending the continuum of tortious conduct to as late as January 5th, 2023.” Doc. no. 8, ¶ 4. As stated above, however, the proposed amended complaint alleges no new behavior by Dirsa.

9 B. Relation back to the original complaint

In certain circumstances, an amendment may relate back to

the date the original complaint was filed (here, October 31,

2022) so that it is not barred by the statute of limitations.

Fed. R. Civ. P. 15(c); Turner v. United States,

(1st Cir. 2012). When an amended complaint changes or adds a

new party, the relation back doctrine applies only if (1) the

claim arose out of the same conduct, transaction, or occurrence

as alleged in the original complaint; (2) the new party received

notice of the action within 90 days after the complaint was

filed; and (3) the new party knew or should have known he would

be brought into the action except for a mistake as to the

identity of the proper party. See Krupski v. Costa Crociere S.

p. A.,

(2010) (citing Rule 15(c)(1)(B), (C)).

“The plaintiff bears the burden of showing that the Rule 15(c)

relation back doctrine applies.” Graham v. Church, No. 14-cv-

171-LM,

, at *4 (D.N.H. Jan. 20, 2015) (quotation

omitted).

Chalifoux has not carried his burden to show that the

relation back doctrine applies. Indeed, Chalifoux does not

address the statute of limitations at all, much less the

relation back doctrine. For the reasons stated by Proto Labs,

circumstances that could support the application of the relation

10 back doctrine do not exist here. Chalifoux filed the motion to

amend on February 15, 2023, which is more than 90 days after he

filed the original complaint in state court on October 31, 2022.

There is no evidence or allegation that Dirsa received notice of

the claims before Chalifoux filed the motion to amend. And there

is no evidence or allegation that there was any mistake as to

Dirsa’s identity or that he would know that he would be brought

into the case. Therefore, there is no basis for relation back of

the amendment to the date on which the original complaint was

filed.

Although Chalifoux does not address the statute of

limitations or the relation back doctrine, he states in his

motion to amend that he did not name Dirsa as a defendant in his

original complaint because he was unaware of his address. Doc.

no. 8, ¶ 1. To the extent that Chalifoux intended his purported

lack of knowledge of Dirsa’s address to support application of

the relation back doctrine, that argument fails. Lack of

knowledge of a defendant’s physical address is not a basis for

application of the relation back doctrine. See, e.g., Davis v.

Oklahoma Cnty., No. CIV-08-0550-HE,

, at *1 (W.D.

Okla. Nov. 23, 2009) (plaintiff’s lack of knowledge of a newly

named defendant’s address was not a basis to show that the

amended complaint related back to the original complaint under

Rule 15(c)(1)).

11 For those reasons, Chalifoux’s proposed claims against

Dirsa are barred by the statute of limitations and are futile.

The motion to amend is denied to the extent that it seeks to add

Dirsa as a defendant or to allege any claims against him. Proto

Labs does not object to the remainder of the proposed amendment.

Therefore, Chalifoux is granted leave to file an amended

complaint as proposed otherwise.

II. Motion to Remand

Chalifoux moves to remand the case to state court. Doc. no.

10. He does not provide any grounds in support of his motion but

references the addition of Dirsa as a defendant and Dirsa’s

residence in New Hampshire. Viewed generously, Chalifoux’s

motion appears to argue that remand is appropriate because

Dirsa’s New Hampshire citizenship would destroy diversity

jurisdiction if he were added as a defendant. See

(e) (“If after removal the plaintiff seeks to join

additional defendants whose joinder would destroy subject matter

jurisdiction, the court may deny joinder, or permit joinder and

remand the action to the State court.”).

As stated above, Chalifoux’s motion to amend his complaint

is denied to the extent that it seeks to add Dirsa as a

defendant. Because Dirsa is not a defendant, diversity

12 jurisdiction is not destroyed, and the court denies Chalifoux’s

motion to remand.

In addition, Proto Labs removed the case to this court on

the basis of federal question jurisdiction. Although Chalifoux’s

proposed amended complaint does not include the § 1983 claim

that he asserted in his original complaint, it does add a claim

under the Fair Labor Standards Act, a federal cause of action.

See doc. no. 8-1, ¶ 92. Therefore, even if Chalifoux could add

Dirsa as a defendant, this court would deny Chalifoux’s motion

to remand because federal question jurisdiction continues to

exist.

III. Motion to Dismiss

Because the court grants Chalifoux’s motion to amend in

part, Proto Labs’s motion to dismiss is automatically denied. LR

15.1(c). The denial is without prejudice to Proto Labs’s right

to file a motion to dismiss after Chalifoux files his amended

complaint in accordance with this order.

Conclusion

For the foregoing reasons, Chalifoux’s motion to amend

(doc. no. 8) is granted to the extent that he removes certain

claims, adds new claims, and adds certain allegations, but is

denied to the extent that it seeks to add Mark Dirsa as a

13 defendant or assert any claims against Dirsa. Chalifoux’s motion

to remand (doc. no. 10) is denied.

Chalifoux shall revise the proposed amended complaint to

comply with this order by removing Dirsa as a defendant and any

claims asserted against Dirsa and shall file the revised amended

complaint within 5 days of the date of this order.

Proto Labs’s motion to dismiss (doc. no. 7) is denied

without prejudice to its right to file a motion to dismiss the

amended complaint within the time allowed under the Federal

Rules of Civil Procedure.

SO ORDERED.

______________________________ Samantha D. Elliott United States District Judge August 2, 2023

cc: Joseph Chalifoux, pro se. Counsel of Record.

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