United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO AMEND FINAL PRETRIAL ORDER
WILLIAM J. MARTÍNEZ, District Judge.
Plaintiff Johnathan Young, Sr. ("Plaintiff") brings this action against Defendant Jason Brock ("Defendant"), an employee of the El Paso County Sheriff's Department, arising out of his pretrial detention in the El Paso County Jail during July 2010. Plaintiff alleges that Defendant used excessive force when moving Plaintiff to a special detention room. (ECF No. 251 at 2-3.) A three-day bench trial is set to commence on March 17, 2014. (ECF No. 265.)
Before the Court is Defendant's Motion Pursuant to Fed.R.Civ.P. 16(e) for Leave to Amend Final Pretrial Order ("Motion"). (ECF No. 272.) For the reasons set forth below, the Motion is granted in part and denied in part.
Plaintiff originally filed this action pro se, and was representing himself when the initial Final Pretrial Order was entered on April 30, 2013. (ECF No. 239.) Counsel was appointed for Plaintiff shortly thereafter, and entered their appearance on June 11, 2013. (ECF Nos. 244-45.) On Plaintiff's unopposed motion, the Court reopened discovery from June 18, 2013 to October 25, 2013. (ECF No. 247.) On July 31, 2013, Plaintiff filed an unopposed Motion to Amend the Final Pretrial Order, which was granted and the Amended Final Pretrial Order was entered on August 2, 2013. (ECF No. 251.)
Between September 26, 2013 and October 24, 2013, the parties engaged in discovery, including multiple depositions. (ECF No. 272 at 2.) During Plaintiff's deposition of the Defendant, Plaintiff's counsel asked for specific documents that had not been disclosed, including old versions of jail policies, and inquired about other disciplinary incidents between the Plaintiff and Defendant. ( Id. )
On October 22, 2013, three days before the close of discovery, Defendant supplemented his Rule 26 disclosures with eleven new individuals that he believed may have information relevant to the case. (ECF No. 275-1.) Defendant then supplemented his Rule 26 disclosures twice more: with two additional individuals on January 13, 2014, and with four additional individuals on February 3, 2014. (ECF Nos. 275-2 & 275-3.)
On February 18, 2014, Defendant filed the instant Motion to Amend. (ECF No. 272.) Plaintiff filed his opposition to the Motion on February 21, 2014. (ECF No. 274.) The Court ordered that no reply would be permitted, so the Motion is ripe for review.
II. LEGAL STANDARD
Pursuant to Fed.R.Civ.P. 16(e), a Final Pretrial Order may only be modified "to prevent manifest injustice." Davey v. Lockheed Martin Corp., 301 F.3d 1204, 1208-10 (10th Cir. 2002); Koch v. Koch Indus., Inc., 203 F.3d 1202, 1222 (10th Cir. 2000). The party moving for such modification bears the burden of proving that manifest injustice will result absent the amendment. Id. at 1208; Beene v. Ford Motor Co., 2011 U.S. Dist. LEXIS 18721, at *5-6 (D. Colo. Feb. 25, 2011). The Tenth Circuit has explained that, when reviewing a decision by a district court to deny a request to amend a Final Pretrial Order, it will consider: "(i) the extent of prejudice or surprise to the nonmoving party if the amendment were permitted; (ii) the ability of that party to cure any prejudice; (iii) disruption to the litigation by inclusion of the new issue; and (iv) bad faith by the party seeking to modify the order." Koch, 203 F.3d at 1222 & n.10.
Defendant moves to amend the August 2, 2013 Final Pretrial Order to add twenty-one "will call" or "may call" witnesses to his witness list for trial. (ECF No. 273.) Specifically, Defendant wishes to move two witnesses from his "may call" list to his "will call" list, add six new witnesses to his "will call" list, and add fifteen new witnesses to his "may call" list. (ECF No. 273-7.) Plaintiff does not object to Defendant moving witnesses from the "may call" to the "will call" list. (ECF No. 273 at 1.) Plaintiff also does not object to the addition of two of the proposed witnesses - Holly Winters and Liz Mestas. (ECF No. 274 at 3.) Plaintiff objects to the addition of the remaining nineteen witnesses. ( Id. at 8.) As to those alterations to which there is no objection, the Court will permit Defendant to include these individuals on his final witness list.
With regard to the remaining witnesses, Plaintiff contends that Defendant has not established that the denial of the motion will result in a manifest injustice. (ECF No. 274 at 8.) The Court agrees. The only explanation offered by Defendant as to why he needs to add all of the disputed witnesses to the Final Pretrial Order so close to trial is that he "needs the additional witnesses for credibility testimony." (ECF No. 272 at 6.) Defendant does not specify whether these witnesses are needed to impeach the Plaintiff's credibility, to shore up his own credibility, or both. Instead, Defendant argues only that Plaintiff's counsel's questioning of him during his deposition caused him to realize that additional witnesses will be, or might be, needed to build his case at trial. ( Id. at 2.)
The Court sees no merit to this explanation. Defendant and his counsel have been involved with this case for nearly four years, and this case is the second oldest case pending in the Court's docket. The fact that Plaintiff was unrepresented for the majority of that time does not excuse Defendant and his counsel for failing to develop their own case at the appropriate time. Given the nature of the claims in this case, Defendant should have realized early on that Plaintiff's credibility would be a key issue. Defendant fails to offer any explanation as to why he has only recently decided that it would be helpful ...