United States District Court, District of Colorado
C. VANCE HENDRICKSON, D.M.D., Plaintiff,
THOMAS DOYLE, Defendant.
KRISTEN L. MIX, UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff’s Motion to Amend Complaint to Add Claim for Exemplary Damages [#23] (the “Motion”). The Motion is referred to the undersigned for disposition [#24]. Defendant filed a Response [#25] and Plaintiff filed a Reply in further support of the Motion [#26]. The Motion is now fully briefed and ripe for resolution. The Court has reviewed the Motion, the Response, the Reply, the entire docket, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, the Motion [#23] is GRANTED.
Plaintiff brings this action against Defendant relating to a skiing accident that occurred on January 10, 2014. First Am. Compl. [#8] ¶¶ 9, 20. In the Motion, Plaintiff seeks leave to amend the First Amended Complaint [#8] to add a request for exemplary damages pursuant to Colo. Rev. Stat. § 13-21-102(1)(a). Motion [#23] at 6.
In the Motion, Plaintiff argues that because Colo. Rev. Stat. § 13-21-102(1)(a) does not allow a request for exemplary damages to be included in an initial claim for relief and he has established prima facie proof in support of a claim for exemplary damages, the Motion should be granted pursuant to Fed.R.Civ.P. 15(a). Id. at 2-3.
In his Response, Defendant agrees that exemplary damages can only be added through amendment after the exchange of initial disclosures, but maintains that Plaintiff has not established prima facie proof of a triable issue. Response [#25] at 3. Defendant maintains that Plaintiff must demonstrate that Defendant’s conduct was willful and wanton, not simply negligent. Id. at 3-4. Defendant argues that “[P]laintiff must show, not only that the [D]efendant engaged in improper conduct, but that he did so with full awareness of the danger that his conduct posed, and with reckless disregard for the consequences [of] his actions.” Id. at 4 (citing Tri-Aspen Const. Co. v. Johnson, 714 P.2d 484, 486 (Colo. 1986)). Therefore, Defendant avers that the Motion should be denied because amendment is futile. Id. at 5-10. In the alternative, Defendant argues that “even if Plaintiff has established prima facie proof of a triable issue as to the question of exemplary damages, the Motion . . . should still be denied because leave to amend would be futile given that the facts alleged by Plaintiff are insufficient to satisfy the beyond a reasonable doubt standard that will be applied at trial.” Id. 5, 10-11.
In his Reply, Plaintiff maintains that the facts he offers are sufficient to meet his burden of establishing prima facie proof of a triable issue. Reply [#26] at 2. Plaintiff further argues that this is a motion to amend, not a motion for summary judgment, and therefore, the evidence is viewed in the light most favorable to him. Id. Plaintiff revisits the deposition testimony he offered in support of the Motion and argues that this evidence is sufficient to meet Colo. Rev. Stat. § 13-21-102(2)(b)’s requirement that Defendant’s conduct was, “willful and wanton conduct” which is defined to mean “conduct purposefully committed which the actor must have realized as dangerous, done heedlessly and recklessly, without regard to consequences, or of the rights and safety of others, particularly the plaintiff.” Id. at 4-9.
As a preliminary matter, the pleading amendment deadline for Plaintiff to amend his complaint to assert a claim for punitive damages expired 30 days after the date of Plaintiff’s deposition, Sched. Order [#21] § 9(a), which was taken on December 15, 2014. Motion [#23] at 3. Therefore, the deadline for Plaintiff to seek leave to amend his First Amended Complaint to add a punitive damages claim was January 14, 2015, the day the Motion was filed. As a result, the Motion is timely.
The Court next considers any arguments raised by the parties related to whether justice would be served by amendment. The Court should grant leave to amend “freely . . . when justice so requires.” Fed.R.Civ.P. 15(a)(2). Leave to amend need not be given, however, when the moving party unduly delayed, failed to amend despite ample opportunity to do so, the nonmoving party would be unduly prejudiced, or amendment would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962).
Defendant alleges that Plaintiff’s proposed amendments are futile because Plaintiff “has failed to demonstrate that Defendant engaged in malicious or willful and wanton conduct.” Response [#25] at 5. An amendment is futile only if it would not survive a motion to dismiss. See Bradley v. Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004) (citing Jefferson Cnty. Sch. Dist. v. Moody's Investor's Servs., 175 F.3d 848, 859 (10th Cir. 1999)). “In ascertaining whether plaintiff’s proposed amended complaint is likely to survive a motion to dismiss, the court must construe the complaint in the light most favorable to plaintiff, and the allegations in the complaint must be accepted as true.” See Murray v. Sevier, 156 F.R.D. 235, 238 (D. Kan. 1994). Moreover, “[a]ny ambiguities must be resolved in favor of plaintiff, giving him ‘the benefit of every reasonable inference’ drawn from the ‘well-pleaded’ facts and allegations in [their] complaint.” Id.
Pursuant to Colo. Rev. Stat. § 13-21-102, inclusion of a claim for exemplary damages is prohibited in the initial pleading and only allowed after the plaintiff establishes prima facie proof of a triable issue. Colo. Rev. Stat. § 13-21-102(1.5)(a). Plaintiff argues that he has “prima facie support for an award of punitive damages in hand from discovery.” Motion [#23] at 3. Plaintiff also attaches deposition transcripts and exhibits to the Motion to support his factual allegations. See, e.g, Motion Exs. 1-10 [##23-1, 23-2, 23-3, 23-4, 23-5, 23-6, 23-7, 23-8, 23-9, 23-10]. As a result, he seeks to add paragraphs 41-43 which allege that Defendant’s conduct was “willful and wanton” and “heedless and reckless and without regard to the consequences, or the rights and safety of others, particularly the Plaintiff.” Proposed Second Amended Complaint [#23-11] ¶¶ 42-43. Plaintiff also seeks to amend his prayer for relief to include “exemplary damages.” Compare First Am. Compl. [#8] at 8 with Proposed Second Am. Compl. [#23-11] at 8.
The Court will address Defendant’s second argument first. Defendant contends that even if Plaintiff has established prima facie proof of a triable issue as to the question of exemplary damages, the Motion . . . should still be denied because leave to amend would be futile given that the facts alleged by Plaintiff are ...