United States District Court, D. Colorado
Kristen L. Mix, United States Magistrate Judge.
This matter is before the Court on Defendant’s Motion for Summary Judgment [#30] and on Plaintiffs’ Motion to Amend Complaint [#36] (the “Motion to Amend”). Defendant filed a Response [#41] in opposition to the Motion to Amend [#36], and Plaintiffs filed a Reply [#43]. The Court has reviewed the Motions, Response, Reply, the entire case file, and the applicable law, and is sufficiently advised in the premises. For the reasons set forth below, Defendant’s Motion for Summary Judgment [#30] is DENIED as moot and Plaintiffs’ Motion to Amend [#36] is GRANTED in part and DENIED without prejudice in part.
In short, this case involves a pool-side injury to a child while she and her family were guests at Defendant’s motel located in the State of Colorado. In the proposed Second Amended Complaint [#36-1], Plaintiffs seek to dismiss their negligence claim and replace it with a claim under the Colorado Premises Liability Act, Colo. Rev. Stat. § 13-21-115, and to assert a claim for exemplary damages. See Motion to Amend [#36]; Reply [#43]. Defendant opposes amendment with respect to both claims. See Response [#41].
The Court has discretion to grant a party leave to amend its pleadings. Foman v. Davis, 371 U.S. 178, 182 (1962); see Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when justice so requires.”). “In the absence of any apparent or declared reason - such as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment, etc. - the leave sought should, as the rules require, be ‘freely given.’” Id. (quoting Fed.R.Civ.P. 15(a)(2)).
A. Proposed Claim One: Colorado Premises Liability Act
With respect to the proposed claim under the Colorado Premises Liability Act, Defendants argue that Plaintiffs’ Motion to Amend is untimely. Response [#41] at 1-2. The Court agrees with this assessment. First, the deadline for joinder of parties and amendment of pleadings was July 1, 2015. See Scheduling Order [#20] at 8. Plaintiffs’ Motion, which does not seek amendment of the Scheduling Order to extend this deadline, is therefore untimely. Plaintiffs offer no explanation for failing to meet this deadline under Fed.R.Civ.P. 16(b) or for waiting until October 1, 2015, to request this amendment under Fed.R.Civ.P. 15(a)(2).
However, delay is “undue” only if it will place an unwarranted burden on the Court or become prejudicial to the opposing party. Minter, 451 F.3d at 1205. Potential prejudice to a defendant is the most important factor in considering whether a plaintiff should be permitted to amend the complaint. Minter v. Prime Equip. Co., 451 F.3d 1196, 1207 (10th Cir. 2006). “Courts typically find prejudice only when the [proposed] amendment unfairly affects the defendants in terms of preparing their defense to [claims asserted in the] amendment.” Id. (quotation omitted). Here, there is no argument or other indication that Defendant would suffer any prejudice as a result of allowing this amendment. Defendant knew (and informed Plaintiffs) no later than February 20, 2015, that Plaintiffs’ common law negligence claim was superseded by the Colorado Premises Liability Act. See Answer [#1-8, #5] at 2. Further, the Proposed Scheduling Order jointly submitted by the parties also identified this issue. See [#17, #20] at 4 (citing Vigil v. Franklin, 103 P.3d 322 (Colo. 2004), the seminal Colorado Supreme Court case regarding negligence and the Colorado Premises Liability Act).
The Court notes that this request for amendment presents a close call. While Plaintiffs are blameworthy for not seeking this amendment much sooner, Defendant has long been aware of this issue (and thus suffers no surprise) and has identified no prejudice to its defense of this matter. However, given that potential prejudice is “the most important factor” in deciding whether to permit amendment, see Minter, 451 F.3d at 1207, and that there appears to be none, the Court will allow this amendment.
Accordingly, the Motion to Amend [#36] is granted to the extent that Plaintiffs seek to dismiss their negligence claim and add a claim under the Colorado Premises Liability Act.
B. Proposed Claim Two: Exemplary Damages
Regarding Plaintiffs’ second proposed claim for exemplary damages, Defendant argues that this claim is futile because Plaintiffs have failed to allege that the asserted injury was attended by circumstances of fraud, malice, or willful and wanton conduct. Response [#41] at 2-4. 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[s], 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[s], giving [them] ‘the benefit of every reasonable inference’ drawn from the ‘well-pleaded’ facts and allegations in [the] complaint.” Id.
Colo. Rev. Stat. § 13-21-102(1.5)(a) provides, in relevant part:
A claim for exemplary damages in an action governed by this section may not be included in any initial claim for relief. A claim for exemplary damages in an action governed by this section may be allowed by amendment to the pleadings only after . . . the plaintiff establishes prima facie proof of a triable issue.
The appropriate test is whether Plaintiffs have provided prima facie evidence of willful and wanton behavior, not whether the Court believes that a jury could find beyond a reasonable doubt that exemplary damages are warranted. See, e.g., Am. Econ. Ins. Co. v. WilliamSchoolcraft, No. 05-cv-01870-LTB-BNB, 2007 WL 160951, at *4 (D. Colo. Jan. 17, 2007) (emphasizing that in resolving request to amend pursuant to Colo. Rev. Stat. § 13-21-102, court should consider only the “preliminary ...