United States District Court, D. Colorado
PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE
This matter is before the Court on the Recommendation of United States Magistrate Judge [Docket No. 153] filed on September 4, 2015. The magistrate judge recommends that the Court deny plaintiff Miriam White’s First Motion to Amend Complaint, with Incorporated Authority [Docket No. 114]. Docket No. 153 at 2. Ms. White filed objections [Docket No. 156] to the recommendation on September 18, 2015. Defendants Deere & Co. and John Deere Limited (“defendants” or “Deere”) filed a response [Docket No. 160] to Ms. White’s objections on October 5, 2015.
The deadline for seeking to amend pleadings was February 21, 2014. Docket No. 17 at 11. Ms. White moved to amend her complaint for the first time more than seventeen months later, on July 11, 2015. Docket No. 114. In her motion to amend the complaint, Ms. White seeks to substitute John Does 1-5 with Foltz Sales Co., Inc., d/b/a Elwood Power Equipment, Inc., and to amend the complaint to add her “latent claim” for violation of the Colorado Consumer Protection Act. Id. at 2. On September 4, 2015, the magistrate judge recommended denying Ms. White’s motion to amend. Docket No. 153 at 2. Ms. White argues that the magistrate judge applied the wrong legal standard and asks the Court to adopt the “manifest injustice test” of Tyler v. Manhattan, 118 F.3d 1400 (10th Cir. 1997). Docket No. 156 at 2-3.
II. STANDARD OF REVIEW
The Court must “determine de novo any part of the magistrate judge’s disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). Accordingly, the Court reviews the magistrate judge’s Recommendation de novo.
Fed. R. Civ. P. 15(a) generally addresses amendment of pleadings prior to trial and provides that a court should “freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). However, when the deadline for amendment of pleadings in the scheduling order has passed, Rule 16(b) applies and states that a scheduling order deadline “may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b)(4).
In Gorsuch, Ltd, B.C. v. Wells Fargo Nat’l Bank Ass’n, 771 F.3d 1230, 1241 (10th Cir. 2014), the Tenth Circuit held that “[a]fter a scheduling order deadline, a party seeking leave to amend must demonstrate (1) good cause for seeking modification under Fed.R.Civ.P. 16(b)(4) and (2) satisfaction of the Rule 15(a) standard.” Id. at 1240 (citing Pumpco, Inc. v. Schenker Int’l, Inc., 204 F.R.D. 667, 668 (D. Colo. 2001)). Denial of leave to amend under Rule 15(a) is generally only “justified upon a showing of undue delay, undue prejudice to the opposing party, bad faith or dilatory motive, failure to cure deficiencies by amendments previously allowed, or futility of amendment.” Frank v. U.S. West, Inc., 3 F.3d 1357, 1365 (10th Cir. 1993) (citing Castleglen, Inc. v. Resolution Trust Corp., 984 F.2d 1571, 1585 (10th Cir. 1993)); accord Bylin v. Billings, 568 F.3d 1224, 1229 (10th Cir. 2009). Delay alone is an insufficient ground to deny leave to amend; “[a]t some point, however, delay will become undue.” Minter, 451 F.3d at 1205 (quoting USX Corp. v. Barnhart, 395 F.3d 161, 167 (3rd Cir. 2004). The longer the delay, the more likely the motion to amend will be denied because “protracted delay, with its attendant burdens on the opponent and the court, is itself a sufficient reason for the court to withhold permission to amend.” Minter, 451 F.3d at 1205 (quoting Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004)).
Plaintiff objects to the magistrate judge’s recommendation as applying the improper legal standard because the magistrate judge does not address Tyler, 118 F.3d 1400. Docket No. 156 at 2-3. Plaintiff argues that Tyler establishes a “manifest injustice test for good cause” that must be addressed in considering a motion to amend. See Docket No. 156 at 3-4. Plaintiff, however, overlooks the fact that Tyler does not review an order on a motion to amend a complaint and does not discuss Rules 15(a) or 16(b). Tyler, 118 F.3d at 1403. Rather, its discussion regarding “manifest injustice” concerns Rule 16(e) modifications to a final pretrial order, which has no bearing on Ms. White’s motion to amend. Thus, even if Ms. White was able to show that she would experience “manifest injustice” if unable to amend her complaint, that cannot satisfy the requirement of Rule 16(b) that she show good cause for her seventeen-month delay in seeking modification of the scheduling order.
In her objection, Ms. White offers no justification for her delay and relies solely on her position that amendment is required to prevent manifest injustice. Docket No. 156 at 3. The Court agrees with the magistrate judge that Ms. White cannot “properly avoid establishing her own diligence . . . with the conclusion that ‘manifest injustice’ would occur if she is not  permitted to amend.” Docket No. 153 at 6. Since Ms. White has not shown good cause for her delay, the Court does not reach the question as to whether amendment would be proper under Rule 15(a).
For the foregoing reasons, it is
ORDERED that plaintiff’s Objection to Magistrate Judge’s Recommendation [Doc #153] Regarding Plaintiff’s First Motion to Amend Complaint ...