United States District Court, D. Colorado
KATHLEEN M TAFOYA, UNITED STATES MAGISTRATE JUDGE.
This matter is before the court on Plaintiffs’ “Motion for Leave to Amend Complaint” (Doc. No. 58 [Mot.], filed September 24, 2015). Defendants Matthew Capalbo and Kevin Capalbo filed their response on October 8, 2015 (Doc. No. 62 [Resp.]), and Plaintiffs filed their reply on October 22, 2015 (Doc. No. 64 [Reply]).
In their First Amended Complaint, Plaintiffs allege claims against the Defendants Matthew Capalbo and Kevin Capalbo for wrongful death and negligence and a claim under Colorado’s Premises Liability Act regarding the death of Plaintiffs’ son, who Plaintiffs alleged died from a heroin overdose in the Capalbo Defendants’ garage. (See Doc. No. 42) Plaintiffs seek to amend their complaint to “correct the deficiencies alleged by the Capalbos in their prior motions to dismiss.” (Mot. at 2.)
The Capalbo Defendants argue that the Motion to Amend should be denied because (1) Plaintiffs have not shown good cause to modify the Scheduling Order, (2) justice does not require the court to grant Plaintiffs’ Motion to Amend, and (3) Plaintiffs’ new allegations do not satisfy the Rule 11 standard. (See Resp.)
1. Rule 16
A scheduling order deadline “may be modified only for good cause and with the judge’s consent.” Fed.R.Civ.P. 16(b). To demonstrate good cause pursuant to Rule 16, Plaintiffs must “show that [they have] been diligent in attempting to meet the deadlines, which means [they] must provide an adequate explanation for any delay.” Minter v. Prime Equip. Co., 451 F.3d 1196, 1205 n.4 (10th Cir. 2006). “Properly construed, ‘good cause’ means that scheduling deadlines cannot be met despite a party’s diligent efforts . . . . Carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief.” Colo. Visionary Acad. v. Medtronic, Inc., 194 F.R.D. 684, 687 (D. Colo. 2000) (internal quotation and citation omitted).
The deadline for seeking to amend pleadings in this case was September 4, 2016. (Doc. No. 35.) The Capalbo Defendants filed their Motion to Dismiss Plaintiffs’ First Amended Complaint on August 6, 2015. (Doc. No. 46.) Plaintiffs timely filed their “Response to Defendant Matthew Capalbo’s and Kevin Capalbo’s Motion to Dismiss Amended Complaint and Motion for Leave to Amend Complaint” on August 27, 2015. (Doc. No. 50.) On September 17, 2016, three weeks later, this court denied the motion to amend without prejudice for Plaintiffs’ failure to comply with D.C.COLO.LCivR 7.1(d) and 15.1. (Doc. No. 56.) On September 24, 2015, just one week later, Plaintiffs filed the present motion to amend, which complied with this Court’s Local Rules of Practice. (Mot.) The court finds the plaintiffs were diligent in attempting to meet the deadlines set by this court for amending their complaint.
2. Rule 15
Pursuant to Fed.R.Civ.P. 15(a)(2), “[t]he court should freely give leave [to amend a pleading] 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)).
To the extent the Capalbo Defendants argue the plaintiffs have unduly delayed in seeking to amend their complaint, as a general rule, “[l]ateness does not of itself justify the denial of the amendment.” Minter, 451 F.3d at 1205. However, “untimeliness alone [can be] a sufficient reason to deny leave to amend, especially when the party filing the motion has no adequate explanation for the delay.” Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir. 1994). In assessing undue delay, “[t]his Circuit focuses primarily on the reasons for the delay” and has held that denial of leave to amend is appropriate “when the party filing the motion has no adequate explanation for the delay.” Minter, 451 F.3d at 1206 (quoting Frank v. U.S. West, 3 F.3d 1357, 1365-66 (10th Cir. 1993)). Furthermore, the longer the delay in filing the motion to amend, “the more likely the motion to amend will be denied, as 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.” 451 F.3d at 1205 (citations omitted)(ruling that “a party who delays in seeking an amendment is acting contrary to the spirit of the rule and runs the risk of the court denying permission because of the passage of time”). Here, as discussed above, the court finds the plaintiffs did not unduly delay in seeking to amend their complaint.
Defendants argue that Plaintiffs should not be allowed to attempt to cure deficiencies in their First Amended Complaint because “[any] necessary ‘clarifications’ could have been completed at the time Plaintiffs filed their initial Complaint or at least at the time Plaintiffs filed their first Motion for Leave to Amend.” (Resp., ¶ 39.) The court finds instructive the Advisory Committee’s comments concerning the 2009 Amendments to Rule 15: “This [new] provision will force the pleader to consider carefully and promptly the wisdom of amending to meet the arguments in the [Rule 12(b)] motion. A responsive motion may avoid the need to decide the motion or reduce the number of issues to be decided, and will expedite determination of issues that otherwise might be raised seriatim.” Fed.R.Civ.P. 15 advisory committee’s note, 2009 Amendments. While the note focuses on the rule’s allowance of amendment once as a matter of course, the committee specifically emphasizes the importance of allowing amendment to correct deficiencies in the pleading, which may be raised by a Rule 12(b) motion, and frame the issues to be decided.
With these notes in mind, the court finds that it is not improper to amend a pleading pursuant to Rule 15 to correct deficiencies in the pleading that are raised in a Rule 12(b) motion. Moreover, the court perceives ...